Law School Case Brief
Herod v. Grant - 262 So. 2d 781 (Miss. 1972)
The elements which must be found in order to constitute a defense of assumption of risk are generally stated in some such terms as the following: (1) knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition.
A passenger, while seated in the back of the driver's moving truck, attempted to hunt deer. The passenger fell from the truck, which was driving over freshly-plowed fields at the time, and he sustained serious injuries. In the subsequent personal injury action, the circuit court denied the driver's motion for a directed verdict and awarded damages to the passenger. The driver appealed.
By engaging in a hunting activity, did the passenger assume the attendant risk attached to the endeavor?
The Court held that the passenger assumed the risk of sustaining the injuries. The Court reached the conclusion after finding that the three necessary elements for the defense of assumption of risk were present in the case. First, the passenger had knowledge of a condition inconsistent with his safety. Second, the passenger had an appreciation of the danger in the condition. Finally, the passenger made a deliberate and voluntary choice to expose himself to the danger in such a manner as to register assent to the continuance of the dangerous condition. The danger inherent in the passenger's activity was so obvious that the act of taking the risk amounted to a failure to exercise ordinary care and diligence for his own safety. The Court thus reversed the judgment.
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