Washington and Lee Law Review Volume 23 | Issue 1 Article 7 Spring 3-1-1966 Distinctions Between Assumption of Risk and Contributory Negligence Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Torts Commons Recommended Citation Distinctions Between Assumption of Risk and Contributory Negligence, 23 Wash. & Lee L. Rev. 91 (1966), https://scholarlycommons.law.wlu.edu/wlulr/vol23/iss1/7 This Comment is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. 1966] CASE COMMENTS CASE COMMENTS DISTINCTIONS BETWEEN ASSUMPTION OF RISK AND CONTRIBUTORY NEGLIGENCE "Attempting to explain with logic the cases on assumption of risk is almost an impossible task"; the cases seem irreconcilable,1 and many courts use the terms assumption of risk and contributory negligence interchangeably.2 The doctrines of assumption of risk and contribu- tory negligence overlap when plaintiff has made an unreasonable choice to assume the risk; consequently many scholars and some courts believe a merger would be appropriate.3 The majority of courts have rejected this merger on the ground that assumption of risk and con- tributory negligence are distinguishable when a person reasonably and voluntarily chooses to encounter a known danger, thus assuming the risk, yet not being contributorily negligent. 4 This distinction that a plaintiff may voluntarily, yet reasonably, choose to encounter a known danger seems highly questionable when the basis for de- termining voluntary choice is examined. The problems involved in distinguishing between assumption of risk and contributory negligence are illustrated in Kelley v. Alexand- er.5 Plaintiff employed defendant to repair conditions on plaintiff's property, and, while performing these repairs, defendant left an un- protected hole in plaintiff's yard. Plaintiff, afraid that the children who frequently played in her yard might be hurt, was attempting to drag a limb over the hole when she slipped and fell into the hole. 'Greenhill, Assumption of Risk, 16 Baylor L. Rev. 111 (1964). 'Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 93 (1959); Petrone v. Margolis, 20 N.J. Super. i8o, 89 A.2d 476, 477 (1952); Mudrich v. Standard Oil Co., 153 Ohio St. 31, go N.E.2d 859, 862 (1950); Ferguson v. .ongsma, xo Utah 2d 179, 350 P.2d 404 (1960). 'Frelick v. Homeopathic Hosp. Ass'n, 51 Del. 568, 15o A.2d 17 (1959); Felgner v. Anderson, 375 Mich. 23, 133 N.V.2d 136, 153 (1965); McGrath v. American Cyanamid Co., 41 N.J. 272, 196 A.2d 238, 239-40 (1963). 'E.g., Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503 (1914); Narramore v. Cleveland, C.C. 6 St. L. Ry., 96 Fed. 298, 304 (6th Cir. 1899); Porter vt. Louisville & Nashville R.R., 201 Ala. 469, 78 So. 375, 377 (1918); Wescott v. Chicago Great JV.R.R., 157 Minn. 325, 196 N.V. 272, 273 (1923); Lively v. Chicago, RI. & P. Ry. 115 Kan. 784, 225 Pac. 1o3, 105 (1924). Rice, The Automobile Guest and the Ra- tionale of Assumption of the Risk, 27 Minn. L. Rev. 323, 335 (1943), Comment, "Volenti Non Fit Injuria" is Actions of Negligence, 8 Harv. L. Rev. 457, 461 (1895). 1392 S.W.2d 790 (Tex. Civ. App. 1965). 92 WASHINGTON AND LEE LAW REVIEW [Vol. XXlII Plaintiff brought suit for her injuries and defendant pleaded contribu- tory negligence and assumption of the risk. The trial court granted defendant a summary judgment without elaborating on which defense the judgment was based. On appeal plaintiff contended that under the rescue doctrine she was justified in encountering the danger and thus did not assume the risk.6 The appellate court upheld the sum- mary judgment on the ground that plaintiff had assumed the risk. The rescue doctrine was held inapplicable here as justification for as- suming the risk because there was no evidence of "imniinent peril."7 The lone dissenter based his opinion on two grounds: first, under previous decisions of the court, the rescue doctrine may have been ap- plicable in Kelley.8 However, the dissenter did not elaborate on this point and may have realized that discussion of the rescue doctrine was irrelevant since the proper effect of the rescue doctrine is to provide a cause-in-fact connection and a duty relationship between a negli- gent defendant and a third party rescuer.9 In Kelley, defendant's lia- "Plaintiff relied on recent dicta that under assumption of the risk the plaintiff cannot recover if he deliberately and voluntarily encounters a known risk, however, "there may be some exceptions, such as where the plaintiff is motivated by humani- tarianism or rescue impulses." Halepeska v. Callihan Interests, Inc., 371 S.V.2d 368, 379 (Tex. 1963). 'The court may have overstepped its powers in deciding that, as a matter of law, there was no imminent peril. "The word 'imminent' carries the idea of close- ness in point of time, but does not necessarily imply the absence of any interval whatever. There is some latitude in its application according to the situation pre- sented." Smith v. City Ice & Delivery Co., 117 Kan. 485, 232 Pac. 6o3, 605 (1925). "In determining whether the peril, or appearance of peril, is imminent ... the circum- stances presented to the rescuer must be such that a reasonable prudent man, under the same or similar circumstances would determine that such peril existed. (The issue of whether the rescuer's determination conformed with the reasonably prudent man standard is a question for the jury, under proper instruction.)" French v. Chase, 48 Wash. 2d 825, 297 P.2d 235, 239 (1956). The fact that no one was in actual danger and that plaintiff's act might ultimately have proved unnecessary does not affect the situation. The facts must be viewed as they might reasonably have appeared to the plaintiff, and there is a "peculiar value" in submitting the issue to the jury. Cote v. Palmer, 127 Conn. 321, 6 A.2d 595, 599 (194o). 8The dissenter noted that Swift & Co. v. Baldwin, 299 SAV.2d 157 (Tex. Civ. App. 1957), cited by the Kelley majority, applied the rescue doctrine to a fact sit- uation similar to the one facing plaintiff in Kelley. In Swift & Co. plaintiff was in- jured while attempting to repair a loose sign in an area where school children frequently passed. The jury found there was imminent peril, although there were no children in the area at the time of plaintiff's act. '"Theeffect of the rescue doctrine when properly applied ... is to extend for the benefit of the rescuer the liability which the defendant in a given case may have toward the person whom it has placed in danger." Brady v. Chicago 6 Nw.R.R., 265 Wis. 618, 62 N.W.2d 415, 419 (1954). Cardozo stated in the land- mark case, Wagner v. InternationalRy., 232 N.Y. 176, 133 N.E. 437 (1921), "danger invites rescue" and the defendant cannot claim the rescuer was unforeseeable. 1966] CASE COMMENTS 93 bility to plaintiff is based on the employment contract relation be- tween them, and the rescue doctrine is raised by plaintiff to refute assumption of risk, not to provide the necessary cause-in-fact con- nection and duty relationship between defendant and plaintiff. The second ground of dissent was that, regardless of the applica- bility of the rescue doctrine in Kelley, plaintiff had not assumed the risk because "one who has a legal right, or is under a social or legal duty, to act as he has under conditions created by defendant's wrong does not act voluntarily."'1 The defendant's duty violation imposed a legal duty on the plaintiff;" thus the plaintiff's choice to encounter the danger was not the voluntary choice required for assumption of 2 risk.1 What constitutes a voluntary choice has caused most of the con- fusion between assumption of risk and contributory negligence. 3 To understand that confusion it is necessary to understand in what sense assumption of risk is being used.14 Assumption of risk has been ana- lyzed into at least three distinct fact situations. 15 (i) The plaintiff "Kelley v. Alexander, supra note 5, at 794. ""A possessor of land is subject to liability for bodily harm to children tres- passing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to kuow that [such] children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or seriously bodily harm to such children, and (c) the children because of their youth do not discover the condi- tion or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it...." Restatement (Second), Torts § 339 (1965)- "Assumption of risk is applied when the plaintiff has made a voluntary choice to encounter a known and appreciated danger. White v. McVicker, 216 Iowa 9o, 246 N.W. 385 (1933); Robert E. McKee, Gen. Contractor,Inc. v. Patterson, 153 Tex. 517, 271 S.W.Ad 391 (1954). Halepeska v. Callihan Interest, Inc., supra note 6. After knowledge and appreciation have been established, "there yet remains the issue as to whether the invitee voluntarily exposed himself to the danger known and ap- preciated by him." Sinclair Ref.