Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
If primary assumption of the risk and secondary assumption of the risk are both different
doctrines in disguise, perhaps we should not have them at all. For much of the twentieth century,
leading jurists thought so. In a Federal Employers’ Liability Act case from 1943, Associate
Justice Felix Frankfurter put it this way:
The phrase “assumption of risk” is an excellent illustration of the extent to which
uncritical use of words bedevils the law. A phrase begins life as a literary
expression; its felicity leads to its lazy repetition; and repetition soon establishes it
as a legal formula, undiscriminatingly used to express different and sometimes
contrary ideas.
Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68 (1943) (Frankfurter, J., concurring). As
Justice Frankfurter saw it, “the phrase ‘assumption of risk’ gave judicial expression to a social
policy that entailed much human misery.” Id. at 69. Indeed, some commentators sympathetic to
Frankfurter’s view took him a step further and concluded that the “doctrine [of implied
assumption of risk] deserves no separate existence . . . and is simply a confusing way of stating
certain no-duty rules.” Fleming James, Jr., Assumption of Risk: Unhappy Reincarnation, 78 YALE
L.J. 185, 187–188 (1968); see also Francis H. Bohlen, Voluntary Assumption of Risk, 20 HARV. L.
REV. 14 (1906).
2. The durability of assumption of the risk. Notwithstanding the withering critique in the
middle of the last century, the doctrinal label “assumption of the risk” has proven exceedingly
durable. The Restatement (Second) of Torts retained the language, despite criticism. And in
some jurisdictions, assumption of the risk in the secondary sense has neither been done away
with, nor treated as a mere subcategory of comparative negligence. That is the lesson of the
Landings Association case: Georgia is a comparative fault state, but the Georgia Supreme Court
treated Mrs. Williams’s conduct as different from ordinary unreasonable conduct. Her conscious
decision to take the risk in question did not get factored in on the balance alongside that of the
Landings Association in a comparative fault analysis, as the California approach of Knight v.
Jewett would require. To the contrary, the court treated her conscious decision to walk as grounds
for holding the Landings Association not liable at all.
One observer views Landings Association and similar cases as indicating that “[r]eports of
the death of assumption of risk are slightly exaggerated.” Professor Simons acknowledges that
the majority of states have folded secondary assumption of risk into their comparative negligence
regimes, but he suggests that the doctrine’s legacy lives on, especially in courts’ duty analyses:
[T]he supposed legal irrelevance of “consent” to a risk of harm, celebrated by the
modern “merger” approach, is overstated. And the supposition that consensual
norms have been completely replaced by norms of reasonableness is also incorrect.
A number of courts do continue to recognize assumption of risk as a distinct
substantive doctrine (and not simply as a label for other doctrines). Moreover, even
abolitionist courts recognize numerous no-duty doctrines that implicitly rely upon
a consensual rationale of the sort that underlies many versions of assumption of risk.
Kenneth W. Simons, Reflections on Assumption of Risk, 50 U.C.L.A. L. REV. 481, 483 (2002).
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