assumption of the risk doctrine in Louisiana

1983Co., 370 So.2d 511 (La.1979) stated: “Knowledge is the main stay of this assumption of the risk defense, and this court will impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved.

1982Co., 370 So.2d 511 (La.1979), stated: Knowledge is the mainstay of this assumption of the risk defense, and this court will impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved.

2017The Court further noted Judge Whipple's concurrence to the Court of Appeal opinion, expressing her concern that denying a victim's recovery based on whether a defective condition should be obvious to the victim runs "perilously close to resurrecting the doctrine of assumption of the risk." Id.

2015The Court further noted Judge Whipple’s concurrence to the Court of Appeal opinion, expressing her concern that denying a victim’s recovery based on whether a defective condition should be obvious to the victim runs “perilously close to resurrecting the doctrine of assumption of the risk.” Id.

1999Quoting from Murray v. Ramada Inns, supra , the court stated that a defendant's duty should not turn on a particular plaintiffs state of mind, but instead should be determined by *1287 the standard of care that the defendant owes to all potential plaintiffs, because to do otherwise would inject the assumption of the risk doctrine into the analysis "through the backdoor," and would result in a total bar to the plaintiff's recovery. [1] Pitre, 673 So.2d at 590 .

1998Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), see also Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585 , cert. denied, 519 U.S. 1007 , 117 S.Ct. 509 , 136 L.Ed.2d 399 , 65 USLW 3395 , 65 USLW 3398 (U.S.La.1996).

1982Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1977).

1979Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1977).

2013However, in lieu of this Court’s and the First Circuit’s recent jurisprudence focusing on the degree to which a dangerous condition should be observed by a potential victim, Judge Whipple felt compelled to concur in the result. 3 Id. at pp. 7-8 (citing Eisenhardt v. Snook, 08-1287, p. 7 (La.3/17/09), 8 So.3d 541, 544-45 (per curiam); Williams v. City of Baton Rouge, 02-0682, p. 5 (La.App. 1 Cir. 3/28/03), 844 So.2d 360, 366 ).

2013However, in lieu of this Court’s and the First Circuit’s recent jurisprudence focusing on the degree to which a dangerous condition should be observed by a potential victim, Judge Whipple felt compelled to concur in the result. 3 Id. at pp. 7-8 (citing Eisenhardt v. Snook, 08-1287, p. 7 (La.3/17/09), 8 So.3d 541, 544-45 (per curiam); Williams v. City of Baton Rouge, 02-0682, p. 5 (La.App. 1 Cir. 3/28/03), 844 So.2d 360, 366 ).

2013In my view, the facts of this case are analogous to the facts of Pryor v. Iberia Parish School Board, 10-1683 (La.3/15/11), 60 So.3d 594 , where the plaintiff, a 69-year-old woman recovering from hip surgery, attempted to descend over a bleacher step with a 18-inch gap between the first and second step.

1998Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), see also Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585 , cert. denied, 519 U.S. 1007 , 117 S.Ct. 509 , 136 L.Ed.2d 399 , 65 USLW 3395 , 65 USLW 3398 (U.S.La.1996).

1998Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), see also Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585 , cert. denied, 519 U.S. 1007 , 117 S.Ct. 509 , 136 L.Ed.2d 399 , 65 USLW 3395 , 65 USLW 3398 (U.S.La.1996).

1998Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), see also Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585 , cert. denied, 519 U.S. 1007 , 117 S.Ct. 509 , 136 L.Ed.2d 399 , 65 USLW 3395 , 65 USLW 3398 (U.S.La.1996).

1998Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La.1988), see also Pitre v. Louisiana Tech University, 95-1466 (La.5/10/96), 673 So.2d 585 , cert. denied, 519 U.S. 1007 , 117 S.Ct. 509 , 136 L.Ed.2d 399 , 65 USLW 3395 , 65 USLW 3398 (U.S.La.1996).

1996In support, she notes that the trial court cited the case of Bonanno v. Continental Casualty Co., 285 So.2d 591 (La.App. 4th Cir.1973), which held the doctrine of assumption of the risk precluded Bonanno from recovering for injuries she received in a haunted house accident.

1987The Supreme Court in Rozell, supra, proceeded to discuss the defenses under La.

1986Dorry v. Lafleur, 399 So.2d 559 (La.1981).

1985While we agree with the line of cases which hold that an amusement park operator is not an insurer of a patron’s safety, Rivere v. Thunderbird, Inc., 353 So.2d 346 (La.App. 1st Cir.1977); Hyland v. Durr, 212 So.2d 158 (La.App. 4th Cir.1968), we find that in this particular case the defendant failed to sustain its burden of proving that plaintiff assumed the risk.

1985While we agree with the line of cases which hold that an amusement park operator is not an insurer of a patron’s safety, Rivere v. Thunderbird, Inc., 353 So.2d 346 (La.App. 1st Cir.1977); Hyland v. Durr, 212 So.2d 158 (La.App. 4th Cir.1968), we find that in this particular case the defendant failed to sustain its burden of proving that plaintiff assumed the risk.

1981Since he did not know, and could not reasonably have been expected to know, he did not share the fault for the accident." As was noted in LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Circ. 1980), at page 991: "The Louisiana Supreme Court in Chappuis v. Sears, Roebuck & Co., 358 So.2d at 930 , indicated that a victim would not be allowed recovery in an action for manufacturer's failure to warn, where he "knew or should have known of the danger, and chose, nevertheless, to use the dangerous instrument." Although this departs from the traditional formulation of voluntary assumption of

1981Co., 370 So.2d 511 (La.1979), we repeated: "Knowledge is the mainstay of this assumption of the risk defense, and this court will impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved." To these should be added Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La. 1978), (a strict liability products case): "If Chappuis knew, or should have known of the danger, and chose, nevertheless, to use the dangerous instrume

1981Since he did not know, and could not reasonably have been expected to know, he did not share the fault for the accident." As was noted in LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Circ. 1980), at page 991: "The Louisiana Supreme Court in Chappuis v. Sears, Roebuck & Co., 358 So.2d at 930 , indicated that a victim would not be allowed recovery in an action for manufacturer's failure to warn, where he "knew or should have known of the danger, and chose, nevertheless, to use the dangerous instrument." Although this departs from the traditional formulation of voluntary assumption of

1961In holding that plaintiff had voluntarily assumed the risk of plaintiff's inexperience as a driver this court cited Elba v. Thomas, La.App., 59 So.2d 732 ; Dickson v. Peters, La.App., 87 So.2d 187 ; White v. State Farm Mutual Automobile Insurance Company, 222 La. 994 , 64 So.2d 245 , 42 A.L.R.2d 338 ; Woods v. King, La.App., 115 So.2d 232 , and Lightell v. Tranchina, La.App., 115 So.2d 890 , from the long line of Louisiana cases which apply the doctrine of the assumption of the risk where the driver was intoxicated.

1961In holding that plaintiff had voluntarily assumed the risk of plaintiff's inexperience as a driver this court cited Elba v. Thomas, La.App., 59 So.2d 732 ; Dickson v. Peters, La.App., 87 So.2d 187 ; White v. State Farm Mutual Automobile Insurance Company, 222 La. 994 , 64 So.2d 245 , 42 A.L.R.2d 338 ; Woods v. King, La.App., 115 So.2d 232 , and Lightell v. Tranchina, La.App., 115 So.2d 890 , from the long line of Louisiana cases which apply the doctrine of the assumption of the risk where the driver was intoxicated.

1961In holding that plaintiff had voluntarily assumed the risk of plaintiff's inexperience as a driver this court cited Elba v. Thomas, La.App., 59 So.2d 732 ; Dickson v. Peters, La.App., 87 So.2d 187 ; White v. State Farm Mutual Automobile Insurance Company, 222 La. 994 , 64 So.2d 245 , 42 A.L.R.2d 338 ; Woods v. King, La.App., 115 So.2d 232 , and Lightell v. Tranchina, La.App., 115 So.2d 890 , from the long line of Louisiana cases which apply the doctrine of the assumption of the risk where the driver was intoxicated.

1961In holding that plaintiff had voluntarily assumed the risk of plaintiff's inexperience as a driver this court cited Elba v. Thomas, La.App., 59 So.2d 732 ; Dickson v. Peters, La.App., 87 So.2d 187 ; White v. State Farm Mutual Automobile Insurance Company, 222 La. 994 , 64 So.2d 245 , 42 A.L.R.2d 338 ; Woods v. King, La.App., 115 So.2d 232 , and Lightell v. Tranchina, La.App., 115 So.2d 890 , from the long line of Louisiana cases which apply the doctrine of the assumption of the risk where the driver was intoxicated.

1961In holding that plaintiff had voluntarily assumed the risk of plaintiff's inexperience as a driver this court cited Elba v. Thomas, La.App., 59 So.2d 732 ; Dickson v. Peters, La.App., 87 So.2d 187 ; White v. State Farm Mutual Automobile Insurance Company, 222 La. 994 , 64 So.2d 245 , 42 A.L.R.2d 338 ; Woods v. King, La.App., 115 So.2d 232 , and Lightell v. Tranchina, La.App., 115 So.2d 890 , from the long line of Louisiana cases which apply the doctrine of the assumption of the risk where the driver was intoxicated.

1961In Woods v. King, supra [ 115 So.2d 237 ], the court applied the doctrine of assumption of the risk and held as follows: "It is our appreciation of the evidence herein adduced that as of the time of the accident Mary E.

1961In holding that plaintiff had voluntarily assumed the risk of plaintiff's inexperience as a driver this court cited Elba v. Thomas, La.App., 59 So.2d 732 ; Dickson v. Peters, La.App., 87 So.2d 187 ; White v. State Farm Mutual Automobile Insurance Company, 222 La. 994 , 64 So.2d 245 , 42 A.L.R.2d 338 ; Woods v. King, La.App., 115 So.2d 232 , and Lightell v. Tranchina, La.App., 115 So.2d 890 , from the long line of Louisiana cases which apply the doctrine of the assumption of the risk where the driver was intoxicated.