dissenting.
The majority holds that “it was error to deny the skating rink’s motion for judgment notwithstanding the verdict because there was insufficient evidence to find that Smollett had not assumed the risk of injury.” I believe that the defendant has not demonstrated that the record lacks a minimum quantum of evidence from which a jury could reasonably have afforded relief. Therefore, I would affirm the judgment of the district court.
I.
Assumption of the risk is an affirmative defense which has traditionally been considered an absolute bar to recovery. See Restatement (Second) of Torts § 496A (1965). Although the Virgin Islands has enacted a contributory negligence statute which permits recovery on a pro rata basis where the plaintiff’s negligence does not exceed that of the defendant, V.I.Code Ann. tit. 5, § 1451 (Supp.1985), the assumption of the risk doctrine is nonetheless an available, although limited, defense. Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir.1979). As we noted in Keegan, the assumption of the risk doctrine “embraces two distinct concepts — one akin to waiver or consent, the other a species of negligence.” Id. at 39 n. 5 (citing Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479 (3d Cir.1965), cert. denied, 382 U.S. 987, 86 S.Ct. 549, 15 L.Ed.2d 475 (1966), amended on other grounds, 370 F.2d 95 (3d Cir. 1966), cert. denied, 386 U.S. 1009, 87 S.Ct. 1350,18 L.Ed.2d 436 (1967)). To the extent that the assumption of risk doctrine involves a negligence theory, the doctrine has been replaced by the Virgin Islands contributory negligence statute. Keegan, 606 F.2d at 40. To the extent that the theory involves a consent or waiver principle, it remains a viable defense. Id. at 41; cf. Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1008 (3d Cir.1983) (reaching the same conclusion in the context of the Pennsylvania Skiers’ Responsibility Act).
In Keegan, we explained that portion of the assumption of the risk theory which continues to operate as an absolute bar to recovery.
Assumption of risk in its primary and strict sense involves voluntary exposure to an obvious or known danger which negates liability. Under this concept recovery is barred because the plaintiff is assumed to have relieved the defendant of any duty to protect him. (emphasis added) (citations omitted).
Id. at 39 n. 5 (quoting Pritchard, 350 F.2d at 484). The defendant, who asserts the assumption of the risk defense in its primary sense “has the burden of demonstrating that no duty was owed plaintiff.” Smith, 716 F.2d at 1008 (citing Restate-*550merit (Second) of Torts § 496G (1965)). “Defendant can sustain its burden by proving that plaintiff knew of the risk, appreciated its character, and voluntarily chose to accept it. Jones v. Three Rivers Management Corp., 483 Pa. 75, 88, 394 A.2d 546, 552-53 (1978).” Smith, 716 F.2d at 1008-09. The defendant must also demonstrate that the “plaintiffs conduct in knowingly and voluntarily confronting the risk was reasonable. Prosser, Law of Torts § 68, at 440 (4th ed. 1971).” Smith, 716 F.2d at 1009.
II.
The defendant here claims that the jury’s failure to find assumption of the risk was against the clear weight of the evidence. The defendant argues that the plaintiff “was specifically aware of each and every hazard which she is now claiming contributed to her injury.” “She could not help but be aware,” concludes the defendant, “of the cumulative effect of each of these so-called hazards.”
The plaintiff admits that she was aware of the separate hazards which contributed to her injuries: the lack of guardrails, the elevation of the skating surface, and the different textures of the carpeted surface and the polyurethaned skating floor. The plaintiff maintains, however, that the defendant is relying impermissibly on the assumption of the risk doctrine in its secondary sense — as a theory of negligence. The plaintiff also alleges that there is sufficient evidence to support the jury’s verdict.
I believe that the jury’s failure to find that the defendant had satisfied its burden under the assumption of the risk doctrine is not contrary to the clear weight of the evidence. While the evidence does indicate that the plaintiff knew of the separate hazards, there is no evidence that the plaintiff knew of and appreciated how the various hazards could work in combination. The majority speculates that the plaintiff must have known of the risk because she had walked on the carpeted area with her skates and was aware, therefore, that the carpet slowed her rate of speed. The majority’s speculation suggests only that the plaintiff was aware of the separate hazard of the carpeted area. It does not address the issue of the plaintiff’s knowledge of the risk created by the combined hazards. The defendant also fails to establish, as it must, that the clear weight of the evidence is contrary to a finding that the risk was not reasonable. I believe that the defendant has failed to produce any evidence supporting three of the four elements of the assumption of the risk doctrine in its primary sense.
In addition, there is evidence in the record which tends to counter a finding of waiver or consent. The plaintiff and her husband did ask Les Cooper, owner of the defendant skating rink, about the safety of the rink in the absence of guardrails. They were told that the no-guardrail design was used for safety reasons. In light of this representation, I cannot say that all reasonable people would conclude that the combined hazard was so obvious that the plaintiff assumed the risk and that the defendant owed no duty to the plaintiff. Restatement (Second) of Torts § 496D comment e (1965) (“The court may itself determine the issue only where reasonable [people] could not differ as to the conclusion.”).
Because there is room for doubt on the questions of the plaintiff’s knowledge and understanding and the reasonableness of her conduct, we should not disturb the jury’s verdict. I would find that the district court did not err in denying the defendant’s motion for a new trial on the basis of the assumption of the risk doctrine.
III.
The defendant also argues that there was insufficient evidence to support the plaintiff’s claim of a permanent injury and that the trial court erred when it informed the jury, in its instructions and on the verdict forms, of the legal bar to recovery where the plaintiff’s contributory negligence exceeds fifty per cent. I find no merit in either contention and, therefore, *551would affirm the district court’s entry of judgment in favor of the plaintiff.