22 Plaintiff’s Conduct

1. Assumption of the Risk

Focusing on the plaintiff’s conduct first, there are three main categories: assumption of the risk, contributory negligence, and comparative negligence. Focusing on assumption of the risk, you will see that it falls into two (or more) categories: express and implied assumption of the risk. Express assumption of the risk involves waivers of liability or clear assent to the risks while implied assumption of the risk is often described in terms of the duty (or limits on the duty) of the defendant, based on the plaintiff’s willing participation in something risky. There are two types of implied assumption of the risk (primary assumption of the risk and secondary assumption of the risk), and some courts have drilled even further into those. As you will see, these gradations pertaining to plaintiffs’ behavior will pull us ever deeper into the world of tort law’s defenses and, in particular, the complex terrain of comparative fault.

Keep in mind that the theory behind assumption of the risk is somewhat like the theory of consent, wherever you see it substantively in other doctrines. If you decide you want to be adventurous, according to tort law, the law should allow you to do so. But then, it also will hold that your ability to sue for injuries incurred during the adventure will be limited in significant ways. The law has developed these limitations on liability and related doctrines over time, and while there are many contexts for this discussion, we will begin with one singled out by Justice Cardozo.

With apologies for the way in which tort law just continues to rain on every parade, our next case directs our attention to the serious risks associated with injuries at amusement parks, in the context of defenses to negligence. As a treatise on tort law writes, there are many:

injuries suffered by riders on amusement park attractions, including the traditional mechanical rides common at carnivals and amusement parks, and the various water slides and raft rides that now proliferate at theme parks. A patron on such a ride may be injured in a great number of ways. Cases … involve patrons injured in the apparently normal course of a ride, in which case the design of the ride becomes the primary issue. In addition, cases often include some combination of allegations that rides were negligently maintained or operated, or that patrons were not adequately protected from negligent spectators. 16 Causes of Action 2d 1 (Originally published in 2001)

There are spinal injuries, many broken bones and injuries, severed thumbs (why must there be so many severed thumbs?) as well as the occasional death by drowning, electrocution, alligator attack or other catastrophic injury. The injuries are tragic, yet thankfully, very infrequent, unless you’re at Action Park, apparently. Action Park was a notorious amusement park and tort magnet that people who came of age in the 1980s on the East Coast remember fondly.

Here are some sources to explore on the topic:
“Defunctland: The History of Action Park” (17-minute video):
https://www.youtube.com/watch?v=flkW-ceNvck

Trailer for the documentary “Class Action Park” (2020) (2-minute video):
https://www.classactionpark.com/

Interview with Director of “Class Action Park” (5-minute video):
https://www.youtube.com/watch?v=g1i4zA5RjaE

For further reading about Action Park if you’re curious:
https://www.njherald.com/article/20140609/NEWS/909029323
https://weirdnj.com/stories/action-park/

These sources document how dangerous Action Park was. While it was unusually dangerous—deadly, even—it was not unique in regularly exposing visitors to considerable risks of injury in an industry that was not thoroughly regulated. Today, other amusement parks remain open, subject to various regulations, statutes, and of course, tort liability. If you have ever been into an amusement park, you know why they are still open. Either you had a great time (for at least a part of your time there) or you observed how much fun others were having. Indeed, people pay a lot of money and brave long lines, sunburns, loud noises, absurdly expensive sub-par food, and yes, very real risks of injury. Visitors are clearly flocking to parks (at least in non-pandemic times) of their own volition. (Full disclosure: “visitors… flocking” includes this author; we have an annual family trip that has often featured a trip to the local amusement park).

But at what point, if any, do these parks and their activities become too risky to allow? To what extent, normatively, should the law impinge on the autonomy of thrill-seekers who may be perfectly aware of the risks and simply wish to assume them, thank you very much? In the case of those who went to Action Park, as you saw in the videos linked above, the very point of the fun was the genuine danger. Tort law’s purposes, if we include the ideas of autonomy, consent and choice, are very much in tension in the context of allowing but still regulating adventurous activities that can tend to produce frequent or severe injuries, or both. Often, the difficult questions will be the scope of the risk assumed and the gradations of negligence in the conduct of those running the dangerous or risky activity.

Murphy v. Steeplechase Amusement Co., Court of Appeals of New York (1929)
(250 N.Y. 479) (Justice Cardozo)

The defendant, Steeplechase Amusement Company, maintains an amusement park at Coney Island, New York. One of the supposed attractions is known as “The Flopper.” It is a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring *481 beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power.

Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as every one understood, than the slowly-moving escalator that is common in shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiff’s wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. “I took a chance,” she said when asked whether she thought that a fall might be expected.

Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee cap. He states in his complaint that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a fast and dangerous rate of speed and was not supplied with a proper railing, guard or other device to prevent a fall therefrom. No other negligence is charged.

*482 We see no adequate basis for a finding that the belt was out of order. It was already in motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such circumstances by the addition of the facile comment that it threw him with a jerk. One who steps upon a moving belt and finds his heels above his head is in no position to discriminate with nicety between the successive stages of the shock, between the jerk which is a cause and the jerk, accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power was transmitted smoothly, and could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere descriptive epithet, a summary of the sensations of a tense and crowded moment … But the jerk, if it were established, would add little to the case. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen…

Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball *483 … The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.

A different case would be here if the dangers inherent in the sport were obscure or unobserved (Godfrey v. Conn. Co., supra; Tantillo v. Goldstein Bros. Amusement Co., 248 N. Y. 286), or so serious as to justify the belief that precautions of some kind must have been taken to avert them (cf. O’Callaghan v. Dellwood Park Co., 242 Ill. 336). Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe. A different case there would also be if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change. The president of the amusement company says that there had never been such an accident before. A nurse employed at an emergency hospital maintained in connection with the park contradicts him to some extent. She says that on other occasions she had attended patrons of the park who had been injured at the Flopper, how many she could not say. None, however, had been badly injured or had suffered broken bones. Such testimony is not enough to show that the game was a trap for the unwary, too perilous to be endured. According to the defendant’s estimate, two hundred and fifty thousand visitors were at the Flopper in a year. Some quota of accidents was to be looked for in so great a mass. One might as well say that a skating rink should be abandoned because skaters sometimes fall.

*484 There is testimony by the plaintiff that he fell upon wood, and not upon a canvas padding. He is strongly contradicted by the photographs and by the witnesses for the defendant, and is without corroboration in the testimony of his companions who were witnesses in his behalf. If his observation was correct, there was a defect in the equipment, and one not obvious or known. The padding should have been kept in repair to break the force of any fall. The case did not go to the jury, however, upon any such theory of the defendant’s liability, nor is the defect fairly suggested by the plaintiff’s bill of particulars, which limits his complaint. The case went to the jury upon the theory that negligence was dependent upon a sharp and sudden jerk.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

Note 1. “The timorous may stay at home” has to be one of the top 20 phrases ever published in an opinion on tort law. Its durability may be due in part to its use of the unusual word “timorous” (fearful) which Cardozo uses, somewhat obnoxiously, to classify people who don’t seek thrills on roller-coasters. But it is also likely memorable for the tough love Cardozo seems to be showing towards those who willingly seek thrills. His point is the willing cannot recover for injuries caused by the things they willingly did (“volenti non fit injuria”). In one sense, this merely mirrors the ideas of bodily autonomy that undergird the tort of battery, as you saw earlier in the term. It is a form of aligning liability with the concept of consent. In another sense, however, it is creating a contract-like principle: if you agree to subject yourself to certain risks, you must be held to that earlier agreement.

Note 2. If the rationale is that the rider of “The Flopper” assumed the risk of falling, is an unforeseen and unexplained jerk caused by the machine the same kind of risk young Mr. Murphy assumed? In your mind, is this more properly a question of duty or proximate cause? A question of law or of fact, in other words?

Note 3. How far should assumption of the risk be allowed to go, from a policy perspective? On Friday, October 30, 2020, a news story reported that a man who had specially paid to spend time with a leopard was mauled and severely injured:

https://fox8.com/news/man-mauled-after-paying-for-full-contact-leopard-experience-in-florida/

If we assume that strict liability is applicable to any conduct involving wild animals, does it make sense to allow entities to “contract around” the harm they might suffer? More generally, should waivers of liability be allowed to limit possible tort liability, thus turning this domain into one governed by contract, rather than tort law? Why or why not? What are the costs and benefits of allowing waivers of liability? What alternatives exist?

Release of Liability and Express Assumption of the Risk

The next two cases present different resolutions of disputes over waivers of liability for Scuba diving lessons. As you read them, consider what distinguishes them as well as the common threads that run through them.

Boyce v. West, Court of Appeals of Washington, Division 3 (1993)
(71 Wash. App. 657)

This is a wrongful death action arising out of a scuba diving accident. The court dismissed the defendants on summary judgment after finding the decedent Peter Boyce had released them from liability and assumed all risks associated with the scuba diving course he was taking. Iris Boyce appeals, contending the liability releases that her son signed did not cover instructor James West and should not be enforced as to Gonzaga University as a matter of public policy. Mrs. Boyce further contends there are genuine issues of material fact as to whether Mr. West was grossly negligent and whether her son assumed the risk of negligent instruction and supervision by Mr. West. We affirm.

Mr. Boyce was a student at Gonzaga University. In the spring of 1988, during his freshman year, he enrolled in Scuba Diving 1, an introductory scuba diving course offered as a physical education elective. At the beginning of the course he signed documents entitled PADI^[1] Standard Safe Diving Practices Statement of Understanding”, “PADI Medical Statement”, and “Affirmation and Liability Release”. The latter document purported to release Down Under Divers and PADI from all liability for negligence and to affirm Mr. *660 Boyce’s full assumption of all risks associated with the program. Mr. Boyce successfully completed the course, taught by Down Under Divers’ employee John Miller; he earned an A and received one credit. All dives took place in the school’s swimming pool.

During the summer, Mr. Boyce became a certified scuba diver after completing at least four open-water dives with an independent certifying authority. Certification was a prerequisite for taking the advanced scuba diving course (Scuba Diving 2) offered by Gonzaga. In the fall of 1988, Mr. Boyce enrolled in Scuba Diving 2, which was taught by James West, an adjunct instructor at Gonzaga and owner of Down Under Divers. At the first class on September 5, Mr. Boyce again signed documents entitled “PADI Standard Safe Diving Practices Statement of Understanding”, “PADI Medical Statement”, and “Affirmation and Liability Release”. The forms were not identical to those he had signed for the beginning course, but were substantially similar. This time the release named PADI and Gonzaga University.

By November 27, 1988 Mr. Boyce had successfully completed three of the five specialty dives planned for the course. He died that day during the fourth dive, a deepwater dive in Lake Coeur d’Alene. The diving group consisted of instructor West, Mr. Boyce, and two other students, Steve Kozlowski and John Sterling. The dive required the use of dry suits, so they had spent several hours the day before learning to use them. During the dive the divers descended 80 to 100 feet along an anchor line to the bottom of the lake, then swam 10 to 15 feet to a wreck. There, Mr. West checked his students’ air supplies. Concerned that they were running low on air because Mr. Kozlowski and Mr. Boyce both registered only 800 pounds of air, one-half of the amount they started with, he signaled the group to return to the anchor line and ascend to the surface. When they got back to the anchor line, Mr. Kozlowski indicated he was very low on air: he had just 100 *661 pounds of air left. As Mr. West turned to check on Mr. Sterling and Mr. Boyce, Mr. Kozlowski tugged at him, panicked over lack of air. Mr. West immediately gave Mr. Kozlowski his alternate regulator and assisted him to the surface, buddy breathing along the way. In the emergency, he lost sight of Mr. Boyce. Mr. West next saw Mr. Boyce floating on the surface. Resuscitation efforts were unsuccessful; Mr. Boyce died of air embolism resulting from too rapid an ascent.

Iris Boyce, as personal representative of her son’s estate, sued Mr. West and Gonzaga for wrongful death. The complaint asserts Mr. West negligently caused Mr. Boyce’s death and Gonzaga is vicariously liable for the negligence of its agent. The defendants denied negligence and asserted as alternative affirmative defenses the release of liability^[2] and assumption of risk^[3] provisions contained in the documents signed by Mr. Boyce.

Mr. West and Gonzaga moved for summary judgment. Mrs. Boyce resisted the motion and submitted parts of a deposition of Charles R. Lewis, a dive master, in which Mr. Lewis expresses his opinion that Mr. West was negligent in his instruction and supervision of the students. Mr. Lewis did acknowledge that with the 50 pounds of air Mr. Boyce still had when he reached the surface, he would have had enough air had he continued to exhale on the way up, and that free ascents have been made from greater depths. By memorandum decision entered April 15, 1992, the court granted the motion for summary judgment.

RELEASE OF LIABILITY

Mrs. Boyce first contends neither of the releases of liability signed by Mr. Boyce cover Mr. West. We agree the spring release does not apply to Mr. West,^[4] and conclude the fall release does.

A release is a contract in which one party agrees to abandon or relinquish a claim, obligation or cause of action against another party. [c] As a contract, a release is to be construed according to the legal principles applicable to contracts. [c] Exculpatory clauses are strictly construed and must be clear if the release from liability is to be enforced. [c]

The fall release, signed September 5, 1988, names only Gonzaga and PADI. Mrs. Boyce concedes it releases Gonzaga from liability unless a public interest is involved. The release does not name Mr. West, but it is undisputed that Mr. West was Gonzaga’s employee. The general rule is that a pre-injury release of the employer from liability also releases the employee.^[5]

Restatement (Second) of Agency § 347(2) & comment *663 b (1958); [c]. [***] Mr. West, as an employee of Gonzaga, was covered by the agreement releasing Gonzaga from liability for negligent harm to Mr. Boyce.

Mrs. Boyce next contends the release of Gonzaga from liability violates public policy and should not be enforced. In Washington, contracts of release of liability for negligence are valid unless a public interest is involved. Hewitt v. Miller, 11 Wash.App. 72, 521 P.2d 244, review denied, 84 Wash.2d 1007 (1974).

Wagenblast v. Odessa Sch. Dist. 105–157–166J, 110 Wash.2d 845, 758 P.2d 968, 85 A.L.R.4th 331 (1988) sets forth six factors, taken from Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693 (1963), which are to be considered in determining whether exculpatory agreements violate public policy. The court considers whether

(1) the agreement concerns an endeavor of a type *664 generally thought suitable for public regulation;
(2) the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public;
(3) such party holds itself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards;
(4) because of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks the services;
(5) in exercising a superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and
(6) the person or property of members of the public seeking such services must be placed under the control of the furnisher of the services, subject to the risk of carelessness on the part of the furnisher, its employees or agents. Wagenblast, 110 Wash.2d at 851–55, 758 P.2d 968.

Those factors are not present here. As noted in Hewitt, 11 Wash.App. at 74, 521 P.2d 244, “[e]xtended discussion is not required to conclude that instruction in scuba diving does not involve a public duty….” Accord, Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 574, 636 P.2d 492 (1981), review denied, 96 Wash.2d 1027 (1982), in which the court noted: “Although a popular sport in Washington, mountaineering, like scuba diving, does not involve public interest….”

Madison v. Superior Court, 203 Cal.App.3d 589, 250 Cal.Rptr. 299 (1988) is a factually similar case arising out of the death of a student enrolled in a scuba diving course offered through the YMCA. The Madison court applied the Tunkl factors and concluded a release signed by the scuba student did not involve a public interest. It then observed, in words that apply to this case as well:

Here, [decedent] certainly had the option of not taking the class. There was no practical necessity that he do so. In view of the *665 dangerous nature of this particular activity defendants could reasonably require the execution of the release as a condition of enrollment. [Decedent] entered into a private and voluntary transaction in which, in exchange for an enrollment in a class which he desired to take, he freely agreed to waive any claim against the defendants for a negligent act by them. This case involves no more a question of public interest than does motorcross racing, sky diving, or motorcycle dirtbike riding. (Citations omitted.) Madison, 250 Cal.Rptr. at 305–06.

We do not find a public interest in a private school^[6] offering scuba diving instruction to qualified students as an elective course. Upholding the release of Gonzaga does not violate public policy.

Mrs. Boyce further contends there are issues of material fact whether the defendants were grossly negligent. If Mr. West’s negligent acts fell greatly below the standard established by law for the protection of others against unreasonable risk of harm, the releases are unenforceable. Blide, 30 Wash.App. at 573.

A defendant who can point out to the trial court that the plaintiff lacks competent evidence to support an essential element of the plaintiff’s case is entitled to summary judgment because a complete failure of proof concerning an element necessarily renders all other facts immaterial. […] Evidence of negligence is not evidence of gross negligence; to raise an issue of gross negligence, there must be substantial evidence of serious negligence. Nist v. Tudor, 67 Wash.2d 322, 332 (1965). Since a release of liability exculpates ordinary negligence, if it occurs, the plaintiff must establish gross negligence affirmatively to avoid enforcement of the release.

Mrs. Boyce neither alleged gross negligence in her complaint, nor amended it to make that allegation, nor provided *666 the court with any evidence supporting an allegation of gross negligence. The only evidence of any degree of negligence presented by Mrs. Boyce consists of excerpts of the deposition testimony of her expert, Mr. Lewis. In those excerpts, Mr. Lewis expresses his opinion that Mr. West was negligent. However, as the trial court found, nothing in Mr. Lewis’ testimony supports Mrs. Boyce’s assertion that Mr. West was grossly negligent. Mrs. Boyce’s allegation, supported by nothing more substantial than argument, is insufficient to defeat a motion for summary judgment. CR 56(e); Guile, 70 Wash.App. at 25. Because there was no material issue of fact as to the existence of gross negligence, an essential element for avoidance of the release of liability, summary judgment was proper.

ASSUMPTION OF RISK

Mrs. Boyce, in response to respondents’ alternative defense, also contends her son did not assume the risk of negligent instruction and supervision. She argues assumption of the risk, whether express or primary implied, bars recovery only for injuries resulting from known risks voluntarily assumed. Kirk v. WSU, 109 Wash.2d 448, 453–54 (1987) and cases cited therein. Thus, to the extent Mr. Boyce’s death resulted from other unknown risks, created by the defendants, Mrs. Boyce argues Mr. West and Gonzaga remain liable. Kirk, at 455. See also Scott v. Pacific West Mt. Resort, 119 Wash.2d 484, 499 (1992).

In its memorandum decision, the trial court blurs the distinction between express assumption of the risk and implied primary assumption of the risk and refers to “express primary assumption of the risk.” The confusion is understandable; the entire doctrine is surrounded by confusion. … Express assumption of risk arises out of a contract concept; implied primary assumption of risk arises out of a tort concept. … Identical in result to a release of liability which exculpates for ordinary negligence if it occurs, express and primary implied assumption of risk exculpate by shifting the duty of care from the defendant to the plaintiff, thus preventing negligence from *667 occurring. Express assumption of risk bars a claim resulting from risks actually assumed by the plaintiff; implied primary assumption of risk bars a claim resulting from specific known and appreciated risks. Scott, at 497. One who participates in sports impliedly assumes the risks which are inherent in the sport. Scott, at 498.

(1) Express assumption of risk. Mr. Boyce acknowledged the possibility of death from scuba diving and assumed “all risks in connection with [the scuba diving] course … while I am enrolled as a student of the course, including all risks connected therewith, whether foreseen or unforeseen …” Negligent instruction and supervision are clearly risks associated with being a student in a scuba diving course and are encompassed by the broad language of the contract. That Mr. Boyce may not have specifically considered the possibility of instructor negligence when he signed the release does not invalidate his express assumption of all risks associated with his participation in the course. Again, the words used by the court in Madison, 250 Cal.Rptr. at 306 (quoting from Coates v. Newhall Land & Farming, Inc., 191 Cal.App.3d 1, 9 (1987)), apply just as well to this case:

“… knowledge of a particular risk is unnecessary when there is an express agreement to assume all risk; by express agreement a ‘plaintiff may undertake to assume all of the risks of a particular … situation, whether they are known or unknown to him.’ [cc]

As with the release of liability exculpating ordinary negligence, in the absence of a showing of gross negligence Mr. Boyce’s express assumption of all risks associated with his enrollment in the scuba diving course bars a claim for recovery… The summary judgment on this alternative defense was also proper.

(2) Implied primary assumption of risk. Although the summary judgment is supported alternatively on the grounds of release of liability and express assumption of risk, the trial court’s memorandum decision suggests the court also relied *668 on implied primary assumption of risk as a basis for summary judgment. This was unnecessary. In any case, Mr. Boyce’s express assumption of all risk provides adequate grounds to support the summary judgment. We need not, and do not, decide whether implied primary assumption of the risk applies to these facts. Summary judgment was properly granted.

We affirm.

Note 1. What does the court mean when it states: “Express assumption of risk arises out of a contract concept; implied primary assumption of risk arises out of a tort concept”? Do you understand the way these work in operation?

Note 2. What were the untaken precautions, if any, here? What would gross negligence have likely involved, on these facts? Is Scuba diving something that seems better suited to a strict liability regime? Why or why not?

Note 3. The Tunkl factors (at p. *664 in the opinion) are judicial factors for determining whether an exculpatory clause is void for reasons of public policy. Although the court does not technically reach them (and thus does not methodically apply them), it does embed references to a couple of the factors in its dicta. Look the Tunkl factors over again. How would you characterize the concerns they reflect? Which of tort law’s purposes do they seem to support? Given that this is an area of considerable overlap between tort and contracts, you may be able to see ways in which contract law’s prioritization of the parties’ intent and mutually beneficial promises take precedence over tort law’s central purposes.

Note 4. Normatively, is the ruling in Boyce v. West the correct result, in your view? Why or why not?

Scroggs v. Coast Community College Dist., Court of Appeal, 4^th District, California (1987)
(239 Cal.Rptr. 916)

Maurine Scroggs, plaintiff and surviving spouse of Frank W. Scroggs, appeals a summary judgment entered against her in her wrongful death action against Coast Community College and Barry Bandaruk. She contends the trial court erred in finding a release and waiver, executed by her husband before his death, bars the action as a matter of law. We agree and reverse.

In September 1982 Frank Scroggs enrolled in a scuba diving class offered by Coast Community College, and in that connection executed a release prepared by Coast. The following February, during a class certification dive, Frank drowned. The release provides for the participant to waive any claims “[he or his] heirs, representatives, executors and administrators thereof … have or may have against the said The Coast Community Colleges [sic] or any or all of the above mentioned persons … by reason of any accidents, illness, injury or death, or other consequences arising or resulting directly or indirectly from participation in SCUBA diving under the auspices of the Coast Community Colleges occurring during said participation, or any time subsequent thereto.”

Following the death of her husband, Mrs. Scroggs filed a complaint against Coast Community College and Barry Bandaruk, the class instructor, alleging the death of her husband by drowning was a result of defendants’ negligence. Defendants answered the complaint asserting a release as an affirmative defense and then moved for summary judgment. On December 3, 1985, the trial court granted the motion and judgment was entered in favor of both defendants and against plaintiff. This appeal followed.^[7] [***]

Scroggs cites two California cases in support of her position that the court erred in finding the release binding. Earley v. Pacific Electric Ry. Co. (1917) 176 Cal. 79 [167 P. 513] held a release executed by an injured party in favor of a tortfeasor did not bar a later action by the releasor’s heir. The court found the wrongful death statute, section 377 of the Code of Civil Procedure,^[8] was not a survivorship statute but rather “creates a new right of action with a different measure of damages from that which accrued to the injured person as a result of the defendant’s wrongdoing.” (Id., at p. 81.) As such, the cause of action could not be waived by the decedent. [***] The effectiveness of a release to bar a wrongful death action was recently considered in Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1 [236 Cal.Rptr. 181]. In Coates, the decedent executed a release expressly assuming the risk of injury and waiving liability for injuries or death resulting from Newhall’s ordinary negligence. Without any analysis of section 377, the Coates court concluded “a decedent’s preinjury contractual assumption of risk eliminates the possibility of tortious conduct by a potential defendant, and thus precludes a wrongful death action, if (1) the contract is not against public policy and (2) the risk encountered by the decedent is inherent in the activity in which the decedent was engaged, or the type of risk the parties contemplated when they executed the contract. (Id., at p. 4.)

The absence in Coates of any analysis of section 377 can only be justified by the court’s conclusion that the express contractual assumption of the risk, combined with the express waiver of defendants’ negligence, constituted a complete defense to the surviving heirs’ wrongful death action. This is different than holding the action is barred. The failure to draw a distinction between facts giving rise to a complete defense to a wrongful death action, and facts precluding a wrongful death action, tends unnecessarily to obfuscate a clear and uncomplicated chain of decisional law concerning the nature and effect of California’s wrongful death statute.

It is axiomatic that a plaintiff in a wrongful death action is subject to defenses which could have been asserted against the decedent. (See, e.g., Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 552 [contributory negligence]; Barnett v. Garrison (1949) 93 Cal.App.2d 553, 557 [assumption of the risk]; Nakashima v. Takase (1935) 8 Cal.App.2d 35, 38 [justifiable homicide].) But these defenses neither preclude nor destroy the wrongful death action. If it were possible to destroy a wrongful death action in advance, then arguably a decedent should be able to do so by a release drawn in general terms such as the one here.

The longstanding rule is that a wrongful death action is a separate and distinct right belonging to the heirs, and it does not arise until the death of the decedent. (Earley v. Pacific Electric Ry. Co., supra, 176 Cal. at p. 81.) Since Earley the courts have consistently articulated this principle and have validated it in a variety of circumstances. (See, e.g., Garcia v. State of California (1967) 247 Cal.App.2d 814, 816 [fact that prisoner is barred from suit alleging injuries from dangerous condition is no bar to action for wrongful death by surviving spouse]; Blackwell v. American Film Co. (1922) 189 Cal. 689, 693-694 [prior judgment in favor of decedent for injuries does not bar later action for wrongful death]; Marks v. Reissinger (1917) 35 Cal.App. 44, 54 [statute of limitations runs from date of death, not injury of decedent].)

The wrongful death action was created by the Legislature, and apart from amendments affecting damages, the statute establishing the action has remained virtually unchanged since its enactment in 1862. Exceptions to the rule that the action is not derivative should be made by the Legislature, not the courts. Any contract, intending to limit or destroy a cause of action which belongs to the heirs, should be construed with an abundance of caution. … In the release prepared by Coast Community College, there is no language indicating the decedent intended to assume all risks of the activity, nor does the release encompass a waiver of defendants’ negligence. The presence of a clear and unequivocal waiver with specific reference to a defendant’s negligence is a distinct requirement where the defendant seeks to use the agreement to escape responsibility for the consequences of his negligence…

The trial court here found McAtee v. Newhall Land & Farming Co. (1985) 169 Cal.App.3d 1031 and Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333 to be controlling. Both cases involved claims by plaintiffs who were injured after engaging in activities offered by the defendants. And in both the plaintiffs had executed releases giving up their right to sue for injuries sustained. But neither case involved a wrongful death action by an heir. The sole issue was the validity of the release under Civil Code section 1668. While there is a similarity between those cases and the instant one in that motorcycling, parachuting and scuba diving all involve risks, this similarity provides no basis for upholding the release against Scroggs.

Furthermore, it is of no moment that scuba diving is of little public importance and serves no significant public purpose. Contracts seeking to release in advance the right to bring a wrongful death action, are not binding on the decedent’s heirs, and there is no compelling reason to create an exception in the case of so-called “sports risk” cases. A surviving heir of a sports enthusiast is entitled to the same protection as the surviving heir of the victim of an automobile accident. If the decedent has provided the defendant with a partial or total defense, the defendant may assert it in response to the lawsuit. The release in this case fails to provide defendants with such protection.

The judgment is reversed. Appellant is entitled to costs on appeal.

Note 1. The court distinguishes between when a release of liability (“express contractual assumption of the risk”) may provide a defense versus when it may bar an action. Can you see the difference? Why did it not bar the action in this case?

Note 2. Wrongful death statutes. The wrongful death statute in California controlled Mrs. Scroggs’ right to sue. What theories of tort law are served by allowing her to do so in this case? Keep in mind this does not mean she automatically wins this case, but simply that the defendant may not use summary judgment, with no other defenses, to defeat her claim. This is the Washington state wrongful death statute:

  RCW 4.20.010 Wrongful death—Right of action.

(1) When the death of a person is caused by the wrongful act, neglect, or default of another person, his or her personal representative may maintain an action against the person causing the death for the economic and noneconomic damages sustained by the beneficiaries listed in RCW 4.20.020 as a result of the decedent’s death, in such amounts as determined by a trier of fact to be just under all the circumstances of the case.

(2) This section applies regardless of whether or not the death was caused under such circumstances as amount, in law, to a felony.

RCW 4.20.020 Wrongful death—Beneficiaries of action.

Every action under RCW 4.20.010 shall be for the benefit of the spouse, state registered domestic partner, child or children, including stepchildren, of the person whose death shall have been so caused. If there is no spouse, state registered domestic partner, or such child or children, such action may be maintained for the benefit of the parents or siblings of the deceased.

In every such action the trier of fact may give such damages as, under all circumstances of the case, may to them seem just.

Note 3. Wrongful Death and Tort Law’s Compensation Principle. Allowing recovery by those who have lost loved ones due to the negligence of others is one way that tort law seeks to deter careless behavior, to compensate for the injuries it causes, and to advance social justice, at least in some cases. But, as you will discover if you study damages later in your course, tort law’s means of advancing these purposes are limited. Occasionally, some sort of injunctive relief may be available but usually the approach to making someone whole for the loss of a person consists of remuneration (or “money damages”). Considering that financial compensation can only ever go so far in achieving this goal, should heightened liability standards apply with respect to wrongful death actions? Why or why not?

Implied Assumption of the Risk

Landings Ass’n, Inc. v. Williams, Supreme Court of Georgia (2012)
(291 Ga. 397)

*397 In The Landings Association, Inc. v. Williams, 309 Ga.App. 321, 711 S.E.2d 294 (2011), the Court of Appeals held that the trial court properly denied in part motions for summary judgment brought by The Landings Association, Inc., and The Landings Club, Inc., finding that a question of fact remained as to whether The Landings entities failed, pursuant to the law of premises liability, to take reasonable steps to protect Gwyneth Williams from being attacked and killed by an alligator in the planned residential community and golf club owned and/or managed by The Landings entities.^[9] We granted certiorari to determine whether the Court of Appeals erred in reaching this conclusion. Because the record shows that Williams had equal knowledge of the threat of alligators within the community, we reverse.

As is relevant to our holding, the facts, in the light most favorable to Williams, show that, at the time of the alligator attack, Williams was house-sitting for her daughter and son-in-law at The Landings, a planned residential development with a golf course located on Skidaway Island off the Georgia coast. Before The Landings was developed, the land within and surrounding its boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop the property, The Landings entities installed a lagoon system which allowed enough drainage to create an area suitable for a residential development. After the project was completed in the 1970s, the indigenous alligators subsequently began to move in and out of The Landings through its lagoon systems.

Although alligators inhabited the area of The Landings before and after its establishment, no person had ever been attacked until the night of October 5, 2007, when Williams, who was 83 at the time, *398 went for a walk near one of the lagoons near her daughter’s home some time after 6:00 p.m. The following morning, Williams’ body was found floating in the lagoon.^[10] Williams’ right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the same lagoon, and, after the alligator was killed, parts of Williams’ body were found in its stomach.

The record shows that, prior to the attack, Williams was aware that the property was inhabited by alligators. Williams’ son-in-law testified that, on at least one occasion, he was driving with Williams on property in The Landings when he stopped the car to allow Williams to look at an alligator. Williams’ son-in-law also testified that Williams was, in fact, aware that there were alligators in the lagoons at The Landings and that he believed that Williams had a “normal” respect for wild animals. When asked whether he had ever discussed how to behave around wild alligators with Williams, her son-in-law responded: “No. There was never—quite frankly, there was never any reason to. I mean she was an intelligent person. She would—there was no question in my mind that—I guess I have to answer that as it’s not like talking to a five year old child … stay away from alligators.” In addition, Williams’ son recalled a similar instance when he stopped the car to allow his mother to look at an alligator. At that time Williams mentioned that she did not like alligators and did not want to go anywhere near them.

Generally, in premises liability cases,

[c] to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted *399 from the defendant’s own actions or conditions under the defendant’s control. [cc]

Furthermore, it must be remembered that

“‘[t]he true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted.’ [cc] One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect where such party had equal means with the defendant of discovering it or equal knowledge of its existence.” [cc]

[***] In this case, testimony shows that Williams was aware that wild alligators were present around The Landings and in the lagoons. Therefore, she had knowledge equal to The Landings entities about the presence of alligators in the community. In addition, the record shows that Williams knew that the wild alligators were dangerous, saying herself that she would not want to be anywhere near them. Nonetheless, Williams chose to go for a walk at night near a lagoon in a community in which she knew wild alligators were present. This act undisputably shows that Williams either knowingly assumed the risks of walking in areas inhabited by wild alligators or failed to exercise ordinary care by doing so. Under these circumstances, the trial court should have granted the motions for summary judgment brought by the Landings entities regarding Williams’ premises liability claims.

The dissent, like the Court of Appeals, attempts to avoid this conclusion by arguing that summary judgment for The Landings is precluded because there is no “competent evidence that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which [Williams’] body was found.” While there is no doubt that Williams’ death was a tragic *400 event, Williams was not incompetent. A reasonable adult who is not disabled understands that small alligators have large parents and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a lagoon in that community after dark.

Judgment reversed.

BENHAM, Justice, dissenting.

I write because I respectfully disagree with the majority’s opinion reversing the decision of the Court of Appeals to allow this premises liability case to go to a jury. The majority reasons that appellees’ claims cannot survive summary judgment because the decedent had equal knowledge, as compared to appellants, that there were alligators in and around The Landings community. Premises liability cases, however, cannot be resolved on summary judgment unless “the evidence is plain, palpable, and undisputed.” [cc] In this case, the Court of Appeals was correct when it affirmed the trial court’s denial of summary judgment to appellants because the evidence was not plain, palpable, and undisputed.

Notably absent from the majority’s opinion are facts which, if construed in appellees’ favor, require the denial of appellants’ motions for summary judgment. For example, the Landings Association had an advertised policy that it removed from the 151 lagoons in the community alligators which were seven feet long or larger and/or alligators which were aggressive toward humans or pets;^[11] the appellants did not patrol or inspect the lagoons in order to remove large or aggressive alligators according to its policy, but rather relied on residents and employees to report said animals; and appellants did not post signs near the lagoons warning guests about alligators. [c] An expert opined that the over eight foot long, 130 pound alligator that attacked the decedent had likely been in the lagoon where the decedent’s body was found for some time because such mature alligators tend to be territorial and nest. There was also evidence in the record that the decedent called for help during the attack, but that appellants’ security forces, which were not trained in *401 dealing with alligators, responded to the wrong location and then stopped investigating, assuming that the sounds in question were bird calls. While there was some testimony that the decedent had seen at least one alligator standing on the side of the road in The Landings, the Court of Appeals concluded in its de novo review that there was no “competent evidence” that the decedent knew there were alligators over seven feet in size living in the community or living in the lagoon in which her body was found. [c]

[I]ssues of negligence, contributory negligence and lack of care for one’s own safety are not susceptible of summary adjudication… but should be resolved by trial in the ordinary manner…. Where reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/occupier breached the duty of care to invitees and whether an invitee exercised reasonable care for personal safety, summary adjudication is not appropriate. [***]

Based on the facts presented at the time of summary judgment in this case, reasonable minds could differ as to the essential elements of appellees’ premises liability claim. Indeed, there are very specific questions in this case that must go to a jury: whether decedent knew that large and aggressive alligators were living on the premises and in the lagoon in which her body was discovered;^[12] and whether appellants exercised reasonable care in inspecting and keeping the premises safe from alligators—in particular, alligators that were over seven feet long and alligators that were aggressive toward humans and pets as per appellants’ removal policy. Rather than allowing this evidence to be reviewed by a fact-finder, the majority opinion bars appellees’ premises liability claim simply because the decedent once observed an alligator standing on the roadside. Such a result disregards all the other factual circumstances in the case and is not in keeping with our jurisprudence. [***] Accordingly, I would affirm the judgment of the Court of Appeals and allow the premises liability claim to be tried before a jury. *402 I am authorized to state that Chief Justice Carley and Presiding Justice Hunstein join in this dissent.

Note 1. Assumption of the risk arguments often hinge on a balance of what the plaintiff did and what they knew. Thus courts inquire into the plaintiff’s conduct but also their likely knowledge. Do you agree with the majority opinion here that the fact that Mrs. Williams knew there could be alligators in the lagoon means that “she had knowledge equal to The Landings entities about the presence of alligators in the community”? What do you think of the court’s reasoning regarding Williams’ statement that “she would not want to be anywhere near them”? The court argues that this demonstrates that she knew alligators were dangerous and chose to take the risk of encountering them anyway, intentionally disregarding a risk or failing to exercise ordinary care for her safety. How might you challenge this line of reasoning if representing the decedent?

Note 2. The majority opinion uses ableist language in characterizing the decedent as having assumed the risk: “A reasonable adult who is not disabled understands that small alligators have large parents and are capable of moving from one lagoon to another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that wild alligators are present in a community, walks near a lagoon in that community after dark.”

Can you see how it might serve a substantive purpose here? Does it seem effective, and whether or not it is, does it seem necessary?

Note 3. Why does the majority ignore the facts the dissent raises such as knowledge of larger alligators being aggressive, alleged failures to warn, or the security detail’s lack of training in alligator attacks? Does it seem credible that a human cry for help during an alligator attack would sound like bird calls? Premises liability is one of the areas in which defendants owe limited duties where the duty to act is bound up with the conduct that the law will require. Which opinion strikes the better balance, in your view, between determining this as a question of limited duty and implied assumption of the risk (as the majority does) versus as a question on which the defendant’s breach of care ought to have been considered, along with the subjective knowledge of the decedent?

Note 4. Who gets to say what counts as common knowledge? Does it matter whether the premises liability concerns local residents or tourists?

See https://www.washingtonpost.com/news/morning-mix/wp/2016/08/23/tourists-warned-disney-of-alligator-minutes-before-toddler-was-killed-report-says/ (The family did not pursue legal action.) Not all courts would come out the same way on similar facts. As has likely been increasingly clear in your study of tort law, tort law varies a great deal by jurisdiction.

In George v. U.S., 735 F. Supp. 1524, 1535 (M.D. Ala. 1990), the court went the other way, finding no assumption of the risk merely because the victim of an alligator attack on park maintained by the United States government knew alligators were present:

Mr. George testified that he knew alligators were present in Open Pond but that he was unaware that there were any the size of the reptile that took his arm. This Court finds by a preponderance of the evidence that Mr. George was not aware that an alligator approximately 11 feet in length inhabited the Open Pond waters. Furthermore, this Court finds that Mr. George had no knowledge of the danger presented by his entering the swimming area. Thus, this Court finds that Mr. George did not assume the risk of his injury by entering the swimming area on July 26, 1986, notwithstanding his knowledge of the presence of alligators in Open Pond.

On the one hand, you have seen that tort law makes distinctions all the time on the basis of factual differences. Perhaps the size of the alligator should matter normatively to liability for attacks it causes. On the other hand, how well does it serve tort law’s various purposes if litigation over serious injuries (or fatalities) such as these hangs on what seem like fairly trivial differences? Or if not trivial differences (three feet of alligator is actually not trivial), differences that seem rooted in something other than immutable legal principles?

Kalter v. Grand Circle Travel, U.S. Dist. Court, Central District of California (2009)
(631 F. Supp.2d 1253)

Grand Circle is a tour operator that arranges vacation packages to destinations around the world. Jill Kalter (“Kalter”) purchased a Grand Circle “Amazon River Cruise & Rain Forest” tour, along with an optional post-trip extension to visit the Inca ruins at Machu Picchu. Prior to departing on her trip, Kalter received from Grand Circle an itinerary of the Machu Picchu trip extension (the “Itinerary”), which stated that her group would visit Machu Picchu on two consecutive *1256 days, and that on the second day she would have the option of remaining with a guide or exploring the ruins on her own. The Itinerary also stated: “[t]hese Inca sites are not like ancient squares in Europe; they are spread out over steep hillsides with large stone steps and uneven surfaces…. In the ruins, there are no handrails some places where you might like one.” Kalter received and read the itinerary prior to departing on her trip. In addition, the tour guide, Jesus Cardenas, distributed a map of Machu Picchu to the tour participants prior to entering the park.^[13] The map includes a section entitled “Visit Regulations,” which states, among other things, “Do not climb the walls,” and “Follow only designated routes according to arrows.”

It was raining on both days Kalter was at Machu Picchu. The first day, she remained with Cardenas and walked on the stone paths. The second day, she opted to explore on her own, and ventured off the established paths. Cardenas states that he gave verbal warnings to the group to use caution due to wet and slippery conditions. Kalter states that she did not hear Cardenas give these warnings, but that she “has no reason to doubt” that he did so. Kalter went to an area known as the “terraces,” filled with vertical rock walls that contain small stone protrusions called “floating steps.” [***] Some of these terraces are along paths color-coded by length, and no paths at Machu Picchu require traversing floating steps. Approximately one hour after venturing out on her own, Kalter became lost and disoriented, and was concerned about connecting with her group so that she would not miss the train. In an effort to get a better view of where she was, Kalter stepped up onto the bottom two floating steps of a vertical wall. Kalter did not think this was a dangerous act. As a result, Kalter fell and suffered serious injuries, and is now a quadriplegic.^[14]

Grand Circle now moves for summary judgment on the grounds that: (1) Plaintiffs’ claims are barred under the doctrine of primary assumption of the risk; (2) Grand Circle had no duty to warn Kalter *1257 of the dangerous nature of the floating steps because it was open and obvious; and (3) Grand Circle is not liable for the actions of Cardenas because he is an independent contractor.

A. Primary Assumption of the Risk Bars Plaintiffs’ Claims.

“The question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” Knight v. Jewett, 3 Cal.4th 296, 313 (1992). The doctrine of primary assumption of the risk applies where “the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” [c] To determine if primary assumption of the risk applies, courts look to the nature of the activity, and the parties’ relationship to that activity. [cc] The question turns on whether the plaintiff’s injury is within the “inherent” risk of the activity. [c] A risk is inherent to an activity if its elimination would chill vigorous participation in the activity and thereby alter the fundamental nature of the activity. Knight, 3 Cal.4th at 318. Accordingly, “the doctrine of primary assumption of risk applies where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part’ of the activity itself.” [***] When primary assumption of the risk applies, a defendant is only liable for a plaintiff’s injuries “if the defendant ‘engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity’ or increases the inherent risk involved in the activity.” If, on the other hand, “the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty,” the doctrine of secondary assumption of the risk applies, which is analyzed under comparative fault principles. Knight, 3 Cal.4th at 315. In such a case, “the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” Here, Kalter was engaged in the activity of hiking on uneven terrain amongst ancient ruins. Inherent in this activity is the risk that one will fall and *1258 become injured. (See Andia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *15) (holding that “falling is always a risk when engaging in any kind of strenuous hike on steep and uneven terrain”).

The Itinerary Kalter received prior to the tour informed her that the Inca sites at Machu Picchu “are spread out over steep hillsides with large stone steps and uneven surfaces.” (Itinerary 65.) Eliminating tour participants’ access to these large stone steps and uneven surfaces in an attempt to protect against the risk of falling would eliminate the ability to view the Inca sites, and thus “alter the fundamental nature of the activity.” See Knight, 3 Cal.4th at 318, 11 Cal.Rptr.2d 2, 834 P.2d 696. In other words, “hiking across uneven and challenging natural terrain is an inherent risk of hiking to [the ancient ruins at Machu Picchu], without which the general public would be substantially deprived of viewing the … phenomenon.” See id. Moreover, as discussed further below, Kalter did not fall while engaging in the activities condoned by Defendants—she chose to leave the established stone pathway, and further endangered herself by stepping onto the floating steps. Accordingly, the Court finds that primary assumption of the risk applies to Kalter’s injuries from falling while hiking at Machu Picchu. Therefore, Grand Circle is only liable for only liable for Kalter’s injuries “if [it] engage[d] in conduct so reckless as to be totally outside the range of the ordinary activity involved in [hiking amongst ancient ruins on uneven terrain] or increase[d] the inherent risk involved in the activity.” [***]

Plaintiffs argue that Grand Circle breached its duty to Kalter by “encouraging and permitting her to roam the ruins of Machu Picchu on her own, then directing her to an area unknown, i.e. which was not explored with her Trip Leader the prior day, and given the conditions of that day, was dangerous and confusing.” Kalter was an experienced hiker, and prior to electing to explore the ruins on her own instead of remaining with Cardenas, she had read Grand Circle’s Itinerary informing her that she would encounter steep hillsides, large stone steps, and uneven surfaces. She also received the map from Cardenas which stated “Do not climb the walls” and “Follow only designated routes according to arrows.” Moreover, Plaintiffs do not dispute that visitors to Machu Picchu often wander the ruins on their own, and that park regulations do not prohibit them from doing so. In addition, Plaintiffs provide no evidence that Cardenas or Grand Circle knew Kalter would attempt to climb the floating steps, and do not dispute Cardenas’ statement that Kalter “never asked me if she could climb down from or up to any terraces. At no time did I tell Ms. Kalter that she should climb down or up the series of terraces, and at no time did I tell Ms. Kalter that it would be okay for her to climb up or down the stone terrace walls or on the ‘floating steps.’” [c]

Given these undisputed facts, Grand Circle’s act of allowing Kalter to explore on her own areas she had not been to with Cardenas was not “so reckless as to be totally outside the range of ordinary activity” involved in the excursion, nor did it increase the inherent risk of falling and sustaining injury involved in hiking in this region. [cc] The Court also notes that other participants in the tour stated that Cardenas was “outstanding and the accident was not at all [his] fault. And of course, [Kalter] fell on a day of totally independent activities.” *1259

Moreover, even if Grand Circle or Cardenas erred in estimating Kalter’s ability to hike on her own across the uneven terrain at Machu Picchu in rainy weather, “an instructor’s assessment errors—either in making the necessarily subjective judgment of skill level or the equally subjective judgment about the difficulty of conditions—are in no way ‘outside the range of the ordinary activity involved in the sport.’” [c]; see also Andia, 2007 WL 4258634, at *5, 2007 U.S. Dist. LEXIS 88247, at *16 (holding that tour guide’s “decision to allow Plaintiff to return to the Rangers station alone [during a guided hike to a lava flow] … at most constituted ‘assessment errors,’ but these ‘subjective judgments about the difficulty of the conditions were ‘in no way so reckless as to be totally outside the range of the ordinary activity involved’ in the activity of lava hiking”).

Plaintiffs have submitted a declaration by Alexander Anolik, a travel and tourism attorney, stating that Cardenas “failed to insist, explain the need for or put together a ‘buddy system’ whereby Ms. Kalter would not have to be in this strange and dangerous area by herself,” and contending that his conduct of allowing Kalter to explore on her own fell below the standard of care in the travel industry.

Anolik submits no case law or any other information to suggest that such conduct falls below a standard of care, or that any other tour companies or guides employ such practices. (See Supplemental Cardenas Decl. ¶ 3, stating that he is unaware of any other tour guide at Machu Picchu that requires a buddy system.) Further, as explained above, allowing tour participants to hike on their own, even off trail on uneven terrain, is not so reckless as to be totally outside the range of the ordinary activity involved in hiking. As such, the Court finds Anolik’s bare assertions insufficient to create a triable issue of fact regarding whether Defendants’ conduct was so reckless as to be totally outside the range of the ordinary activity or otherwise increased the inherent risk involved in the activity of hiking amongst ancient ruins in an undeveloped area. Accordingly, Grand Circle is not liable for Kalter’s injuries under the doctrine of primary assumption of the risk.

B. Grand Circle Had No Duty to Warn Kalter of the Open and Obvious Danger Posed by the Wet Floating Steps.

“It is established law, at least in the exercise of ordinary care, that one is under no duty to warn another of a danger equally obvious to both.” [***] Here, it was obvious to both Kalter and Cardenas that it was raining, and Kalter admitted at her deposition that she “knew [the stones] were slippery and wet.” Moreover, the danger of slipping and falling from stepping on a small wet stone step protruding from a vertical wall is undoubtedly an obvious danger. Plaintiffs conclusorily state that “there are genuine issues of material fact regarding whether the conditions that caused Ms. Kalter’s injuries were open and obvious,” but offer no evidence to support this claim. Indeed, Kalter admits that it was “raining on and off,” that she “knew the rocks could be slippery”, and that before she started climbing she could see the third step was missing. Kalter offers no evidence to suggest that she believed climbing the floating steps was allowed or common, or that she saw anyone else climbing them. Further, it appears that *1260 the danger of climbing the steps was obvious to other members of Kalter’s tour; when asked whether he saw anyone climbing the steps, one member responded, “Good Lord. Someone, probably the guide, said that the Indians might have used them.” [***] Kalter also testified at her deposition that she “thought there would be some risk in climbing up the floating steps.” Further, Plaintiffs offer no evidence that the risk of slipping on the wet floating steps was any less obvious to Kalter than to Cardenas, especially in light of the fact that Kalter had walked on stone with Cardenas the previous day and noted that the stone was “slippery at times.”

Plaintiffs also cite case law holding that “although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g. when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability.” [***] While a landowner may be required to remedy a dangerous but obvious condition on his property, the situation differs with regards to a tour guide and tour company, where, as here, the dangerous condition is neither on the guide or company’s property nor within their control. [***]

Moreover, numerous courts have held that tour companies and guides have no duty to warn of obvious dangers their customers encounter on trips. See, e.g., Tei Yan Sun v. Governmental Auths. of Taiwan, 2001 U.S. Dist. 1160, at *31–32 (finding no liability for failure to disclose dangers of “severe undertow, high waves, and strong surf” at beach, and noting that travel agents have no duty to disclose obvious dangers to travelers) [c]; Passero v. DHC Hotels & Resorts, 981 F.Supp. 742, 744 (D.Conn.1996)(“A tour operator may be obligated, under some circumstances, to warn a traveler of a dangerous condition unknown to the traveler but known to it…. This doctrine applies to situations where a tour operator is aware of a dangerous condition not readily discoverable by the plaintiff. It simply does not apply to an obvious dangerous condition equally observable by plaintiff.”) … Plaintiffs cite no cases in which courts have found tour companies or guides liable for failing to warn of or remedy open and obvious dangers.

Accordingly, the Court finds that Grand Circle had no duty to warn Kalter that the floating steps might be slippery and dangerous in the rain, as this danger was readily observable.

C. Since Neither Grand Circle Nor Cardenas Are Liable for Kalter’s Injuries, the Court Need Not Reach the Issue of Whether Cardenas Is an Employee or Independent Contractor.

As explained above, neither Grand Circle nor Cardenas are liable for Kalter’s *1261 injuries because the doctrine of primary assumption of the risk applies, and because neither had a duty to warn her of the open and obvious danger of falling while climbing wet stone steps protruding from a vertical wall. Further, Plaintiffs do not argue that Cardenas’ actions after Kalter fell caused or contributed to her injury. As such, whether Cardenas is Grand Circle’s employee or an independent contractor does not affect Grand Circle’s liability, and the Court need not reach the issue.

For the foregoing reasons, the Court GRANTS Grand Circle’s Motion for Summary Judgment.

Note 1. Does Kalter’s conduct strike you as risky? If she had not suffered catastrophic injuries, would your answer be the same? Does your answer—regarding her conduct’s reasonableness—change depending on why she climbed the floating steps? Recall that she was looking for her group, from which she had become disconnected. Would it make a difference if she were climbing them… a) to retrieve an errant toddler who was in danger? b) to retrieve an errant pet chihuahua who was in danger? c) to get a better photo, citing the desire to take an “instaworthy” snap for her profile? d) on a dare, to prove to a friend that she could do so without “getting in trouble”? To what extent do (and should) the motivations behind our actions matter to the determination of reasonableness in tort law?

Note 2. When claims arise in particular cultural contexts different from those in run-of-the-mill torts cases, should cultural norms be taken into account? What do you make of Kalter’s being a tourist here and ignoring the advice not to climb the floating steps? Should she have known better, or is her foreignness partly an explanation for her decision to climb the steps? If the floating steps were considered sacred territory that the local indigenous community advocated against climbing here, would this be information that U.S. tort law should or should not consider in assessing the reasonableness of her conduct? What tort law doctrines, if any, might treat such information as relevant?

For many years, tourists were injured climbing Uluru—formerly known as Ayers Rock—in Australia and at least 37 people died climbing it. The challenges included dangerous winds, slippery rock faces and excessive heat (with summer temperatures as high as 116 Fahrenheit). Following the death of a tourist in 2018, authorities decided to close it for good. For years, the Anangu, traditional owners of the land, had urged visitors not to climb the rock, both because of the dangers associated with the climb and because of the spiritual significance it holds in their culture. https://www.bbc.com/news/world-australia-50151344

If indigenous culture and wisdom militates against a particular practice (such as climbing certain parts of the landscape) on lands it has traditionally owned, is their guidance all that different from a municipality that passes an ordinance regarding certain conduct? Could and should negligence per se be adapted to recognize indigenous rules and proscriptions?

Note 3. Primary and Secondary Implied Assumption of the Risk. Do you understand the difference between these two forms of assumption of the risk? Some commentators have treated the second form as effectively obsolete because of comparative fault, in which the court weighs the conduct of plaintiff and defendant both. Articulate the standard, or rule, associated with each of the kinds of assumption of the risk. What do you observe about them, in terms of what needs to be shown, and who will decide the issues?

The next case shows how concepts of vicarious liability and implied assumption of the risk can interact. While the court did not find a relationship giving rise to vicarious liability, you can see that the concept stretches beyond merely employer/employee. In Wall v. Gill, the issue is whether a beauty school is liable for the torts of its students as well as whether patrons of beauty schools (which often charge lower prices due to the fact that the beauticians-in-training are still in training) have assumed the risk.

Wall v. Gill, Court of Appeals of Kentucky (1950)
(311 Ky. 796)

The appellant conducts a college of beauty culture where instruction is offered to those desiring to become beauticians. It is after a successful completion of the course at such a college and the passing of the examination required by the State that a person qualifies as a beautician. In order that the students in these schools may receive practical experience, they are permitted to serve the public before they are licensed. According to the rules and regulations of the Kentucky State Board of Barber and Beautician Examiners, a school is not permitted to perform services for the public for a profit. The prices charged are limited to the costs of materials and supplies and are regulated by the Board. A regulation of the Board prohibits a registered beautician from rendering regular operator services in the schools and *797 limits their services to those incident to and for the purpose of instruction. The Board also requires signs to be displayed in the beauty school reading: ‘School of Beauty Culture—Work Done Exclusively by Students.’ Students must wear some insignia identifying them as such.

The appellee went to the school of the appellant to get a permanent wave. This work was performed by a student at the price prescribed by the State Board. The appellee testified that on two occasions she complained to the student that she was being burned and that he attempted to adjust the wave units. Thereafter she developed a severe head burn. Medical testimony was introduced to substantiate the appellee’s claim of injury. The student operator and the proprietor deny that the burn, if any, was occasioned by the negligent manner in which the treatment was given. However, negligence does not become an issue in the case in view of our theory of it.

The controlling questions are whether a patron of a beauty college assumes the risk of injury; and whether the relationship between the operator of the college and a student is one which would impose vicarious liability. No case has been cited nor do we find one directly in point. In Massa v. Wanamaker Academy of Beauty Culture, Inc., City Ct., 80 N.Y.S.2d 923, the trial court instructed the jury to find for the defendant beauty school, if it believed the work on the injured plaintiff was performed by a student. In that case, however, there was a release signed by the patron exempting the school from liability resulting from injuries sustained from the work of the student. In the statement of facts, the court said:

‘* * * In this connection, and in order to give its students actual experience in the field, the defendant, in its school, permits the public to submit themselves to students of the school, at the risk of the subject, with knowledge that the student is not a graduate beautician and liable to errors and mistakes. * * *’

The appellant argues that the relationship was not one which would render the instructor liable for the negligence of the pupil. Instead it is urged that, under the existing law, such a student is classified as one not *798 yet competent to engage in the practice of beauty culture and that a patron who accepts his services at a reduced cost assumes the risk arising out of such inexperience. The negligence alleged in the petition was not that of insufficient or improper instruction or supervision, but rather that the operation was negligently performed. In response to the appellant’s contention, the appellee urges that, since the student was under the control of the operator of the school, he was a servant of the operator and therefore liability should attach.

It seems to us that under the facts of this case the appellee assumed the risk of the student operator’s inexperience. This risk cannot be confined to less professional hair styling, but must include all the dangers which might result from treatment by one who is not yet qualified. Having assumed the risk, the patron cannot then impose liability on another.

Nor do we believe that the relationship here is of the nature that imposes vicarious liability. The school instructs the pupil in the art of beauty culture, for which it receives a fee. As a part of his schooling the student performs services for the public, but the school receives no profit therefrom. In the case of Miller v. Garford Laboratories, 172 Misc. 567, it was held that the students of a beauty school which received a profit for their services were employees within the meaning of the workmen’s compensation law. The opinion recognized, however, that a person could be an employee for the purposes of the compensation law and not occupy that relation within the meaning of the law of negligence. In the instant case we have not only a tort claim but also a situation in which the students’ services do not result in the pecuniary gain of the school. Under the circumstances, the school is not liable for the negligence of its students.

The judgment is reversed, with directions to set it aside, and for proceedings consistent with this opinion.

Note 1. What does the court mean when it writes: “However, negligence does not become an issue in the case in view of our theory of it”? How would you articulate its theory of the case?

Note 2. What is the source of the negligence alleged? Can you imagine a claim against the beauty school itself? What would need to be alleged to make out such a claim? Why might it fail?

Note 3. Another rationale supplied for vicarious liability may be found in the Restatement:

It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate, or defective, that its use involves an unreasonable risk of harm to others. Restatement (Second) of Torts § 307 (1965)

This is known as the “dangerous instrumentality” doctrine, and you have seen it explicitly in the Landings alligator case as well as implicitly in the second prong of the test for applicability of res ipsa loquitur (whether the instrumentality was under the control of the defendant). Would the dangerous instrumentality theory, if applied in Wall v. Gill, make out a better case for the plaintiff? Or is the beauty school not “using” an instrumentality (beauticians-in-training) at all, based on the way the school is structured? Based on what you have read about vicarious liability and its relationship to control, does it matter who uses the instrumentality, versus who has the capacity to control its use?

2. Contributory Negligence

The doctrine of contributory negligence is thought to originate in an early 19^th century English case in which a plaintiff was “riding as fast as his horse could go” and could have avoided colliding with a pole in the road had he been riding at a reasonable speed. Butterfield v. Forrester, 103 Eng. Rep. 926 (1809). However, the defendant was negligent in having placed a pole across part of the public road, and the action thus originated against him. The trial judge instructed the jury to focus on the plaintiff’s conduct and find whether “a person riding with reasonable and ordinary care could have seen and avoided the obstruction.” On appeal, the court upheld the jury verdict for the defendant, announcing the rule that “one person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want [Editor’s note, “want” means “lack” here] of ordinary care on the part of the plaintiff.”

In one sense, the rule on contributory negligence reflects an underlying insistence on the causal nexus required for any tort action: if the defendant’s conduct was not the proximate cause of the plaintiff’s injuries, then it is unfair to force the defendant to compensate the plaintiff for them. Yet unlike proximate cause, with its fact-sensitive, circumstance-examining inquiries, contributory negligence created a complete bar to recovery, at least at first. Over time, doctrines would evolve to “soften” these otherwise harsh outcomes, but the rule remained rather starkly “either/or” in its approach to liability. As a result, the majority of jurisdictions have now adopted comparative fault. It is still worth studying contributory negligence for the five jurisdictions that retain it and for an understanding of the evolution of 20^th century tort law since the complex legislative and judicial decision making it involved is informative for understanding tort policy more generally.

Davies v. Mann, Court of the Exchequer (1842)
(10 M. & W. 546, 152 Eng. Rep. 588)

At the trial, before Erskine, J., at the last Summer Assizes for the county of Worcester, it appeared that the plaintiff, having fettered the fore feet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off side of the road about eight yards wide, when the defendant’s waggon [sic], with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the waggon was some little distance behind the horses. The learned Judge told the jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the waggon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff, damages 40s.

Godson now moved for a new trial, on the ground of misdirection.

LORD ABINGER, C.B. I am of opinion that there ought to be no rule in this case. The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.

PARKE, B. * * * [A]lthough the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.

Note 1. What’s the alleged breach of conduct, or “untaken precaution” here? What caused the accident, and who could have avoided it?

Note 2. Is the rationale convincing to you (“were it not so, a man might justify driving over goods left on a public highway, or even a man lying asleep there…”)?

Note 3. Contributory negligence was a rather harsh rule, in that it barred any actions against plaintiffs who were even the slightest bit negligent. Courts expressly placed the burden on the defendant to prove negligence by the plaintiff (rather than forcing the plaintiff to prove a lack of negligence), and this helped mitigate the harshness of the rule somewhat. Still, other doctrines arose to “soften” or ameliorate the rule’s rigid, potentially unfair outcomes. One of these ameliorating doctrines was the doctrine of “last clear chance,” first articulated in Davies v. Mann. When the plaintiff’s negligence would ordinarily bar an action but the defendant was the last person capable of avoiding the accident, the law deems the defendant to have had the “last clear chance” of preventing injuries and thus limits or negates altogether, the defense of contributory negligence. Some commentators have held that it is nothing more than a version of proximate cause (or intervening force) analysis: the defendant’s actions (or failure to act) effectively serve as a superseding cause that severs the chain of causation between the plaintiff’s own negligence and the acts of the defendant. The last clear chance doctrine is irrelevant (and often abolished) in jurisdictions that underwent reform and abandoned the doctrine of contributory negligence. But it provides a good example of how tort law’s principles of fair allocation and its inquiries into the causal nexus recur throughout many doctrines, in many different postures.

Haugh v. Jones & Laughlin Steel Corp., Seventh Circuit Court of Appeals (1991)
949 F.2d 914, 916

This is an appeal (long delayed by virtue of the defendant’s bankruptcy and the resulting automatic stay only recently lifted) from a judgment for the defendant entered upon a directed verdict in the second trial of a diversity personal-injury suit. The first trial ended in a jury verdict of $85,000 for the plaintiff, but the district judge granted the defendant’s motion for a new trial on the basis of an improper communication by the marshal to the jury during the jury deliberations. The evidence was somewhat different at the second trial and persuaded the judge to grant the defendant’s motion for a directed verdict (which he had denied at the first trial) on the twin grounds that the defendant had owed no duty of care to the plaintiff and that, in any event, the evidence showed conclusively that the plaintiff had been contributorily negligent—which at the time of the accident was a complete defense to liability.

Indiana has since replaced contributory negligence with comparative negligence, whereby a plaintiff’s own negligence is only a partial defense unless that negligence is adjudged more than 50 percent responsible for the accident; but the statute*916 is not retroactive. [cc] The plaintiff’s appeal seeks reinstatement of the first jury’s verdict on the ground that the grant of a new trial violated Rule 606(b) of the Federal Rules of Evidence, and alternatively a new trial—a third trial—on the ground that the grant of a directed verdict was improper because a reasonable jury could have found that the defendant owed the plaintiff a duty of care and that the plaintiff was not contributorily negligent.

At the time of the accident, in 1980, John Haugh was employed by Eichleay Corporation, which had a contract with Jones & Laughlin Steel Corporation to furnish workers and materials for making repairs at J & L’s mill in East Chicago, Indiana. Haugh’s particular job was to remove any generator needing repairs and replace it with a steel shaft (weighing almost a ton) to maintain a connection with the remaining generators, and then in turn to remove the shaft when the generator was ready to be reinstalled after having been repaired. It was in the course of his removing a shaft that the accident occurred. Although the contract between Eichleay and J & L gave Eichleay complete responsibility for the removal of generators and shafts incidental to the repair function for which it had been hired, the practice was for employees of J & L, not of Eichleay, to do the preliminary rigging. So when on the day of the accident Haugh approached the shaft that he had been ordered to remove, he found as usual that most of the bolts connecting the shaft to the generator had already been removed and a chain hoist had been affixed to a choke (cable) that had been wrapped around the shaft.

Unfortunately, the cable had not been tightened around the shaft; it had no choking action. Haugh didn’t notice this, and when, having removed the remaining bolts, he drew on the chain hoist to pull the shaft out from between the generators, the shaft slipped out of the cable and fell on him, injuring his arm. He had long experience in the job and admitted on cross-examination at both trials that if he had looked closely at the rigging he would have seen it was defective. The suit is against J & L for the negligence of its employees in rigging the shaft improperly, suit against Eichleay being barred of course by the workers’ compensation statute.

[Judge Posner discusses improper communications by the court marshall at the lower court that tainted the jury’s verdict and requires a new trial.] [***] So the judge was right to grant a new trial and the next question is whether he was also right to grant a directed verdict for the defendant. We think not. The argument over this question has been immensely confused by J & L’s insistence on invoking the intricate rules of tort liability of landowners. [***] Those rules concern the concept of duty. Negligence is the breach of a duty of care; so there must be a duty before there can be a finding of negligence.

There is much old and some new learning on the range of duties that landowners owe the various categories of entrants onto their land—trespassers both adult and child and both deliberate and inadvertent, licensees, social guests, business invitees, public officers engaged in the performance of their duties, and so on. Haugh was a business invitee. The rule used to be that a landowner was liable for injury to a business invitee caused by a dangerous condition on the land only if the landowner had superior knowledge of the danger. The rule has been changed—in Indiana by Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind.1990), which as we read it assimilates the landowner’s duty in such a case to the general duty to avoid negligence.

The question in the present case, however, is not whether J & L provided a safe place for Eichleay to perform the services for which it had been hired. We may assume that it did. The question is not whether J & L as a landowner was responsible for the negligence of its independent contractor. It was not. That is the general rule, Howard v. H.J. Ricks Construction Co., 509 N.E.2d 201, 205 (Ind.App.1987), and none of the exceptions is applicable here. Anderson v. Marathon Petroleum Co., 801 F.2d 936 (7th Cir.1986).

Haugh’s theory of liability is different. It is that employees of J & L negligently rigged the shaft that Haugh had been told by his own employer to move. For this negligence by employees of J & L, to which the site of the accident and hence J & L’s status as a landowner is irrelevant and its duty of care simply the duty that everyone has (prima facie) to avoid a careless act that injures another person, J & L is liable under the doctrine of respondeat superior unless Haugh was contributorily negligent or some other defense to liability is in play (none is). It makes no difference that the contract between J & L and Eichleay assigned responsibility for the rigging to Eichleay. If you undertake an activity, whether or not you are required to do so, you must carry it through nonnegligently. [cc]

Haugh’s contributory negligence would be a complete defense, but it is not proved merely by evidence that he could have prevented the accident by inspecting the rigging. Accident victims almost always can as a matter of physical possibility prevent accidents to themselves. Pedestrians could wear helmets, or refuse to cross at intersections if there was any traffic even if the light was with them, or cower *920 at home. The failure to protect oneself from an accident is contributory negligence only if there is a duty to protect oneself in the particular circumstances, which means only if due care requires self-protection in the circumstances. [c]

Whether it did here remains unclear despite Haugh’s concessions on cross-examination. Ordinarily a person is not deemed contributorily negligent for failing to take precautions against the negligence of others. [c] The plaintiff “was not bound to anticipate danger and negligent conditions on the part of defendant or his employees…. He had a right to presume that he was not exposed to danger which could come to him only from a breach of duty by the defendant.” [***] The plaintiff’s duty is to take the care that is due given the risk of unavoidable accidents, that is, accidents that might occur even without negligence [c]. Otherwise, the more careless people were, the greater would be the duty of their potential victims to protect themselves against carelessness. The burden of responsibility for taking care would shift from the careless to the careful and the total costs of accidents and accident prevention would rise. If J & L’s riggers had been careful, there would have been no need for Haugh to inspect the rigging himself before moving the shaft. He was not—not as a matter of law, anyway—charged with responsibility for backstopping the exercise of care by the employees of another employer. [c]

These are matters for a jury to sort out. The record does not disclose so one-sided a case of contributory negligence as to entitle the judge to take the issue from the jury. So, unfortunately, there must be a third trial unless—as we hope—the parties can settle the case on the basis of the information furnished by two trials (one to verdict) and this appellate decision.

REVERSED AND REMANDED.

Note 1. This opinion, by renowned judge and legal scholar, Richard Posner, illustrates the way in which understanding both old and new rules in a given area can be important, and it also gives you a sense of how doctrine-heavy some complex contemporary cases can be, requiring that you seamlessly move from doctrine to doctrine as you analyze the facts. The Court of Appeals for the Seventh Circuit adopted comparative negligence during the pendency of the litigation, yet it cannot be applied in the instant case and thus contributory negligence remains the applicable rule here. Further, Posner discusses the shift from the traditional duty rule (with its tripartite structure of duties to entrants on land) to the modern California approach (applying a duty of reasonable care to all entrants). Now in Indiana the duty to entrants on land is not specified by entrants’ status but consists instead of the duty of reasonable care. Lastly, Posner mentions three important work-place tort principles or doctrines: Haugh cannot recover against his employer, Eichleay, for on-the-job injuries because that is the province of workers’ compensation; vicarious liability may apply because J & L will be liable for the torts of their employees if the relevant tests are satisfied; and there is ordinarily no vicarious liability to the hiring party (J & L) for the torts of their independent contractor (Eichlay) unless the independent contractor falls under one of the four main exceptions to the rule. Working through opinions that present a thicket of doctrines is excellent practice for the complex litigation landscape of many of your upper-division law school classes and characteristic of contemporary litigation-oriented legal practice.

Note 2. Why does Judge Posner believe remand is necessary?

Note 3. One of the rules in this case is: “Ordinarily a person is not deemed contributorily negligent for failing to take precautions against the negligence of others.” What does this mean, substantively, and procedurally?

 

Contributory Negligence and 20^th Century Tort Reform

Contributory negligence’s dominance first began to recede in 1910 when the state of Mississippi became the first in the United States to depart from the traditional rule. However, change was slow. By the 1960s, only 7 states had adopted comparative fault, the modern alternative. It took a seismic change (and significant multi-industry lobbying) in the 1980s to effectuate broad tort reforms, but 39 more states ultimately adopted some version of comparative fault, sometimes through legislative action, sometimes through judicial opinions. Only four states (Alabama, Maryland, North Carolina and Virginia) and the District of Columbia retained contributory negligence, and these five jurisdictions remain distinctly in the minority today.

There are different types of comparative fault: pure comparative fault (adopted in some form by Alaska, Arizona, California, Florida, Hawaii, Kentucky, Louisiana, Mississippi, Missouri, New Mexico, New York, Rhode Island, and Washington) and modified comparative fault (adopted by all the rest in one version or another). There are two primary types of modified comparative fault. Roughly a dozen jurisdictions follow the so-called 50 percent Bar Rule according to which the plaintiff may not recover if they are 50% or more responsible for their own injury (and at 49% or less, the regular comparative fault rules would apply). The remaining states follow the 51 percent Bar Rule, which is what it sounds like: the plaintiff may not recover if they are 51% or more responsible for their own injury. The two systems differ only if the plaintiff is found to be exactly 50% at fault. (Both would allow recovery at 49% and both would bar it at 51%.) You can see this focus on “roughly 50%” as an extension of the preponderance of the evidence rule, which requires that the parties meet their burdens of proof by around a 51% probability. It may seem a little arbitrary in its execution, but it’s an attempt to retain some of the deterrence and fairness principles behind the old contributory negligence rule without retaining its starkly polarized outcomes.

The system overall displays tort law’s sometimes maddeningly jurisdiction-specific quirkiness. For instance, the differences in the system mean that a car accident that occurs in Kansas City, which straddles two states, is subject to different rules if it happens on the Missouri side of the central river (where the rule is pure comparative fault) versus the Kansas side (where the rule is modified comparative fault). Should tort law’s outcomes be allowed to vary so greatly, even when they are based on the very same facts, set in nearly identical settings? Or should uniformity be more prominent in efforts to achieve tort law’s purposes? Alternatively, is the choice to allow jurisdictions to set their own rules one of the ways of achieving and tailoring tort law’s purposes? Perhaps absurd results along borders can always be expected in our system of federalism unless Congress acts to federalize the question. These policy issues were all in the backdrop as tort reform made its way steadily through the courts and legislative bodies in the second half of the 20^th century.

Comparative fault is a more complicated topic than we can fully cover in an introductory torts class, in that it involves procedural questions, substantive issues governing liability (and immunity thereto) and allocational complexities. For instance, should liability be determined by the comparative fault of the parties? If so, is the proper means of measuring and comparing the fault of the parties the level of breach of conduct, that is, assessment of whether one party’s conduct is considerably more unreasonable? Or should it be measured by the level of causation, such that even if a first party’s breach was more egregious, if a second party’s breach contributed more substantially to causing the harm, or to increasing the risk or amount of harm, that second party would bear a higher share of the fault? And to what extent should differing levels of duty, as well as different justifications for proximate cause and different immunities all factor in when evaluating comparative fault? This is all focusing on liability alone.

A second critical question is whether the apportionment of damages should mirror the level of fault used to determine liability. Whether or not to do so—rather than trying to parse out which damages were actually caused by particular acts of unreasonable conduct—may depend on how the comparative fault is analyzed in the first stage. It is worth remembering something we have discussed, in passing, a few times, but not yet fully considered: there are typically two parts to a trial. First, a liability determination, and second, a damages determination. Sometimes, these may be discussed at the same time in a bifurcated trial, but often, they are decided one after the other. Can you see how the system of comparative fault will make the issues difficult to keep distinct? Comparative fault arose as a means to soften contributory negligence. However, in many states, it came in with, or shortly before, a wave of tort reforms that addressed perceptions that tort law was unfairly allocating liability awards to the parties able to pay, regardless of their level of contribution. In particular, joint and several liability became a target of reform, with many states either abolishing or limiting joint liability as being incompatible with comparative fault.

3. Comparative Fault

Rodriguez v. City of New York, Court of Appeals (2018)
(31 N.Y.3d 312)

*315 This appeal requires us to answer a question that has perplexed courts for some time: Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant’s liability, when, as here, defendant has arguably raised an issue of fact regarding plaintiff’s comparative negligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence. We hold that a plaintiff does not bear that burden.

Plaintiff Carlos Rodriguez was employed by the New York City Department of Sanitation (DOS) as a garage utility worker. He was injured while “outfitting” sanitation trucks with tire chains and plows to enable them to clear the streets of snow and ice. The following facts are uncontradicted: On a snowy winter day, plaintiff and his two coworkers were tasked with outfitting sanitation trucks with tire chains and plows at the Manhattan 5 facility. Typically, the driver backs the truck into one of the garage bays, and the driver and other members of the team “dress” the truck. One person acts as a guide, assisting the driver by providing directions through appropriate hand signals while standing on the passenger’s side of the truck. Once the truck is safely parked in the garage, the driver, the guide, and the third member of the team (here, plaintiff) place chains on the truck’s tires.

At the time of his accident, plaintiff was standing between the front of a parked Toyota Prius and a rack of tires outside of the garage bay while the driver began backing the sanitation truck into the garage. The guide, at some point, stood on the driver’s side of the sanitation truck while directing the driver in violation of established DOS safety practices. The sanitation truck began skidding and eventually crashed into the front of the parked Toyota Prius, propelling the car into plaintiff and pinning him up against the rack of tires. Plaintiff was taken to the hospital and ultimately had to undergo spinal fusion surgery, a course of lumbar epidural steroid injections, and extensive physical therapy. He is permanently disabled from working.

*316 Plaintiff commenced this negligence action against the City of New York. After discovery, he moved for partial summary judgment on the issue of defendant’s liability pursuant to CPLR 3212. Defendant opposed the motion and cross-moved for summary judgment in its favor. Supreme Court denied both motions. In denying plaintiff’s motion for partial summary judgment, Supreme Court held that there were triable issues of fact regarding foreseeability, causation, and plaintiff’s comparative negligence. [fn]

The Appellate Division granted plaintiff leave to appeal to this Court [c] certifying the following question: “Was the order of Supreme Court, as affirmed by this Court, properly made?” [fn]

*317 Whether a plaintiff must demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant’s liability is a question of statutory construction of the CPLR. [***] Article 14–A of the CPLR contains our State’s codified comparative negligence principles. CPLR 1411 provides that

“[i]n any action to recover damages for personal injury, injury to property, or wrongful death, the *318 culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.” (Emphasis added.)

CPLR 1412 further states that “[c]ulpable conduct claimed in diminution of damages, in accordance with [CPLR 1411], shall be an affirmative defense to be pleaded and proved by the party asserting the defense.”

Placing the burden on the plaintiff to show an absence of comparative fault is inconsistent with the plain language of CPLR 1412. In 1975, New York adopted a system of pure comparative negligence, and, in so doing, directed courts to consider a plaintiff’s comparative fault only when considering the amount of damages a defendant owes to plaintiff. The approach urged by defendant is therefore at odds with the plain language of CPLR 1412, because it flips the burden, requiring the plaintiff, instead of the defendant, to prove an absence of comparative fault in order to make out a prima facie case on the issue of defendant’s liability. [fn]

*319 Defendant’s approach also defies the plain language of CPLR 1411, and, if adopted, would permit a possible windfall to defendants. [***] For example, assuming in a hypothetical case a defendant’s negligence could be established as a matter of law because defendant’s conduct was in violation of a statute (see PJI 2:26) and further assuming plaintiff was denied partial summary judgment on the issue of defendant’s negligence because plaintiff failed to establish the absence of his or her own comparative negligence, the jury would be permitted to decide the question of whether defendant was negligent and whether defendant’s negligence proximately caused plaintiff’s injuries. If the jury answers in the negative on the question of defendant’s negligence, the plaintiff would be barred from recovery even though defendant’s negligence was established as a matter of law and in contradiction to the plain language of *320 CPLR 1411. Such a windfall to a defendant would violate section 1411’s mandate that a plaintiff’s comparative negligence “shall not bar recovery” and should only go to the diminution of damages recoverable by plaintiff. Furthermore, it is no answer to this conundrum that the trial court could set aside the verdict. The whole purpose of partial summary judgment is to streamline and focus the factfinder on the issues that need resolution, and avoid having juries make findings that are contrary to law.

Defendant’s attempts to rely on CPLR 3212’s plain language in support of its preferred approach are also unavailing. Specifically, defendant points to CPLR 3212(b), which provides; “[a] motion for summary judgment shall … show that there is no defense to the cause of action.” Defendant’s approach would have us consider comparative fault a defense. But, comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff’s recovery, but rather a diminishment of the amount of damages.

The approach we adopt is also supported by the legislative history of article 14–A. [***] Article 14–A’s enactment was proposed by the 1975 Judicial Conference of the State of New York (the Conference) in response to this Court’s decision in Dole v. Dow Chemical Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 [1972]), which first provided for the apportionment of negligent responsibility among joint tortfeasors. In proposing the section which later became CPLR 1411, the Conference specifically noted that neither the defense of contributory negligence or assumption of risk “shall continue to serve as complete defenses” in negligence actions [c]. In proposing the section which became CPLR 1412, the Conference urged the adoption of the then-majority rule in this country, which provided that “in all negligence actions … the defendant claiming contributory negligence of the plaintiff has the burden of showing it” (id. at 245). The Conference also observed that the “burden of pleading and burden of proof are usually parallel” and that “[t]his article may be viewed as having created a partial defense, the effect of which is to mitigate damages, and *321 such defenses traditionally must be pleaded affirmatively” (id. at 246).

[***] The purpose of the law was to bring “New York law into conformity with the majority rule and represents the culmination of the gradual but persistent erosion of the rule that freedom from contributory negligence must be pleaded and proven by the plaintiff” [c]. The legislative history of article 14–A makes clear that a plaintiff’s comparative negligence is no longer a complete defense and its absence need not be pleaded and proved by the plaintiff, but rather is only relevant to the mitigation of plaintiff’s damages and should be pleaded and proven by the defendant. [***]

*323 Plaintiff contends, even assuming there is an issue of fact regarding his comparative fault, that he is entitled to partial summary judgment on the issue of defendant’s liability. [***] We agree with plaintiff that to obtain partial summary judgment on defendant’s liability he does not have to demonstrate the absence of his own comparative fault.

We also reject defendant’s contention that granting the plaintiff partial summary judgment on defendant’s liability serves no practical purpose. A principal rationale of partial summary judgment is to narrow the number of issues presented *324 to the jury [fn]. In a typical comparative negligence trial, the jury is asked to answer five questions:

1. Was the defendant negligent?
2. Was defendant’s negligence a substantial factor in causing [the injury or the accident]?
3. Was plaintiff negligent?
4. Was plaintiff’s negligence a substantial factor in causing (his or her) own injuries?
5. What was the percentage of fault of the defendant and what was the percentage of fault of the plaintiff? (PJI 2:36).

Where plaintiff has already established defendant’s liability as a matter of law, granting plaintiff partial judgment eliminates the first two questions submitted to the jury, thereby serving the beneficial purpose of focusing the jury on questions and issues that are in dispute.

Nor do we agree with defendant that what it characterizes as bifurcation of the issues of defendant’s liability from plaintiff’s liability runs counter to the Pattern Jury Instructions. [***] As a practical matter, a trial court will instruct the jury in a modified version of Pattern Jury Instruction 1:2B that the issue of defendant’s negligence, and in some cases, the related proximate cause question, have been previously determined as a matter of law. Trial courts are experienced in crafting such instructions, for example when liability has already been determined in a bifurcated trial, or when an Appellate Division upholds a liability determination and remands solely for a recalculation of damages, or a trial on damages has been ordered pursuant to CPLR 3212(c).

To be entitled to partial summary judgment a plaintiff does not bear the double burden of establishing a prima facie case of *325 defendant’s liability and the absence of his or her own comparative fault. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to the Appellate Division for consideration of issues raised but not determined on the appeal to that Court and the certified question answered in the negative.

GARCIA, J. (dissenting).

The majority holds that plaintiff’s motion for partial summary judgment on liability was improperly denied, notwithstanding issues of fact as to plaintiff’s comparative negligence. We disagree. The rule has been, and should remain, that a plaintiff must demonstrate the absence of issues of fact concerning both defendant’s negligence and its own comparative fault in order to obtain summary judgment. [c]

Plaintiff’s injury occurred while he was working in a New York City Department of Sanitation garage, as he and his colleagues outfitted sanitation trucks with tire chains and a plow in order to clear snow and ice from the City streets. With the storm ongoing, plaintiff’s colleagues were backing a truck into the Department’s garage bay when the truck slid several feet and hit a parked car, which skidded forward and hit plaintiff.

Supreme Court rejected both parties’ summary judgment motions. In rejecting plaintiff’s motion, the court found that there were triable issues of fact as to the City’s liability, specifically with respect to causation and foreseeability, as well as plaintiff’s comparative fault. The court noted that “[f]oreseeability questions are generally left for the fact finder to resolve” (citing Derdiarian v. Felix Constr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] and that numerous issues of fact remained concerning causation. In addition, the court found that even if defendant’s liability was established, “plaintiff would not be entitled to summary judgment as to liability since the question of his comparative fault must be resolved at trial.” [***]

Attempts have been made to amend the comparative fault statute to place on a defendant opposing summary judgment “the burden of interposing proof of culpable conduct” (see S. 20572017–2018 Reg Sess [NY 2017]; S 7779/2016–2017 Reg Sess [NY 2016]; [c]. Such attempts at legislative reform would be unnecessary if plaintiffs were entitled to summary judgment despite the existence of issues of fact concerning comparative fault. As defendant points out, these proposed bills would still preclude summary judgment where “defendant presents evidence of plaintiff’s comparative fault sufficient to raise a question of fact” after a plaintiff has demonstrated defendant’s liability as a matter of law (see Assembly Mem. in Support, H 2776 [2017]). The majority’s approach goes well beyond these proposals, enabling a plaintiff to obtain summary judgment even where, as happened here, a defendant *329 has demonstrated that plaintiff’s comparative fault may be significant.

[***] Determinations of degrees of fault should be made as a whole, and assessing one party’s fault with a preconceived idea of the other party’s liability is inherently unfair; or, as the Appellate Division characterized it, a defendant would “enter[ ] the batter’s box with two strikes already called” (142 A.D.3d at 782, 37 N.Y.S.3d 93). Indeed, as the Appellate Division also noted, the Pattern Jury Instructions advise that a jury consider both parties’ liability together (see PJI 2:36).

This is because the issues of defendant’s liability and plaintiff’s comparative fault are intertwined. A jury cannot fairly and properly assess plaintiff’s comparative fault without considering defendant’s actions (see e.g. Siegel, Practice Commentaries C 3212:24 [noting that “(n)o purpose (is) served by the granting of summary judgment” where “the proof that would go into the damages question substantially overlaps that on which liability depends”]). [***]

Simultaneous consideration by the jury of both parties’ level of culpability is also the more practical approach. Indeed, “few, if any, litigation efficiencies are achieved by the entry of partial summary judgment in this context because the defendant would still be entitled, at trial, to present an all-out case on the plaintiff’s culpable conduct” [c]. In the event that plaintiff obtained partial summary *330 judgment without removing issues of comparative fault, a jury would still be required to assess plaintiff’s degree of liability, and then make a damages determination in a subsequent proceeding. [***] The majority promotes its approach by pointing to the “eliminat[ion]” of the first two questions a jury must answer in a “typical comparative negligence trial” [c]. But these questions would not be eliminated by a grant of partial summary judgment, as an assessment of defendant’s negligence would be required in order for the jury to determine comparative fault and damages.

Nor is our approach barred by the statutory language of CPLR article 14–A. Requiring a plaintiff to show freedom from comparative fault in advance of obtaining summary judgment does not “bar recovery” in derogation of article 14–A. Before the enactment of Article 14–A, a plaintiff was unable to obtain recovery of any sort where he or she was in any way culpable (Fitzpatrick v. Int’l. Ry. Co., 252 N.Y. 127, 133–34 [1929] [“At common law a person has no cause of action for negligence, if he himself has contributed, in the slightest degree, to bring it about”]). Article 14–A enables a plaintiff to recover despite comparative fault [c]. It does not mandate that courts grant partial summary judgment on liability to plaintiffs who are comparatively at fault, as the majority’s approach would require. The comparative fault statute simply provides that a plaintiff is entitled to recover a certain amount of damages, to be determined by a jury, even in cases where plaintiff has engaged in some degree of culpable conduct. This requires that each party’s culpability be assessed and liability determined before judgment is granted [c] [“(W)hat the statute requires comparison of is not negligence but conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party’s conduct to the injury sustained and the damages to be paid by the one and received by the other as recompense for that injury”]).

*331 The majority repeatedly speaks to the “double burden” our approach would place on defendant. But there is no unfair tipping of the scales. Plaintiff in his moving papers made a blanket assertion of freedom from any comparative negligence and defendant, in response, came forward with extensive evidence of plaintiff’s comparative fault. Plaintiff’s burden was merely that placed on any party moving for summary judgment—to demonstrate a lack of triable issues of fact. In that, plaintiff failed.

Order, insofar as appealed from, reversed, with costs, case remitted to the Appellate Division, First Department, for consideration of issues raised but not determined on the appeal to that Court and certified question answered in the negative.

Note 1. What are the two opinions disagreeing over? Put in your own words what would come next, in the litigation, under each of the two opinions. What values or methods seem to underlie the differences of opinion?

Note 2. Identify at least one of the purposes of summary judgment referenced in the opinions. Can it be reconciled with tort law’s various purposes, and, in particular, with its preference for fact-tailored determination of most of the elements of negligence?

Note 3. What do you notice about how the two opinions each characterize the facts? What does this tell you about how to craft statements of fact in service of a position of advocacy? At a minimum, precise factual description is important both because it can be hotly contested and because of how it can be strategically framed. Consider the following characterizations of fact from the two Rodriguez opinions at the appellate level, whose majority denied the plaintiff’s summary judgment motion (holding that plaintiff had to prove absence of comparative fault). What differences do you observe?

Facts (Majority): [I]n the present case, plaintiff was injured when a sanitation truck backed into a Toyota Prius that then struck plaintiff. Defendant claims that plaintiff, an employee of defendant, while working outside the sanitation garage, was not supposed to walk behind a sanitation truck moving in reverse, and thus contributed to the cause of the accident. At his deposition, plaintiff testified that as the truck was backing up slowly, he was walking towards the front of the Prius, which was stationed behind the moving truck. Plaintiff stated that he took approximately 10 steps forward before the impact. It would appear that plaintiff was injured while walking behind a truck slowly moving backwards which he was not supposed to do. There is no evidence in the record that plaintiff was merely “standing” in front of the Prius when he was struck, as asserted by the dissent. Further, the evidence shows that the truck was moving in reverse at approximately five miles per hour when it skidded on snow/ice and struck the Prius. Under this factual scenario, the trier of fact could determine that defendant was free from negligence and that plaintiff was 100% at fault in causing his injuries.

Facts (Dissent): On a snowy day in January 2011, plaintiff and two coworkers, employees of defendant New York City’s Department of Sanitation (DOS), were tasked with placing tire chains on sanitation trucks to provide better traction in the snow. While plaintiff was waiting for his coworkers to bring another truck into the garage for outfitting with chains, he walked towards the garage, between a parked car and a rack of tires. Plaintiff allegedly suffered injuries when his coworkers backed the truck into the parked car, which was propelled into him. The driver testified that, as he moved the truck in reverse, the “guide man” stood on the driver’s side (he should have been guiding from the passenger’s side, according to an accident report by a DOS safety officer) and gave an abrupt signal to stop, at which point the driver hit the brakes hard enough that he “jerked the truck” and slid into the car. The guide man testified that he started signaling from the passenger’s side, as required, and moved to the driver’s side only after it appeared that the driver was unable to see him signaling to stop. The guide man further testified that he signaled several times to stop, but the driver did not brake until the guide man moved to the driver’s side and began waving his arms and yelling.

 

Comparative Fault’s Intersection with Joint and Several Liability

White v. Diva Nails, Court of Appeals of Michigan (2020)
(Unpublished opinion 2020 WL 3476744)

*1 Plaintiff Jill White appeals as of right the trial court’s order granting summary disposition in favor of defendants Diva Nails, LLC, and Nails Studio (collectively, defendants). We reverse.

On April 19, 2016, plaintiff claims to have received a manicure at Diva Nails in Livonia. She testified that during the manicure, the nail technician cut the skin on plaintiff’s right thumb with cuticle clippers, breaking the skin and causing a small bleed. She alleged that the technician, who was not wearing gloves, did not disinfect the cut or ask plaintiff to wash her hands before finishing plaintiff’s manicure. On April 23, 2016, plaintiff visited Nails Studio in Howell, Michigan for a polish change^[15] and a pedicure. The technician was identified during discovery. According to plaintiff, that technician reopened the cut received at Diva Nails on plaintiff’s right thumb with cuticle clippers, causing her wound to bleed and did not use any disinfectant on the cut or ask the Plaintiff to wash her hands. The technician denies that the wound was re-opened but admits that she wore one glove on her left hand. The technician from Nails studio denied being diagnosed with any communicable disease.

On April 26, 2016, plaintiff went to Livonia Urgent Care because the cut on her right thumb was inflamed and painful. Plaintiff was diagnosed with a bacterial infection and given antibiotics. After another visit to Livonia Urgent Care and two visits to St. Joseph Mercy Livingston Hospital, plaintiff was diagnosed with Herpes Whitlow and prescribed antiviral medication. Herpes Whitlow is a type of the Herpes Simplex Virus. The Herpes Simplex Virus is broken down into two types: Herpes Simplex and Herpes Simplex 2. Herpes Simplex 2 generally presents in the form of genital herpes, whereas Herpes Simplex 1 usually presents in the form of oral infections such as cold sores. While 50% to 80% of the general population have Herpes Simplex 1, an “extremely low” percentage of the population has Herpes Whitlow. The incubation period for the Herpes Simplex Virus is 1 to 26 days. Herpes Whitlow can be passed through the skin, saliva, from oral or anal sex, and by touching an open wound. Once a person contracts Herpes Whitlow, that person becomes a carrier of the virus for the rest of her life. A carrier of Herpes Whitlow can be asymptomatic her entire life and not know that she has the virus. Only a blood test can definitively show that a person is a carrier of Herpes. Plaintiff experienced an outbreak on September 1, 2016, but has not experienced anymore outbreaks since then.

Plaintiff’s expert witness, Dr. Michael McIlroy, testified that plaintiff suffered a “very severe outbreak” and “will be considered infectious to others even when she does [not] have any active lesions.” In Dr. McIlroy’s opinion, plaintiff “definitely” contracted Herpes Whitlow at one of the nail salons. Dr. McIlroy could not determine whether plaintiff contracted the virus from Nails Studio or Diva Nails, but the timing of plaintiff’s outbreak and the location of the nail injury indicated that the likelihood that plaintiff contracted the virus from one of the nail salons is “extremely high.” As to how plaintiff would have contracted the virus, Dr. McIlroy testified as follows: *2 “At one of the salons, one of the workers had the herpes simplex [virus], more likely than not, and through the nail injury, transmitted their virus or the virus on the instrument to [plaintiff] and the cutting of her finger made it even a higher likelihood that she would acquire [H]erpes [W]hitlow because of the injury.” No other expert witness opined as to the origin or cause of Herpes Whitlow.

Plaintiff filed a complaint against defendants, alleging negligence under an alternative-liability theory. After discovery both defendants filed motions for summary disposition under MCR 2.116(C)(10), arguing that alternative-liability theory was no longer viable in Michigan because the 1995 tort reform abolished joint liability and that plaintiff could not prove causation. The trial court did not determine whether the 1995 tort reform and abolition of joint liability eliminated alternative liability in Michigan, but concluded that summary disposition was warranted, nonetheless, because plaintiff could not demonstrate causation. According to the trial court, plaintiff could have contracted Herpes Whitlow from anywhere, and therefore, summary disposition was warranted. Plaintiff’s motion for reconsideration was denied, and this appeal followed.

Plaintiff argues that the trial court erred in granting defendants’ motion for summary disposition because alternative-liability theory is still viable in Michigan and there is a genuine issue of material facts as to whether either defendant caused her injury. We agree.

• ALTERNATIVE-LIABILITY THEORY

[***] At a minimum, the applicable threshold evidentiary standard to a plaintiff’s proof of factual causation in negligence cases is that a causation theory must have some basis in established fact. … Plaintiff concedes that she is unable to identify the actor who caused her injury, but contends that, under alternative-liability theory, she can satisfy the causation element.

*3 Under a theory of alternative liability, a plaintiff can overcome the causation element and shift the “burden of apportioning damages” by holding the defendants jointly and severally liable, as explained in the seminal case concerning alternative-liability theory in Michigan, Abel v. Eli Lilly & Co., 418 Mich. 311, 317 (1984). Abel was a products liability case that involved the daughters (and their spouses) of women who had taken the drug DES, a synthetic estrogen product, during their pregnancies. Because the plaintiffs were unable to identify the manufacturer of the drug to which they were exposed, the plaintiffs sued all manufacturers of the drug by relying on alternative-liability theory. Id. at 318. By relying on this doctrine, the plaintiffs sought to “circumvent the traditional tort element of causation in fact” and hold all of the manufacturer-defendants jointly and severally liable. Id. The Supreme Court ruled in favor of the plaintiffs, holding that the plaintiffs who were unable to identify the drug manufacturer that harmed them … “may take advantage of the burden-shifting feature of the alternative[-]liability theory to withstand summary judgment on the causation issue of the negligence claims.” The Supreme Court described the legal doctrine as follows:

Also called “clearly established double fault and alternative liability,” this procedural device shifts the burden of proof on the element of causation in fact to the defendants once an innocent plaintiff demonstrates that all defendants acted tortiously, but only one unidentifiable defendant caused plaintiff’s injury. If the defendants cannot meet this burden and exculpate themselves, joint and several liability will be imposed.[c] [fn]

When the Supreme Court decided Abel, multiple tortfeasors that produced a single, indivisible injury were held jointly and severally liable. Gerling Konzern Allgemeine Versicherungs AG v. Lawson, 472 Mich. 44, 49 149 (2005). “This meant that where multiple tortfeasors caused a single or indivisible injury, the injured party could either sue all tortfeasors jointly or he could sue any individual tortfeasor severally, and each individual tortfeasor was liable for the entire judgment, although the injured party was entitled to full compensation only once.” Id. The right of contribution—an equitable remedy available to concurrent tortfeasors—then allowed one tortfeasor to recover among or between other tortfeasors. The principle [sic] purpose of “‘contribution’ was to mitigate the unfairness resulting to a jointly and severally liable tortfeasor who had been required to pay an entire judgment in cases in which other tortfeasors also contributed to an injury

In 1995, the Legislature enacted tort reform measures, 1995 PA 161 and 1995 PA 249, and limited the availability of joint and several liability. The Legislature enacted several statutory provisions specifically designed to allocate fault for damages among multiple tortfeasors by abolishing joint and several liability is most cases. [c] The tort reform statutes applicable in this case are MCL 600.2956, MCL 600.2957(1), MCL 600.2960(1), and MCL 600.6304.

MCL 600.2956 provides, in relevant part:

Except as provided in section 6304, in an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each defendant for damages is several only and is not joint.

MCL 600.2957(1) provides:

In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death, the liability of each person shall be allocated under this section by the trier of fact and, subject to section 6304, in direct proportion to the person’s percentage of fault. In assessing percentages of fault under this subsection, the trier of fact shall consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.

MCL 600.2960(1) provides:

The person seeking to establish fault under sections 2957 to 2959 has the burden of alleging and proving that fault.

*4 MCL 600.6304 provides, in relevant part:

(1) In an action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following:

(a) The total amount of each plaintiff’s damages.
(b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party to the action.

* * *

(4) Liability in an action to which this section applies is several only and not joint. Except as otherwise provided in subsection (6), a person shall not be required to pay damages in an amount greater than his or her percentage of fault as found under subsection (1). This subsection and section 2956 do not apply to a defendant that is jointly and severally liable under section 6312.

* * *

(8) As used in this section, “fault” includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.

Defendants contend that alternative-liability theory is no longer viable in Michigan because joint and several liability is critical to the doctrine’s application and was abolished by the 1995 tort reform. Whether the 1995 tort reform expressly abolished joint liability and effectively eliminated alternate liability involves, in part, statutory interpretation …Defendants are correct in that, except for cases where it was expressly preserved by statute,^[16] the liability of each tortfeasor is “several only” and “not joint.” MCL 600.2956; MCL 600.6304(4).

However, abolition of joint liability does not preclude a plaintiff from invoking alternative liability to seek recovery when she cannot identify which of multiple tortfeasors caused her injury. Each tortfeasor is now liable only for the portion of the total damages that reflect that tortfeasor’s percentage of fault. [c] Rather than hold multiple tortfeasors liable for the entire judgment, i.e., jointly liable, the trier of fact will determine each tortfeasor’s proportion of fault and extent of liability. MCL 600.2957(1); MCL 600.6304(1)(b). Even if the defendants are unable to exonerate themselves—after the burden of proving factual causation has shifted—defendants will only be liable for their proportion of fault, which the trier of fact will determine. MCL 600.2957(1); MCL 600.6304(1)(b). Simply, alternative liability is still feasible even though only several liability is available to a plaintiff in a case such as this one.

*5 Alternative liability was not available to a plaintiff because multiple tortfeasors could be held jointly and severally liable; it was available because multiple tortfeasors acted wrongfully, and the injured plaintiff is unable to establish which of the tortfeasors actually caused the injury. Abel, 418 Mich. at 334. Alternative-liability theory focuses on factual causation, not how, or in what proportions, the defendants will be held liable. The underlying principle of alternative liability is “to prevent the injustice of allowing proved wrongdoers to escape liability for an injury inflicted upon an innocent plaintiff merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm.” Id. at 327 (citation and quotation marks omitted). Even without joint liability, the application of alternative liability fulfills the Legislature’s intent to require a plaintiff in a tort action with multiple defendants to establish sufficient facts that would enable the fact-finder to discern each person’s liability in direct proportion to their percentage of fault.

While alternative-liability theory does not relieve the plaintiff of the burden of establishing proximate causation, i.e., that defendants’ actions were the natural, probable, foreseeable causes of plaintiff’s contraction of Herpes Whitlow. Accordingly, a plaintiff is still required to present sufficient facts proving duty, breach, proximate causation, and damages.

[***] Having concluded that alternative-liability theory is still viable in Michigan, we conclude that the trial court erred when it granted defendants’ motions for summary disposition because plaintiff presented sufficient evidence to create a genuine issue of fact regarding causation. For alternative liability to be applicable [in Michigan], the plaintiff must demonstrate three elements:

(1) all the defendants acted tortiously,
(2) the plaintiff was “harmed by the conduct of one of the defendants,” and
(3) the plaintiff, through no fault of her own, is unable to identify which actor caused the injury. Abel, 418 Mich. at 331-332.

The second element requires plaintiff to “make a genuine attempt to locate and identify the tortfeasor responsible for her injury” and “bring before the court all the actors who may have caused the injury in fact.” Id. [c] Once a plaintiff has met all three requirements, she is relieved “of the traditional burden of proof of causation in fact.” In this case, the facts alleged by plaintiff and contained in the record compromise evidence from which a reasonable jury could conclude that both defendants acted tortiously. [c]

According to plaintiff, technicians from both salons cut the skin on her right thumb and failed to treat the cut with disinfectant or soap. Neither technician wore gloves on both hands or asked plaintiff to wash her hands after she was cut. Dr. McIlroy testified that the technicians improperly placed the burden on plaintiff to clean a wound that they caused. Defendants negligently exposed plaintiff to a communicable disease by failing to ensure that their employees wear gloves, do not expose clients to contagious viruses, adequately treat any open wounds, and otherwise work in a hygienic manner. [***] The timing of plaintiff’s injury in relation to her visits to the nail salons and the location of the injury indicated an “extremely high” likelihood that plaintiff contracted the virus from one of the nail salons. Dr. McIlroy testified that he was 99% certain that Diva Nails or Nails Studio was responsible for her injury. Dr. McIlroy’s testimony demonstrates that plaintiff contracted Herpes Whitlow from one of the two nail salons, and therefore, all possible actors who may have caused plaintiff’s injury were brought before the court.

*7 Plaintiff, through no fault of her own, is unable to identify which actor caused her injury. The technician from Nails Studio states that she has never been diagnosed with any form of the Herpes Simplex Virus. However, Herpes Whitlow can be asymptomatic and thus undetectable unless a blood test is performed. In addition, whether or not plaintiff’s technician at Nails Studio had the virus does not necessarily mean that Nail Studio or Diva Nails did not cause plaintiff’s injury. According to Dr. McIlroy, plaintiff could have contracted the virus at one of the salons, from her technician or from a worker transmitting the virus on the instrument used when plaintiff was cut. Thus, the injury making [sic] it even a higher likelihood that she would contract Herpes Whitlow. [***] Moreover, the actions of the technicians at defendants’ salons were nearly identical. Both technicians failed to wear gloves on both hands, cut plaintiff’s right thumb in the same location, failed to disinfect the cut, and failed to ask plaintiff to wash her hands.

Alternative-liability theory is applicable to this case because plaintiff can demonstrate the three threshold requirements. Accordingly, plaintiff is relieved of the burden of proving causation in fact, which now shifts to defendants. Plaintiff has demonstrated an inability to identify the nail salon which harmed her and may benefit from “the burden-shifting feature of alternative- liability theory to withstand summary [disposition] on the causation issue of the negligence claim[ ].” Abel, 418 Mich. at 339. As stated above, plaintiff is still obligated to present evidence proving all other elements of negligence, including proximate causation.

Moreover, plaintiff has presented substantial evidence from which a jury may conclude that, more likely than not, she would not have contracted Herpes Whitlow but for defendants’ conduct. The trial court ignored Dr. McIlroy’s expert testimony that plaintiff contracted Herpes Whitlow from one of the two nail salons and that both defendants acted negligently. While 50% to 80% of the population have Herpes Simplex 1, the trial court was incorrect in determining that Herpes Whitlow is common and thus there was no way to determine where plaintiff contracted the virus. To the contrary, Herpes Whitlow is very rare and is much more difficult to pass from one individual to another. The trial court decided a fact that can only be resolved by the jury. Thus, summary disposition was inappropriate.

We reverse the trial court’s order granting defendants’ motions for summary disposition and remand for further proceedings. We do not retain jurisdiction.

Cavanagh, J. (dissenting).

Plaintiff failed to establish that both nail technicians were infected with the herpes simplex virus, and thus, a jury could not conclude that more likely than not, but for their negligent conduct, plaintiff would not have contracted herpetic whitlow. [***] Accordingly, I would affirm the trial court’s order granting summary disposition in favor of defendants Diva Nails, LLC, and Nails Studio. [***] Plaintiff’s expert witness, Dr. Michael McIlroy, testified that he believed plaintiff acquired the herpes virus at one of the nail salons. But he did not know if, in fact, either nail technician actually had the herpes simplex virus. Nevertheless, in McIlroy’s opinion “one of the workers had Herpes Simplex, more likely than not, and through the nail injury, transmitted their virus or the virus on the instrument to [plaintiff] ….”

McIlroy explained that the Herpes Simplex 1 virus is usually transmitted by saliva so the saliva of one of the herpes-infected nail technicians who performed either of plaintiff’s nail procedures likely transmitted the virus to plaintiff. The technician could have touched her mouth and had saliva on her finger and then transmitted the virus to plaintiff through her open wound. McIlroy testified that it was unlikely that the instruments used by either technician were the source of transmission because the virus does not usually survive on an instrument.

…In my opinion, plaintiff failed to establish that a genuine issue of material fact existed on the issue whether either defendant caused her to contract Herpes Whitlow. Plaintiff contends that, while she cannot identify which nail technician caused her infection, she does not have to; instead, she can satisfy the causation element of her negligence claim using a theory of alternative-liability. Plaintiff relied on the testimony of her expert, McIlroy, to support her causation theory that a herpes-infected nail technician at either or both salons caused her to become infected with the herpes virus.

But plaintiff never proved that both nail technicians in fact had the Herpes Simplex virus to pass on to plaintiff. McIlroy was merely speculating …. A valid theory of causation must be based on facts in evidence. [c] Impermissible conjecture and mere speculation are insufficient to establish causation. [cc] [***] There is no record evidence establishing that the nail technicians were infected with the herpes virus. In fact, one of the nail technicians testified that she did not have the herpes virus. If neither nail technician had the herpes virus, how could they pass it on to plaintiff? Thus, plaintiff cannot demonstrate causation and her claim must fail. The issue whether the 1995 tort reform eliminated alternative liability need not be decided in this case. But even if an alternative liability theory is viable in Michigan, plaintiff’s claim would fail.

Under a theory of alternative liability, a plaintiff could seek recovery for an injury although she could not identify which of multiple tortfeasors caused her injury. As explained in the case of Abel v. Eli Lilly & Co., 418 Mich. 311 (1984), the doctrine was first formally recognized in a case involving a plaintiff who was shot at by two hunting companions but was only hit by one of them. Id. at 325-326. The plaintiff could not meet his burden of proving cause-in-fact because there was no way to determine which one of the two defendants more likely than not shot him, i.e., there was a 50% chance that either of the defendants shot him. Id. at 326. As a matter of policy, it was decided that the two proved wrongdoers should bear the burden of absolving themselves rather than depriving the innocent plaintiff of a remedy. Id. at 326-327. This theory of “alternative liability” was formally approved by the Abel Court, which held that certain requirements must be met before a plaintiff could rely on that theory of liability, including: (1) it must be shown that all the defendants acted tortiously; (2) that the plaintiff was harmed by the conduct of one of the defendants; and (3) through no fault of her own, the plaintiff is unable to identify which defendant caused the injury. Id. at 331-332.

In this case, to advance an alternative-liability theory plaintiff would have to prove that both nail technicians who performed services on her were infected with the herpes virus, and therefore, it was impossible to determine which nail technician actually transmitted the herpes virus to plaintiff. Like the case of the two hunting companions discussed in Abel—where both hunters negligently shot a bullet at the plaintiff but only one bullet struck him and caused injury—here, both nail technicians would have had to be infected with the herpes virus (like the two bullets) and negligently performed nail services (like the shooting) so as to transmit the herpes virus to plaintiff. It would then be impossible for plaintiff to determine which nail technician actually transmitted the herpes virus because both were infected with it. But, again, there is no evidence in this case that both nail technicians were infected with the herpes virus, and thus, the transmission of the herpes virus cannot be sourced back to both nail salon defendants. It is just as possible that neither, or only one, nail technician was infected with the herpes virus. Plaintiff could also have been exposed to herpes-infected saliva after leaving the nail salons with an open wound. Accordingly, I would affirm the trial court’s order granting defendants’ motions for summary disposition.

Note 1. What was the defendants’ argument regarding alternative liability?

Note 2. Why did the court reject the defendants’ theory?

Note 3. The majority opinion points out that the technicians at both salons acted in an identical manner. “Both technicians failed to wear gloves on both hands, cut plaintiff’s right thumb in the same location, failed to disinfect the cut, and failed to ask plaintiff to wash her hands.” Why could that evidence not be used to establish that it was unreasonable to expect that they would behave otherwise?

Note 4. Do you agree with the court that there needs to be a footnote informing the court’s readership of the meaning of a “polish change”? Do you think this is just the court being thorough, given that there is a plausible legal significance to the difference between a polish change and a manicure? Or might this suggest something about the sociology of the judiciary and perhaps the identities and habits of judges? Do you think members of most juries could define a “polish change” in the context of a dispute set in the nail care industry? Should it matter to us whether our judges and juries are out of touch with the lives of everyday Americans?

Note 5. Are you persuaded by the dissent’s use of Summers v. Tice? Is it correct in the analogy it draws between the negligent conduct in Summers (negligently shooting in the plaintiff’s direction) and White (having herpes)? Or is the breach of care the combination of nicking the plaintiff and working without gloves in a situation where sanitary measures like gloves ought to be used? In what other ways can the two situations be analogized or distinguished?

Note 6. MCL 600.6304, which provides the rule to follow in Michigan when more than one person is at fault, includes consideration of “third-party defendants and nonparties.” What is the potential effect of doing so? If the total fault allocated includes tortfeasors whose contribution cannot be collected, or whose immunity from liability bars collection of an award of damages, has the plaintiff been fairly compensated under the tort system? What countervailing mechanisms can you imagine to redress this concern? What other priorities of tort law does this system reflect?