Assumption of Risk

Question 1

Assumption of Risk - General Concept

Answer 1

• deals w/ pl’s choice

- basically the negligence version of consent (does NOT come into play in intentional torts)

Question 2

Old Rule on Assumption of Risk

Answer 2

• bar to recovery for negligence liability

- knowledge + choice = assumption of risk

Question 3

Second Restatement of Torts - Assumption of Risk

Answer 3

• deals w/ old assumption of risk rule

Two basic components:

• risk must be assumed voluntarily
• assumption of risk not voluntary if def’s conduct has left pl no reasonable alternative to avert harm to self or another or exercise a right or privilege of which def has no right to deprive pl

Question 4

Farwell v. Boston & Worchester RR

Answer 4

• 1842
• OLD AR
• P’s hand crushed through negligence of fellow employee
• court basically follows notion that contract law trumps torts - presume contract implied even if nothing regarding this specific risk - employee accepts the risks of the job + employer pays corresponding wages
• also argues employee better CCA - can monitor fellow workers + bring issues to attention of employer

Question 5

Lamson v. American Ax & Tool Co.

Answer 5

• 1900
• pl’s job involved painting hatchets, + pl complained to boss about how unsafe the new hatchet racks were -> pl injured as a result of the racks
• court held pl stayed + had knowledge -> therefore assumed the risk + barred from recovery (notes say would turn out other way in modern courts)

Question 6

Rationale Behind “Fellow Servant Doctrine”

Answer 6

• pl is in at least as good a position as def to police the activities of fellow employees (although problem - AR applies whether actual opportunity to do this or not)
• pl contracted for position + part of his compensation adjusts for risks the pl will be exposed to (Posner’s risk premium argument - risk-preferers drawn to risky jobs by higher pay)

Question 7

Modern Conception of Assumption of Risk

Answer 7

Two broad categories:

• express (explicit agreement - written)
• implied (by law) - based on conduct -> involves primary and secondary

Question 8

Scott v. Pacific West Mountain Resort - Facts

Answer 8

• 1992
• 12 yr old pl suffered severe injuries while skiing at def’s resort
• at time of injury, pl was attempting to ski on slalom race course laid out by ski school owner, allegedly according to instructions from an agent of the ski resort
• def says pl assumed the risk

Question 9

Scott v. Pacific West Coast Mountain - Ruling + Reasoning

Answer 9

• says lower court wrong to grant def’s motion for summary judgment b/c not clear the course was an inherent danger of the sport (implied primary assumption of risk means plaintiff assumes dangers inherent in and necessary to the particular sport or activity, but may be that the racecourse was arranged dangerously + not an inherent risk of the sport itself)
• just b/c you’ve impliedly assumed the risks of the sport doesn’t mean you give up right to recover for negligence which unduly enhances such risks (doesn’t include failure of operator to provide reasonably safe facilities)

Question 10

Scott - Implied Primary Assumption of Risk

Answer 10

• implied primary assumption of risk negates def’s duty b/c pl impliedly consents to assume the duty
• acts as complete bar to recovery when pl injured due to the assumed risks (risks outside the scope of the assumption remain as potential bases for liability)
• sports cases = classic ex - def does not have duty to protect pl from risks which are an inherent and normal part of the sport

Question 11

Implied Primary Assumption of Risk - General Points

Answer 11

• objective - ties into understanding of reasonable people
• suspension of duties of ordinary care w/ respect to inherent risks
• Def bears burden of asserting and proving risk

Question 12

Implied Secondary Assumption of Risk

Answer 12

• affirmative defense to a breach of duty of care
• did pl implicitly agree to accept the risk of harm flowing from def’s breach of its established duty of care?
• implied reasonable and unreasonable assumption of risk arise when pl is aware of a risk created by def’s negligence but choses voluntarily to encounter it

Question 13

Implied Secondary Assumption of Risk - Reasonable

Answer 13

• firefighter rule - firefighters + police officers take the risks of premises as they found them
• basically, if pl’s assumption of risk is reasonable, no fault + doesn’t get factored into contributory negligence or bar recovery

Question 14

Implied Secondary Assumption of Risk - Unreasonable

Answer 14

• if pl unreasonably assumes the risk created by def’s negligence, it gets absorbed into contributory negligence

Question 15

Clayards v. Dethick

Answer 15

• 1848
• pl walked horse over trench dug by def -> horse falls in + dies (pl had been warned not to walk horse over plank + go a different way instead)
• illustrates implied secondary assumption of risk - reasonable b/c def can’t stop pl from pursuing livelihood (pl has right to access stable)
• prof emphasized non-strangers - no contractual relationship (if reasonable AR, only non-strangers are barred)

Question 16

Siragusa v. Swedish Hospital

Answer 16

• 1962
• pl (nurse) struck by metal hook of door -> brought negligence suit against employer
• basically rejects old formulation of AR between employees and employers -> says employer has duty to exercise reasonable care to provide employees w/ a reasonably safe place to work

Question 17

Modern Assumption of Risk

Answer 17

• seems like this has been walked back a lot + isn’t really applied as much anymore, but difficult to tell
• basically, if it’s unreasonable AR, it gets factored intro contributory negligence (since you acted unreasonably)
• reasonable AR really only deals w/ express AR, firefighter rule, + recreation (primary)
• sometimes there is just a duty to warn (primary assumption of risk) - ex: ski trail + there are certain in risks in skiing that you should warn about (but not defense to failure to provide reasonably safe facilities -> Scott)