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Although failure to mitigate is an affirmative defense available in a personal injury case involving negligence, when products liability claim is involved, failure to mitigate is addressed by statute, specifically R.S.Mo. § 537.765. 2 and § 537.765. 3(6), which identifies failure to mitigate as plaintiff's fault.
In order for a defendant to invoke the assumption of the risk defense, the plaintiff must have: Known that there was a risk of the same sort of injury that the plaintiff actually suffered. Voluntarily took on that danger (assumed the risk) in participating in the activity.
In personal injury law, assumption of risk is the doctrine that the injured party or plaintiff knowingly exposed themself to a dangerous situation. This assumption allows the defendant to minimize their liability in this situation, which can bar the plaintiff from recovering damages from the injury.
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.
Assumption of Risk It is a negligence defense based on the fact that you knew you were doing something dangerous that could result in harm to yourself or others, but you willingly choose to participate even though you were aware of the risks. In other words, you voluntarily accepted the risk.