In general, a defendant must affirmatively set forth assumption of risk, contributory negligence, and any other matter constituting an avoidance or affirmative defense in its response to the pleadings under Fed. R. Civ. P. 8(c). By negative inference, a defendant's omission of an affirmative defense should therefore amount to a waiver.
Plaintiff guest brought a suit for negligent failure to warn after she was injured during an obstacle course race while on a company picnic at defendant hotel owner's resort and for failing to provide a safe apparatus for the said event. The district court denied plaintiff's request to amend, and awarded summary judgment to defendant.
Is the defendant to be relieved of liability towards the plaintiff on the ground that the latter assumed risks in participating in the obstacle course, despite the defendant’s failure to plead this defense?
The court affirmed the denial of plaintiff's amendment request, as it added nothing new. The court affirmed on the merits, finding that defendant was not obligated to post a warning of the blatant risks of an obstacle course, as there were no hidden dangers from the ordinary slide, which was in perfect repair. Even, as an excited participant, plaintiff should have been aware of the possibility of injury by competing under time pressure, and going up the slide backwards, reversing the normal course of usage. It was acceptable for the district court to base its decision on assumption of risk, even though defendant argued contributory negligence, as the two doctrines were intertwined and often used interchangeably. Plaintiff assumed the risk by voluntarily participating in the game, knowing that she could get injured, where the risks were overt and inherent in the nature of the activity.