The Decline And Reflections On The Doctrine Of Assumption Of Risk In American Tort Law

The doctrine of assumption of risk assigns its origin to “volenti non fit injuria”in ancient Greek law. It prevailed in American tort law as a complete defense lastcentury. It was first applied in employer-employee relation, and then graduallyenlarged the scope of application to negligence tort area, even in the strict liabilityarea. Once the plaintiff’s conduct was decided as assuming the risk by court, his/heraction claiming compensation for damage would be denied completely. It is no doubtthat the rising of the doctrine met the need of the industrial development. However,the uncontrollable development of the doctrine and its harsh results became theattack target by American tort scholars. The predicament was caused by the rising ofcomparative fault theory which had a milder application result. From then on, acontroversy about the existence of the doctrine had begun. American tort scholarshad been debating about whether the rule should exist and what its significance waswhile adapting the comparative fault. In this period, American tort scholars typifiedthe doctrine and compared it with the comparative fault theory to find out a lawfulway to make the ancient doctrine survive. But the effort turned out to be a failurewhen “Restatement (Third) of Torts: Apportionment of Liability” was published byAmerican Law Institute in2000. Not even a word was mentioned in the restatement.The doctrine of assumption of risk goes to its doom after a century’s developmentand a half century’s debate, finally. However, part of American tort scholars beganreflecting on the perishing of the ancient doctrine Even if the doctrine has manydefects, such an extreme action is also not wise. It will leave a few baffles anddilemmas that cannot be solved. After continuous studying, the scholar puts forward“full preference theory”, which can be seen as the manifestation of “individualism”,the cornerstone of civil law. It is just individualism that backs up the doctrine ofassumption of risk. As long as the cornerstone survives, the doctrine must nevercease to exist.There are no relevant provisions on assumption of risk in China’s Tort and Liability Law. However, in our current judicial practice, although the doctrine ofassumption of risk is absence, there are plenty of cases involving the doctrine.Furthermore, China is in its infancy on the road of developing the ideal of privatelaw. To go further, individualism, which is the cornerstone of the doctrine, must getvalid concerns. The admittance is good both for the progress of the ideal of privatelaw and the development of our judicial practice. Therefore, enlightened byAmerican tort law, it is necessary to admit assumption of risk as a complete defensein our Tort and Liability Law. Additionally, assumption of risk can coordinate withcurrent legal rules very well. For example, it can get parallel application withProvision26in our Tort and Liability Law; the conflict with relevant provisions inContract Law can also get properly resolved; the combination with Insurance Lawcan make the rule play a more effective role in our law system. Thus, the admittancehas the feasibility. However, American experience must be fully aware of whileconstructing our own rule of assumption of risk. To avoid the wide application scopeand lax application components, the true conception of assumption of risk needs tobe understood. The scope and components of the doctrine of assumption of riskshould be stringently narrowed. Only thus can the localization of the doctrine beaccomplished.