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The Once and Future Defense: Assumption of the Risk


The Once and Future Defense: Assumption of the Risk


The late nineteenth century was the formative era of the common law of negligence. It was a time of rugged individualism, which emphasized freedom of action, personal initiative, and the right of self-determination. The ideal was the Horatio Alger type, the self-made entrepreneur who grasped the myriad possibilities of an expanding nation through strong character and hard work. Doubtless, the reality of most people’s lives had little to do with this ideal, but it still conditioned the thinking of the time, including legal thinking.

It is not surprising that judges steeped in such ideas should accept the principle that the individual is master of his own fate, with the right to choose a course of action and the responsibility to accept the consequences of the choice. The concept of contributory negligence, that a plaintiff whose careless acts contributed to his injuries should bear the consequences, is an example. Another example, also with roots in the nineteenth century, is the doctrine of assumption of the risk.

The basic premise of assumption of the risk is that a person who is aware of a risk, and knowingly decides to encounter it, accepts responsibility for the consequences of that decision, and may not hold a defendant who created the risk liable for resulting injury. The premise was articulated in nineteenth-century terms by Professor Bohlen:

The maxim volenti non fit injuria [that to which a person assents is not deemed in law an injury] is a terse expression of the individualistic tendency of the common law, which, proceeding from the people and asserting their liberties, naturally regards the freedom of individual action as the keystone of the whole structure. Each individual is left free to work out his own destinies; he must not be interfered with from without, but in the absence of such interference he is held competent to protect himself…the common law does not assume to protect him from the effects of his own personality and from the consequences of his voluntary actions or of his careless misconduct.

F. Bohlen, Voluntary Assumption of the Risk, 20 Harv. L. Rev. 14 (1906). Based on this individualistic premise, assumption of the risk became an established shield to negligence liability, just as the analogous privilege of consent avoids liability for intentional torts.

Many of the early cases applying assumption of the risk arose in the context of injuries to workers on the job. A worker might accept employment in a factory with unguarded vats of molten metal, or requiring work on high scaffolds without railings. If he fell into the vat or off of the scaffold, the employer would argue that, by taking the job with knowledge of the working conditions, he had assumed the risk of injury from the known conditions of employment, and could not complain of the consequences of that choice.[1] Other cases arose in the context of injuries on land of another, where a guest or other licensee suffered injury due to an openly dangerous condition, such as an unfenced quarry or icy steps. As in the employee cases, the owner would argue that the plaintiff who chose to enter the premises with knowledge of open and obvious dangers accepted responsibility for possible injuries from those known risks.

[1] [ft] “Assumption of risk…developed in response to the general impulse of common law courts at the beginning of this period [the industrial revolution] to insulate the employer as much as possible from bearing the ‘human overhead’ which is an inevitable part of the cost-to someone-of the doing of industrialized business. The general purpose behind this development in the common law seems to have been to give maximum freedom to expanding industry.” Tiller v. Atl. Coast Line R.R., 318 U.S. 54, 58-59 (1943) (footnotes omitted).

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