Study On Assumption Of Risk In Tort Law

The principle of imputation in tort law had having a long evolution process in American law, and negligence has become a dominant role. Tort liability has transferred from the injured to the injurer. With the enthusiasm of individualism, the scope of negligence liability had expanded resulted into huge amount of damage compensation, which not only kidnapped the certain industry and people’s lives and even threaten the entire social and economic development. The extreme conversion of the imputation principle is not the fundamental purpose of tort law, so assumption of risk adopted by U.S. courts limits the negligence liability of defendants. That is to say, when the plaintiff voluntarily accepted the risk, the defendant was free from the negligence responsibility. At first, assumption of risk was a full defense in negligence accepted by courts and scholars. So, the victims returned to be responsible for themselves. On the policy of the development in economics and society, the country had supplied protection for the earlier enterprises. The liability insurance was in the undeveloped stage, the system of social security was either not developed. The liability of the enterprises cannot make ends meet. However, courts unduly expanded assumption of risk to extreme edge, which made the rule too become simple and crude. The plaintiff was overly deprived of the rights of damages. The unfair problem of liability emerged, the rule of comparative negligence is considered to reverse the unfair liability status and a more reasonable sharing paradigm, which was gradually supported by more and more courts and scholars. It also met the fair moral intuitions of people. At that time, the rationality and legitimacy of assumption of risk was reasoned widely and gradually faded and even abandoned in American tort law.When assumption of risk confronted with crisis of being abandoned, whether the rule really goes to the end of its life or is still possible to be revived? The judicial practice and academic research should supply a profound analysis with sufficient theoretical and judicial support to give a reasonable choice. Therefore, analysis of assumption of risk becomes the main body of this article, and interprets the problems whether the rule will be attained or be abandoned. Assumption of risk is essentially based on the plaintiff’s agreement of risk to deprive of his right of damages, which the analysis regards the plaintiff’s behavior as the object. That the party actually knows and voluntarily assumes risk becomes the core of the rule. How to judge factors as above is the key way to apply the rule accurately. If not, misuse of assumption of risk will make its legitimacy questioned by courts and scholars. First of all, judgment of risk is as the objective conditions in assumption of risk. Risk is common in society and becomes the trigger for a lot of social problems, so it is focus of many disciplines. Risk in assumption of risk is by no means all dangers, it is necessary to clearly define the definition and scope of risk. Therefore, risk in assumption of risk should refer to inherent risk rather than those caused or increased by the intentional acts of the defendant. Specific scope of risk depends on the particular background of specific behavior, the specialty of defendants or plaintiffs, and related judgments of policies and values. For example, inherent risk is essential element of the special sport and cannot be avoided by the parties, which also considers whether or not the subject to further affect the scope of the risk. Secondly, that the parties voluntarily undertake risk is the key factors in assumption of risk. Hereinto, parties know and understand the content of the risk and injuries resulted into, which is prerequisite to the second element. Know usually refers to what the plaintiff actually know and what he should know. The former really reflects the inner status of the plaintiff, which needs the judgment of fact in specific trials. The latter is an objective criterion for judgment on the behavior of the parties. To apply assumption of risk should not base on that the plaintiff should know the risk, which could excessively enlarge the scope of the rule to misuse it. That the plaintiff actually knows the risk should be judged with the special fact of act by courts. This relies on the examination and cross-examination of proof by plaintiffs and defendants. This also includes the influence of policy and values. The plaintiff actually knows the risk and voluntarily chooses to accept the risk in the absence of external pressure. So, the court has to believe that the plaintiff has accepted the risk and burdened the consequences by herself or himself. That the party voluntarily chooses to accept the risk and the loss from it reflects the autonomy as the basic principle of private law, and this is the reflection of individualism of private law. However, judgment of that the plaintiff voluntarily accepts the risk and the loss should be a difficult issue. The inner situation of the plaintiff may only rely on the judgment of fact by the burden of proof. This tends to adopt the subjective method or the judicial judgment rather than the objective means, although it will under the influence of the judicial efficiency and feasibility. In theory, how to judge that the plaintiff assumes the risk and the loss involves subjective judgment and objective judgment. If the objective method adopted, the court would base on that the reasonable person under the same condition voluntarily assumes the risk, rather than ignore characteristics of the parties to a case and specific backgrounds of cases which will play such a key role in judging. Rather those often lead to inaccurate judgment or error in application of law. Specially, that the plaintiff voluntarily assumes the risk and loss constitutes the prime purpose of designing the rule of assumption of risk. The task will be finished purposely through the subjective judgment and focus on the inner situation of the plaintiff as objective of the analysis. Rather the objective way was disregarded too tough and rigid to use in the decision.Since assumption of risk in American tort law had been questioned and received many reasons for abolition, the rule had no longer been mentioned in apportionment of responsibility in the Third Restatement of American Tort Law. However, some scholars still attempt to prove the rationality and independence of assumption of risk, and deny and criticize some theories and cases abandoning assumption of risk. Therefore, a few of courts and scholars prudently claim that assumption of risk should be valid in American tort law and apply it to special kinds of torts, such as skiing. Rather than assumption of risk in our tort law stays in the uncertain condition for a long time. Scholars in our country earlier studied on the assumption of risk to spare no effort to import it. Although the Tort Liability Law of the People’s Republic of China had not received assumption of risk eventually, the drafts of the code of civil law in our country have inclined to discuss the rule. Until now the legislators and scholars never outline the main attitude of assumption of risk in the code. Assumption of risk frequently arises in the civil judgment in our courts, which refers to the physical injury cases. The injuries in sports especially relate to assumption of risk in judicial courses. However courts will uphold or oppose assumption of risk, it is still not attained the profound analysis by courts. Of course, it is impossible to apply assumption of risk in written judgments based on the legal system and principles of justice in our country. Even if some courts in our country uphold assumption of risk in theory, and they compromise to accord with comparative negligence and other effective legal rules as application of law. A few of courts run risk to regard assumption of risk as the independent rule in the written judgments. Above all, assumption of risk has still acquired the positive attitude in our civil law, judicial practices prove that it have recognized by some courts until now. The possibility and legitimacy of assumption of risk in our tort law will be proved from the theory of tort law to judicial practice in our courts, which will reach to decline or delete misunderstanding and misuse of assumption of risk and to strive for the proper foundation.