Riddle v. Universal Sport Camp - 786 P.2d 641 (Kan. Ct. App. 1990)

Rule:

Under Tennessee law, the assumption of risk defense is not dependant upon a contractual relationship. In express assumption of risk, the plaintiff expressly contracts that defendant shall have no duty of care toward plaintiff. An action for negligence is barred under these circumstances. Implied assumption of risk exists when a plaintiff has impliedly consented to assume risks. Implied assumption of risk is divided into primary and secondary assumption of risk. Primary assumption of risk is basically a principle of no negligence where there is no duty or no breach. This includes the ordinary risks of an activity where no negligence exists. Assumption of risk still exists in that situation, but its utility is small as it could more properly be explained as non-negligence without reference to assumption of risk. Without a breach of duty by the defendant there is nothing left to compare with any misconduct of the plaintiff.

Facts:

Plaintiff student was a cheerleader for the university. She was required to attend the camp, which was in Tennessee. She signed a release, which stated that she agreed that there was a possibility of injury in attending the camp and that she assumed the risk of such injury. While practicing a toe-touch pyramid at the camp, the student fell and injured her back. Plaintiff instituted a personal injury claim. The trial court applied Tennessee law and found that the plaintiff’s claims were barred by assumption of the risk. Plaintiff appealed, arguing that the trial court erred by ruling that her claims were barred by the doctrine of assumption of the risk.

Issue:

By signing the release, did the plaintiff student expressly assume the risk? 

Answer:

No.

Conclusion:

On appeal, the court held that the trial court properly granted summary judgment in favor of the camp because Tennessee law recognized the validity of the release's exculpatory clause and that the release did not fall within any exception to the general rule that such releases were valid. However, the court held that the trial court erred in ruling that the release barred the student's claims against the university based on her express assumption of the risk. The court held that the release was written evidence that the student voluntarily exposed herself to the known dangers involved in participating in the camp, but that her claims were barred based on implied assumption of the risk. Accordingly, the court affirmed the trial court's order, as modified, which granted summary judgment in favor of the camp and the university. The court modified the judgment against the university based on the student's implied assumption of the risk.