Assumption of Risk - Abolition Of The Defense

Numerous states have abrogated the defense of assumption of risk in automobile cases through the enactment of no-fault insurance legislation or comparative negligence acts. The theories underlying its ABOLITION are that it serves no purpose that is not completely disposed of by the other doctrines, it increases the likelihood of confusion, and it bars recovery in meritorious cases.

Assumption of risk is not a defense under state WORKERS' COMPENSATION laws or in federal EMPLOYER'S LIABILITY ACT actions. The workers' compensation laws abolished the defense in recognition of the severe economic pressure a threatened loss of employment exerted upon workers. A worker was deemed to have assumed the risk even when acting under a direct order that conveyed an explicit or implicit threat of discharge for insubordination.

The federal Employers' Liability Act (45 U.S.C.A. § 51 et seq. [1908]) was intended to furnish an equitable method of compensation for railroad workers injured within the scope of their employment. The act provides that an employee is not deemed to have assumed the risks of employment when injury or death ensued totally or partially from the negligence of the carrier's officers, agents, or employees, or from the carrier's violation of any statute enacted for the safety of employees, where the infraction contributed to the employee's injury or death. This doctrine was abolished because of the extreme hardship it imposed on workers in this dangerous line of employment.