Please Watch Your Language!: The Chronic Problem of Assumption of Risk

By the early 1960s, influential judges and commentators concluded that the tort doctrines of implied assumption of risk had lost their vitality and that the components of assumption of risk worth preserving could be subsumed in other aspects of negligence law. During the ensuing decades, others endorsed the analyses and conclusions of these pioneers. Nonetheless, some appellate-court judges still have not caught on. Their opinions prove the continuing aptness of Justice Frankfurter's 1943 observation that the "phrase 'assumption of risk' [illustrates] the extent to which uncritical use of words bedevils the law. . . Plainly enough only mischief could result . . . ."* After outlining the analytically sound approach to implied assumption of risk, this article explores the mischief that the chronic uncritical use of the phrase "assumption of risk" continues to cause. It goes on to suggest a fresh approach to understanding and applying the conclusions of the twentieth-century pioneers in the hope that a different perspective will aid the achievement of greater clarity and consistency in courts’ reasoning and writing about assumption of risk. * Tiller v. Atlantic Coast Line R.R. Co., 318 U.S. 54, 68-69 (1943) (Frankfurter, J., concurring).