The Role of Primary Assumption of Risk in Civil Litigation in Minnesota
62 Pages Posted: 23 Dec 2009
Date Written: 2003
Assumption of risk has presented courts with considerable difficulty in defining its theoretical justification and its relationship to tort duty limitations and to the defense of contributory negligence. In Minnesota and elsewhere, assumption of risk has been applied inconsistently. Sometimes it seems to relate to the duty issue and sometimes it is linked to the defense of contributory negligence, but without a clear differentiation of which issue is involved. In Minnesota specifically, the Minnesota Supreme Court has acknowledged that inconsistency and the difficulty in applying the concept in cases spanning several decades. This article focuses on primary assumption of risk, which is the facet of assumption of risk that has created the most difficult problems, post-Springrose. The primary problem in understanding primary assumption of risk is in determining its relationship to the duty issue in tort law. A secondary and dependent problem is in determining the appropriate relationship between judge and jury for purposes of applying primary assumption of risk principles.
Keywords: risk, Minnesota Law, Eighth Circuit, restatement of torts, apportionment of liability
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