Meistrich v. Casino Arena Attractions, Inc.

Supreme Court of New Jersey · Torts

TortsNegligenceContributory negligenceAssumption of riskice skatingpremises liabilityassumption of riskprimary assumption of risk

Facts

Plaintiff was injured when he fell while ice-skating on a rink operated by defendant. There was evidence that defendant departed from the usual procedure in preparing the ice, making it too hard and too slippery for an average patron using skates sharpened for the usual surface. Plaintiff's account of the fall permitted an inference that the ice condition proximately caused the injury. Plaintiff had also noticed that his skates slipped on turns, yet remained on the ice and skated cross-hand with another person.

Issue

Whether the trial court erred in charging the jury on assumption of risk and whether assumption of risk should be treated as a separate defense from contributory negligence when defendant's negligence has been established. Also, whether the contributory-negligence issue was properly submitted to the jury.

Rule

In cases where injury was neither intended nor expressly made nonactionable by contract, assumption of risk has two meanings. In its primary sense, it is merely another way of stating that defendant was not negligent because no duty was owed or no duty was breached; in its secondary sense, when invoked despite an established breach of duty, it is simply a phase of contributory negligence measured by whether a reasonably prudent person would have incurred the known risk and acted as plaintiff did. Accordingly, assumption of risk in its secondary sense should not be charged as a distinct defense, and if assumption-of-risk terminology is used in its primary sense, the jury must be clearly told that plaintiff does not assume a risk negligently created by defendant and that defendant bears the burden of proving contributory negligence.

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

Lena Ortiz bought a ticket to skate at Harbor Lights Rink in Portland, Maine. She alleges the rink operator negligently flooded the surface with too little water, creating unusually rough ridges, and that after feeling her blades catch several times she kept skating and fell.

If the evidence would permit a jury to find both negligent rink maintenance and careless continuation by Lena, which instruction is most consistent with the governing rule?

Explanation. Where defendant's breach is in issue and plaintiff's knowing encounter with that danger is used to bar recovery despite the breach, the matter is simply a phase of contributory negligence. The majority held that assumption of risk in its secondary sense should not be charged as a distinct defense. The jury should decide defendant's negligence and, separately, whether plaintiff failed to act as a reasonably prudent person in incurring or confronting the known risk. (Derived from Meistrich v. Casino Arena Attractions, Inc. (n.d.).)