Assumption of Risk, After All

15 Theoretical Inquiries in Law (2013, Forthcoming)

29 Pages Posted: 2 Sep 2013  

Avihay Dorfman

Tel Aviv University - Buchmann Faculty of Law

Date Written: July 31, 2013

Abstract

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.

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

Suggested Citation

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

Avihay Dorfman (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
Israel

Paper statistics

Downloads
117
Rank
196,600
Abstract Views
483