Murray v. Ramada Inns, Inc.

• Decision Date: 29 February 1988
• Docket Number: No. 87,87
• Citation: 521 So.2d 1123
• Court: Louisiana Supreme Court
• Parties: Clementine MURRAY and Carmen R. Wright, Guardian ad litem for Adrian Lavonne Wright, Minor v. RAMADA INNS, INC., Interstate Motor Lodges of Shreveport, Inc., Barker Development and Management, Inc. and Aetna Casualty & Surety Company. CQ 1846. 521 So.2d 1123, 56 U.S.L.W. 2517

Page 1123

521 So.2d 1123

Clementine MURRAY and Carmen R. Wright, Guardian ad litem for Adrian Lavonne Wright, Minor v. RAMADA INNS, INC., Interstate Motor Lodges of Shreveport Inc., Barker Development and Management, Inc. and Aetna Casualty & Surety Company.

No. 87 CQ 1846.

521 So.2d 1123, 56 U.S.L.W. 2517

Supreme Court of Louisiana.

Feb. 29, 1988.

Brian D. Smith, Lunn, Irion, Johnson, Salley & Carlisle, Shreveport, H. Alston Johnson, Baton Rouge, for defendants-appellants.

John E. McKay, Peter A. Martin, David Robertson, Baton Rouge, Bennett L. Politz, Shreveport, for plaintiffs-appellees.

CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CALOGERO, Justice.

Today we are called upon to resolve the role, if any, which the assumption of risk defense continues to play in Louisiana tort law, given the Legislature's adoption of a comparative fault system. The issue has presented itself in a case certified to us by the United States Court of Appeals for the Fifth Circuit, Murray v. Ramada Inn, Inc., 821 F.2d 272 (1987). The certified question is as follows:

Does assumption of risk serve as a total bar to recovery by a plaintiff in a negligence case, or does it only result in a reduction of recovery under the Louisiana comparative negligence statute?

We accepted certification, 514 So.2d 21 (La.1987), and now answer that assumption of risk does not serve as a total bar to a plaintiff's recovery in a negligence case.

We also note at the outset that the certified question comes to us in a case where the defendants were found strictly liable under La.Civ.Code Ann. art. 2317 (West 1979), the jury having been instructed by the trial judge to apply the provisions of that article when determining whether or not the defendants were liable. Because of that fact, and in order to provide an unambiguous response to the certified question we further answer that assumption of risk should not operate as a total bar to recovery regardless of whether the defendant is found negligent or strictly liable.

Assumption of risk terminology has been utilized to describe three basic types of plaintiff conduct. In the vast majority of cases that have involved the assertion of the defense, the plaintiff conduct at issue was in reality a form of contributory negligence. Such conduct henceforth should be exclusively adjudged by the comparative fault principles set forth in La.Civ.Code Ann. art. 2323. (West Supp.1988). In a relative handful of other cases, the assumption of risk defense has been used to deny recovery on the ground that the plaintiff expressly agreed to release the defendant from liability. Our decision here does not require a different result in such cases, which may be resolved in favor of a defendant without resort to assumption of risk. Finally, the defense has been used in a few cases to bar recovery by plaintiffs who have opted to place themselves in situations which involve virtually unpreventable risks, the textbook example being the sports spectator who has the misfortune of being hit by an errant ball. Our decision also does not necessarily call for a different outcome in cases of this type, which may be resolved in appropriate cases on the simple ground that the defendant is not negligent.

Regardless of the context in which it has been utilized, the assumption of risk defense has produced confusion and conceptual difficulties. The doctrine is easily replaceable by other established principles of tort law which more readily comport with civilian tradition, such as comparative fault and duty/risk analysis. Accordingly, and given the Legislature's adoption of a comparative fault system, we conclude that the assumption of risk defense no longer has a place in Louisiana tort law.

(I) FACTS AND PROCEEDINGS IN FEDERAL COURT

On July 30, 1983, Gregory Murray and two of his brothers began doing shallow water dives in the pool at a Ramada Inn Motel in Shreveport. After making two dives without incident, Murray made a third dive and struck his head on the bottom of the pool. Murray suffered instant paralysis, from which he never recovered. He died of his injuries five months later, and his wife and son subsequently brought this wrongful death action in federal district court against the companies which franchised, owned and operated the motel, as well as their respective liability insurers.

At trial, it was established that no lifeguard was on duty at the time of the accident, and that the absence of a lifeguard was a violation of the Louisiana Sanitary Code. It was further established that there were no signs in the area which warned against diving into the shallow end of the pool, even though other Ramada Inn pools had signs which prohibited diving. Other testimony indicated that the motel had previously removed the diving board from the pool, in order to curtail diving.

Gregory knew how to dive, his brother Carl testified, for Gregory had told him that shallow water diving was dangerous. He further stated that shortly before the accident, Gregory had warned his brothers to "be careful" while diving into the pool. There was also a sign near the pool which stated "NO LIFE GUARD--SWIM AT OWN RISK."

At the close of the evidence, the defendants asked the trial judge to instruct the jury on the elements of assumption of risk. They also urged that assumption of risk, if found applicable by the jury, should act as a complete bar to the plaintiffs' recovery. The trial judge denied the request and refused to instruct the jury on assumption of risk, concluding that the defense has been replaced by comparative negligence. The jury's verdict was returned in the form of responses to special interrogatories, the pertinent interrogatories and responses being as follows:

(1) Under the circumstances and facts of this case, did the swimming pool as it was being operated present an unreasonable risk of harm which was a proximate cause of Gregory Murray's injury and death?

Answer: Yes.

(2) Do you find that Gregory Murray was himself negligent and that such negligence was a proximate cause of his own injury or death?

Answer: Yes.

The jury further assessed Murray's negligence at 50%, and awarded $250,000 in damages (before reduction for comparative negligence) to each plaintiff.

On appeal to the United States Fifth Circuit, the defendants argued that the trial judge erred by refusing to instruct the jury on assumption of risk, and by failing to hold that that defense, distinct from comparative negligence, was available as a total bar to recovery. Reviewing the evidence, the Fifth Circuit concluded that "testimony supports the jury's conclusion that Murray knew, appreciated, and voluntarily exposed himself to the risk of diving into the shallow end of the swimming pool." 821 F.2d at 276 (emphasis added). With due respect to our Fifth Circuit brethren, the jury did not make such a specific finding, at least not as is evident from the record. Instead, the jury responded in the affirmative to an interrogatory which asked whether Murray was negligent. However, we take this language in the opinion to mean simply that the Fifth Circuit panel, after reviewing the evidence, concluded that Murray assumed the risk of his injury and subsequent death.

However, the Fifth Circuit also noted that the impact of an assumption of risk finding is "unsettled" in Louisiana in light of the Legislature's adoption of a comparative fault system. 821 F.2d at 274. Thus, they have asked us to decide on certification whether the defense serves "as a total bar to recovery in a negligence case," ¹ or results only "in a reduction of recovery under the Louisiana comparative negligence statute." Id. at 276.

(II) THE ORIGINS AND EVOLUTION OF THE ASSUMPTION OF RISK DEFENSE

(A) Development at Common Law

Assumption of risk is a common law doctrine "not well developed in Louisiana," Rozell v. Louisiana Animal Breeders Cooperative, Inc., 496 So.2d 275, 278 (La.1986), and has been described as a concept "more difficult to understand and apply than almost any other in the law of torts." Mansfield, Informed Choice in the Law of Torts, 22 La.L.Rev. 17, 17 (1961). In its various attempts to interpret and explain the supposedly distinct nature of the defense, this Court has usually turned to non-civilian sources, such as the Restatement (Second) of Torts. See, e.g., Dorry v. Lafleur, 399 So.2d 559, 560-61 (La.1981); Langlois v. Allied Chemical Corp., 258 La. 1067, 1087, 249 So.2d 133, 141 (La.1971). Accordingly, we will preface our analysis of the certified question with a discussion of the development of the defense at common law, and the subsequent attempts of Louisiana courts to incorporate the doctrine into civilian jurisprudence.

(1) Contractual Roots

The original premise of the assumption of risk defense appears to have been contractual rather than delictual. Early assumption of risk cases were based on the theory that the plaintiff could not recover because he had actually consented to undertake the risk of injury posed by a given situation, and therefore could not be heard to complain when such an injury occurred. See generally, Wade, The Place of Assumption of Risk in the Law of Negligence Y22 La.L.Rev. 5 (1961). The doctrine was described by the maxim "volenti non fit injuria," meaning "no wrong is done to one who is willing." W. Prosser & J. Wade, Cases and Materials on Torts 534 (5th ed. 1971).

Thus, the defense appeared frequently in early common law cases which involved servants or employees who were injured while performing their employment duties. The right of such employees to recover damages from their employers was barred under the rationale that, as an implied provision of the employment contract, the servant assumed all risks incidental to his normal employment duties. See, e.g., Thomas v. Quartermaine, 18 Q.B.D. 685 (1887); Saxton v. Hawksworth, 26 L.T. 851, 853 (Ex.Ch.1872); Farwell v. Boston & Worcester R.R., 4...