XVII. Assumption of Risk | Shailin Thomas | October 22, 2013

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XVII. Assumption of Risk

Original Creator: Jonathan Zittrain Current Version: Shailin Thomas Show/Hide

As with intentional tort, negligence doctrine allows for some defenses. These often focus on the behavior of the plaintiff-victim rather than defendant-wrongdoer. In its more traditional form, to validate a defense was to extinguish all liability: defenses of merit would be complete ones. “Assumption of the risk” is a complete defense to a claim of negligence that says that the victim knowingly and voluntarily undertook the risks arising from the defendant’s behavior (or non-behavior).

As the cases invoking it unfolded, there came to be a couple patterns of assumption of the risk. The first might be thought to have the plaintiff’s knowledge of the risk essentially make the defendant’s actions non-negligent to begin with. A steep ski slope properly marked means no liability for the resort not because the plaintiff conceded to risk the resort’s negligence, but because knowledge of the slope’s grade and condition allowed the plaintiff to assess the activity’s inherent risks and knowingly take them on. While that fact pattern might be best described, then, as simply no breach of duty by the defendant, it often outs itself within an assumption of risk defense at all.

Another pattern of assumption of the risk is when a defendant’s negligence is acknowledged by the plaintiff and the plaintiff moves ahead nonetheless. Imagine being picked up by a taxi cab that’s manifestly falling apart: a tire is wobbly, and the door almost comes off as you open it. (In Cambridge this does not require much imagination.) If, after that cab responds to your hail, you shrug and get in anyway and the wobbly tire comes off a few minutes later, causing an accident, what result? The cabbie is likely negligent in maintaining the car. But you assumed the risk, and perhaps there should be no liability. Another way to think of this is that you yourself were negligent – breaching a duty owed to yourself to keep yourself safe. That’s contributory (or comparative) negligence, which makes one wonder, then, what’s left for assumption of the risk to do as a doctrine?

Good question. As you read today’s cases and tomorrow’s on contributory negligence, it will help to think about how much vitality assumption of the risk retains as a doctrine given what can be folded into either breach in the primary case or into contributory negligence as a separate defense.

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  1. 1 Show/Hide More Knight v. Jewett -- "The Not-So-Friendly Touch Football Game"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    Should courts recognize an implied “assumption of risk” when individuals participate in activities where physical contact is routine?
    Notes:
    Plaintiff and defendant were on opposing sides in a game of touch football. No explicit rules were written down or discussed prior to the game, except that a two-handed touch above the waist would stop the advancement of another player. During the game, defendant played roughly, prompting the plaintiff to warn the defendant not to play so rough or she would quit the game. Later in the game, the defendant knocked the plaintiff over while intercepting a pass. When the defendant landed, he stepped on and injured the plaintiff's little finger. After three unsuccessful surgeries, the plaintiff had her finger amputated during a fourth surgery.
  2. 2 Show/Hide More Murphy v. Steeplechase
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    When should courts presume that a plaintiff has sufficient knowledge to have “assumed the risk”?
    Notes:
    The plaintiff suffered a fractured of a knee cap while “riding” an attraction maintained by the defendant, known as ‘the Flopper'. The injury was caused by the plaintiff tumbling off of the ride; however, as the name implies, the attraction was made to challenge the balance of riders and throw them onto padded walls or flooring. Furthermore, the plaintiff witnessed other riders falling off of the Flopper before he himself stepped on.
  3. 3 Show/Hide More Cohen v. McIntyre -- "The Once Bitten Veterinarian"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    Should courts hold that a plaintiff in a risky occupation assumes the risks endemic to their employment?
    Notes:
    Defendant brought an aggressive dog to the plaintiff's veterinary clinic for an examination. The plaintiff was quickly made aware of the dog's violent tendencies when the dog snapped at his left arm, and requested that defendant muzzle the dog. Defendant did so and the examination proceeded without incident. After the examination, plaintiff removed the muzzle from the dog. The dog immediately turned and bit the plaintiff several times. The plaintiff had been bitten twice before while treating other dogs.
  4. 4 Show/Hide More Lowe v. California League of Professional Baseball -- "The Tremor's Tail Case"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    If an individual already assumes a certain level of risk, should a defendant be liable if he or she increases the level of risk?
    Notes:
    Plaintiff was distracted by defendant's mascot while attending a home game of the defendant's baseball team. Just as the plaintiff returned his attention to the playing field, a foul ball struck him before he could react. Serious injuries resulted from the impact.
  5. 5 Show/Hide More Shorter v. Drury -- "The Jehovah's Witness and the Blood Transfusion Waiver"
    Original Creator: Jonathan Zittrain Current Version: Shailin Thomas
    Should courts excuse defendants whose negligent acts cause the kind of harm that the plaintiff has assumed risk for?
    Notes:
    The plaintiff was a Jehovah's Witness; by religious doctrine, members of the faith are prohibited from receiving blood transfusions. In order to remove a failed abortion from her uterus, the plaintiff submitted to a “dilation and curettage”—which was recommended and performed by the defendant. Before the surgery was scheduled, the plaintiff was informed that the procedure had a risk of severe bleeding and perforation of the uterus. However, the plaintiff was not informed that there were two alternative procedures available which had lower risks of bleeding. Nevertheless, the plaintiff consented to the surgery and signed a form indicating her refusal to permit a blood transfusion. During the operation, the defendant negligently, severely lacerated the plaintiff's uterus, causing serious blood loss. Doctors pleaded with the plaintiff and her husband to permit a blood transfusion. They both refused, and the plaintiff bled to death. Doctors for both parties agreed that a transfusion had a substantial probability of saving the plaintiff's life.
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February 18, 2014

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