APPEAL FROM THE DISTRICT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX D.C. Civil No. 76-0044
Before Rosenn, Maris and Hunter, Circuit Judges.
This is an appeal from the judgment entered in a personal injury/negligence action. The question presented is whether, despite the fact that the Virgin Islands has enacted a comparative negligence statute, the evidence introduced at trial required that the court deliver a jury instruction on assumption of risk. The district court declined to do so, finding that the evidence did not warrant the charge and concluding that "(such an) instruction . . . would defeat the whole purpose of the comparative negligence statute." We conclude that the court did not err when it refused to instruct the jury on assumption of risk. Accordingly, the judgment of the court will be affirmed.*fn1
At the time of the accident John Keegan lived on a boat which was moored in the Christiansted harbor in St. Croix, Virgin Islands. To gain access to the boat Keegan had to walk along the boardwalk which skirts the shops, hotels, and restaurants in the waterfront area. In December 1975, Anchor Inn, a local hotel and restaurant, began intermittently repairing and replacing weakened planks on the section of the boardwalk which abutted its fence and gateway. On the afternoon of January 10, 1976, Keegan was proceeding along the boardwalk on the way to his boat. As he entered the area being repaired he noticed a hole in the boardwalk and began to walk around it. He stepped on a plank, and a nail which was protruding from the plank entered his foot. Keegan stumbled and fell into the hole he had been attempting to avoid, breaking his ankle.
Keegan brought a personal injury suit against Anchor Inn, alleging that Anchor Inn had been negligent in failing to properly maintain the boardwalk. At the conclusion of trial, Anchor Inn submitted a proposed jury instruction to the effect that assumption of risk was a complete bar to the plaintiff's recovery. The court refused to give the proposed charge, finding that the evidence did not support it and concluding that in any event the charge did not accurately reflect the law of the Virgin Islands, which in 1973 enacted a comparative negligence statute, 5 V.I.C. § 1451 (1978). At the request of Anchor Inn the court did give a charge on the landowner's duty to anticipate harm to invitees from known or obvious dangers. The court also instructed the jury that the plaintiff's contributory negligence could be taken into account in apportioning fault, and that this would mitigate the defendant's liability, if any, to the plaintiff. A verdict was returned in favor of Keegan. The jury apportioned responsibility for the accident 65% Against Anchor and 35% Against Keegan.
Traditionally, assumption of risk has been considered an absolute bar to recovery by the plaintiff. It may be express or implied. Express assumption of risk arises whenever a plaintiff by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant's negligent or reckless behavior. Restatement (Second) of Torts § 496B (1965).*fn2 Ordinarily, the agreement takes the form of a contract, and provides that the defendant has no obligation to protect the plaintiff and shall not be liable for the consequences of conduct which might otherwise be tortious. It is not essential that the agreement be made for consideration. A non-contractual consent may be sufficient. "Where such an agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no social interest with which they interfere, (the agreement) will generally be upheld." Id. § 496B, Comment (b).
Implied assumption of risk is explained as follows: "A plaintiff who Fully understands a risk of harm to himself . . . caused by the defendant's conduct or by the condition of the defendant's land or chattels, and who nevertheless Voluntarily chooses to enter or remain, . . . within the area of that risk, under circumstances that manifest his willingness to accept it, is not entitled to recover for harm within that risk.*fn3 Id. § 496C (emphasis added).
Contributory negligence is "conduct on the part of the plaintiff which falls below the standard to which (the plaintiff) should conform for his own protection, and which is a legally contributing cause co-operating with the negligence of the defendant in bringing about the plaintiff's harm." Restatement (Second) of Torts § 463 (1965). Contributory negligence of a plaintiff may be either "an intentional and unreasonable exposure of himself to danger created by the defendant's negligence, of which danger the plaintiff knows or has reason to know, or . . . conduct which in (other) respects falls short of the standard to which the reasonable man should conform in order to protect himself from harm." Id. § 466. Although there are exceptions, the common law rule is that the plaintiff's contributory negligence bars any recovery at all by the plaintiff. Baumann v. Canton, 7 V.I. 60, 72 (D.V.I.1968) (decided prior to the enactment, in 1973, of the Virgin Islands' comparative negligence statute). This is so even if the plaintiff's negligence is slight compared to that of the defendant. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S. Ct. 202, 98 L. Ed. 143 (1953). The rule has been characterized as "harsh" and "discredited". Id.; see W. Prosser, The Law of Torts, 417-18, 433-34 (4th ed. 1971).
Numerous jurisdictions, including the Virgin Islands, have responded to the harshness of the rule by enacting comparative negligence statutes. These statutes remove the absolute bar to recovery imposed by the doctrine of contributory negligence and replace it with a scheme for apportioning fault between the plaintiff and the defendant. The Virgin Islands' Code provides:
In any action based upon negligence to recover for injury to person or property, The contributory negligence of the plaintiff shall not bar a recovery, but the damages shall be diminished by the trier of fact in proportion to the amount of negligence attributable to the plaintiff . . . If such claimant is found by the trier of fact to be ...