The Last Days of Assumption of the Risk

Dean C. Smith, The Last Days of Assumption of the Risk, 5 Gonz. L. Rev. 190 (1970).

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Mr. Justice Felix Frankfurter once said:

A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.’

This beautifully expressed condemnation of weak legal reasoning was directed at one of the law’s most confusing doctrines-the doctrine of “assumption of the risk.” Strange it is that with the aid of such fine critical comment the courts are still, twenty-eight years later, struggling with this discredited notion and its infamous Latin cousin volenti non fit injuria.

These two doctrines have been locked into the legal lexicon in the State of Washington for many years, and find their greatest expression in the case of Walsh v. West Coast Coal Mines. That case defined assumption of risk and volenti non fit injuria as being based on the general concept that if one knowing and comprehending a danger voluntarily exposes himself to it, even though not negligent in so doing, he is deemed to have assumed the risk and is precluded from recovery for an injury resulting therefrom. The distinction drawn between the two expressions is that we are to call the former a “doctrine” and the latter a “maxim.” In any event, the only difference between these two theories is that assumption of risk applies to only the master and servant relationship, or other contractual situations, whereas volenti non fit injuria applies independently of any such contract relation.

The court in the Walsh case then iterated the distinction between the “doctrine” and the “maxim” on the one hand, and con-tributory negligence on the other. Noting that great similarities do in fact exist, the court went on to explain that contributory negligence involves some fault or breach of duty on the part of the plaintiff, while assumption of risk or volenti non fit injuria may bar recovery even though the plaintiff may be free of affirmative negligence.

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