Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
Notably absent from the majority’s opinion are facts which, if construed in appellees’
favor, require the denial of appellants’ motions for summary judgment. For example, the
Landings Association had an advertised policy that it removed from the 151 lagoons in the
community alligators which were seven feet long or larger and/or alligators which were
aggressive toward humans or pets; the appellants did not patrol or inspect the lagoons in order to
remove large or aggressive alligators according to its policy, but rather relied on residents and
employees to report said animals; and appellants did not post signs near the lagoons warning
guests about alligators. An expert opined that the over eight foot long, 130 pound alligator that
attacked the decedent had likely been in the lagoon where the decedent’s body was found for
some time because such mature alligators tend to be territorial and nest. There was also evidence
in the record that the decedent called for help during the attack, but that appellants’ security
forces, which were not trained in dealing with alligators, responded to the wrong location and then
stopped investigating, assuming that the sounds in question were bird calls. . . .
Based on the facts presented at the time of summary judgment in this case, reasonable
minds could differ as to the essential elements of appellees’ premises liability claim.
Notes
1. Secondary assumption of the risk. In the Flopper case and in Maddox, we concluded that
the assumption of the risk doctrine was an alternative way to say that the defendant breached no
duty to the plaintiff. Is it correct to say that the Landings Association breached no duty to
Gwyneth Williams? To ask this a different way: is it non-negligent as a matter of law for a
development association to fail to take precautions against large alligators in the lagoons of a golf
course and housing development? The court in Landings Association does not say so. Instead,
the court seems to focus on Mrs. Williams’s own conduct as the grounds for its conclusion that
the defendant is not liable.
This feature of the decision makes Landings Association a case of what commentators call
“secondary assumption of the risk.” As the California Supreme Court has put it, secondary
assumption of the risk cases comprise “those instances in which the defendant does owe a duty of
care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the
defendant’s breach of that duty.” Knight v. Jewett, 834 P.2d 696, 701 (Cal. 1992). But there is a
puzzle. Recall that primary assumption of the risk cases turned out simply to be cases of no duty
and no breach repackaged into a new doctrinal formulation. Secondary assumption of the risk
turns out to be a repackaging of a different doctrine as well, the doctrine of comparative or
contributory negligence. It is no defense to show that the plaintiff encountered a reasonable risk
and proceeded with her conduct notwithstanding that reasonable risk. People knowingly take
reasonable risks all the time. We do it on highways every day when we take the risk of being
struck and injured. But since our doing so is deemed reasonable, we are not deemed
comparatively or contributorily negligent.
Secondary assumption of the risk requires that the defendant show that the plaintiff
knowingly took an unreasonable risk. In this sense, secondary assumption of the risk is simply a
subcategory of contributory or comparative negligence. In some comparative negligence states
like California, this means that “cases involving ‘secondary assumption of risk’” have simply
been “merged into [a] comprehensive comparative fault system.” Knight, 834 P.2d at 701.
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