In any case where the defendant would otherwise be liable to the plaintiff under a negligence or strict liability theory, the fact that the plaintiff may have been aware of the risk created by the defendant's conduct should not operate as a total bar to recovery. Instead, comparative fault principles should apply, and the victim's "awareness of the danger" is among the factors to be considered in assessing percentages of fault.
The appellee, who was a minor, was injured while diving into a swimming pool and brought a negligence action against the motel. The jury found for the minor and reduced the award according to the rules of comparative fault. The Court of Appeals presented a certified question of whether the motel's defense of assumption of the risk acted as a bar to the minor's recovery.
Does the doctrine of assumption of the risk bar the minor's recovery even when he was comparatively negligent?
The court held that the doctrine of assumption of the risk did not bar the minor's recovery even though he was comparatively negligent.