Academic journal article The University of Memphis Law Review

How the Abolishment of the Assumption of the Risk Doctrine in Tennessee Affected Common Law Doctrines Associated with Primary Implied Assumption of the Risk

Academic journal article The University of Memphis Law Review

How the Abolishment of the Assumption of the Risk Doctrine in Tennessee Affected Common Law Doctrines Associated with Primary Implied Assumption of the Risk

Article excerpt

I. INTRODUCTION

With the adoption of the doctrine of comparative fault in McIntyre v. Balentine,1 the Tennessee Supreme Court made substantial changes in the area of tort law. Since McIntyre, the court has engaged in a continuous struggle to define the parameters of the doctrine. One of the areas affected by the doctrine of comparative fault2 was the defense of assumption of the risk. In Perez v. McConkey,3 the Tennessee Supreme Court held that "the doctrine of implied assumption of the risk, as well as the terminology associated with that defense, should be abolished."4 The court explained that the doctrine will either be examined under the "duty element" of a negligence cause of action or under the doctrine of comparative fault.5

Subsequent to Perez, the Tennessee Supreme Court established guidelines that courts should use in apportioning fault under Tennessee's newly adopted comparative fault system.6 Noting that the apportionment of fault is ultimately a fact-bound inquiry, based on all of the circumstances of the case,7 the court established a set of guidelines to be used when addressing the apportionment of fault issue.8 One of the guidelines the court established was based on the principles of assumption of the risk.9 The court explained that in apportioning fault the jury should consider the "reasonableness of [a] party's conduct in confronting a risk, such as whether the party knew of the risk, or should have known of it."10

Before Perez,11 Tennessee law provided that there were three types of assumption of the risk: (1) express assumption of the risk,12 (2) primary implied assumption of the risk, and (3) secondary implied assumption of the risk.13 Traditionally, there were three elements of the implied assumption of the risk defense: "(1) Knowledge of the danger, (2) an appreciation of that danger, and (3) voluntary exposure to that danger."14 Assumption of the risk also required "actual knowledge of the danger and intelligent submission to it."" For a plaintiff to have assumed the risk, he "must [have] discover[ed] the defect or danger, fully [understood] the danger presented to him, and disregard[ed] the known danger by voluntarily exposing himself to it."16

Primary implied assumption of the risk occurred "when a plaintiff... assume[d] known risks inherent in a particular activity."17 As the Perez court explained:

In its primary sense, implied assumption of risk focuses not on the plaintiff's conduct in assuming the risk, but on the defendant's general duty of care. The doctrine of primary implied assumption of risk "technically is not a defense, but rather a legal theory which relieves a defendant of the duty which he might otherwise owe to the plaintiff with respect to particular risks."18

The classic example of primary implied assumption of the risk is a baseball fan who attends a baseball game. That fan assumes the risk of being injured by a foul ball because the fan voluntarily attended the game and the danger of being struck by a foul ball is a risk inherent to spectators of a live baseball game. Under Tennessee's comparative fault scheme, this still can be a complete bar to recovery, because in this type of situation, the defendant is relieved of his duty of care.19

Contrary to the doctrine of primary implied assumption of the risk, secondary implied assumption of the risk was an "affirmative defense which [was] asserted by the defendant after a negligent breach of duty had been established .... [T]his type of implied assumption of [the] risk referr[ed] to both unreasonable and reasonable conduct by the plaintiff in assuming a known risk."20 For example, a defendant might have pleaded that a plaintiff assumed the risk of injury when he decided to dive into the defendant's swimming pool.21

It is the area of primary implied assumption of the risk that has seen the most dramatic changes since Perez. As the Perez court explained, "[w]hile we agree that those situations. …

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