Assumption of risk must be free and voluntary. If it clearly appears from the plaintiff's words or conduct that he does not consent to relieve the defendant of the obligation to protect him, the risk will not be assumed. If, however, he surrenders his better judgment upon an assurance of safety or a promise of protection, he does not assume the risk, unless the danger is so obvious and so extreme that there can be no reasonable reliance upon the assurance.
The stunt man performed a stunt where he sat on a kite tied to a car by a rope. The car was to increase its speed to no more than 30 miles an hour, at which time the kite would fly. The stunt man was hired by the employer and advised that a professional driver would be provided. Before the stunt, the stunt man explained the speed requirements to the stunt driver at least 30 times. The employer assured the stunt man that the stunt driver was qualified. During the stunt, the stunt driver drove too fast, causing the kite to fall, seriously injuring the stunt man. The stunt man filed an action against the employer and the stunt driver for negligence. The trial court entered judgment in favor of the stunt man. The case was appealed to the Court of Appeal of California.
Were the driver and employer negligent?
The court affirmed, holding that there was substantial evidence of negligence attributable to the stunt driver in driving and the employer in hiring an unqualified driver. The court also held that the stunt driver was the general employee of the employer and did not become the stunt man's employee under the borrowed servant doctrine. Although the stunt man gave the stunt driver instructions regarding the stunt, the stunt driver remained under the employer's control.