This article will revisit the history of assumption of risk in California and elsewhere and suggest that the traditional doctrine should be modified and revived, despite the contrary approach of the Restatement (Third) of Torts. In the first part of the article, I will describe the ambiguities in the statements of assumption of risk that existed before the adoption of comparative negligence. I will show that Knight v. Jewett, which rejected assumption of risk, misinterpreted Li v. Yellow Cab Co., in which the California Supreme Court adopted a comparative negligence rule. Moreover, even if the Knight case was defensible on its facts, the post-Knight cases create serious problems of predictability and judicial authority.
In the concluding part of the article, I will relate assumption of risk to contractual doctrines of assent and implied-in-law contracts. These comparisons will show that assumption of risk, like many other doctrines, should not always require conscious consent. This context helps us better understand the functions of the defense of assumption of risk and demonstrates that it serves many purposes that cannot easily be advanced with other doctrines. [excerpt]