Rutter v. Northeastern Beaver County School District

NIX, Justice,

dissenting.

The majority in this case has unnecessarily complicated a doctrine which admittedly is retained by a majority of our sister states. Although certain authorities have questioned the validity of assumption of risk doctrine, I believe this doctrine constitutes a necessary and viable component of tort law. Notwithstanding the fact assumption of risk and *618contributory negligence may overlap in some areas, they are two separate and distinct defenses. Assumption of the risk is based on the theory that there has been a voluntary acceptance of risk and such acceptance, whether express or implied, requires knowledge and appreciation of the risk. Contributory negligence on the other hand is a matter of some fault or departure from the standard of reasonable conduct.

One distinction between assumption of risk and contributory negligence is that- contributory negligence is itself a proximate cause of the injury complained of, while assumption of risk will bar a recovery even though it plays no part in the causation of the accident except the voluntary exposure to danger with actual knowledge of the dangerous condition. 82 A.L.R.2d 1231 (1962).

An example of where assumption of risk is applicable and contributory negligence is not is found in Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179, 96 A.2d 181 (1953). In Schentzel there was not direct evidence that plaintiff, a 47-year-old woman, knew that baseball players hit foul balls which go astray and may injure spectators. The court, however, reversed a judgment in her favor, finding “she must have assumed such a risk,” because “she must be presumed to have been cognizant of the “neighborhood knowledge” with which individuals living in organized society are normally equipped.

The benchmark of negligence is conduct expected of the proverbial reasonable man. To erode this concept and carve an exception in the area of the defense of assumption of risk serves no purpose and in effect throws the entire one out of kilter. An objective standard must necessarily be applied in assumption of risk cases to avoid placing an unreasonable burden on defendant to prove plaintiff’s state of mind. The difficulties created by the use of a subjective standard has been commented on by Dean Prosser.1

*619Under an objective standard in this case, it is clear that the record reflects that a reasonable individual in the plaintiff’s situation was aware of the dangers inherent upon his participation and voluntarily assured the risk. Appellant had played football on the school team in two previous years and was a starter on the team in the year of the accident. Appellant had also played jungle football during those previous years. Clearly, appellant had to be aware of the potential dangers of playing jungle football and could very easily have chosen not to continue to participate in playing the game. Because of his prior experience and knowledge of the inherent dangers of such contact sports, the only logical conclusion would be that appellant was not only aware of the risks but voluntarily assumed those risks.

The question of duress introduced by the majority is, in my judgment, a red herring. Obviously the risks of jungle football were no greater than the risks involved in the general football program. Having committed himself voluntarily to participation in this area, he cannot now be heard to attempt to isolate one segment from the general exposure that he had voluntarily committed himself to be exposed to.

WILKINSON, J., joined in this opinion.

. The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable man of ordinary prudence who appears in contributo*619ry negligence. If because of age or lack of information or experience, he does not comprehend the risk involved in a known situation, he will not be taken to consent to assume it. His failure to exercise ordinary care to discover the danger of risk, but of the defense of contributory negligence.

At the same time, it is evident that a purely subjective standard opens a very wide door for the plaintiff who is willing to testify that he did not know or understand the risk; and there have been a good many cases in which the courts have said in effect that he is not to be believed, so that in effect something of an objective element enters the case, and the standard applied in fact does not differ greatly from that of the reasonable man. The plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him. There are some things, as for example the risk of injury if one is hit by a baseball driven on a line, which are so far a matter of common knowledge in the community, that in the absence of some satisfactory explanation a denial of such knowledge simply is not to be believed.

W. Prosser, Handbook of the Law of Torts § 68 (3d ed. 1964).