For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was ‘against public policy’. Recently, however, many courts have addressed the issue through the contract doctrine of ‘unconscionability’. This change in focus has subtly but importantly altered the enforceability inquiry by emphasizing the conditions under which the plaintiff agreed to the contract, rather than broader policy considerations concerning regulation of defendants’ activities. In doing so, this shift has increased, rather than diminished, the tortfeasor’s chance of escaping liability. As a result, today, risk-generating, repeat-player defendants are increasingly able to avoid responsibility for negligently causing injuries by pointing to boilerplate consumer releases of liability.
This article argues that unconscionability doctrine should be kept out of the law of express assumption of risk – that its importation into tort law is wrong both as a matter of doctrinal analysis and as a matter of policy. It asserts that courts should instead focus on the regulatory role that tort law plays in helping to ensure and promote the safety of consumers and having a right to sue for redress. This view is supported by the history and the evolution of the assumption of risk defense in the US, and the similar approaches of other common law and civil law systems.
Takhshid, Zahra, Assumption of Risk in Consumer Contracts and the Distraction of Unconscionability (January 27, 2021). Cardozo Law Review, volume 42, 2021, Harvard Public Law Working Paper forthcoming.