Meistrich v. Casino Arena Attractions, Inc., A--4

CourtUnited States State Supreme Court (New Jersey)
Citation31 N.J. 44,155 A.2d 90,82 A.L.R.2d 1208
Docket NumberA-4,No. A--4,A--4
Parties, 82 A.L.R.2d 1208 Sidney J. MEISTRICH, Plaintiff-Respondent, v. CASINO ARENA ATTRACTIONS, INC., a body corporate, Defendant-Appellant. DN
Decision Date26 October 1959

Solomon Lautman, Asbury Park, argued the cause for defendant-appellant.

Robert V. Carton, Asbury Park, argued the cause for plaintiff-respondent (Durand, Ivins & Carton, Asbury Park, attorneys; Robert V. Carton, Asbury Park, of counsel).

The opinion of the court was delivered by


Plaintiff was injured by a fall while ice-skating on a rink operated by defendant. The jury found for defendant. The Appellate Division reversed, 54 N.J.Super. 25, 148 A.2d 199 (1959), and we granted defendant's petition for certification, 29 N.J. 582, 150 A.2d 807 (1959). The facts appear in the opinion of the Appellate Division and need not be repeated in detail.

The Appellate Division found error in the charge of assumption of the risk. It also concluded there was no evidence of contributory negligence and hence that issue should not have been submitted to the jury.

Defendant urges there was no negligence and therefore the alleged errors were harmless. See Bush v. New Jersey & New York Transit Co., Inc.,30 N.J. 345, 351, 153 A.2d 28 (1959). We think there was sufficient proof to take the issue to the jury. There was evidence that defendant departed from the usual procedure in preparing the ice, with the result that it became too hard and hence too slippery for the patron of average ability using skates sharpened for the usual surface. From plaintiff's account of his fall, a jury could infer the stated condition of the ice was the proximate cause.

We however agree with defendant that the issue of contributory negligence was properly left to the trier of the facts. Plaintiff had noted that his skates slipped on turns. A jury could permissibly find he carelessly contributed to his injury when, with that knowledge, he remained on the ice and skated cross-hand with another.

The remaining question is whether the trial court's charge with respect to assumption of risk was erroneous. The words 'the proximate cause, rule of proximate cause' appear in the charge at a point at which they are unintelligible and at which 'assumption of risk' doubtless was intended. Plaintiff's counsel objected to the charge, making specific reference to the introduction of 'proximate cause' in the court's treatment of assumption of risk and adding 'It is confusing in my mind and I don't see how the jury can understand it.' Defendant urges the stenographer erred in recording 'proximate cause' when in fact the trial judge said 'assumption of risk.' The record, however, was not corrected, and the phrasing of plaintiff's objection to the charge would seem to support the transcript. We cannot exclude a likelihood that the trial judge unwittingly uttered the wrong phrase, and being unaware of the slip, failed to comprehend the objection made. In these circumstances, we cannot disagree with the view of the Appellate Division.

The Appellate Division also found the trial court failed to differentiate between assumption of risk and contributory negligence. The Appellate Division added (54 N.J.Super. at page 32, 148 A.2d at page 203):

'We note that contributory negligence involves some breach of duty on the part of a plaintiff. His actions are such as to constitute a failure to use such care for his safety as the ordinarily prudent man in similar circumstances would use. On the other hand, assumption of risk may involve no fault or negligence, but rather entails the undertaking of a risk of a known danger. Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 607, 95 A.2d 710 (1953).'

As we read the charge, the trial court expressed essentially the same thought, I.e., that assumption of risk may be found if plaintiff knew or reasonably should have known of the risk, notwithstanding that a reasonably prudent man would have continued in the face of the risk. We think an instruction to that effect is erroneous in the respect hereinafter delineated. The error is traceable to confusion in the opinions in our State.

Assumption of risk is a term of several meanings. For present purposes, we may place to one side certain situations which sometimes are brought within the sweeping term but which are readily differentiated from the troublesome area. Specifically we place beyond present discussion the problem raised by an express contract not to sue for injury or loss which may thereafter be occasioned by the covenantee's negligence, and also situations in which actual consent exists, as, for example, participation in a contact sport.

We here speak solely of the area in which injury or damage was neither intended nor expressly contracted to be non-actionable. In this area, assumption of risk has two distinct meanings. In one sense (sometimes called its 'primary' sense), it is an alternate expression for the proposition that defendant was not negligent, I.e., either owed no duty or did not breach the duty owed. In its other sense (sometimes called 'secondary'), assumption of risk is an affirmative defense to an established breach of duty. In its primary sense, it is accurate to say plaintiff assumed the risk whether or not he was 'at fault', for the truth thereby expressed in alternate terminology is that defendant was not negligent. But in its secondary sense, I.e., as an affirmative defense to an established breach of defendant's duty, it is incorrect to say plaintiff assumed the risk whether or not he was at fault.

A discussion of the subject must start with the common-law action of a servant against his master, for it was there that assumption of risk emerged or at least was distinctly developed. The master owed a duty to provide a reasonably safe place to work. If he discharged that duty, he was not liable for damages due to the inherent risks that remained. The master, upon that postulate, was not negligent. He might be liable if he failed to warn the uninitiate of those inherent risks, 3 Labatt, Master and Servant (2d ed. 1913), § 1151, p. 3059, but the experienced workman was said to have assumed them. Quite obviously, the expression simply stated in other terms the basic thought that the master had not breached his duty. 3 Labatt, Master and Servant, (2d ed. 1913), § 1186a, p. 3188. Assumption of risk, in that sense, was not a separate defense. It was not required to be pleaded and the burden of proof was not upon the master. Taylor v. Chicago, R.I. & P. Ry. Co., 186 Iowa 506, 170 N.W. 388, 390 (Sup.Ct.1919). On the contrary, the servant had to prove the injury was caused by a risk other than one inherent in a well-run establishment, that is to say, that the master was negligent. That assumption of risk as thus used was not a separate defense but rather another way of saying the defendant was not negligent, is further evident from the frequent statement that a servant did Not assume the risk of his master's Negligence. 3 Labatt Master and Servant (2d ed. 1913), § 1186a, p. 3188; Fagan v. Central R. Co., 94 N.J.L. 454, 457, 111 A. 32 (E. & A.1920); Cetofonte v. Camden Coke Co., 78 N.J.L. 662, 666, 75 A. 913, 27 L.R.A., N.S., 1058 (E. & A.1910); Smith v. Erie R. Co., 67 N.J.L. 636, 645, 52 A. 634, 59 L.R.A. 302 (E. & A.1902).

Hence if the servant established that his injury was caused by a risk created by the master's breach of duty to furnish a reasonably safe place to work, assumption of the risk in the primary sense necessarily was negated. But the master could press an affirmative defense, as to which the burden of pleading and proof was his, that plaintiff should nonetheless fail because he voluntarily exposed himself to a risk negligently created by the master. Unhappily, that defense was also called assumption of risk. Thus two utterly distinct thoughts bore the same label with inevitable confusion. Martin v. Des Moines Edison Light Co., 131 Iowa 724, 106 N.W. 259, 363 (Sup.Ct.1906).

The confusion was aided by the practice of pleading assumption of risk as a separate defense without indicating whether the purpose was merely to deny negligence or to assert an affirmative defense on the hypothesis that defendant was negligent. So also a single form of charge to the jury came into usage attended by the same obscurity. Thus where the facts were such that assumption of risk was pertinent only as a denial of negligence, the jury was instructed to deal first with the issue of negligence, and if negligence should be found, then to consider the 'defense.' Thus instructed, a jury might find negligence (a finding which in legal effect negates assumption of risk in its primary sense) and yet find for defendant under a misapprehension that assumption of risk in its primary sense somehow constituted a bar. Still further, although it would be technically accurate with respect to assumption of risk in its primary sense to say that plaintiff assumed the risk of non-negligent injury even though he was free of fault, that same instruction, if given where assumption of risk in its secondary sense is in issue, would lead to the exculpation of a negligent defendant upon the erroneous notion that a plaintiff assumed the risk of that negligence even though he was free of blame. And, we believe, the confusion has been further compounded by treating assumption of risk in its secondary sense as an affirmative defense different in its essential ingredients from the defense of contributory negligence, thus creating the potential of a verdict for defendant notwithstanding a jury's finding under the issue of contributory negligence that plaintiff exercised the care of the reasonably prudent man under all the circumstances.

The proposition we have just advanced, that assumption of risk in its secondary sense is indistinguishable in its nature from contributory negligence, requires further discussion. We may...

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