Assumption of Risk in a Comparative Negligence System-- Doctrinal, Practical, and Policy Issues

The adoption of a new principle of law invariably impinges upon related legal concepts, raising issue that were not considered when the law was changed. The adoption of comparative negligence, a drastic departure from the long-held principle of contributory negligence, has forced courts to consider how the related concept of assumption of risk is affected by the change. Because there are different types of assumption of risk, and various doctrinal, practical, and policy issues, a proper determination of the role for assumption of risk in a comparative negligence system depends upon a thorough examination of many relevant considerations. Unfortunately, two 1977 state supreme court decisions dealt with the effect of comparative negligence upon the assumption of risk defense without the necessary sensitivity to the complex issues that were lurking beneath the surface. In Kennedy v. Providence Hockey Club, Inc., the Rhode Island Supreme Court held that the adoption of comparative negligence had no effect on the defense of assumption of risk, which would remain a complete bar to recovery. The Florida Supreme Court has taken a diametrically opposite view; in Blackburn v. Dorta, the court largely abolished assumption of risk as an independent defense in light of the advent of comparative negligence. This Comment will present a framework for analyzing the problem presented by the interaction of two legal concepts-assumption of risk and comparative negligence-and will demonstrate analytical weaknesses in the reasoning of the Kennedy and Blackburn courts The Comment will suggest that a productive resolution of the question can be made only by I. carefully distinguishing several types of assumption of risk, and by thoroughly examining issues of legal doctrine, practical implementation, and public policy, issues that often differ markedly depending upon the type of assumption of risk under consideration