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Clairmont v. Cilley

Supreme Court of New Hampshire · Civil Procedure

Civil ProcedureAssumption of riskMaster-servant liabilityEmergency ordersEvidenceassumption of riskvoluntarinessmaster and servant

Facts

The plaintiff was injured while attempting to place a stone behind the rear wheel of a stalled truck driven by defendant Clifton, one of his employers. Clifton called out, "Trig the truck; I cannot hold it," and the plaintiff, who had stopped his own truck behind Clifton's as was customary, ran uphill and tried to place the stone under the overhanging body of the truck. While the plaintiff was doing so, the truck suddenly moved backward and caught his hand beneath the stone. There was evidence that the emergency may have resulted from Clifton's negligent repair of the motor and from brakes affected by grease, but the only direct testimony about Clifton's handling of the truck after it stalled was his own denial that he released the brakes.

Issue

Whether the plaintiff assumed the risk as a matter of law when he obeyed his employer's immediate order to trig a stalled truck despite knowing it might move backward, and whether there was sufficient evidence that Clifton negligently operated the truck after it stalled. A further issue was whether payments of the plaintiff's expenses were admissible as evidence of an admission of liability without other evidence showing that character.

Rule

In master-servant cases, assumption of risk requires that the servant's encounter with the danger be voluntary in a legal sense. Even where the servant knows and appreciates the danger, the risk is not voluntarily assumed if, because of an emergency, urgent call of duty, or other constraint, the servant lacks fair freedom and time to make a meaningful choice; this is especially so when the servant acts under immediate direct orders and the emergency is caused by the master's negligence. Also, disbelief of a witness's denial does not itself supply affirmative proof of the opposite fact, and payments to an injured employee are not admissible as admissions of liability absent evidence tending to show they were made in acknowledgment of liability rather than as aid.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a warehouse in Toledo, Lena Ortiz saw that a loaded freight cart had begun rolling toward a loading ramp after its brake cable failed because of her supervisor Mark Doran's negligent repair earlier that day. Mark shouted, "Block it now—I can't hold it," and Lena immediately ran to jam a timber under the wheel, injuring her hand when the cart lurched.

If Lena sues for her injuries and the employer argues she assumed the risk because she knew the cart might move, which is the strongest analysis?

Explanation. The controlling rule is that assumption of risk in the master-servant setting requires not only knowledge and appreciation of danger, but also a voluntary encounter in a legal sense. When the servant acts under immediate direct orders, in an emergency, and the emergency may have been created by the master's negligence, the jury may find the servant lacked fair freedom and time to choose between obeying and leaving the service. Physical compulsion is not required. (Derived from Clairmont v. Cilley (n.d.).)