Assumption of Risk in a System of Strict Liability: Conceptual Tangles and Social Consequences
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Description
The purpose of this volume is to examine the role of defences in determin- ing tort liability. To focus my contribution to this issue, I shall concentrate on one defence—assumption of risk. Preliminarily, it is a mistake to think about assumption of risk, or indeed any affirmative defence in tort law, as though it is a stand-alone enterprise. That approach is likely to get the analysis off on the wrong foot, unless care is taken to place this inquiry into its proper doctrinal context, a task that raises profound procedural issues. In particular, two caveats have to be introduced for any systematic treatment of defences to be tractable. The first deals with the articulation of the prima facie case. The second deals with the use of replications and other subsequent pleas to flesh out a complete system of liability rules. Both topics have been something of a minor obsession throughout my legal career.
Source Publication
Defences in Tort
Source Editors/Authors
Andrew Dyson, James Goudkamp, Frederick Wilmot-Smith
Publication Date
2015
Recommended Citation
Epstein, Richard A., "Assumption of Risk in a System of Strict Liability: Conceptual Tangles and Social Consequences" (2015). Faculty Chapters. 371.
https://gretchen.law.nyu.edu/fac-chapt/371
