Hurst v. E. Coast Hockey League, Inc. - 371 S.C. 33, 637 S.E.2d 560 (2006)

Rule:

Primary implied assumption of risk is not a true affirmative defense, but instead goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff. In its primary sense, implied assumption of risk focuses not on the plaintiff's conduct in assuming the risk, but on the defendant's general duty of care. Clearly primary implied assumption of risk is but another way of stating the conclusion that a plaintiff has failed to establish a prima facie case of negligence by failing to establish that a duty exists. n this sense, primary implied assumption of risk is simply a part of the initial negligence analysis. 

Facts:

Craig A. Hurst filed this negligence action against East Coast Hockey League, Inc.; Knoxville Cherokees Hockey, Inc., d/b/a Pee Dee Pride Jockey, and d/b/a Florence Pride Hockey ("Pride"); Florence City-County Civic Center Commission ("Commission") d/b/a Florence City-County Civic Center ("Civic Center"); City of Florence; and County of Florence (collectively referred to as Respondents) for injuries he sustained while attending a Pride hockey game at the Civic Center on January 11, 2002. During pregame warm-ups, Hurst entered the spectator area at the Civic Center through a curtained concourse entrance behind one of the goals. Hurst was struck in the face by a puck while standing behind the goal. At the time of the accident, the ice rink at the Civic Center was encircled by dasher boards and a protective Plexiglas wall, which was attached to the top of the dasher boards. Also at that time, the Pride was a member of the East Coast Hockey League, Inc., a professional hockey league. The Pride played home games at the Civic Center under a lease with the Commission. The Civic Center was maintained and operated by the Commission, a governmental entity created by the City of Florence and the County of Florence. After a hearing on the matter, the circuit court determined the risk of pucks leaving the ice rink and entering the spectator area is well-known, obvious, and inherent to the game of hockey. The circuit court granted summary judgment in favor of Respondents based on the doctrine of primary implied assumption of risk.

Issue:

Did the circuit court err in granting summary judgment and ruling that that the risk of pucks leaving the ice rink and entering the spectator area was well-known, obvious, and inherent to the game of hockey?

Answer:

No.

Conclusion:

The appellate court ruled that, under the doctrine of implied primary assumption of risk, the city's duty of care did not encompass the risk involved. The risk of a hockey spectator being struck by a flying puck was inherent to the game of hockey and was also a common, expected, and frequent risk of hockey.