Klinsky v. Hanson Van Winkle Munning Co., A--453

Citation119 A.2d 166,38 N.J.Super. 439
Decision Date19 December 1955
Docket NumberNo. A--453,A--453
PartiesEstelle 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
CourtNew Jersey Superior Court – Appellate Division

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 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 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).

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 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 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, 99 A. 310 (E. & A.1916); Bohlen, supra at 18, 19 (1906). It may be clarifying to illustrate this. A person cannot be said to be lacking in ordinary prudence merely because he walks on a golf links subjecting himself to the risk of being hit by a golf ball, cf. Schlenger v. Weinberg, 107 N.J.L. 130, 132, 150 A. 434, 69 A.L.R. 738 (E. & A.1930), Toohey v. Webster, 97 N.J.L. 545, 117 A. 838, 23 A.L.R. 440 (E. & A.1922), Annotation 138 A.L.R. 541, 554; or because he walks on a miniature golf course subjecting himself to the risk of falling on a slope in the course, cf. Young v. Ross, 127 N.J.L. 211, 214, 21 A.2d 762 (E. & A.1941). As to the spectators hit by a foul ball at a ball game, see Keeton, supra, at 640; Note, 1951 Wash.U.L.Q. 434; 17 B.U.L.Rev. 485 (1937); 26 Temp.L.Q. 206 (1952); Annotation, 142 A.L.R. 868; Ratcliff v. San Diego Baseball Club, 27 Cal.App.2d 733, 81 P.2d 625 (1938).

No attempt is or could successfully be made here charging Mrs. Mason with negligence as a matter of law. Hence we are concerned in this case with assumption of risk only in the first sense above stated--and in particular with one rule under the doctrine (which, it may be noted, applies equally to the doctrine in the second sense also). We may state the rule generally this way: plaintiff will be held not to have assumed a risk of danger unless he actually appreciated the danger or unless an ordinarily prudent person in his position and with his experience would have appreciated it. Young v. Ross, 127 N.J.L. 211, 214, 21 A.2d 762 (E. & A.1941); Garton v. Public Service Electric & Gas Co., 117 N.J.L. 520, 523, 189 A. 403 (E. & A.1937); Picariello v. Linares & Rescigno Bank, 127 N.J.L. 63, 65, 21 A.2d 343 (Sup.Ct.1941), affirmed 127 N.J.L. at page 565, 23 A.2d 396 (E. & A.1942); Pona v. Boulevard Arena, 35 N.J.Super. 148, 154, 113 A.2d 529 (App.Div.1955); cf. Castino v. Di Menzo, 124 N.J.L. 398, 401, 11 A.2d 738 (Sup.Ct.1940); Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 607, 95 A.2d 710 (1953). See Prosser, supra, at 309, 310; cf. James, supra, at 147, 148, 161, 162; Keeton, supra, at 642. Compare Restatement of Torts, § 466(a) with § 893. He not only must have knowledge of the physical surroundings which create the danger, but he must comprehend and appreciate the danger. Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 277, 59 A.2d 400 (E. & A.1948); Prosser, supra, at 309.

Under this rule patrons of places of amusement assume the risk of obvious dangers. Offringa v. Borough of Westwood, 132 N.J.L. 493, 497, 41 A.2d 18 (E. & A.1945); Young v. Ross, 127 N.J.L. 211, 214, 21 A.2d 762 (E. & A.1941); Bianchi v. South Park Presbyterian Church, 123 N.J.L. 325, 334, 8 A.2d 567, 124 A.L.R. 808 (E. & A.1939). Indeed, the cases go further, stating that each patron assumes the risk of an ordinary danger normally attendant on such a place. Griffin v. De Geeter, 132 N.J.L. 381, 382, 40 A.2d 579 (E. & A.1945); Young v. Ross, supra; Falk v. Stanley Fabian Corp. of Delaware, 115 N.J.L. 141, 145, 178 A. 740 (E. & A.1935); Thurber v. Skouras Theatres Corp., 112 N.J.L. 385, 387, 170 A. 863 (Sup.Ct.1934); Pona v. Boulevard Arena, 35 N.J.Super. 148, 153, 154, 113 A.2d 529 (App.Div.1...

To continue reading

Request your trial
22 cases
  • Hopkins v. Fox & Lazo Realtors
    • United States
    • New Jersey Supreme Court
    • 16 Junio 1993
    ...more than one party can possess similar duties or responsibilities toward a third party. See, e.g., Klinsky v. Hanson Van Winkle Munning Co., 38 N.J.Super. 439, 119 A.2d 166 (App.Div.1955), certif. denied, 20 N.J. 534, 120 A.2d 661 (1956) (holding that company athletic association and amuse......
  • Tavernier v. Maes
    • United States
    • California Court of Appeals Court of Appeals
    • 27 Mayo 1966
    ...of proof when the case is posited in the latter setting. (See Prosser, op. cit., pp. 453--454; Klinsky v. Hanson Van Winkle Munning Co. (1955) 38 N.J.Super. 439, 444, 119 A.2d 166, 168 (cert. den. 20 N.J. 534, 120 A.2d 661); and cf. Fleming, op. cit., 61 Yale L.J. at p. The question of whet......
  • Cahill v. Mundet Cork Corp.
    • United States
    • New Jersey Superior Court — Appellate Division
    • 16 Noviembre 1961
    ...L.J. 141, 169 (1952); Editorial, Assumption of Risk--a False Issue, 73 N.J.L.J. 346 (1950).' Klinsky v. Hanson Van Winkle Munning Co., 38 N.J.Super. 439, 443, 119 A.2d 166, 168 (App.Div.1955), certification denied 20 N.J. 534, 120 A.2d 661 (1956). See Meistrich v. Casino Arena Attractions, ......
  • Mayer v. Housing Authority of Jersey City, A--653
    • United States
    • New Jersey Superior Court — Appellate Division
    • 30 Junio 1964
    ...Crammer v. Willston Operating Co., Inc., 19 N.J.Super. 489, 88 A.2d 630 (App.Div.1952); Klinksy v. Hanson Van Winkle Munning Co., 38 N.J.Super. 439, 448, 119 A.2d 166 (App.Div.1955), certification denied 20 N.J. 534, 120 A.2d 661 Defendant next contends that even assuming, Arguendo, that it......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT