Abstract: 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.
Publication Year: 2002
Publication Date: 2002-01-01
Language: en
Type: article
Indexed In: ['crossref']
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Cited By Count: 14
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