The basic principle of the assumption of the risk defense is easily stated: if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it. In practice, however, this principle proves easier to state than to apply. The simplest application of this doctrine recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk. This application, i.e., express assumption of the risk, most often involves a written waiver or release by the would-be plaintiff, but it can be based on any form of any explicit acquiescence. In most cases, however, the plaintiff's consent cannot be proved so easily. There, the defendant contends that the plaintiff's voluntary acceptance of a known and appreciated risk should be inferred from the plaintiff's conduct and the surrounding circumstances. This category of implied, rather than expressed, assumption of the risk includes two very different applications of this doctrine: implied primary assumption of the risk and implied secondary assumption of the risk. The difference between the applications is the type, or, more precisely, the source of the risk at issue.
The appellant was hit in the eye with a hotdog thrown by a mascot during a baseball game. The appellant sued the baseball team for his injury. The trial court gave instructions to the jury on whether the risk of being injured with a hotdog toss is one of the inherent risks of watching the said game. The jury found for the baseball team.
Is the risk of being injured with a hotdog toss an inherent risk of watching a baseball game?
The risk of being injured by a hotdog thrown by the baseball team's mascot during a hotdog toss was not one of the inherent risks of watching a baseball game; the mascot and, therefore, the baseball team, owed their fans a duty to use reasonable care in conducting the hotdog launch and could be held liable for damages caused by a breach of that duty. Also, the trial court erred in submitting to the jury the question of whether the risk of injury from the hotdog toss was an inherent risk of watching a baseball game at the stadium; the instruction not only put an issue, implied primary assumption of the risk, to the jury that had to be decided by the court as a matter of law, it created an unacceptable risk that the jury found the team negligent but then did not assess at least some percentage of the fault to the team because that was what the instruction told the jury to do.