Case Presentation
Anglo-American Tort Law
2017 Spring
Presented by Group 9
General Information
Supreme Court of New Jersey
Sidney J. MEISTRICH, Plaintiff-Respondent
v.
CASINO ARENA ATTRACTIONS, INC., a body corporate,
Defendant-Appellant.
Argued Sept.14, 1959
Decided Oct. 26, 1959
Weintraub C.J. Presided
Summarized Facts
• 1. Plaintiff sustained injuries when he fell while skating on
defendant's ice skating rink.
• 2. There was evidence that defendant has departed from usual
procedure in preparing the ice, with result that it became too
hard and hence too slippery for patron of average ability using
skates sharpened for the usual surface.
• 3. However, the plaintiff remained on the ice and skated crosshand with another after he had the knowledge of the condition of
the ice.
Procedural History
• The Plaintiff brought an action against the Defendant in the
County Court, Law Division. This court found for the Defendant.
Then the Plaintiff appealed this case to Superior Court of New
Jersey, Appellate Division.
• The Appellate Court reversed the decision. Then the Defendant
filed a petition for certification to the Supreme Court of New
Jersey, and the petition had been granted.
• We are now at the stage of the final decision made by the
Supreme Court.
Issues in the case
1. Was the trial court’s charge erroneous in respect to
a. The jury’s consideration of the fact that the defendant did not
produce any evidence
b.
c.
d.
e.
f.
The
The
The
The
The
charge
charge
charge
charge
charge
of assumption of risk
as to plaintiff’s knowledge of the condition of the ice
as to intervening cause
as to contributory negligence
as to burden of proof
Issues in the case
1. Was the trial court’s charge erroneous in respect to
g. The charge that there is a presumption against negligence
2. Should a new trail have been granted on the ground of any of
those demurs?
Issues mainly discussed by the Supreme Court
1. Whether the Defendant should be held negligent for the
Plaintiff’s injury?
1.1 Whether the Plaintiff has contributory negligence?
1.2 Whether the Plaintiff has assumption of risk?
Holding on issue 1.1
• Whether the Plaintiff has contributory negligence?
• Contributory negligence in common-law jurisdictions is generally
a defense to a claim based on negligence, an action in tortd. This
principle is relevant to the determination of liability and is
applicable when plaintiffs/claimants have, through their own
negligence, contributed to the harm they suffered. It can also be
applied by the court in a tort matter irrespective of whether it
was pleaded as a defense.
Holding on issue 1.1
• For example, a pedestrian crosses a road negligently and is hit by
a driver who was driving negligently. Since the pedestrian has also
contributed to the accident, they may be barred from complete
and full recovery of damages from the driver (or their insurer)
because the accident was less likely to occur if it hadn't been for
their failure to keep a proper lookout. Another example of
contributory negligence is where a plaintiff actively disregards
warnings or fails to take reasonable steps for his or her safety,
then assumes a certain level of risk in a given activity; such as
diving in shallow water without checking the depth first.
Holding on issue 1.1
• The Appellate Division
• concluded there was no evidence of contributory negligence and
hence that issue should not have been submitted to the jury.
• The Supreme Court however agree with defendant that the issue
of contributory negligence was properly left to the trier of the
facts. Plaintiff had noted that his skates slipped on turns. A jury
could permissibly find he carelessly contributed to his injury when,
with that knowledge, he remained on the ice and skated crosshand with another.
Holding on issue 1.1
• And the Supreme Court note that contributory negligence involves
some breach of duty on the part of a plaintiff. His actions are
such as to constitute a failure to use such care for his safety as
the ordinarily prudent man in similar circumstances would use.
Holding on issue 1.1
• The Supreme Court also proposed that assumption of risk in its secondary
sense is indistinguishable in its nature from contributory negligence,
which requires further discussion. And in the case Hartman v. City of
Brigantine, 23 N.J. 530, 537, 129 A.2d 876, 880 (1957) it was suggested
that in the interest of clarity assumption of risk in the secondary sense
‘might well be subsumed’ under the defense of contributory negligence.
• To determine if assumption of risk in its secondary sense differs from
contributory negligence, the critical test is whether a plaintiff's conduct
under the former is measured by the standard of the reasonably prudent
man, for if it is, nothing remains to distinguish it from contributory
negligence.
Holding on issue 1.2
• Whether the Plaintiff has assumption of risk?
• Assumption of risk is a defense in the law of torts, which bars or
reduces a plaintiff's right to recovery against a negligent
tortfeasor if the defendant can demonstrate that the plaintiff
voluntarily and knowingly assumed the risks at issue inherent to
the dangerous activity in which he was participating at the time of
his or her injury.
Holding on issue 1.2
• This defense is commonly asserted in cases of injuries occurring during
risky recreational activities, such as skiing, paragliding, and scuba diving,
but actually extends to all dangerous activities. Thus, for example, it
was held that a visitor to the Burning Man festival assumed the risk of
getting burned.
• According to the charge, the trial court expressed essentially the same
thought, I.e., that assumption of risk may be found if plaintiff knew or
reasonably should have known of the risk, notwithstanding that a
reasonably prudent man would have continued in the face of the risk.
While the Supreme Court thinks an instruction to that effect is erroneous
in the respect hereinafter delineated. The error is traceable to confusion
in the opinions in our State.
Holding on issue 1.2
• Assumption of risk is a term of several meanings, and the
Supreme Court here speak solely of the area in which injury
or damage was neither intended nor expressly contracted to
be non-actionable.
• In this area, assumption of risk has two distinct meanings. In
one sense (sometimes called its ‘primary’ sense), it is an
alternate expression for the proposition that defendant was
not negligent, I.e., either owed no duty or did not breach the
duty owed.
Holding on issue 1.2
• In its other sense (sometimes called ‘secondary’), assumption of
risk is an affirmative defense to an established breach of duty. In
its primary sense, it is accurate to say plaintiff assumed the risk
whether or not he was ‘at fault’, for the truth thereby expressed
in alternate terminology is that defendant was not negligent. But
in its secondary sense, I.e., as an affirmative defense to an
established breach of defendant's duty, it is incorrect to say
plaintiff assumed the risk whether or not he was at fault.
Holding on issue 1.2
• The difference was also explained by the Supreme Court of
California as follows:
• In cases involving ‘primary assumption of risk’—where, by virtue of
the nature of the activity and the parties' relationship to the
activity, the defendant owes no legal duty to protect the plaintiff
from the particular risk of harm that caused the injury—the
doctrine continues to operate as a complete bar to the plaintiff's
recovery.
Holding on issue 1.2
• In cases involving ‘secondary assumption of risk’—where the
defendant does owe a duty of care to the plaintiff, but the
plaintiff proceeds to encounter a known risk imposed by the
defendant's breach of duty—the doctrine is merged into the
comparative fault scheme, and the trier of fact, in apportioning
the loss resulting from the injury, may consider the relative
responsibility of the parties.[
Dissent
• As all the five judges are for modification,
there is no dissent.
Our Opinion
• There surely was a contributory negligence on the Plaintiff’s side,
for he failed to prevent himself from being hurt after he had the
knowledge of the hazardous situation he was in.
• The theory of contributory negligence and assumption of risk, in
our understanding, will be illustrated to you in the presentation 