Exploring the Relationship between Consent, Assumption of Risk, and Victim Negligence

Kenneth W. Simons, 'Exploring the Relationship between Consent, Assumption of Risk, and Victim Negligence' in John Oberdiek, ed., 'Philosophical Foundations of the Law of Torts', Oxford University Press, 2014, Forthcoming)

Boston Univ. School of Law, Public Law Research Paper No. 13-45

25 Pages Posted: 3 Sep 2013

See all articles by Kenneth W. Simons

Kenneth W. Simons

University of California, Irvine School of Law

Date Written: September 3, 2013

Abstract

This chapter analyzes the nature of consensual rationales for precluding tort liability, and explores the relationship between consent to an intentional tort, assumption of risk, and victim negligence. Is consent conceptually and normatively distinguishable from assumption of risk? Yes and no: they differ in some respects, but share a common core. Are they equally valid bases for precluding, and not merely reducing, recovery? Yes: court justifiably invoke consent more often than assumption of risk, not because the doctrines differ in principle, but because of factual differences between the most common scenarios in which each arises. In paradigm consent scenarios, the two parties mutually benefit from the interaction, or the alleged tort-feasor justifiably relies on the other’s assent, but these features are often absent in assumption of risk scenarios.

Keywords: assumption of risk, consent, victim negligence, comparative fault, intentional tort

JEL Classification: K13

Suggested Citation

Simons, Kenneth W., Exploring the Relationship between Consent, Assumption of Risk, and Victim Negligence (September 3, 2013). Kenneth W. Simons, 'Exploring the Relationship between Consent, Assumption of Risk, and Victim Negligence' in John Oberdiek, ed., 'Philosophical Foundations of the Law of Torts', Oxford University Press, 2014, Forthcoming); Boston Univ. School of Law, Public Law Research Paper No. 13-45. Available at SSRN: https://ssrn.com/abstract=2320046

Kenneth W. Simons (Contact Author)

University of California, Irvine School of Law ( email )

401 E. Peltason Dr.
Room 3800H
Irvine, CA 92697-1000
United States

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