Abstract

Part II of this thesis discusses the common law background of the assumption of risk and how it fits into the scheme of negligence principles as an affirmative defense. Part II also examines the background of assumption of risk and parallels its development with contributory negligence principles. Part III looks at how the assumption of risk has been redefined and narrowed in its application as comparative fault principles gained favor. It includes an examination of statutory erosion and in modern judicial activism. Next, Part IV examines how the assumption of risk, particularly the secondary form, conflicts with comparative fault and its underlying policy reasons. This examination will include the tension between applying secondary assumption of risk and comparative fault principles to a negligence suit. Part V comprises the bulk of this thesis. It details a proposal for eliminating secondary assumption of risk and proposes a comparative responsibility analysis to resolve suits where each party was deemed negligent and one assumed the risks of the other's act or omission. This proposal is based on risk-utility principles widely accepted in other areas of the common law. Finally, Part VI will examine some criticisms of this proposed analysis.

Download

Share

COinS