Assumption of Risk in Products Liability Cases
![handle is hein.journals/louilr22 and id is 132 raw text is: Assumption of Risk in Products Liability
Cases*
Robert E. Keeton**
Resourceful advocacy has caused an expansion of the doc-
trine of assumption of risk, under both that name and the alias,
volenti non fit injuria,' well beyond the central idea of volun-
tary submission to a fully appreciated risk. The counterattack
has not focused upon such dubious extensions alone; rather, it
has been urged that all elements of the doctrine worth salvage
are independently recognized under other rubrics of the law, and
that either the doctrine should be banned from further use or
else a statement that the plaintiff assumed the risk should be
regarded as no more than a converse expression of the conclu-
sion that the defendant is not liable. Four other areas of law
are particularly relevant to this controversy -that area of con-
tract law concerned with exculpatory agreements and those areas
of tort law concerned with contributory negligence of the plain-
tiff, want of duty of the defendant, and want of the required
causal relation between the defendant's sub-standard conduct
and the plaintiff's harm.2
The existence of at least a wide area of overlapping of as-
sumption of risk and other theories of defense3 is beyond chal-
*The research assistance of Chester Dean Dusseault and Edward F. Sherman,
Harvard Class of 1962, is gratefully acknowledged.
**Professor of Law, Harvard Law School.
1. Some courts have insisted that the doctrine of assumption of risk is ap-
plicable only in employment cases, or perhaps also in other cases of contractual
relations, and that the corresponding doctrine in cases outside these groups is
volenti non fit injuria. It is generally conceded, however, that this is a difference
in terminology only, the requisites and consequences of the two doctrines in their
respective spheres being the same. See, e.g., Wood v. Kane Boiler Works, Inc.,
150 Tex. 191, 238 S.W.2d 172 (1951) ; Jay v. Walla Walla College, 53 Wash.2d
590, 335 P.2d 458 (1959).
2. The doctrines in these four areas of law do not, however, exhaust the possi-
bilities for basing a result of nonliability on some other theory though it might
have been found that there was an assumption of risk in the sense of voluntary
submission to a fully appreciated risk. Another possibility is breach of plaintiff's
duty of mitigation, a theory closely analogous to contributory negligence. See
note 61 infra.
3. For convenience, the term defense is here used in the broad sense of a
basis for denial of relief, including not only those grounds as to which the defend-
ant has a burden of pleading or proof but also those that are a negation of part
of plaintiff's prima facie case. Thus, the term defense encompasses theories of
no duty and no legal cause.
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Assumption of Risk in Products Liability Cases
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