Assumption of Risk, After All

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

July 31, 2013

15 Theoretical Inquiries in Law (2013, Forthcoming)

Assumption of risk — the notion that one cannot complain about the harmful state to which one has willingly exposed oneself — figures prominently in our extra-legal lived experience. In spite of its deep roots in our common-sense morality, the tort doctrine of assumption of risk has long been discredited by many leading tort scholars, restatement reporters, courts, and legislatures. In recent years, however, growing concerns about junk food consumption, and obesity more generally, have given rise to considerations that are traditionally associated with the principles underlying the doctrine of assumption of risk. Against this backdrop, I shall advance two claims: a negative and an affirmative one. The negative claim is that the major objections to the doctrine of assumption of risk are either misplaced or overblown. And affirmatively, I argue that this doctrine (properly reconstructed to reflect liberal-egalitarian intuitions) can provide an illuminating framework with which to address pressing social concerns such as the one associated with junk food's harmful side-effects.

Number of Pages in PDF File: 29

Keywords: assumption of risk, duty of care, fairness, equality, responsibility, torts

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Date posted: September 2, 2013  

Suggested Citation

Dorfman, Avihay, Assumption of Risk, After All (July 31, 2013). 15 Theoretical Inquiries in Law (2013, Forthcoming). Available at SSRN: http://ssrn.com/abstract=2319221

Contact Information

Avihay Dorfman (Contact Author)
Tel Aviv University - Buchmann Faculty of Law ( email )
Ramat Aviv
Tel Aviv 69978, IL
972.3.6407279 (Phone)
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