Assumption of Risk and the Landownder
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Page Keeton*
As Leon Green states in his introductory article to this sym-
posium, a claimant may be regarded as assuming the risk of all
accidents for which the law affords him no recovery. This would
even include accidents caused in part by the claimant's contribu-
tory negligence, and accidents that are regarded as being too
remotely related to defendant's conduct to justify holding the
latter responsible therefor. But using Green's terminology
again, the discussion here is primarily related to the assump-
tion of risk doctrine as a residuary doctrine, a doctrine that is
used to deny an injured party a recovery solely because he volun-
tarily exposed himself to dangerous conduct or a dangerous con-
dition with actual or constructive knowledge and appreciation
of such danger. Moreover, the observations made herewith will
be limited to the situation where plaintiff at the time he exposed
himself to a condition or an activity on land is found to have
actually appreciated the danger and the extent thereof of which
the defendant-occupier was or should have been aware at the
time of his negligent conduct. The practical difficulty encoun-
tered in the administration of a rule that would deny recovery
in such a case without recognizing at the same time a like rule
when plaintiff did not but should have discovered the condition
and appreciated the danger has been commented on elsewhere.'
Finally, the issue as to whether assumed risk of some kind
should be a defense when liability is imposed on defendant
without respect to legal fault, as where he is harboring vicious
animals, has not been considered. The notion is that by volun-
tarily electing to proceed, the injured party manifested his will-
ingness to accept it. But the expression that he manifested
his willingness to accept it is ambiguous and clouds the issue.
Actually, the injured party often only elects to take a chance,
and that is all; and the issue is whether the law requires him to
*Dean and Professor of Law, University of Texas.
1. Page Keeton, Personal Injuries Resulting from Open and Obvious Conditions,
100 U. PA. L. REV. 629, 642 (1952) ; PROSSER, TORTS 642 (1941). Typical of
cases involving this problem are the following: Anderson v. Sears Roebuck Co.,
223 Minn. 1, 26 N.W.2d 355 (1947) (floor level at different heights and not
noticed. Held for defendant on ground that plaintiff should have reasonably been
expected to discover them); Kingsul Theatres v. Quillen, 29 Tenn. App. 248,
196 S.W.2d 316 (1946) (plaintiff allowed to recover when she fell at entrance
of theatre while looking back for daughter and granddaughter).
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Assumption of Risk and the Landownder
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