Klinsky v. Hanson Van Winkle Munning Co., No. A--453

• Court: New Jersey Superior Court – Appellate Division
• Citation: 119 A.2d 166,38 N.J.Super. 439
• Decision Date: 19 December 1955
• Parties: Estelle KLINSKY (now Estelle Klinsky Mason) and Raymond Mason, her husband, Plaintiffs-Appellants, v. HANSON VAN WINKLE MUNNING CO., Inc., Hanson Van Winkle Munning Athletic Association, Inc., Pines of Raritan Township, Inc., Sweepstakes Realty Co., Inc., Joseph Callahan, President, and Anthony Seber, Defendants-Respondents, and Leslie Batchelor, Defendant. . Appellate Division
• Docket Number: No. A--453

Page 439

38 N.J.Super. 439 119 A.2d 166 Estelle KLINSKY (now Estelle Klinsky Mason) and Raymond
Mason, her husband, Plaintiffs-Appellants,
v.
HANSON VAN WINKLE MUNNING CO., Inc., Hanson Van Winkle
Munning Athletic Association, Inc., Pines of Raritan
Township, Inc., Sweepstakes Realty Co., Inc., Joseph
Callahan, President, and Anthony Seber, Defendants-Respondents,
and
Leslie Batchelor, Defendant. No. A--453. Superior Court of New Jersey.
Appellate Division. Argued Nov. 21, 1955.
Decided Dec. 19, 1955.

Page 442

[119 A.2d 167] William J. O'Hagan, Asbury Park, for plaintiffs-appellants (Stout & O'Hagan, Asbury Park, of counsel; Norman J. Currie, Keyport, attorney).

Lawrence A. Carton, Jr., Atlantic Highlands (Roberts, Pillsbury & Carton, Atlantic Highlands, attorneys), and Robert V. Carton, Asbury Park (Durand, Ivins & Carton, Asbury Park, attorneys), for defendants-respondents.

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

This appeal brings up questions as to assumption of risk and negligence. It is taken by the plaintiffs from a judgment of the Superior Court, Law Division, dismissing their action at the close of their case.

On the day of the accident Mrs. Estelle Klinsky Mason, one of the plaintiffs, was apparently an invitee at a family outing for the employees of the defendant Hanson Van Winkle Munning Co. Inc. The outing was held on certain grounds operated from time to time for such purposes by the defendant Pines of Raritan Township, Inc. While standing near a softball field located on these grounds, she was hit in the face by a softball bat which had [119 A.2d 168] slipped from the hands of the defendant Anthony Seber. Seber had struck at a ball while up at bat, and the bat had sailed through the air

Page 443

90 feet to where she was standing. Moreover, she was then 30 feet beyond first base and 15 feet outside the foul line.

The trial court, after careful consideration of the matter, found Mrs. Mason was barred as a matter of law by the doctrine of assumption of risk. The question before us is whether it was proper for the court to have dismissed the action against four of the defendants Seber, Pines, the Company and Hanson Van Winkle Munning Athletic Association, Inc., or any of them. The appeal has been abandoned as against the defendants, Sweepstakes Realty Co., Inc., and Joseph Callahan.

Some have claimed that generally speaking the term assumption of risk adds nothing to the law but confusion, and that it should be abandoned. James, Assumption of Risk, 61 Yale L.J. 141, 169 (1952); Editorial, Assumption of Risk--a False Issue, 73 N.J.L.J. 346 (1950). They point out--others have observed this, too--that the term has reference to at least two distinct concepts, each involving a different condition for its application.

In the first of these situations, the plaintiff has not been negligent. Restatement of Torts, § 466, comment d, § 893. However, the defendant is under no duty to warn him of the danger or to eliminate it or to take other precautions because the plaintiff has willingly assumed the risk--sometimes through a contract expressly relieving defendant of liability, more often through an acceptance of the risk, implied from conduct. Volenti non fit injuria. The term assumption of risk in this sense is said to be superfluous, because it is merely expressive of a lack of duty on the defendant's part.

In the second situation above referred to, the plaintiff has been negligent in assuming the risk. Compare Nauman v. Central & Lafayette Realty Co., Inc., 137 N.J.L. 428, 430, 60 A.2d 242 (Sup.Ct.1948), affirmed 1 N.J. 124, 62 A.2d 218 (1948), with Saunders v. Smith Realty Co., 84 N.J.L. 276, 280, 86 A. 404 (E. & A.1913) (in the Saunders case the two concepts are kept separate). In this second sense, the term assumption of risk is said to be superfluous because it has reference merely to one form of contributory negligence. Restatement of Torts, § 466(a).

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Further, see Keeton, Personal Injuries Resulting from Open and Obvious Conditions, 100 U.Pa.L.Rev. 629, 633, 634, 648 (1952); Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14, 16 (1906); Seavey, Liability to One Aware of Danger, 65 Harv.L.Rev. 623, 624 (1952); Note, Liability of the Proprietors of a Baseball Park for Injuries to Spectators Struck by Batted or Thrown Balls, 1951 Wash.U.L.Q. 434, 442, 443; Pona v. Boulevard Arena, 35 N.J.Super. 148, 153, 113 A.2d 529 (App.Div.1955). As to the English law, seen Winfield, Torts (1954), 46.

Prosser concedes the soundness of the above analysis, but claims the term assumption of risk serves a useful purpose in both situations, for it focuses attention upon the fact that the plaintiff in both situations has voluntarily accepted the risk. Prosser, Torts (2nd ed. 1955), 305. In any event, it seems to us that the term is worth preserving in the sense first stated. For in that situation, though the assumption of risk gives rise to a lack of duty on the defendant's part, nevertheless (notwithstanding that the plaintiff usually has the burden of proving that the defendant owes him a duty) the defendant here has the burden of proving the assumption of risk--that is, the burden of proving the lack of duty. See De Eugenio v. Allis-Chalmers Mfg. Co., 210 F.2d 409, 413 (3 Cir.1954), and James, supra, at 167 (indicating that defendant has the burden of proving assumption of risk in both senses of the term). Moreover the law bears down on the defense of assumption of risk (in both senses) to this extent: the court is not permitted to dismiss an action on the ground of assumption of risk except in the clearest case or where the requisite elements of the defense have been established clearly and conclusively. Rapp [119 A.2d 169] v. Public Service Coordinated Transport, etc.,9 N.J. 11, 18, 86 A.2d 676 (1952); Scheirek v. Izsa, 26 N.J.Super. 68, 72, 97 A.2d 167 (App.Div.1953); Pona v. Boulevard Arena, 35 N.J.Super. 148, 153, 154, 113 A.2d 529 (App.Div.1955); cf. Prosser, p. 310; (compare this test with the usual test for dismissing a case where a defendant claims there is no proof of any duty on his part). Accordingly, for purposes of analysis at various stages of the case, it would

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seem quite appropriate to fasten a distinguishing label on the concept of assumption of risk in the first sense and to separate this idea from the general idea of lack of duty.

We assumed above, in stating the first situation, that there may be an assumption of risk even though there is no negligence on the plaintiff's part. Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 607, 95 A.2d 710 (1953); Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 223, 104 A.2d 313 (1954); Harenburg v. August, 119 N.J.L. 83, 86, 87, 194 A. 152 (E. & A.1937); Cetola v. Lehigh Valley R. Co., 89 N.J.L. 691, ...