Assuming the Risk: Tort Law, Policy, and Politics on the Slippery Slopes
Eric A. Feldman
University of Pennsylvania Law School
Alison I. Stein
United States Court of Appeals for the Third Circuit
DePaul Law Review, Vol. 59, Pg. 259, 2010
U of Penn Law School, Public Law Research Paper No. 10-02
Prominent jurists and legal scholars have long been critical of the doctrine of the assumption of risk, arguing that it is logically flawed and has sown confusion in the courts. This article takes a fresh look at the assumption of risk by focusing on legal conflicts over ski accidents in three ski-intensive states - Vermont, Colorado, and California. It argues that the tort doctrine of the assumption of risk remains vital, and highlights the way in which powerful political and economic actors with links to the ski industry have lobbied aggressively for state laws that codify the assumption of risk. The result has been state legislation that protects ski resort owners and operators from tort liability. By pointing to politics and economics as critical factors in the persistence of the doctrine of assumed risks, and exploring the social values implicated in the assumption of risk debate, the article deepens what has been an overly technical debate among tort law scholars and offers a way forward for future tort law scholarship on the idea of assumed risks.
Number of Pages in PDF File: 45
Keywords: torts, accident and injury law, assumption of the risk, risks, risky activities, ski accidents, insurance, ski safety statutes, political and economic interests, individual freedom, duty of care to act reasonablyAccepted Paper Series
Date posted: December 27, 2009 ; Last revised: August 10, 2010
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