Class 22

               Often, tort law relies on comparative fault to address the plaintiff’s negligence. But at other a plaintiff enters into a course of conduct knowing the risks of that conduct.  And in some of these situations, though not all, the law treats a plaintiff’s knowledge of the risks as a complete defense known as assumption of the risk. 

               We will study two distinct kinds of assumption of the risk: express assumption, which usually involves a liability waiver or express agreement, and implied assumption, which concerns the risks inherent in a given activity.

               Assumption of the risk is an incredibly important doctrine in modern tort law.  A myriad of social practices fall under implied assumption of the risk rules, ranging from amateur and professional sporting events to amusement park rides and more. This doctrine forces us to ask why some activities are treated as inherently dangerous while others are not. What is it, if anything, about these social practices that justifies the contours of current doctrine?

               Express assumption of the risk raises different policy considerations. On the one hand, freedom of contract principles may militate in favor of honoring waivers into which plaintiffs freely entered. On the other hand, waivers may eliminate any incentive for certain defendants to take precautions. Here, courts debate whether or not we would be better off if contract law played a more dominant role in tort doctrine.