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Durban v. Waverly Sales Company: Assumption of Risk in Negligence Actions

Durban v. Waverly Sales Company, an appeal argued before the U.S. Court of Appeals for the Eighth Circuit, involved a woman who attended a horse auction with her husband. The arena was set up in such a way that there were bleachers erected around the show floor. The plaintiff and her husband were sitting in the bleachers on the northeast side. During the auction, she left her seat to go the restroom.

the-horse-1439653-m.jpgIn order to get to the restroom, the plaintiff had to walk down an alley created at the northeast end of the arena between the bleachers. This is the same alley that the horses were led down after they were sold. While returning from the restroom, the plaintiff tripped and fell to the ground. At this point, an employee opened a door overhead that caused a horse to become startled.

The startled horse trampled the plaintiff, and she was very seriously injured. The plaintiff sued the defendant for personal injury, claiming that the show presenter was negligent for arranging the seats in such a way that people had to walk down the same alley as the horses. Additionally, she alleged the worker’s negligent opening of the door that startled the horses.

Our Boston personal injury lawyers know that companies often do whatever they can to get a case dismissed.

The defendant company filed a motion for summary judgment, attempting to have the suit dismissed on grounds it was excluded from liability due to a state law that exempted the proprietors of domesticated animal shows from liability due the fact the plaintiff should have known she was at risk and been more careful when returning from the restroom.

Basically, the defendant was making an assumption of risk defense, alleging a reasonable person who attends a horse auction should be aware of the fact they are walking in an area where horses are being driven and should act accordingly to prevent injury to themselves.

The general duty in all negligence cases is that the defendant owes the plaintiff a duty to act in a reasonable manner to prevent foreseeable harm to the plaintiff.

Assumption of risk, as a defense, states that if a plaintiff is aware of particular risk or should be aware of a particular risk based upon the nature a given activity, they assume the risk of this foreseeable harm when engaging in the activity. This voluntary assumption risk will excuse the defendant from liability in some situations.

An example of this would be a boxing match. If you agree to participate in a boxing match, you are assuming the risk that you might get punched repeatedly and this can result in serious injury. You cannot knowingly get into a boxing ring and then sue your opponent for causing injuries. However, this same theory is unlikely to apply to patrons of a boxing match.

In Durban, the defendant was essentially arguing that the plaintiff should have been more aware of her surroundings. She knowingly came to a horse auction and walking on paths used to drive horses. She should have known that she should get stepped on if she fell, and, therefore, should have walked in a more careful manner or taken a different route.

The appellate ultimately agreed with the plaintiff and found that the defendant could be held liable.

If you are injured in an accident in Boston, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.

Additional Resources:

Duban et al v. Waverly Sales Co, July 28, 2014, U.S. Court of Appeals for the Eight Circuit

More Blog Entries:

Millions Slip in Restaurants Each Year. How You Can Stay Safe from a Boston Slip and Fall, December 28 2014, Boston Personal Injury Lawyer Blog