§7.1 Generally

§7.1 Generally

The Case : Perez v. McConkey, 872 S.W.2d 897 (Tenn. 1994).

The Basic Facts: Woman was injured in an on-the-job accident. Her employer, the defendant, was not covered by the Worker's Compensation Act and raised assumption of risk as a defense.

The Bottom Line:

• "According to that analysis [by Professor Mutter], there are two basic types of assumption of risk, express and implied. Express assumption of risk refers to an express release, waiver, or exculpatory clause, by which one party agrees to assume the risk of harm arising from another party's negligence. Such agreements are of a contractual nature and will generally be enforced by a court unless it is contrary to a sound public policy. Id.at 285. Implied assumption of risk refers to at least two different concepts, primary implied assumption of risk and secondary implied assumption of risk. Implied assumption of risk, it its primary sense, applies to bar recovery when a plaintiff has assumed known risks inherent in a particular activity, such as observing a baseball game from an unscreened seat. Id. at 286. In this situation, an assumption of risk defense is simply an alternative manner of stating that the plaintiff has failed to establish a cause of action, because the defendant has no duty to protect the plaintiff from the inherent risk. Id. Secondary implied assumption of risk applies when the plaintiff, either reasonably or unreasonably, decides to encounter a known risk. When the plaintiff's decision to take the risk is unreasonable, secondary assumption of risk is indistinguishable from contributory negligence, and should only reduce, not preclude, recovery under a comparative fault analysis. Id. When the plaintiff's decision to encounter the risk is reasonable, the plaintiff is not negligence, but because the decision is voluntary, commentators are split as to whether a plaintiff's recovery, under comparative fault, should be precluded, reduced or unaffected." 872 S.W.2d at 900 (footnotes omitted).
• "After reviewing the wealth of authorities from other jurisdictions, as well as the writings of numerous legal commentators on the subject, we join the vast majority of jurisdictions by concluding that the doctrine of implied assumption of risk no longer operates as a complete bar to recovery in Tennessee. It would be ironic indeed if, after abolishing the all-or-nothing proposition of contributory negligence in McIntyre, we were to reinstate it here using the vehicle of assumption of risk. However valid at the time, the policy of insulating business from human overhead, from which assumption of risk developed, now runs directly counter to modern social policy that is typified by the almost universal enactment of workmen's compensation legislation." Id. at 905 (footnote omitted).
• "We agree with those states that have abandoned all categories of implied assumption of risk, as well as the traditional assumption of risk terminology, in the wake of judicial or statutory adoption of a scheme of comparative fault. The types of issues raised by implied assumption of risk are readily susceptible to analysis in terms of the common-law concept of duty and the principles of comparative negligence law." Id.
• "Moreover, we do not consider it necessary or desirable to retain the doctrine of secondary implied assumption of risk as a separate defense. Rather, the reasonableness of a party's conduct in confronting a risk should be determined under the principles of comparative fault.
  Attention should be focused on whether a reasonably prudent person in the exercise of due care knew of the risk, or should have known of it, and thereafter confronted the risk; and whether such a person would have behaved in the manner in which the plaintiff acted in light of all the surrounding circumstances, including the confronted risk." Id. (footnote omitted).
• "We also believe that the contractually-oriented principle of express assumption of risk is unaffected by our shift from contributory negligence to comparative fault. In exercising, perhaps, an overabundance of caution, some jurisdictions have required that the term "express assumption of risk" be banished from the range of acceptable legal terms of art. Although we have concluded that implied assumption of risk doctrine and terminology should no longer be used, we find it unnecessary to eliminate the term 'express assumption of risk', primarily because it has never been used to refer to various, distinct, and overlapping legal concepts." Id. at 905-06.

Recent Cases: Baggett v. Bedford County , 270 S.W.3d 550 (Tenn. Ct. App. 2008), perm. appeal denied, (June 30, 2008) (holding "simple tool doctrine" is a form of assumption of the risk and has been abolished in favor of comparative negligence).

---