Assumption of Risk and Product Liability
Today I taught assumption of risk in Torts and was struck for the first time by a parallel between that doctrine and product liability law. Perhaps others have already noticed the point that I’m about to make, but if so I was unaware of the connection.
In most assumption-of-risk cases, we are asking if a defendant should be found negligent in a circumstance where an activity undertaken by the plaintiff contains an element of danger that is exhilarating. For example, somebody who falls on an ice rink cannot successfully claim that the rink was negligently maintained because it was slippery. Why? Because ice skating would not be enjoyable if it was too safe. A similar rationale applies to many other recreational activities that involve risks that are thrilling.
What are the exceptions to this idea? One would be if the defendant operated the activity in a way that increased the normal risk of harm in a substantial and unanticipated way. A rink with thin ice that people fall through, for instance, is not a risk that a skater would reasonably anticipate. Another is that a leisure activity could simply be too hazardous. Society may conclude that certain sports (e.g. boxing) should be banned no matter how well they are run or how many people want to play. Finally, there might be situations in which the defendant did not adequately warn a plaintiff of the conventional risks of the activity.
These three limits to the assumption of risk are nearly identical to the three types of product liability defect. A manufacturing defect involves a product that does not perform as expected and causes harm. A design defect involves a product that works perfectly well but is judged to be too dangerous. And a warning defect involves an insufficient description of a product’s risk.
I’m not sure what to make of this analogy, but perhaps one body of law can shed light on the other.