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

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
The judgment of the Appellate Division and that of the Trial Term should be reversed, and
a new trial granted, with costs to abide the event.
POUND, CRANE, LEHMAN, KELLOG, and HUBBS, JJ., concur.
O’BRIEN, J., dissents . . .
Notes
1. Negligence in the Flopper case? What, if anything, did the operator of the Flopper do
wrong? If the answer is nothing, then why are we talking about the plaintiff’s conduct? Isn’t this
a case in which the plaintiff loses simply because he cannot show negligence on the part of the
defendant?
2. Primary assumption of the risk. Flopper-like cases are often said to deal with “primary
assumption of risk.” As the California Supreme Court has put it,
these are instances in which the assumption of risk doctrine embodies a legal
conclusion that there is “no duty” on the part of the defendant to protect the plaintiff
from a particular risk—the category of assumption of risk that the legal
commentators generally refer to as “primary assumption of risk.”
Knight v. Jewett, 834 P.2d 696, 701 (Cal. 1992). But if that is so, why craft an independent
doctrine for such cases? Why aren’t these simply dealt with as cases in which the plaintiff wins
because the defendant did not breach a duty of care?
3. A monster flopper? Cardozo observes in the Flopper case that the outcome might be
different “if the accidents had been so many as to show that the game in its inherent nature was
too dangerous to be continued without change.” One New Jersey theme park in the 1980s and
1990s may have been such a place. Customers reported 14 broken bones and 26 head injuries in
1984 and 1985. The park acquired its own ambulance. Six people died at the park between 1978
and 1996. Test dummies used to simulate rides were said to come out decapitated. One teenage
customer recalled driving to the park with his friends. “It wasn’t ‘If someone gets hurt,’” he
recalled, “it was ‘Who’s going to get hurt?’” Another long-time customer remembered “People
were bleeding all over the place.” Did the notoriety and visible dangerousness of Action Park
mean that its ordinary operation was not negligent as a matter of law? Or was Action Park so
dangerous that people should not have been allowed to assume the risks it posed? Notably, a
young New Jersey man named Cory Booker loved the place. “I’ve got stories 2 tell,” he tweeted
in 2014. See James Barron, People Were Bleeding All Over, N.Y. TIMES, Oct. 19, 2019.
4. The fellow servant rule. Historically, many cases of primary assumption of the risk dealt
with workplace risks. Workers in the pre-worker’s compensation era were regularly said to
assume the risks of the work in which they were engaged. In Lamson v. American Ax & Tool Co.,
for example, the plaintiff was a painter of hatchets in the defendant’s manufacturing
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