Just as the adoption of comparative negligence has spread from negligence cases to strict products liability cases, it has also affected the treatment of another traditional defense, assumption of the risk. To understand current approaches to assumption of the risk in strict products liability cases, we need to recall how that defense has evolved in negligence cases.
Fifty years ago, most courts held that a plaintiff who recognized a risk and made a deliberate choice to encounter it was barred from recovering from the defendant who created the risk, even if the defendant was negligent in creating the risk. See Restatement (Second) of Torts §496A. Suppose, for example, that Quentin, an obviously intoxicated driver, offered Tanaka a ride, and Tanaka accepted and was later injured due to Quentin’s negligent driving. Under the concept of assumption of the risk, a negligence claim by Tanaka would be barred by his deliberate choice to accept the risk of driving with Quentin. See id., illus. 2. The idea was that the plaintiff’s deliberate choice to proceed in the face of clear knowledge of the danger constituted a kind of consent to the risk posed by the defendant’s conduct, even if it had been negligently created by the defendant. See generally Chapter 24.
The advent of comparative negligence has altered the treatment of assumption of the risk in negligence cases. Today, many states that have comparative negligence regimes treat a plaintiff’s conscious choice to encounter a risk as a form of negligent conduct. Thus, the jury will be instructed to assign the plaintiff a percentage of fault for deliberately encountering the risk, just as they do for other forms of plaintiff’s negligence. Consequently, assumption of the risk, like other forms of plaintiff’s negligence, becomes a partial defense to a negligence claim rather than a complete bar to recovery. In the drunk driving case, for example, the jury might find Tanaka 30 percent at fault for choosing to ride with Quentin, and Quentin 70 percent at fault for driving while intoxicated. If so, Tanaka would recover 70 percent of his damages. In states that treat a plaintiff’s deliberate choice to engage in the risk as comparative negligence, the separate defense of assumption of the risk is abolished. See, e.g., Mass. Gen. Laws ch. 231, §85.
A few states, however, continue to treat conscious assumption of the risk as a separate and full defense to a negligence action, even though they otherwise apply comparative negligence to account for a plaintiff’s negligence. See, e.g., Kennedy v. Providence Hockey Club, Inc., 376 A.2d 329 (R.I. 1977); see generally Dobbs, Hayden & Bublick, Dobbs’ Law of Torts §470. This is clearly a minority position, but you should keep in mind that despite the strong trend toward applying comparative negligence, not all states have abolished the separate assumption of the risk defense.