The Position And Application Of The Defense Of Assumption Of Risk After The Independence Crisis In The United States

The assumption of risk is derived from "volenti non fit injuria" in Roman law,which was established and emerged in the period of free capitalism in the 19 th century.It has become one of the three major exemption reasons in negligence tort,which has the legal effect of exempting the liability of the infringer.However,since the 20 th century,more and more doubts have been raised about the assumption of risk rule as an independent defense,then the assumption of risk has encountered an independence crisis.The Chinese Civil Code adds a new rule assumption of risk,which confirms the independent exemption status of the rule in cultural and sports activities.But the debate about the application of rule in America still exists today.This paper attempts to take the independence crisis as the entry point,to explore the positioning after the independence crisis,as well as the criteria for liability identification of sports injury cases.The discussion is divided into four chapters:The first chapter discusses the situation and reason of independence crisis In the United States,the assumption of risk rule originated from the master-servant relationship,promoted by the industrial revolution and individualism,and became one of the main defenses of early negligence tort.First of all,the initiative of employees to appeal to improve the treatment of workers has been gradually paid attention to,and the court has gradually slanted to the interests of victims.The promulgation of the Workman’s Compensation Act has made the employment relationship,which used to be the birthplace of self-risk,gradually abolish this defense,and the defense,which was often used in the negligent industrial injury compensation litigation,is no longer useful.Secondly,in other areas of tort law,the reform of comparative negligence further shook the position of the rule,and the court began to examine the necessity of the existence of it.After adopting comparative negligence,the express assumption of risk was incorporated into the scope of contract law for regulation,the implied secondary assumption of risk was merged into the body of comparative negligence,and the implied primary assumption of risk continued to exist as a disclaimer in sports and entertainment activities and other fields.The second chapter explores the limited reservation of the primary assumption of risk in firefighter rules,product liability and recreational activities.The court replaced the old "fireman’s rule" based on the liability of the owner and occupant of the site with the new firefighter rule based on the assumption of risk.Most states still regard the assumption of risk as an independent defense in product liability.In order to stimulate economic growth,develop the entertainment industry,and reduce the cost of the operators involved in the lawsuit,the states actively promote the sports safety legislation.The theme is that the participants should be responsible for the inherent risks defined in the act,and the operators should be exempted from the responsibility,so as to maintain a balance between economic development and the safety of the players.The third chapter discusses the specific application of assumption of risk in recreational and sports activities.Sports injury requires a special standard of liability identification.According to the primary assumption of risk,three kinds of opinions are developed: intentional or reckless behavior standard,inherent risk standard and general negligence standard.Injuries between co-participants and spectator vs.event organizer are the basic types of sports injuries.The famous case Knight case is used to discuss the injury between the coparticipants.Since recreational sports is an activity beneficial to individuals and the society,the enthusiasm and enthusiasm of sports enthusiasts should not be reduced by the threat of litigation.The careless behavior of the co-participants is an inherent risk,and if the participants are held liable for negligence only,it will damage the fierce competition.Therefore,the intentional-reckless standard is applicable to injury between participants.Only when intentional injury is achieved or reckless behavior is completely beyond the normal scope of sports activities,the duty of care will be violated.The case of spectator injury focuses on the obligation of the event organizer to the spectator.The event organizer is only responsible for limited liability for damage caused by inherent risks.The limited duty rule strikes a balance between the economic interests of the event organizers and the safety of the fans,requiring only that the organizers must provide adequate protected seating for those seeking seats at ordinary occasions and provide protection in the most dangerous parts of the stands.For the additional risks besides the non-fixed risks,the ordinary negligence theory can be used to determine what kind of reasonable duty of care the organizers should bear,and whether the spectators outside the grandstand area should bear certain specific risks.However,due to the increased risk suffered by the audience,injuries occurred frequently.The future trend is to continuously improve the organizers’ duty of care.The fourth chapter is the reflection on the change of assumption of risk in tort law.Assumption of risk plays the role of policy "barometer",and its changing process all reflects the needs of the Times and specific public policies,which is a vivid practice of instrumentalist legal view.Assumption of risk at first as a general defense of negligence tort,after the independence crisis in the 20 th century,and then in the field of sports and entertainment injury cases,we can see the cautious attitude of the court when applying risk at risk.The fact that it still survives the huge attack shows that assumption of risk has its independent legal value.The particularity of sports and entertainment activities requires intervention of assumption of risk.Assumption of risk is based on individualism,which reflects respect for individual freedom of will.Assumption of risk can improve judicial efficiency,so that the court can make a summary judgment and avoid wasting judicial resources due to examination and approval.