Priorities

I am perhaps being relentlessly logical, but the law calls for nothing less when we’re forced to balance — and remember, it’s almost always a BALANCING act — the rights and grievances of two sides in a civil case. The argument I made is quite serious, and quite uncontroversial as well: you read about cases just like the scenario I laid out in your first-year torts casebook on the section about Assumption of Risk. Understand acblue, this is a legal concept and not just my personal philosophizing.

Additionally, the reason it’s a legal concept is because there is an underlying moral rationale to it, however harsh it may initially appear: Western legal, ethical, and philosophical systems revolve in large part around concepts of personal responsibility. That’s why the biggest losers in torts cases are people who endanger innocent unwitting bystanders or children or invalids: people who can’t make any reasonable choices about their own safety are the ones who need the most legal defense.

In this case, courts have looked upon cases like Alomar’s girlfriend and used exactly the calculus I just did: “What is that you say, Ms. Alomar? You suspected he was HIV+? You asked him to get tested? You were afraid for your health? And yet you continued to have unprotected sex? Why did you not refuse, Ms. Alomar? Leave the relationship? Because you enjoyed your comfort? In that case, the court has no choice but to find that you were aware of and consciously assumed the risk of infection.”

This case won’t ever make it to such a stage – it was designed to be settled out of court — but you should understand that this is exactly the line of reasoning any sensible judge would follow, and with good reason. Once you strip away the taboo issues of sex, disease, and male-female relationships, you are left with an archetypical “bungee-jumping” case: plaintiff chooses to engage in a risky activity knowing there is a chance of a disastrous outcome, and assumes the risk.