Gettingstarted1928 wrote:ph14 wrote:Gettingstarted1928 wrote:Looking for some help on assumption of risk
Apparently some states don't have assumption of risk, but that doesn't make sense to me. If a state didn't have assumption of risk, couldn't a boxer sue his opponent if he gets hurt? How would a state without assumption of risk treat that case?
They don't have assumption of risk probably because they have comparative fault regimes. Assumption of risk is pretty much folded into comparative fault but isn't held as a complete bar to recover for a plaintiff under such a system.
In the boxing hypo, assuming they follow the rules of boxing, there is no negligence there. So don't even have to get into assumption of risk. Plus there may be some Ks stuff with a waiver of liability or something, not sure since I have not taken Ks.
I see. Thank you. I guess the boxing hypo is more of a consent issue.
Assumption of risk is not always an affirmative defense, right? Can you still apply comparative fault in assumption or risk cases?
You scooped me with the consent issue, I think that's the correct answer. Well traditionally, assumption of the risk was a complete bar to recovery I think. So in a comparative fault jurisdiction, you would just reduce the award to the plaintiff by what you think he is at fault for assuming the risk, without calling it assuming the risk.