Despite calls for the abolition of assumption of risk, and for its "merger" within comparative fault, the doctrine survives in some jurisdictions, and its spirit endures in most, if not all. The consensual rationale underlying assumption of risk is distinctive, important, and not easily reducible to the paradigm of victim fault. That rationale helps shape many of the no duty and limited duty rules in negligence law. Moreover, a similar rationale also underlies consent to an intentional tort. To be sure, whether the victim acted "reasonably" seems to be more relevant when the injurer is a negligent rather than an intentional tortfeasor. But this difference largely reflects only contingent, empirical differences in the typical fact pattern when a victim "consents" to negligence as opposed to an intentional tort.

Whether a formal defense of assumption of risk of an injurer's negligence should also be retained, however, is a close question. An affirmative answer is most plausible in two narrow categories-when the victim fully prefers the risk, and when the victim insists on a relationship with the injurer. A plaintiff fully prefers a risk if he actually favors the tortious option that defendant provided to the nontortious option that defendant could have provided. (Suppose a passenger encourages a driver to speed.) And a plaintiff insists on a relationship if he requests that defendant permit him to confront a tortious risk when defendant could decline a continuing relationship. (Suppose a stranded motorist requests a ride from a drunk driver.)

But the traditional view that a victim should obtain no recovery if he voluntarily and knowingly elects to confront a risk is excessively broad and is not justified by the state's legitimate interests in furthering or respecting human autonomy.

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Kenneth W. Simons Contact Information

ksimons@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-4701

Presentation and Publication Information:

To appear in UCLA L. Rev.__(forthcoming 2002)

On Social Science Research Network Electronic Paper Collection:

http://ssrn.com/abstract_id=323398

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