Voluntary Assumption of Risk in Texas Revisited--A Plea for Its Abolition

Until a few years ago, many Texas lawyers erroneously believed that a “slip and fall” case was relatively easy to prepare and try. If the defendant knew of the dangerous condition on the floor or it had been there so long that the defendant should have known of it, the plaintiff was entitled to have the primary negligence and causation issues submitted to the jury, to be followed by issues of contributory negligence. The law has advanced and, unfortunately, becomes more complex. The “slip and fall” case in Texas is no longer simple. In addition to negativing “no duty,” plaintiff must be found not to have either expressly or impliedly voluntarily assumed the risk. Only then may the jury consider the nightmare of special issue submission which, at least for the time being, has been standardized and, hopefully, simplified by Adam Dante Corp. v. Sharpe, the substantive tort questions remain. How did voluntary assumption of risk evolve in Texas? Why do we have the doctrine? Is it sound tort theory in all cases, some cases, or none? Are there reasonable alternatives?