Scholar Seeks to Insert Fairness into Assumption of Risk Defense

Tel Aviv University Senior Law Lecturer Avihay Dorfman explores the theoretical underpinnings of assumption of the risk as a tort defense and illustrates its nuances in the context of obesity. “Assumption of the Risk, After All,” Theoretical Inquiries in Law (forthcoming 2013). Observing that any hostility toward the doctrine stems from the perception that it has a libertarian basis, the author develops a liberal egalitarian account, “arguing that the fact of making a choice (to assume a given risk) is not sufficient to justify the shifting of responsibility from the negligent injurer to the choosing victim. For it is also necessary that the latter must be acting under conditions that render this shifting fair.” In the case of an obese individual residing in a “food desert” where “junk food” is the only food readily available at an affordable price, Dorfman contends that it would not be fair to attribute responsibility for any harm allegedly caused by poor food choices to the decisionmaker.