Is assumption of risk a valid defense or is it superseded by the doctrine of comparative negligence?
Holding/Rule:
Assumption of risk is not a valid defense since is superseded by the doctrine of comparative negligence.
Reasoning:
Assumption of risk is not a favored defense since it sometimes unjustly denies recovery.
Assumption of risk is subsumed by either the doctrine of comparative negligence of the common law concept of duty.
Implied assumption of risk can be primary or secondary.
Primary means that the D was not negligence because he owed no duty to the P in the first instance or because he did not breach the duty owed. This is no different than the principle of negligence.
Secondary is an affirmative defense to an established breach of a duty owed by the D to the P.
Implied Pure means that the P's conduct was reasonable. (rush into burning building caused by D to save baby)
Implied Qualified means that the P's conduct was not reasonable. (rush into burning building caused by D to save fedora)
These can both be disposed of through contributory negligence. In cases where contributory negligence defenses are asserted, comparative negligence will be used by the court to determine the outcome.
