Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Assumption of Risk and the related topic of personal injury.For more information on assumption of risk see the pages on Wikipedia.

Assumption of Risk-Cases

2004 O’Neill v. Windshire-Copeland Assocs., L.P., 267 Va. 605, 595 S.E.2d 281.

In this personal injury action involving contributory negligence, the supreme court comments on the availability of assumption of the risk where there is a statutory violation and cites case law saying that it is not available in that instance.

2003 Thurmond v. Prince William Prof’l Baseball Club, Inc., 265 Va. 59, 574 S.E.2d 246.

Trial court properly awarded summary judgment in negligence action on ground that plaintiff, spectator at a minor league professional baseball game, assumed risk of being struck by a foul ball.

1998 Hoar v. Great Eastern Resort Management, 256 Va. 374.

Plaintiff fell off side of ski slope that was extremely steep and unmarked and otherwise unprotected. Jury issue presented as to whether plaintiff fully understood nature and extent of danger and voluntarily exposed himself to it. Standard in regards to this defense is subjective one of what particular plaintiff in fact sees, knows, understands, and appreciates.

1997 Young v. Lambert, 253 Va. 237, 482 S.E.2d 823.

Insufficient evidence to establish plaintiff’s decedent assumed risk of riding with intoxicated driver in that there was no evidence that decedent knew that driver’s ability to drive was likely to be impaired due to consumption of alcohol. An individual has assumed risk of riding with intoxicated driver when she voluntarily elects to ride with driver who she knows has consumed alcohol to such extent that driver’s ability to drive is impaired or is likely to be impaired and further fully appreciates nature and extent of risk. In this case, driver had blood alcohol of 0.12 but there was no evidence offered of decedent having knowledge of that alcohol consumption or impairment of driver’s ability.

1995 Wood v. Bass Pro Shops, 250 Va. 297, 462 S.E.2d 101.

The defense of assumption of the risk is not applicable in action for breach of implied warranty.

1993 Waters v. Safeway Stores, Inc., 246 Va. 269, 435 S.E.2d 380.

On January 7, there was heavy snowfall and below freezing temperatures. On January 11, plaintiff decided to go to Safeway to purchase groceries. She parked in Safeway lot, observed snow and slush on pavement, and chose what she felt was safest place to park her car. Then, while wearing snow boots, she walked into store without falling. On her way back to car she fell on ice and snow. Trial court ruled that plaintiff assumed risk as matter of law. Assumption of risk involves venturousness and involves subjective test of whether plaintiff fully understood nature and extent of known danger and voluntarily exposed herself to it. In this case, Safeway was open for business, it had made some effort to clear ice and snow, and was inviting customers to park their vehicles in lot. Plaintiff had successfully entered store, and she believed she could safely exit also if she exercised reasonable care in doing so. Assumption of risk was issue for jury.

1991 Greater Richmond Transit Co. v. Wilkerson, 242 Va. 65, 406 S.E.2d 219.

Plaintiff jumped from runaway bus. Given potential for harm in remaining on bus, plaintiff’s choice was not voluntary, as matter of law.

1989 White Consol. Indus. v. Swiney, 237 Va. 23, 376 S.E.2d 283.

Breach of implied warranty case. Without deciding whether assumption of risk is even available in such case, court finds that assertion of this defense in this case is without merit. While stove in “off” position it caught on fire. Although owners had prior problems with stove, they had no reason to expect fire when stove “off.”

1988 Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268.

Fireman’s rule is based on obligation to accept usual risk of injury from firefighting. Risk in this case was supertoxic chemicals. This is not foreseeable, therefore rule does not apply.

1987 Thibodeau v. Vandermark, 234 Va. 15, 360 S.E.2d 171.

Chief characteristic of assumption of risk is venturousness. Plaintiff was passenger in automobile. He asked defendant how fast his car could go. Plaintiff stated he always went 70 mph on this road. This was sufficient basis for assumption of risk instruction.

1987 Commonwealth v. Millsaps, 232 Va. 502, 352 S.E.2d 311.

Under Fireman’s Rule, police and firemen are held as matter of law to assume risk of injury occasioned by ordinary negligence inherently involved in normal pursuit of their duties. When it is contended that defendant’s negligence subjects officer to undue risk, not inherently involved in normal pursuit of his duties, issue of officer’s assumption of risk becomes one of fact for jury rather than matter of law. When defendant’s conduct is found to be willful and wanton, defense of assumption of risk may be entirely barred.

1986 Arndt v. Russillo, 231 Va. 328, 343 S.E.2d 84.

Decedent was killed in vehicle operated by Russillo. Evidence shows that decedent brought alcohol along and that both probably drank some. Russillo does not claim that he was impaired or that decedent should have known that he was impaired. No basis for assumed risk defense.

1984 VanCollom v. Johnson, 228 Va. 103, 319 S.E.2d 745.

Plaintiff was confronted with kitchen grease fire and rather than allowing it to spread and cause damage and personal injury to occupants she picked up pan of grease and carried it outside, and in so doing was burned. Trial court properly refused instruction on assumption of risk. Supreme Court, referring to second restatement, noted that plaintiff’s acceptance of risk is not voluntary if defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to: avert harm to himself or another or exercise or protect a right or privilege of which defendant has no right to deprive him. Jury’s examination of plaintiff’s actions in this case should have been made on basis of her reasonableness, and jury was instructed that if it believed from evidence that actions taken by plaintiff were not reasonable under circumstances, then plaintiff cannot recover.

1983 Stevens v. Ford Motor Co., 226 Va. 415, 309 S.E.2d 319.

Assumption of risk, like negligence and contributory negligence, is ordinarily jury issue. In this case, plaintiff was assisting Ford employees. Ford employee instructed plaintiff to assist unidentified man in particular activity. Plaintiff gave this unidentified man particular instructions to not do something. Man indicated he would follow those instructions. Man, however, violated those instructions. That man’s unanticipated disobedience is what caused plaintiff’s injury, and, as such, court was unable to say as matter of law that plaintiff fully appreciated nature and extent of risk.

1983 Kings Mkts. v. Yeatts, 226 Va. 174, 307 S.E.2d 249.

Plaintiff in this case fell after exiting from defendant’s store. Area in question was covered with ice and snow. Plaintiff had successfully negotiated his entrance to store and he had no reason to believe he could not safely exit also. Court could not say as matter of law that he was venturesome in exiting premises.

1983 VEPCO v. Winesett, 225 Va. 459, 303 S.E.2d 868.

Decedent electrocuted while trimming tree limbs near overhead power lines. One limb came in contact with line and he was electrocuted. Court concluded that there was no evidence that he fully appreciated nature and extent of danger and deliberately chose to subject himself to risk. Assumption of risk instruction was properly refused.

1981 Colonial Nat. Gas Co., v. Sayers, 222 Va. 781, 284 S.E.2d 599.

There must be knowledge of risk involved before it can be voluntarily assumed. Plaintiff in this case did not know of depression in path.

1978 Norfolk & W. Ry. v. Chrisman, 219 Va. 184, 247 S.E.2d 457.

Door of freight car fell on employee of consignee as he was opening it with “come along.” No assumption of risk as matter of law; nothing to show that reasonable person would have known upper track was defective.

1977 Amusement Slides Corp. v. Lehman, 217 Va. 815, 232 S.E.2d 803.

Standard for assumption of risk is subjective of what particular plaintiff in fact sees, knows, understands, and appreciates. It is venturousness and has two requirements: nature and extent of risk must be fully appreciated and risk must be voluntarily incurred. Plaintiff followed instructions in using slide and careless employee failed to properly water slide. Plaintiff did not assume risk.

1974 High v. Coleman, 215 Va. 7, 205 S.E.2d 408.

Plaintiff injured when tree fell on him; he was holding rope attached to tree which was being felled. Danger was open and obvious; plaintiff assumed risk as matter of law.

1973 Norfolk S. Ry. v. Rayburn, 213 Va. 812, 195 S.E.2d 860.

FELA case; it is not error to refuse instruction that commingled elements of assumption of risk (which is not defense), with contributory negligence which could be shown to diminish damages.

1972 Monk v. Hess, 213 Va. 244, 191 S.E.2d 229.

Guest drinking with driver; both boasting of speeds of 160 mph; guest boasted of being able to stay in car at that speed. Admissions clearly evidenced spirit of venturousness and amounted to assumption of risk.

1972 Budzinski v. Harris, 213 Va. 107, 189 S.E.2d 372.

One who voluntarily chooses to ride with driver knowing he has been drinking to such extent that his ability to drive has been or is likely to have been impaired, and fully appreciates nature and extent of risk involved, has assumed risk.

1971 Leslie v. Nitz, 212 Va. 480, 184 S.E.2d 755.

Plaintiff held to have assumed risk as matter of law since she fully appreciated that driver was intoxicated and voluntarily incurred risk.

1971 Landes v. Arehart, 212 Va. 200, 183 S.E.2d 127.

Plaintiff and defendant agreed to haul overly wide lathe on truck. This was intentional exposure to known danger. Essence of assumption of risk is that nature and extent of risk are fully appreciated and it is voluntarily incurred. Since there was no special exigency compelling plaintiff, he is barred from recovery.

1971 Smith v. Kauffman, 212 Va. 181, 183 S.E.2d 190.

Issue was whether minor has capacity to assume risk incumbent in being guest in automobile under guest statute. Child under 14 is incapable.

1971 Broaddus v. Standard Drug Co., 211 Va. 645, 179 S.E.2d 497.

Assuming plaintiff assaulted police officer, under evidence this constituted misdemeanor only and did not justify inflicting serious bodily injury upon one who is simply fleeing arrest for misdemeanor. On retrial, instruction on assumption of risk should not be given.

1971 McDowall & Wood, Inc. v. Kilby, 211 Va. 476, 178 S.E.2d 497.

State trooper fully aware that deep ditch had been dug across closed lane of major highway. Nevertheless he elected to use closed lane rather than open lane. Trooper assumed risk.

1969 Terry v. Fagan, 209 Va. 642, 166 S.E.2d 254.

Plaintiff guest injured when defendant driver burned himself with cigarette ash and took hands off wheel, vehicle left highway and crashed into tree. Defendant had one drink of vodka prior to accident; plaintiff unaware of this, cannot be held responsible for assuming risk.

1968 Major v. Hoppe, 209 Va. 193, 163 S.E.2d 164.

Evidence of blood alcohol level of plaintiff guest showing enough to impair ordinary individual’s judgment relevant to issues of contributory negligence and assumption of risk on part of plaintiff guest.

1968 Chesapeake & Ohio Ry. v. Crouch, 208 Va. 602, 159 S.E.2d 650.

If fireman is injured while encountering ordinary hazards his duty requires him to confront, then he is held to have assumed risk.

1967 Redd v. Ingram, 207 Va. 939, 154 S.E.2d 149.

Defendant admittedly driving recklessly without objection from plaintiff passenger when entered into race with another vehicle and accident occurred. Error to grant instruction on assumption of risk which limited issue only in relation to race.

1966 Stoner v. Robertson, 207 Va. 633, 151 S.E.2d 363.

Gross negligence admitted by defendant who was driving at excessive speed, on wrong side of crooked and hilly road and who had been drinking. Although fellow passenger requested and was allowed to leave vehicle, plaintiff’s decedent, by remaining in vehicle, assumed risk of injury as matter of law.

1966 Langhorne Rd. Apts., Inc. v. Bisson, 207 Va. 474, 150 S.E.2d 540.

Plaintiff slipped, fell, and was injured on sidewalk under defendant’s control due to ice and snow. Defendant’s contention that plaintiff assumed risk by walking on sidewalk when he saw it was spotted with icy places was without merit.

1966 Cowles v. Zahn, 206 Va. 743, 146 S.E.2d 200.

Action of plaintiff in attempting to start his vehicle that was stalled partly on roadway did not constitute assumption of risk.

1965 Tomlin v. Worley, 206 Va. 344, 143 S.E.2d 866.

Assumed risk implies intentional exposure to known danger, which may or may not be true of contributory negligence. Assumption of risk embraces mental state of willingness, while contributory negligence is matter of conduct.

1965 Shook Co. v. Barksdale, 206 Va. 45, 141 S.E.2d 738.

Plaintiff was asked by operator of forklift to stand on back of it as counterweight. Forklift reared up and plaintiff injured. No assumption of risk since this was common practice and plaintiff obviously did not appreciate risk.

1962 Berry v. Hamman, 203 Va. 596, 125 S.E.2d 85.

Police officer in process of arresting felon shoots other officer. Plaintiff assumed risk by leaving place he was posted and venturing into open.

1962 Arrington v. Graham, 203 Va. 310, 124 S.E.2d 199.

Assumption of risk involves venturousness. Plaintiff assumed risk since he knew driver was unfit.

1961 Harris v. Hampton Rds. Tractor Co., 202 Va. 958, 121 S.E.2d 471.

Plaintiff was experienced operator of crane. Cable snapped and injured plaintiff. There was evidence that crane had undergone extensive wear and tear. It was not error to instruct on assumption of risk.

1961 Davis v. Sykes, 202 Va. 952, 121 S.E.2d 513.

Assumption of risk is distinguishable from contributory negligence. Essence of contributory negligence is carelessness. Assumption of risk rests on two premises: (1) nature and extent of risk are fully appreciated, and (2) it is voluntarily incurred.

1957 Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37.

Construction job accident. Plaintiff’s decedent was employee of hoisting company that was hired by defendant general contractor to do some work. Plaintiff’s decedent did not assume risk of injury through his employment.

1953 Atlantic Rural Exposition, Inc. v. Fagan, 195 Va. 13, 77 S.E.2d 368.

Plaintiff spectator who was unaware of hazards of stock car racing and on no notice that premises were unsafe, did not assume risk of injury when he attended race and was struck by wheel which had come off one of cars, bounded over 3½ foot woven wire fence and into bleachers where plaintiff was seated.

1953 McClanahan v. California Spray Corp., 194 Va. 842, 75 S.E.2d 712.

Where, there is duty to warn and defendant fails to give warning there is no assumption of risk.

1950 Tiller v. Norfolk & W. Ry., 190 Va. 605, 58 S.E.2d 45.

Assumption of risk is often matter of implied contract but it is not always so. For instance, engaging in athletic sports is assumption of risk.

1949 Luedtke v. Phillips, 190 Va. 207, 56 S.E.2d 80.

Where right of possession and enjoyment passes to lessee, in absence of concealment or fraud by landlord as to some defect in premises, known to him and unknown to tenant, tenant takes premises in whatever condition they may be in, thus assuming all risk of personal injury therein.

1948 Walker v. Memorial Hosp., 187 Va. 5, 45 S.E.2d 898.

Every pedestrian who ventures out in inclement weather with precipitation on ground is risking chance of fall.