Research On Assumption Of Risk In Torts

The Anglo-American tort law mostly distinguish the system of intentional tort to the system of negligence tort, the rule of assumption of risk which is originated from the Roman dictum "volenti non fit injuria" is once the most common defense in a negligence action. Like contributory negligence, once the legal effect of assumption of risk is established, the perpetrators will be relieved of liability. However, the effect of contributory negligence is so harsh that be replaced by comparative negligence, whether remain assumption of risk have led to a great debate among the theorists and judicial practitioners. Not like the Restatement (One, Second) of Torts, the Restatement (Third) of Torts has no word of "assumption of risk", so that make the debate more and more intense and have no uniform conclusion till now. If so, then with the development of modern time, especially the existence of comparative negligence, whether assumption of risk has violated the fairness and justice? This article is divided into four parts:Part One:Why the status of assumption of risk declining? The origination and the development of any system is based on social background, so it will be helpful for us to understand this system if we analyze its social background and know its developing process. This part will introduce its origination and development process, then take a conclusion that the status of assumption of risk is declining and will be "dead". At the same time, this part also analyze the cause of its declining, that is the development of comparative negligence.Part Two:Whether assumption of risk should continue exist after the development of comparative negligence? This is the most difficult part. First, this part negates the abolishment of assumption of risk through analysing the clarification of theoretical basis, its own value and the modern trend of American tort law. Then find its controversial reasons inside the system, analyze the relations between every type of assumption of risk and comparative negligence and the function of every type, then take a conclusion that express assumption of risk and primary assumption of risk should continue to serve as a total bar, while the secondary assumption of risk has be merged into a comparative negligence system.Part Three:How to rebuild assumption of risk after the development of comparative negligence? This is the most important part. Although we agree the continue exist of assumption of risk, we also recognize the default of this system.This part will rebuild assumption of risk and narrow its application to the areas of sports, adventure entertainment and adventure tourism, at the same time, this part also set some strict conditions for applying it. Finally, the problems of minors and people with specific professional are also discussed.Part Four:What advice should be take to our Tort Law? This is the ultimate goal of this article. There are no assumption of risk in our country, but in judicial practice, judges and the parties are frequently mentioned and quoted. Although some scholars provide some advice, there are still so many confusions. Our judicial practice often apply the principle of equitable liability or victim's fault when we encounter the similar actions, but there are nature differences between those system and assumption of risk. Base on the analysis of the differences, this part will provide some advice for our tort law, including its own system design and the relations with other system, in order to improve the defense system of our country.Finally, this article stresses that, despite the possibility of introducing assumption of risk, we still should be cautious. After all, the existence of assumption of risk can not be separated from the system of social security. It's not enough to perfect assumption of risk, even the defense system, to most important, we should improve social security system, which need deeper research and the cooperation of community, we should make efforts forever.