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The defense of contributory negligence presupposes original negligence on the part of the defendant. In a case where negligence is not an ingredient of fault, contributory negligence is not a defense. Usually, the assumption of risk doctrine will apply where the nature of the relationship of the parties appears to exact consent from the one injured to be exposed to possible harm. In such situations the plaintiff understands the risk involved and accepts the risk as well as the inherent possibility of damage because of the risk. There is some authority for rejecting assumption of risk in cases which do not involve negligence, but the majority view is that assumption of risk is a defense to strict liability. A plaintiff who with full knowledge and appreciation of the danger voluntarily exposes himself to the risks and embraces the danger cannot recover damages for injury which may occur.
On February 23, 1967, a radio call was received by Fire Station No. 2 in Baton Rouge directing that a fire truck be sent to Delta Southern Tank Corporation to give assistance to two men who were trapped in a tank by a gas. Langlois, who was acting as temporary fire truck driver, and the other members of the crew proceeded to Delta's premises. Arriving at Delta's parking lot they were told that the men had been extricated and to return to the fire station. During the five-minute interval while they remained at Delta they encountered gas in the form of a haze or fog coming from an unknown source. Langlois' throat started tickling, his eyes smarted, and he began to cough. All others in the area evidenced the same effects from the gas. On the return trip they continued to encounter the gas with a heavier concentration for about two and one-half blocks. Although the windows of the cab of the truck were closed, Langlois and the Captain who rode with him in the cab still suffered from the effects of the gas. At the fire station Langlois was again exposed to the gas as it drifted in that direction while he was washing down the fire truck. To avoid contact with the gas he and the other firemen went into the station and closed the windows. Langlois continued to cough the night after the exposure and for the next three days. He also began to expectorate a thick mucus, had difficulty in breathing, and ran a temperature of 102-103 degrees. A skin irritation occurred with some scaling and dryness of the face and ears. The morning of the fourth day after his exposure to the gas he was admitted to the hospital for treatment for chemical bronchitis. Five days later he was discharged from the hospital with out-patient care. About a month after the incident Langlois returned to work, and approximately two weeks later he was discharged from all medical care. No permanent disability resulted from the injury. It was ascertained after the incident that the gas was antimony pentachloride, which was used as a catalyst in the manufacture of certain Genetrons. The gas had escaped from Allied Chemical Corporation's plant, which was adjacent to Delta, when a Halon-lined pipe carrying the gas from a reactor ruptured. Langlois thus filed a suit for personal injuries he sustained from inhalation of a gas that escaped from Allied. The district court awarded him damages. On appeal, this award was reversed.
Is there contributory negligence on the part of Langlois, thereby precluding him from recovering damages from Allied’s fault?
Langlois did not enter the premises of Allied. He responded to the call to help others who were in imminent danger of suffering injury. In his response to the call his duty was to rescue those on adjoining premises whose lives and health were endangered by reason of Allied's fault. Any voluntariness on the part of Langlois could only be found if the Court assumes a waiver because he became a fireman. Firemen, police officers, and others who in their professions of protecting life and property necessarily endanger their safety to not assume the risk of all injury without recourse against others. Here, Langlois' rescue mission on premises other than defendant's would tend to minimize the extent to which Allied might be required to respond in damages to others. Langlois' primary duty as a fireman was to drive the fire truck. In regard to his specific duty, it cannot be said that he assumed risks from the gas any more than drivers of other vehicles who might be in and about the premises. He was subjected to the gas while the truck remained on the premises, during the return trip to the fire station, and finally at the fire station when he washed down the truck.
The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard. Although Langlois as a fireman possessed more knowledge than many about the nature of gases and the consequences of exposure to gases, he did not here knowingly and voluntarily encounter the risk which caused him harm. He acted in response to duty, and his exposure to the risk in line with that duty was minimal. Langlois did not embrace a known danger with that consent required by law to bar his recovery for defendant's fault. The defendants must establish by a preponderance of evidence their affirmative defense. They have failed to discharge this burden.