Smollett v. Skayting Development Corp., No. 85-3333

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore HUNTER, WEIS, and MANSMANN; JAMES HUNTER, III; MANSMANN
Citation793 F.2d 547
PartiesHelene SMOLLETT and Leonard Smollett v. SKAYTING DEVELOPMENT CORP., d.b.a. Virgin Wheels. Appeal of SKAYTING DEVELOPMENT CORPORATION d/b/a Virgin Wheels.
Docket NumberNo. 85-3333
Decision Date17 July 1986

Page 547

793 F.2d 547
Helene SMOLLETT and Leonard Smollett
v.
SKAYTING DEVELOPMENT CORP., d.b.a. Virgin Wheels.
Appeal of SKAYTING DEVELOPMENT CORPORATION d/b/a Virgin Wheels.
No. 85-3333.
United States Court of Appeals,
Third Circuit.
Argued April 30, 1986.
Decided June 20, 1986.
Rehearing and Rehearing In Banc Denied July 17, 1986.

Douglas L. Capdeville (argued), Law Office of R. Eric Moore, Christiansted, St. Croix, V.I., for appellant.

John E. Stout (argued), Grunert, Stout and Smock, Charlotte Amalie, St. Thomas, V.I., for appellees.

Before HUNTER, WEIS, and MANSMANN, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

On February 15, 1981, Helene Smollett and her husband attended a fundraiser at a skating rink owned by Skayting Development Corporation. Smollett, who was thirty-three years old at that time, is an experienced skater. Although she had not skated

Page 548

for the two years before she went to the appellant's rink, she had skated over fifty times in her life.

When Smollett and her husband entered the rink, they noticed that there were no guardrails. They discussed this with the owner, Les Cooper, who told them that this design was the practice at many new rinks to further safety by avoiding the use of guardrails which could become loose and collapse unexpectedly. Smollett did not take skating lessons although they were offered to everyone at the fundraiser.

The skating area, which had a polyurethane surface, was raised three to five inches higher than the surrounding floor, which was carpeted. Smollett skated for about ninety minutes, until 7:50 p.m., without mishap. The rink was not overcrowded, with fifty to one hundred people skating. There were eight skateguards working that night and at least two were on the skating floor. Several signs reading "skate at your own risk" were posted in the rink. The skaters included many children and inexperienced skaters. At 7:50 p.m. Smollett's husband wished to leave. She told him she would join him after she took two last turns around the rink. On her last lap, Smollett skated behind a young child who fell. To avoid the child and a skater on her left, she swerved to the right onto the carpeted area. She fell and broke her left wrist. Her injury required surgery on the day of the accident and again one year later.

Smollett and her husband filed this suit against the rink. As a defense, Skayting asserted that Smollett had assumed the risk of injury. After a two day jury trial on December 17 and 18, 1984, the jury returned a verdict for Smollett but made no award to her husband. Because the jury found Smollett 50% at fault, her award was reduced from $50,000 to $25,000. The court denied Skayting's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

In considering a motion for a judgment notwithstanding the verdict, a court uses the same standard applied in considering a motion for a directed verdict. See Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 n. 5 (3d Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). The district court must determine whether, as a matter of law, the record contains the "minimum quantum of evidence from which a jury might reasonably afford relief." Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir.1969). As an appellate court, we must apply this same standard and determine whether there was sufficient evidence to permit the denial of a judgment notwithstanding the verdict. See Powell v. J.T. Posey Co., 766 F.2d 131, 134 (3d Cir.1985); Acosta v. Honda Motor Co., 717 F.2d 828, 840-41 (3d Cir.1983).

We hold that it was error to deny the skating rink's motion for judgment notwithstanding the verdict because there was insufficient evidence to find that Smollett had not assumed the risk of injury. The Virgin Islands has enacted a comparative negligence statute, V.I.Code Ann. tit. 5, Sec. 1451 (Supp.1985) and thereby removed the contributory negligence bar to recovery. Assumption of risk is still available as a complete defense to a negligence claim but it has been limited by enactment of the comparative negligence statute. Assumption of risk, to the extent it incorporates the concept of fault on the part of the actor and, therefore, overlaps with contributory negligence, is no longer available as a defense. However, assumption of risk can still be applied to "non-negligent conduct which constitutes waiver or consent" Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir.1979) but which involved no negligence. In such cases the absolute bar to recovery remains.

The evidence in this case shows that Smollett fully understood the risk of harm to herself and voluntarily chose to enter the area of risk. See Restatement (Second) of Torts Sec. 496C (1965). She, therefore, implicitly assumed the risk of injury. Smollett admitted that she was aware that there were no guardrails, that the skating area was covered with a smooth surface and was elevated, and that the area around

Page 549

the rink was carpeted. All of these...

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30 practice notes
  • Monk v. Virgin Islands Water & Power Auth., No. 94-7372
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 5, 1994
    ...remain. Id. at 40. We employed this distinction between the two types of assumption of risk in Smollett v. Skayting Development Corp., 793 F.2d 547 (3d Cir. 1986). In Smollett, a woman injured while ice skating sued the operator of the rink, complaining that the lack of guardrails and the c......
  • Monk v. Virgin Islands Water & Power Authority, No. 94-7372
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 20, 1995
    ...remain. Id. at 40. We employed this distinction between the two types of assumption of risk in Smollett v. Skayting Development Corp., 793 F.2d 547 (3d Cir.1986). In Smollett, a woman injured while ice skating sued the operator of the rink, complaining that the lack of guardrails and the ca......
  • Nanavati v. Burdette Tomlin Memorial Hosp., Nos. 86-5778
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 26, 1988
    ...the record contains the 'minimum quantum of evidence from which a jury might reasonably afford relief.' " Smollett v. Skayting Dev. Corp., 793 F.2d 547, 548 (3d Cir.1986) (quoting Denneny v. Siegel, 407 F.2d 433, 439 (3d 23 Nanavati also maintains that an exclusive contract with Dr. Henry K......
  • Price v. Delaware Dept. of Correction, No. Civ.A. 95-297-LON.
    • United States
    • U.S. District Court — District of Delaware
    • March 9, 1999
    ...quantum of evidence from which a jury might reasonably afford relief,'" Keith, 909 F.2d at 745 (quoting Smollett v. Skayting Dev. Corp., 793 F.2d 547, 548 (3d Cir.1986)), then the reviewing court must deny the motion. Thus, "[w]here there is sufficient conflicting evidence, or insufficient ......
  • Request a trial to view additional results
30 cases
  • Monk v. Virgin Islands Water & Power Auth., No. 94-7372
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 5, 1994
    ...remain. Id. at 40. We employed this distinction between the two types of assumption of risk in Smollett v. Skayting Development Corp., 793 F.2d 547 (3d Cir. 1986). In Smollett, a woman injured while ice skating sued the operator of the rink, complaining that the lack of guardrails and the c......
  • Monk v. Virgin Islands Water & Power Authority, No. 94-7372
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 20, 1995
    ...remain. Id. at 40. We employed this distinction between the two types of assumption of risk in Smollett v. Skayting Development Corp., 793 F.2d 547 (3d Cir.1986). In Smollett, a woman injured while ice skating sued the operator of the rink, complaining that the lack of guardrails and the ca......
  • Nanavati v. Burdette Tomlin Memorial Hosp., Nos. 86-5778
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 26, 1988
    ...the record contains the 'minimum quantum of evidence from which a jury might reasonably afford relief.' " Smollett v. Skayting Dev. Corp., 793 F.2d 547, 548 (3d Cir.1986) (quoting Denneny v. Siegel, 407 F.2d 433, 439 (3d 23 Nanavati also maintains that an exclusive contract with Dr. Henry K......
  • Price v. Delaware Dept. of Correction, No. Civ.A. 95-297-LON.
    • United States
    • U.S. District Court — District of Delaware
    • March 9, 1999
    ...quantum of evidence from which a jury might reasonably afford relief,'" Keith, 909 F.2d at 745 (quoting Smollett v. Skayting Dev. Corp., 793 F.2d 547, 548 (3d Cir.1986)), then the reviewing court must deny the motion. Thus, "[w]here there is sufficient conflicting evidence, or insufficient ......
  • Request a trial to view additional results

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