Study On The Application Of Assumption Of Risk In Sports Participants' Injury Cases

Compared with the general personal injury,the damage caused by sports has certain particularity,because the risk itself is a part of sports.In the process of participating in sports,in addition to strengthening the body,challenging the limits of human beings and enjoying the fun of sports,the stimulation brought by chasing the risk is also one of the purposes.Therefore,when a sportsman participates in a sport,he has a subjective attitude of tacit acceptance or even active pursuit towards the risk of the sport,and has a rational cognition of the possible damage consequences.The word ‘assumption of risk' appears in theorotical discussion and judicial practice for many times,which can deal with sports damage,especially the particularity of personal injury disputes caused by sports participants.The first part of this paper puts forward the problems existing in the application of assumption of risk in theory and practice.The second part deals with the definition and types of assumption of risk.Assumption of risk originated from the field of labor in common law.Expressed assumption of risk and secondary implied assumption of risk are absorbed by contract and contributory liability respectively.Combined with the inherent risk theory,primary implied assumption of risk still plays an irreplaceable and independent role in the field of entertainment and sports tort cases.The third part makes an empirical study on the application of assumption of risk in judical practice.By analyzing the cases in group,the results of judgment include the judgment based on contributory liability,the judgment based on comparative negligence and rejection based on assumption of risk.In the fourth part,on the basis of the previous discussion,this paper defines the nature of assumption of risk and disputes caused by sports participants,and makes comments on other reasons mentioned in different judgment methods.In different legal systems,different conclusions may be drawn on the nature of assumption of risk,but the applicable results are all complete exemption of liability.The conclusion is that the nature of assumption of risk is closer to illegal rejection.From the perspective of constitutive requirements,the personal injury caused by sports participants can not all be regarded as tort.The damage caused by sports risks to participants does not necessarily constitute a fault in the tort law,and the consequences of infringement should reach a certain degree of severity,otherwise it is not enough to enter the proceedings.Contributory liability and comparative negligence can't reasonably distribute the liability of all sports damage cases.Contributory liability reflects the features of social law,which is not in line with the idea of private law.Comparative negligence is applicable to the casewhen the plaintiff or the defendant is at fault,but the behavior of just participating in the sports can't be identified as fault.There are some similarities between assumption of risk and consent of the plaintiff,but the two theories can not be applied to the same situation.In the last part,this paper tries to construct a flexible system for the application of assumption of risk in solving the disputes of personal injury among sports participants,so as to ensure the certainty of judicial trial.The normally reasonable risks of different kinds of sports,the professional level of sports occasions,the defendants' violation of sports rules and the plaintiffs' duty of care,including the adoption of reasonable protective measures and the cognitive of the risks are the elements needed to construct the dynamic system.