assumption of risk doctrine in Louisiana

1984Since Dorry v. Lafleur, supra , the proof requirement for the applicability of the assumption of risk defense has consisted of the following three factors: (1) the plaintiff must have actual knowledge of the dangerous condition, (2) there must be appreciation of its dangerous quality, (3) there must be a voluntary assumption of the danger.

1983Second, in Dorry v. La Fleur, 399 So.2d 559 (La.1981), the court rejected the notion that the doctrine of assumption of risk applies to those which plaintiff should know about and limited its application to those risks of which plaintiff had actual knowledge.

1983In Langlois v. Allied Chemical Corporation, 258 La. 1067 , 249 So.2d 133 (1971), an absolute liability or no fault case, the Louisiana Supreme Court held that the doctrine of assumption of risk [3] was available as a defense but that contributory negligence was not.

1983In Langlois v. Allied Chemical Corporation, 258 La. 1067 , 249 So.2d 133 (1971), an absolute liability or no fault case, the Louisiana Supreme Court held that the doctrine of assumption of risk [3] was available as a defense but that contributory negligence was not.

2004In Cay v. State, Dept. of Transp. and Development, 93-0887 (La.1/14/94), 631 So.2d 393 , despite the decedent's intoxication, the DOTD's duty to build a bridge railing higher than the center of gravity of most pedestrians was held to encompass the risk that any pedestrian, whether impaired by alcohol or not, might accidently stumble and fall over the low railing.

1988The 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).

1988In essence, defendants contend here that they were not negligent because the plaintiff voluntarily encountered the risk. *1136 The Fifth Circuit wisely rejected this contention. 821 F.2d at 276 .

1988See Duffy, 90 Ill.Dec. at 241-42 , 481 N.E.2d at 1041 -42 and authorities cited therein; Meistrich, 155 A.2d at 93-96 . (4) Abandonment of Assumption of Risk The high courts in a number of states lost patience with the assumption of risk doctrine and abolished it even prior to the widespread adoption of comparative negligence.

1980In a recent case, Bass v. Aetna Insurance Co., 370 So.2d 511 (La.1979), the Supreme Court discussed in some detail the doctrine of assumption of risk.

1977However, in DeLima v. Trinidad Corp., 302 F.2d 585 (2nd Cir. 1962), the court held that where assumption of risk is not pleaded as a defense and is not at issue, the court should honor the plaintiffs request to charge that the assumption of risk doctrine is not applicable to plaintiff.

1969We believe that defendants have born the burden of proving by a preponderance of the evidence that the mental and physical faculties of Huddleston were materially impaired.” In applying the doctrine of assumption of risk, the Lower Court cited Jones v. Continental Casualty Company, 246 La. 921 , 169 So.2d 50 ; and Barnebuy v. Northwestern Mutual Insurance Company, La.App., 186 So.2d 658 .

1969We believe that defendants have born the burden of proving by a preponderance of the evidence that the mental and physical faculties of Huddleston were materially impaired.” In applying the doctrine of assumption of risk, the Lower Court cited Jones v. Continental Casualty Company, 246 La. 921 , 169 So.2d 50 ; and Barnebuy v. Northwestern Mutual Insurance Company, La.App., 186 So.2d 658 .

1969We believe that defendants have born the burden of proving by a preponderance of the evidence that the mental and physical faculties of Huddleston were materially impaired.” In applying the doctrine of assumption of risk, the Lower Court cited Jones v. Continental Casualty Company, 246 La. 921 , 169 So.2d 50 ; and Barnebuy v. Northwestern Mutual Insurance Company, La.App., 186 So.2d 658 .

1965Appropriate is the observation made in Finn v. Employers’ Liability Assurance Corporation, 141 So.2d 852, 876 , La.App., 2d Cir.1962: “The applicable rules are that, where the defense relied on is the assumption by the employee of the risk to which he was subjected, it must appear with reasonable certainty either that he was specifically informed of such risk or it was so obvious that it could not have escaped his attention.

1965The reference to Louisiana jurisprudence, supra, is made in the light of the holding of our courts in the cases of Jones v. Alexandria Baseball Association, Inc., supra, Lorino v. New Orleans Baseball & Amusement Co., Inc. (Orleans, 1931), 16 La.App. 95 , 133 So. 408 , and the recent case of Colclough v. Orleans Parish School Board (La.App. 4th Cir., 1964), 166 So.2d 647 .

1965The reference to Louisiana jurisprudence, supra, is made in the light of the holding of our courts in the cases of Jones v. Alexandria Baseball Association, Inc., supra, Lorino v. New Orleans Baseball & Amusement Co., Inc. (Orleans, 1931), 16 La.App. 95 , 133 So. 408 , and the recent case of Colclough v. Orleans Parish School Board (La.App. 4th Cir., 1964), 166 So.2d 647 .

1965The reference to Louisiana jurisprudence, supra, is made in the light of the holding of our courts in the cases of Jones v. Alexandria Baseball Association, Inc., supra, Lorino v. New Orleans Baseball & Amusement Co., Inc. (Orleans, 1931), 16 La.App. 95 , 133 So. 408 , and the recent case of Colclough v. Orleans Parish School Board (La.App. 4th Cir., 1964), 166 So.2d 647 .

1964Warner v. Home Indemnity Company, supra. The defendants, in pleading the doctrine of the assumption of risk as under pleas of contributory negligence, carry the burden of proof to establish that plaintiffs knew, or should have known, that Bahcall was unfit to drive the automobile in which they were passengers.

1938Section 4 of the act, being section 54, title 45, U.S.C.A.; Jacobs v. Southern Railway Company, 241 U.S. 229 , 36 S.Ct. 588 , 60 L.Ed. 970 ; Chesapeake & Ohio Railway Company v. De Atley, 241 U.S. 310 , 36 S. Ct. 564 , 60 L.Ed. 1016 ; Seaboard Air Line Railway v. Horton, 233 U.S. 492 , 34 S. Ct. 635 , 58 L.Ed. 1062 , L.R.A.1915C, 1, Ann.Cas.1915B, 475; Cross v. Spokane, P. & S. R.

1938Section 4 of the act, being section 54, title 45, U.S.C.A.; Jacobs v. Southern Railway Company, 241 U.S. 229 , 36 S.Ct. 588 , 60 L.Ed. 970 ; Chesapeake & Ohio Railway Company v. De Atley, 241 U.S. 310 , 36 S. Ct. 564 , 60 L.Ed. 1016 ; Seaboard Air Line Railway v. Horton, 233 U.S. 492 , 34 S. Ct. 635 , 58 L.Ed. 1062 , L.R.A.1915C, 1, Ann.Cas.1915B, 475; Cross v. Spokane, P. & S. R.

1938Section 4 of the act, being section 54, title 45, U.S.C.A.; Jacobs v. Southern Railway Company, 241 U.S. 229 , 36 S.Ct. 588 , 60 L.Ed. 970 ; Chesapeake & Ohio Railway Company v. De Atley, 241 U.S. 310 , 36 S. Ct. 564 , 60 L.Ed. 1016 ; Seaboard Air Line Railway v. Horton, 233 U.S. 492 , 34 S. Ct. 635 , 58 L.Ed. 1062 , L.R.A.1915C, 1, Ann.Cas.1915B, 475; Cross v. Spokane, P. & S. R.

1938Section 4 of the act, being section 54, title 45, U.S.C.A.; Jacobs v. Southern Railway Company, 241 U.S. 229 , 36 S.Ct. 588 , 60 L.Ed. 970 ; Chesapeake & Ohio Railway Company v. De Atley, 241 U.S. 310 , 36 S. Ct. 564 , 60 L.Ed. 1016 ; Seaboard Air Line Railway v. Horton, 233 U.S. 492 , 34 S. Ct. 635 , 58 L.Ed. 1062 , L.R.A.1915C, 1, Ann.Cas.1915B, 475; Cross v. Spokane, P. & S. R.

1938Section 4 of the act, being section 54, title 45, U.S.C.A.; Jacobs v. Southern Railway Company, 241 U.S. 229 , 36 S.Ct. 588 , 60 L.Ed. 970 ; Chesapeake & Ohio Railway Company v. De Atley, 241 U.S. 310 , 36 S. Ct. 564 , 60 L.Ed. 1016 ; Seaboard Air Line Railway v. Horton, 233 U.S. 492 , 34 S. Ct. 635 , 58 L.Ed. 1062 , L.R.A.1915C, 1, Ann.Cas.1915B, 475; Cross v. Spokane, P. & S. R.

1938Section 4 of the act, being section 54, title 45, U.S.C.A.; Jacobs v. Southern Railway Company, 241 U.S. 229 , 36 S.Ct. 588 , 60 L.Ed. 970 ; Chesapeake & Ohio Railway Company v. De Atley, 241 U.S. 310 , 36 S. Ct. 564 , 60 L.Ed. 1016 ; Seaboard Air Line Railway v. Horton, 233 U.S. 492 , 34 S. Ct. 635 , 58 L.Ed. 1062 , L.R.A.1915C, 1, Ann.Cas.1915B, 475; Cross v. Spokane, P. & S. R.

1937In the case of Sebastian v. Jenness, 16 La.App. 158 , 133 So. 468, 469 , the Court of Appeal, Second Circuit, in considering a similar situation, said: “Appellees suggest, however, that plaintiff assumed the risk; -but conceding, without deciding, that such defense cduld be interposed where the patron was fully advised of the danger, and instructed that the operator had no way of determining whether or not the scalp was being injured by the heat or vapor, and that he relied on the patron to give him warning, the evidence does not show that plaintiff was advised either of the danger or that the

1937In the case of Sebastian v. Jenness, 16 La.App. 158 , 133 So. 468, 469 , the Court of Appeal, Second Circuit, in considering a similar situation, said: “Appellees suggest, however, that plaintiff assumed the risk; -but conceding, without deciding, that such defense cduld be interposed where the patron was fully advised of the danger, and instructed that the operator had no way of determining whether or not the scalp was being injured by the heat or vapor, and that he relied on the patron to give him warning, the evidence does not show that plaintiff was advised either of the danger or that the