Defective Products - Table of Contents
Implied Assumption Of Risk Defenses Apparently Abolished
Products Liability Cases In Hawaii
Hawaii's highest courts have addressed the defense of "assumption
of risk" as it applies in products liability actions. This is
addressed in two leading cases: Larsen v. Pacesetter Systems,
Inc., 71 Haw. 1, 837 P.2d 1273 (1992) and the recent case of
Foronda v. Hawaii Intern'l Boxing Club, 96 Haw. 51, 25 P.3d 826
(Haw. App. 2001). Putting aside express assumption of risk, it
appears that no aspect of the assumption of risk defense has
survived the adoption in this jurisdiction of comparative
negligence in products liability claims (whether those claims are
based upon strict liability or implied warranty).
The explanation and reasoning for the decision to abolish
"assumption of risk" from products liability actions is described
at length by Chief Justice Herman T.F. Lum in the Larsen case and
Justice John S.W. Lim in the Foronda case. The following is an
extended quotation from Larsen v. Pacesetter Systems, Inc.,
supra, outlining the reasoning of the Supreme Court of the State
of Hawaii in abolishing the "assumption of risk" defense in
products liability cases:
"In this jurisdiction, principles of pure comparative
negligence apply to strict products liability actions.
Armstrong v. Cione, 69 Haw. 176, 180-83, 738 P.2d 79, 82-83
(1987); Hao v. Owens- Illinois, Inc., 69 Haw. 231, 236, 738
P.2d 416, 418-19 (1987). Under Armstrong, and our reasoning
in part II. D. of this decision, we join those jurisdictions
that have merged pure comparative negligence with personal
injury suits in implied warranty. Armstrong, 69 Haw. at
180-83, 738 P.2d at 82- 83; Pepsi Cola Bottling Co. of
Anchorage v. Superior Burner Serv. Co., 427 P.2d 833 (Alaska
1967); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414
(Tex.1984); West v. Caterpillar Tractor Co., 336 So.2d 80
(Fla.1976). Where comparative negligence principles apply,
assumption of risk that is a form of contributory negligence
serves to reduce, rather than bar, plaintiff's recoveries.
See, Kaneko v. Hilo Coast Processing, 65 Haw. 447, 463, 654
P.2d 343, 352 (1982); Bulatao v. Kauai Motors, Ltd., 49 Haw.
1, 15, 406 P.2d 887, 895, reh'g denied, 49 Haw. 42, 408 P.2d
396 (1965). However, it is not clear from our previous
decisions whether assumption of risk that is not a form of
contributory negligence survives the merger of comparative
negligence and products liability.
"The doctrine of assumption of risk has been a subject of
much controversy and confusion, in large part because it
encompasses, under the deceptively simple construct that a
plaintiff has deliberately subjected himself to danger, the
concepts of plaintiff's consent, defendant's lack of duty,
and plaintiff's contributory negligence. J. Wade, The Place
of Assumption of Risk in the Law of Negligence, 22 La.L.Rev.
5, 14 (1961); see generally, F. James, Assumption of Risk,
61 Yale L.J. 141 (1952); Keeton, supra, 68 at 480. The
defense is not a favored one and the trend in the law has
been toward abolishing it. Blackburn, 348 So.2d at 289; F.
Harper, F. James, & O. Gray, 4 The Law of Torts 21.0 n. 4
at 190 (2d ed. 1986); see generally, H. Woods, Comparative
Fault 6 at 131-163, 499-788 (2d ed. 1987). The doctrine has
been criticized as duplicative of more widely understood
concepts such as duty and as adding "nothing to modern law
except confusion," James, supra, at 169; Wade, Assumption of
Risk, supra, at 14; Harper, *35 supra, 21.0 at 193
(describing "The Battle of the Wilderness," the name by
which drafters of Restatement (Second) of Torts designated
debate over whether to include the defense).
"Assumption of risk may be express, in the sense of an
express contract. See Heil Valley Ranch, Inc. v. Simkin,
784 P.2d 781 (Colo.1989) (express release waiving any claim
as a result of physical injury incurred while horseback
riding); Tunkl v. Regent of Univ. of Cal., 60 Cal.2d 92, 32
Cal.Rptr. 33, 383 P.2d 441 (1963) (hospital patient's
express agreement to assume risks of medical negligence
invalid as contrary to public policy); Schneider v. Revici,
817 F.2d 987 (2d Cir.1987) (statute recognizing "covenant
not to sue").
"Implied assumption of risk has been used in the context of
negligence cases to describe two distinct theories under
which a defendant may avoid liability. The "primary" sense
of implied assumption of risk emerged, along with the global
doctrine itself, out of the common law action of a servant
against his master. Keeton, supra, 68 N. 1 at 480. Used in
its primary sense, assumption of risk describes the act of a
plaintiff, who has entered voluntarily and reasonably into
some relation with a defendant, which plaintiff knows to
involve the risk. It is an alternate expression of the
proposition that a defendant owes no duty to a plaintiff.
Restatement (Second) of Torts, 496A comment c; Meistrich v.
Casino Arena Attractions, Inc., 31 N.J. 44, 48, 155 A.2d 90,
93 (1959). [footnote omitted] Primary implied assumption
of risk may be illustrated by the case in which a plaintiff
has been injured as a natural incident of engaging in a
contact sport. It may also be seen in the act of a
spectator entering a baseball park, thereby consenting that
the players proceed without taking precautions to protect
her from being hit by the ball. Restatement (Second) of
Torts, 496A, comment c; Ordway v. Superior Court, 198
Cal.App.3d 98, 105, 243 Cal.Rptr. 536 (1988).
"In its 'secondary' sense, implied assumption of risk
focuses on a plaintiff's conduct, and describes a situation
where plaintiff knows of the danger presented by a
defendant's negligence and proceeds voluntarily and
unreasonably to encounter it. Meistrich, 31 N.J. at 53, 155
A.2d at 93-94; Restatement (Second) of Torts, 496A comment
c. A plaintiff's assumption of risk is unreasonable, and a
form of contributory negligence, where the known risk of
harm is great relative to the utility of plaintiff's
conduct. Restatement (Second) of Torts, 496A comment c.
It is implied assumption of risk in this secondary sense,
i.e. unreasonable assumption of risk, that has been merged
with comparative negligence by the decisions of this court
in products liability cases.
"We conclude that express assumption of risk survives the
merger with comparative negligence in products liability
cases and hold that express assumption of risk is available
as a separate defense that may bar plaintiff's recovery in
tort and warranty strict products liability actions.
Express assumption of risk is essentially contractual in
nature and does not conflict with the basic concept of
apportionment under comparative fault involving negligence.
Keeton, supra, 68 at 496; A. Best, Comparative Negligence
Law 4.20 at 444 (1992). Thus, courts abolishing implied
assumption of risk under comparative negligence have
recognized the continued vitality of express assumption, see
Valley Nat'l Bank v. National Ass'n for Stock Car Auto
Racing, Inc., 153 Ariz. 374, 736 P.2d 1186 (Ct.App.1987);
Farley v. MM Cattle Co., 529 S.W.2d 751 (Tex.1975); Black v.
District Bd. of Trustees, 491 So.2d 303 (Fla.App.1986); the
same is true in jurisdictions in which comparative
negligence statutes have expressly abolished the defense of
assumption of risk. See, e.g., Blair v. Mt. Hood Meadows
Dev. Corp., 291 Or. 293, 630 P.2d 827, reh'g denied, 291 Or.
703, 634 P.2d 241 (1981).
"However, we join those courts that have abolished primary
implied assumption of risk in strict products liability and
implied warranty actions for personal injury and have
retained secondary implied assumption of risk solely as a
form of contributory negligence to be compared against
defendant's fault. [footnote omitted] [emphasis added]
Setting express assumption of risk to one side, we limit the
following analysis to implied assumption of risk. Under the
merger of comparative negligence and implied assumption of
risk, only reasonable implied assumption of risk remains as
a potential bar to a plaintiff's recovery. Accordingly, if
the concept of primary implied assumption of risk were
retained by this court, it would bar recovery only where
plaintiff's primary implied assumption was also reasonable.
[footnote omitted] The concept of reasonable primary
implied assumption of risk makes sense in the products
liability context under one set of circumstances--where
plaintiff is injured while reasonably using a product that
is not defective, e.g., plaintiff has reasonably assumed the
risk of being cut while using an ordinary knife. However,
as applied to a defective product, the concept is absurd; if
a plaintiff is injured while reasonably using a defective
product, a defendant should not be relieved of liability.
Indeed, a defective product is one that causes injury when
it is used in a reasonable manner, and the tort and implied
warranty doctrines of products liability were designed to
compensate plaintiffs for these very injuries. We therefore
decline to retain the concept of reasonable primary implied
assumption of risk where it unnecessarily duplicates the
"defect" analysis and has the clear potential to generate
confusion and error. To the extent that there may be
unreasonable primary implied assumption of risk, we find
that the policy it represents--the notion that no duty is
owed--has been rendered invalid by the merger of comparative
negligence and implied assumption of risk. See Armstrong,
69 Haw. at 182, 738 P.2d at 82-83. We consequently hold
that in implied warranty and strict products liability tort
actions, the concept of primary implied assumption of risk
is abolished, and implied assumption of risk provides a
defense to liability only when plaintiff's "assumption of
risk" is a form of contributory negligence. [emphasis added]
Cf. Restatement (Second) of Torts, supra, 402A comment n at
356 (contributory negligence). " Larsen, supra, 74 Haw. 33-39, 837 P.2d 1289-1292.
Similarly, in Foronda v. Hawaii Intern'l Boxing Club, supra, the
Hawaii Supreme Court went on to say:
"In Larsen, the question was, whether the various forms of
assumption of risk survived the advent of comparative
negligence in products liability cases. Id. at 34, 837 P.2d
at 1290. The supreme court concluded that express assumption
of risk survived, but that implied assumption of risk did
not. With respect to the latter holding, the supreme court
first concluded that the application of primary implied
assumption of risk is absurd in the context of 'implied
warranty and strict products liability tort actions'... The
supreme court then concluded that secondary implied
assumption of risk, or what it termed 'unreasonable primary
implied assumption of risk,' was subsumed in, and therefore
merged with, the concept of comparative negligence." 96
Haw. at 58, 25 P.3d at 833.
Hence, in this jurisdiction there is no independent secondary
assumption of risk, since secondary assumption of risk is better
viewed as part of the comparative negligence doctrine.
"Assumption of risk is a form of contributory negligence."
Cir. 1993). "... assumption of risk that is a form of
contributory negligence..." Larsen v. Pacesetter Systems, Inc.,
74 Haw. 34 (1992). "plaintiff's conduct, although he may
encounter that risk in a prudent manner, is in reality a form of
contributory negligence." Record v. Reason, 73 Cal.App. 4 472 at
Sports Venue Primary Assumption of Risk Not Applicable in
Products Liability Cases.
As mentioned above, the Hawaii Appellate Courts have further
addressed the "assumption of risk" defense in the Foronda v.
Hawaii Intern'l Boxing Club, supra, case. This case is important
because it discusses the "assumption of risk" defense in sports
and sports-related litigation. Primary assumption of risk in the
sports context involves assumption of the risk by one participant
of the risks of being injured by another participant, a sponsor
or a property owner. (Skiing, touch football, horse training,
golf, etc.) Record v. Reason, 73 Cal.App. 4 472 (1999), Bjork v.
Mason, 77 Cal.App. 4 544 (2000), Campbell v. Derylo, 75 Cal.App.
4 823 (1999), Wright v. Mt. Mansfield Lift, 96 F.Supp. 786 (D.Vt.
1951). The doctrine's purpose is to prevent a chilling effect on
sports participation and promotion arising out of the threat of a
lawsuit from known risks of the sport. It does not go to the
provision of defective equipment for use in sports activities.
The following discussion is taken from the Foronda case.
"Shortly after Larsen was decided, the United States
District Court for the District of Hawai'i, in Tancredi v.
Dive Makai Charters, 823 F.Supp. 778 (D.Hawai'i 1993),
overruling on other grounds recognized by, McClenahan v.
Paradise Cruises, Ltd., 888 F.Supp. 120 (D.Hawai'i 1995), a
diving fatality case, discussed Larsen and concluded that
'[t]he Hawaii Supreme Court has not yet addressed implied
assumption of risk, either secondary or primary, in the
context of recreational sports.' Id. at 788 (footnote
omitted). Because it was sitting in diversity, the federal
court exercised its 'best judgment in predicting' that 'the
Hawaii Supreme Court would allow the defense [of primary
implied assumption of risk] in an appropriate sports-related
case.' Id. (citation and internal quotation marks omitted).
"In making its prediction, the Tancredi court reasoned that
primary implied assumption of risk contemplates a plaintiff
who reasonably chooses to bear a particular risk of harm.
Conversely, the defendant owes no legal duty to protect the
plaintiff from any harm that risk may entail. There being no
legal duty to breach, there can be no talk of negligence,
Bidar v. Amfac, Inc., 66 Haw. 547, 551, 669 P.2d 154, 158
(1983) ('it is fundamental that a negligence action lies
only where there is a duty owed by the defendant to the
plaintiff' (citations omitted)), and thus, primary implied
assumption of risk remains a discrete and complete defense
quite apart from comparative negligence. As stated by the
Tancredi court, '[a]ssumption of the risk acts as a complete
bar where plaintiff's conduct in assuming a particular risk
was reasonable (for instance, where a spectator chooses to
attend a baseball game and as a consequence is injured by a
stray ball). A successful pleading of assumption of the risk
precludes a finding of breach of duty. See Comment
Note--Distinction Between Assumption of Risk and
contributory [sic] Negligence, 82 A.L.R.2d  1227,
citing Meistrich v. Casino Arena Attractions, Inc., 31 N.J.
44, 155 A.2d 90 (1959).' Tancredi, 823 F.Supp. at 788-89.
On the other hand, secondary implied assumption of risk
refers to a plaintiff's unreasonable decision to confront a
risk of harm created by the defendant's negligence. The
balancing of respective faults in those circumstances is
quintessential comparative negligence and hence, subsumed
therein, leaving no residue of independent existence for the
defense of secondary implied assumption of risk: 'In
secondary implied assumption of risk, the inquiry is whether
or not plaintiff's conduct was unreasonable. It is a form of
contributory negligence and the question is to what extent
did Tancredi breach a duty of care for his own safety. In
Hawaii, secondary implied assumption of risk is a form of
comparative negligence to be compared against defendant's
fault. 'Where comparative negligence principles apply,
assumption of risk that is a form of contributory negligence
serves to reduce, rather than bar, plaintiff's recovery.'
Larsen 837 P.2d at 1290[sic], citing Kaneko v. Hilo Coast
Processing, 65 Haw. 447, 463, 654 P.2d 343, 352 (1982);
Bulatao v. Kauai Motors, Ltd., 49 Haw. 1, 15, 406 P.2d 887,
895, reh'g denied, 49 Haw. 42, 408 P.2d 396 (1965). The
trier of fact, in apportioning the loss resulting from the
injury, may consider the relative responsibilities of the
parties.' Id. at 790.
"The upshot of the rationale is, that if primary implied
assumption of risk does not completely bar the plaintiff in
any particular case, then general comparative negligence
principles apply. And this was exactly the outcome in the
Tancredi case. Id. at 788-90...
"In an oft-cited case which predated Larsen by a few years,
Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d
964 (1986), the Court of Appeals of New York examined the
defense of primary implied assumption of risk in the
professional sports arena. The plaintiff, Ronald J.
Turcotte, was a famous and well-journeyed professional
jockey. He had ridden the incomparable Secretariat when that
horse won the Triple Crown in 1973. Turcotte was seriously
injured and rendered paraplegic when the horse he was riding
clipped the heels of another, tripped and fell. He sued
another jockey in the race, claiming that the other rider
had caused the accident by negligently and in violation of
New York Racing and Wagering Board rules crossing into
Turcotte's lane of travel. Turcotte also sued the owner and
operator of the Belmont Park racetrack, charging that uneven
watering of the track had made it hazardously muddy. Id. at
"The New York court stated its understanding of the general
doctrine of primary implied assumption of risk: The risk
assumed has been defined a number of ways but in its most
basic sense it means that the plaintiff, in advance, has
given his consent to relieve the defendant of an obligation
of conduct toward him, and to take his chances of injury
from a known risk arising from what the defendant is to do
or leave undone. The situation is then the same as where the
plaintiff consents to the infliction of what would otherwise
be an intentional tort, except that the consent is to run
the risk of unintended injury. The result is that the
defendant is relieved of legal duty to the plaintiff; and
being under no duty, he cannot be charged with negligence.
Id. at 967-68 (citations and internal quotation marks
"The New York court identified primary implied assumption of
risk as the category of assumption of risk implicated in
The doctrine has been divided into several categories but as
the term applies to sporting events it involves what
commentators call 'primary' assumption of risk. Risks in
this category are incidental to a relationship of free
association between the defendant and the plaintiff in the
sense that either party is perfectly free to engage in the
activity or not as he wishes. Defendant's duty under such
circumstances is a duty to exercise care to make the
conditions as safe as they appear to be. If the risks of the
activity are fully comprehended or perfectly obvious,
plaintiff has consented to them and defendant has performed
its duty. Plaintiff's 'consent' is not constructive consent;
it is actual consent implied from the act of the electing to
participate in the activity. When thus analyzed and applied,
assumption of risk is not an absolute defense but a measure
of the defendant's duty of care and thus survives the
enactment of the comparative fault statute. Id. at 968
"From these general principles, the New York court
promulgated principles of application in the sports context
that continue to resonate today.
"First, and generally, the defense applies to 'those
injury-causing events which are known, apparent or
reasonably foreseeable consequences of the participation[,]'
except for 'acts which are reckless or intentional.' Id.
(citations omitted). Clearly, a plaintiff's actual knowledge
of risk does not circumscribe the defense.
"Second, application of the defense differs with the
defendant. With respect to co-participant defendants, such
as the jockey whom Turcotte had sued, [w]hether a
professional athlete should be held under this standard to
have consented to the act or omission of a coparticipant
[sic] which caused his injury involves consideration of a
variety of factors including but not limited to: the
ultimate purpose of the game and the method or methods of
winning it; the relationship of defendant's conduct to the
game's ultimate purpose, especially his conduct with respect
to rules and customs whose purpose is to enhance the safety
of the participants; and the equipment or animals involved
in the playing of the game. The question of whether the
consent was an informed one includes consideration of the
participant's knowledge and experience in the activity
generally. Id. at 969.
"On the other hand, nonparticipant defendants, such as the
racetrack owner, owed the same general duty to those using
its property as to owners of real property generally, the
duty to exercise reasonable care under the circumstances.
Reasonable care may vary, however, depending upon the party
seeking relief and his purpose in being on the premises.
"[The racetrack owner's] duty to plaintiff is similarly
measured by [plaintiff's] position and purpose for being on
the track ... and the risks he accepted by being there. In
deciding whether plaintiff consented to the conditions which
existed at the time, the court should consider the nature of
professional horseracing and the facilities used for it, the
playing conditions under which horseracing is carried out,
the frequency of the track's use and the correlative ability
of the owner to repair or refurbish the track, and the
standards maintained by other similarly used facilities. Id.
at 970 (citations and internal quotation marks omitted).
"Last, the policy underlying the defense is 'the belief that
the law should not place unreasonable burdens on the free
and vigorous participation in sports[.]' Id. at 968
(citation and internal quotation marks omitted).
"Applying the foregoing principles, the New York court
decided that Turcotte's complaint should have been dismissed
as to all defendants. Id. at 966-67. It is worth noting that
in doing so, the court held that rules of the sport, even
those relating to safety, are rules and
consequences on their own terms which often address
instances of mere carelessness, and while worthy of
consideration in the application of the defense, do not
supplant the governing principles it enunciated. Id. at
"We hold that primary implied assumption of risk is a
discrete and complete defense where the defendant's conduct
at issue is an inherent risk of the sports activity. In
determining whether the defendant's conduct is an inherent
risk of the sports activity, we consider the nature of the
activity, the relationship of the defendant to the activity
and the relationship of the defendant to the plaintiff. A
defendant may be held liable to the plaintiff for creating
or countenancing risks other than risks inherent in the
sport, or for increasing inherent risks, and in any event
will be held liable for recklessly or intentionally
injurious conduct totally outside the range of ordinary
activity involved in the sport, but liability should not
place unreasonable burdens on the free and vigorous
participation in the sport." Foronda, et. al. v. Hawaii
Intern. Boxing Club, 96 Haw. at 60-66, 25 P.3d at 835-841.
The discussion in the Foronda case makes it clear that the type
of sport-related cases in which the defense of primary implied
assumption of risk has survived is the type of case in which an
injured athlete is suing a co-participant, a coach, an athletic
department, a premises owner, or an event sponsor for injuries
received due to the inherent risks involved in participating in a
sport. This is not a defense for the manufacture of a defective