Kennedy v. Providence Hockey Club, Inc., 75-13-A

• Decision Date: 02 August 1977
• Docket Number: No. 75-13-A,75-13-A
• Citation: 119 R.I. 70,376 A.2d 329
• Parties: Sylvia L. KENNEDY et al. v. PROVIDENCE HOCKEY CLUB, INC. ppeal.
• Court: Rhode Island Supreme Court

Page 329

376 A.2d 329

119 R.I. 70

Sylvia L. KENNEDY et al. v. PROVIDENCE HOCKEY CLUB, INC.

No. 75-13-Appeal.

Supreme Court of Rhode Island.

Aug. 2, 1977.

[119 R.I. 78] Gunning, LaFazia & Gnys, Inc., Robert K. Mills, Providence, for plaintiffs.

Martin M. Zucker, Thomas D. Pucci, Providence, for defendant.

OPINION

KELLEHER, Justice.

The plaintiffs, Mr. and Mrs. Curtis A. Kennedy, Jr., brought this civil action against the Providence Hockey Club, Inc. (the hockey club). Mrs. Kennedy sought damages for injuries received from a flying hockey puck which struck her in the eye as she and her husband were watching a game at Rhode Island Auditorium; her husband sought consequential damages. The complaint alleged that the hockey club negligently failed to apprise Mrs. Kennedy of the danger and to afford her a safe seat. Additionally, the complaint charged a breach of warranty with respect to an allegedly defective seat.

After both sides had answered interrogatories and the deposition of Mrs. Kennedy had been taken, the hockey club filed a Super.R.Civ.P. 56(c) motion for summary judgment on the ground that there was no genuine issue as to any material fact and that as a matter of law the Kennedys were barred from recovery because they had assumed the risks attendant to hockey matches by taking their seats at the game.

Upon hearing this motion and considering the pleadings, answers to interrogatories, and Mrs. Kennedy's deposition, the trial justice granted the motion for summary judgment. The case is before us now on the Kennedys' appeal from that judgment. We affirm.

The record ¹ discloses the following pertinent facts. On January 25, 1970, Mrs. Kennedy, then unmarried and known as Sylvia Forrest, attended a Providence Reds hockey game with her fiance, Curtis Kennedy, Jr., now her husband. The couple sat in Section F North, Row A, which was the fourth row up from the arena floor. Protection for patrons seated in Section F North consisted of a wooden "dasher" that rose to a height of approximately 18 to 24 inches above the ice plus a 5-foot sheet of 1/2-inch-thick plexiglass which was attached to the top of the "dasher." This shield protected only those patrons in the first three rows.

During the course of a face-off on the ice near Section F North, the puck was lofted from the ice and struck Mrs. Kennedy over the left eye. She was treated in the first aid room at the auditorium and thereafter she incurred substantial medical expenses and loss of work for several months.

Prior to the injury, she had attended 30 or 40 games at the auditorium with her then-fiance and she had seen many Boston Bruins games on television. During those games she had seen lofted pucks hit the plexiglass as well as go into the crowd. Ordinarily, she and her fiance sat at the end of the arena in seats most distant from the ice surface because those seats were least expensive, but because the couple were late in purchasing their tickets for the January 25, 1970 game, they were sitting in Section F North. Those were the only remaining seats.

On appeal the Kennedys argue that we should abandon assumption of the risk as a distinct defense to negligence actions, treat it like contributory negligence, and deem it subsumed by the comparative negligence statute, G.L. 1956 (1969 Reenactment) § 9-20-4, as amended by P.L. 1972, ch. 18, § 1. ² Because of the conclusion we reach on this question, it is not necessary for us to determine whether this course of action, which accrued prior to the passage of § 9-20-4, is a suit "hereafter brought" within the meaning of the statute. ³ We shall simply assume that it is for the purposes of our discussion.

Before addressing the issue presented, a brief historical detour is in order. First, it goes without saying that assumption of the risk by definition means "voluntary." See Ogden v. Rabinowitz, 86 R.I. 294, 134 A.2d 416 (1957); Gaffney v. New York & N.E.R.R., 15 R.I. 456, 7 A. 284 (1887).

Secondly, it has long been established in Rhode Island that no distinction is made between the doctrine of assumption of the risk and the maxim volenti non fit injuria (he who consents cannot receive an injury). Accordingly, the doctrine is not limited to master-servant relationships, but exists as a potential defense in all negligence actions. Schiano v. McCarthy Freight System, Inc., 75 R.I. 253, 65 A.2d 462 (1949). Our broad interpretation of the rule is to be distinguished from some jurisdictions where the doctrine and the maxim have been separately applied, and such distinction has caused unfortunate misapplication of terms and concomitant confusion. See, e. g. Lyons v. Redding Constr. Co., 83 Wash.2d 86, 515 P.2d 821 (1973).

Thirdly, and most recently, we have discussed at length the difference between assumption of the risk and contributory negligence. D'Andrea v. Sears, Roebuck & Co., 109 R.I. 479, 287 A.2d 629 (1972). The defendant in that case argued that assumption of the risk bars recovery where a plaintiff either knew or should have known of the risk he assumed. We rejected that contention, however, and noted that "in deciding whether a plaintiff knew of and understood the extent of the risk he incurred, the standard is subjective and is keyed to 'what the particular plaintiff in fact sees, knows, understands and appreciates.' " Id. at 487, 287 A.2d at 633. This subjective standard is to be applied to assumption of the risk cases and is to be distinguished from an objective standard "which is concerned with how in the particular case the hypothetical reasonable man of ordinary prudence would have acted." Id. (emphasis added). The objective criterion is to be applied where contributory negligence is in issue. Id. Thus, we have limited the application of the assumption of the risk doctrine to those situations where the claimant had actual knowledge of the hazard. Having so defined and limited the defense, it seems to us that our state is spared the confusion which the Kennedys claim reigns supreme in those jurisdictions which recognize the doctrine in its full force.

With this in mind, we turn now to the question before us: whether the doctrine of assumption of the risk is to be construed as within the intendment of § 9-20-4. If so, the foregoing analysis would serve little purpose other than to place various legal propositions in their respective pigeonholes. However, for the reasons which follow, we conclude that § 9-20-4 neither diminishes the validity of assumption of the risk as a defense to negligence actions nor makes it a mere mitigating factor in assessing liability.

At the outset we readily concede that other jurisdictions dealing with comparative negligence statutes have merged assumption of the risk with contributory negligence and thus freed plaintiffs subject to the former as well as the latter defense from the harshness of the "all-or-nothing" rule. Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975); Wilson v. Gordon, 354 A.2d 398 (Me.1976); Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971); Braswell v. Economy Supply Co., 281 So.2d 669 (Miss.1973); Lyons v. Redding Constr. Co., supra. An examination of these cases reveals that they are premised, at least in part, on the postulate that assumption of the risk and contributory negligence overlap to an extent. So far as these doctrines overlap, courts have deemed them the same for purposes of comparative negligence statutes. However, because we do not accept the premise that these principles overlap, we reach a different...