Assumption of Risk: Unhappy Reincarnation

Abstract

The second Restatement of Torts states that implied assumption of risk should be recognized as a separate defense. In a leading article over sixty years ago, Bohlen took the contrary position. A plaintiff's reasonable assumption of risk would not bar him unless the risk was one which defendant had a legal right to put up to plaintiff; and in such a case defendant breached no relevant duty. A plaintiff's unreasonable assumption of risk would constitute contributory negligence on his part; and this would be a defense without the need to invoke any separate doctrine. Bohlen was the reporter for the original part of the first Restatement of Torts, which reflected his view by giving no separate treatment to the doctrine of assumed risk.