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

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