Illinois Jury Instruction - 2.1 With Defenses Of Misuse And Assumption Of Risk
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FAQ
Assumption of Risk: The defendant must show that (i) the plaintiff knew and appreciated the risk created by the alleged product defect, and (ii) the plaintiff voluntarily assumed the risk, even though it was unreasonable to do so.
Under express assumption of risk, plaintiff and defendant explicitly agree, in advance, that defendant owes no legal duty to plaintiff and therefore, that plaintiff cannot recover for injuries caused either by risks inherent in the situation or by dangers created by defendant's negligence.
Assumption of the risk is an affirmative defense that the defendant can allege in order to defeat a plaintiff's recovery in a negligence lawsuit. The defendant can claim that the plaintiff assumed the risk when the plaintiff consented to a known risk.
In its primary meaning, the injured person's conduct in assuming a particular risk is reasonable, the defense being a denial that the defendant was negligent. The defendant states that he was under no duty or that he breached no duty of protecting the plain- tiff against the source of his injury.
Illinois has adopted modified comparative negligence (735 ILCS 5/2-1116) as the standard for recovery of damages. Under modified comparative negligence, an injured party may recover damages only if he/she is less than 50% at fault for the injury or damages.
Exceptions To The Assumption Of Risk Doctrine Additionally, a defendant can't use an assumption of risk defense if their behavior was intentional or reckless. For example, they couldn't apply this defense if the defendant was intentionally messing with the plaintiff's climbing rope, causing them to fall.
Undue Influence Influence is ?undue? when it ?prevents the testator from exercising his own will in the disposition of his estate? such that the testator's will is rendered more the will of another. Id., 69 Ill. Dec. at 963.
A helpful tip is to remember that an affirmative defense cannot stand on its own if the complaint is dismissed. Section 2-613 of the Code of Civil Procedure outlines examples of affirmative defenses, including payment, release, discharge, fraud, duress, laches, and statute of frauds. 735 ILCS 5/2-613.