Implied Assumption of the Risk: Does It Survive Comparative Fault
![handle is hein.journals/siulj7 and id is 381 raw text is: Implied Assumption of the Risk:
Does It Survive Comparative Fault?
Edward J. Kionka*
I. INTRODUCTION
Implied assumption of the risk is one of the more misunderstood
concepts in the law of torts,' and has engendered much confusion and
inconsistency.2 But until recently, its exact nature and its relationship
to the defense of contributory negligence could be permitted to remain
somewhat blurred, because both were complete defenses to negligence
liability.3
Assumption of the risk as a defense has been increasingly disfa-
vored by the courts and writers.4 Many jurisdictions have limited or
abolished the defense. But since the same conduct that might have
* B.S. 1960, J.D. 1962, University of Illinois; LL.M. 1974, Columbia University. Professor
of Law, Southern Illinois University School of Law.
1. See, e.g., 2 F. HARPER & F. JAMES, THE LAW OF TORTS § 21.1 (1956 & Supp. 1968)
[hereinafter cited as HARPER & JAMES]; W. PROSSER, HANDBOOK OF THE LAW OF TORTS § 68, at
439-41 (4th ed. 1971).
2. See, e.g., the concurring opinion of Justice Frankfurter in Tiller v. Atlantic Coast Line
R.R., 318 U.S. 54, 68-69 (1943), and almost any of the texts or law review articles cited herein.
3. Vargus v. Pitman Mfg. Co., 510 F. Supp. 116, 118 (E.D. Pa.), affdmem, 673 F.2d 1304
(3d Cir. 1981), rez'g denied, 675 F.2d 73 (3d Cir. 1982); see Brown v. Kreuser, 38 Colo. App. 544,
560 P.2d 105 (1977).
The law of assumption of risk and its relationship to contributory negligence have been fully
developed elsewhere, and this Article will not do that work all over again. See, e.g., W. PROSSER,
supra note 1, § 68; HARPER & JAMES, supra note 1, §§ 21.1-21.8; C. MORIUS & C. MORRIS, MOR-
RIS ON TORTS 217-21 (2d ed. 1980); Bohlen, Voluntary Assumption ofRisk (pts. I & 2), 20 HARV.
L. REV. 14, 91 (1906); Rice, The Automobile Guest and the Rationale ofAssumption of Risk (pts. I
& 2), 27 MINN. L. REV. 323, 429 (1943) (despite the title, covering all of assumption of risk);
Symposium, Assumption of Risk, 22 LA. L. REV. 1-166 (1961).
4. See, e.g., James, Assumption of Rirk Unhappy Reincarnation, 78 YALE L.J. 185 (1968).
Professor James's article also documents the vigorous debate that ensued during the drafting of
the Restatement (Second) of Torts, which accepted the defense of implied assumption of risk:
In preparing Restatement of the Law of Torts, Second, the advisers sharply divided. A
group mainly of distinguished deans and professors, favored striking the entire chapter
of Assumption of Risk. They would use contributory negligence. The group includes
Deans Page Keeton and Wade, and Professors James, Malone, Morris, Seavey and
Thurman. Mr. Eldredge prepared a dissent for this group. The group is referred to in
the notes to the draft as The Confederacy. Others including Prosser, Professor Robert
Keeton, and Judges Fee, Flood, Traynor and Goodrich supported the existence of the
defense of assumed risk. The distinguished scholars refer to the debate, among them-
selves, as The Battle of the Wilderness. The Reporter, Prosser, states in the draft that
the American Law Institute Council voted unanimously to follow the recommendations
of the sections on assumption of the risk.](ViewImageLocal?handle=hein.journals/siulj7&div=24&collection=&method=preview&ext=.png&size=3)
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Implied Assumption of the Risk: Does It Survive Comparative Fault
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