Assumption of Risk and Abnormally Dangerous Activities: A Proposal
Document Type
Article
Publication Title
Montana Law Review
Abstract
Despite the widespread adoption of otherwise comprehensive comparative fault schemes, the status of "assumption of risk" has remained insecure. Courts have had difficulty deciding whether-and how-assumption of risk should apply, as illustrated by a recent case: Sixto Benitez, a high school football player, suffered a broken neck during a varsity football game, leaving him a quadriplegic. He sued the school board and the athletic league, alleging that his coach had been negligent. The school district interposed the defense of assumption of risk.' Courts have treated assumption of risk inconsistently. Some courts treat the plaintiff's decision to engage in risky activities as a bar to any claim; others ignore it by "merging" assumption of risk with contributory negligence; still others look for a middle path. Even comprehensive schemes for comparative fault have virtually ignored assumption of risk as an independent doctrine. This article proposes replacing the inconsistent treatment of assumption of risk with an approach based on Calabresi and Hirschoff's suggestion that assumption of risk is, and always has been, a kind of plaintiff's strict liability-the other side of the coin of defendant's strict liability. Under such a view, assumption of risk represents a plaintiff's decision to engage in conduct that poses such a high risk of injury that it is fair to make the risk-taker bear at least some of the risk of injury, even when the risk was a reasonable one. The logical extension of this position is to reduce, rather than bar, an otherwise valid claim.
First Page
161
Last Page
189
Publication Date
Winter 1990
Recommended Citation
David K. DeWolf & Deborah G. Hander, Assumption of Risk and Abnormally Dangerous Activities: A Proposal, 51 MONT. L. REV. 161 (Winter 1990).