Assumption of Risk Defense in Hawaii

In Larsen v. Pacesetter Systems, Inc., 74 Haw. 1, 837 P.2d 1273 (1992), the Hawaii Supreme Court encountered the nebula of the defense of assumption of risk: The doctrine of assumption of risk has been a subject of much controversy and confusion, in large part because it encompasses, under the deceptively simple construct that a plaintiff has deliberately subjected himself to danger, the concepts of plaintiff's consent, defendant's lack of duty, and plaintiff's contributory negligence. J. Wade, The Place of Assumption of Risk in the Law of Negligence, 22 La. L. Rev. 5, 14 (1961); see generally F. James, Assumption of Risk, 61 Yale L.J. 141 (1952); W. Keeton, Prosser and Keeton on Torts 68, at 480 (5th ed. 1984). The defense is not a favored one and the trend in the law has been toward abolishing it. Blackburn v. Dorta, 348 So. 2d 287, 289 (Fla. 1977); 4 F. Harper, F. James, & O. Gray, The Law of Torts 21.0 n.4, at 190 (2d ed. 1986); see generally H. Woods, Comparative Fault 6, at 131-163, 499-788 (2d ed. 1987). The doctrine has been criticized as duplicative of more widely understood concepts such as duty and as adding "nothing to modern law except confusion," James, supra, at 169; Wade, Assumption of Risk, supra, at 14; Harper, James & Gray, supra, 21.0, at 193 describing "The Battle of the Wilderness," the name by which drafters of Restatement Second) of Torts designated debate over whether to include the defense). (74 Haw. at 34-35, 837 P.2d at 1290.)