Question: When does a plaintiff “incur the risk” of injury?
Answer: Incurred risk contemplates acceptance of a specific risk which plaintiff has actual knowledge.
A possessor of land is not liable for harm caused to an invitee activity or condition on the land whose danger is known or obvious, unless the possessor should anticipate the harm despite such knowledge or obviousness. The word “known” denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves, and thus the condition or activity must not only be known to exist, it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated. “Obvious” means that both the condition and risk are apparent and would be recognized by a reasonable person, exercising ordinary perception, intelligence and judgment.
Thus, incurred risk is a conscious, deliberate and intentional embarkation upon a course of conduct with knowledge of the circumstances. It requires more than the general awareness of a potential for mishap. Incurred risk contemplates acceptance of a specific risk of which plaintiff has actual knowledge. A finding of incurred risk demands a subjective analysis focusing upon the actor’s actual knowledge and voluntary acceptance of the risk. Incurred risk, however, does not require that the actor had precise foresight that the particular accident and injury that in fact occurred was going to occur.