Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
This appeal brings up questions as to assumption of risk and negligence. It is taken by the plaintiffs from a judgment of the Superior Court, Law Division, dismissing their action at the close of their case.
On the day of the accident Mrs. Estelle Klinsky Mason, one of the plaintiffs, was apparently an invitee at a family outing for the employees of the defendant Hanson Van Winkle Munning Co., Inc. The outing was held on certain grounds operated from time to time for such purposes by the defendant Pines of Raritan Township, Inc. While standing near a softball field located on these grounds, she was hit in the face by a softball bat which had slipped from the hands of the defendant Anthony Seber. Seber had struck at a ball while up at bat, and the bat had sailed through the air
90 feet to where she was standing. Moreover, she was then 30 feet beyond first base and 15 feet outside the foul line.
The trial court, after careful consideration of the matter, found Mrs. Mason was barred as a matter of law by the doctrine of assumption of risk. The question before us is whether it was proper for the court to have dismissed the action against four of the defendants Seber, Pines, the company and Hanson Van Winkle Munning Athletic Association, Inc., or any of them. The appeal has been abandoned as against the defendants, Sweepstakes Realty Co., Inc., and Joseph Callahan.
Some have claimed that generally speaking the term assumption of risk adds nothing to the law but confusion, and that it should be abandoned. James, Assumption of Risk , 61 Yale L.J. 141, 169 (1952); Editorial, Assumption of Risk -- a False Issue , 73 N.J.L.J. 346 (1950). They point out -- others have observed this, too -- that the term has reference to at least two distinct concepts, each involving a different condition for its application.
In the first of these situations, the plaintiff has not been negligent. Restatement of Torts , § 466, comment d , § 893. However, the defendant is under no duty to warn him of the danger or to eliminate it or to take other precautions because the plaintiff has willingly assumed the risk -- sometimes through a contract expressly relieving defendant of liability, more often through an acceptance of the risk, implied from conduct. Volenti non fit injuria. The term assumption of risk in this sense is said to be superfluous, because it is merely expressive of a lack of duty on the defendant's part.
In the second situation above referred to, the plaintiff has been negligent in assuming the risk. Compare Nauman v. Central & Lafayette Realty Co., Inc. , 137 N.J.L. 428, 430 (Sup. Ct. 1948), affirmed 1 N.J. 124 (1948), with Saunders v. Smith Realty Co. , 84 N.J.L. 276, 280 (E. & A. 1913) (in the Saunders case the two concepts are kept separate). In this second sense, the term assumption of risk is said to be superfluous because it has reference merely to one form of contributory negligence. Restatement of Torts , § 466 (a).
Further, see Keeton, Personal Injuries Resulting from Open and Obvious Conditions , 100 U. Pa. L. Rev. 629, 633, 634, 648 (1952); Bohlen, Voluntary Assumption of Risk , 20 Harv. L. Rev. 14, 16 (1906); Seavey, Liability to One Aware of Danger , 65 Harv. L. Rev. 623, 624 (1952); Note, Liability of the Proprietors of a Baseball Park for Injuries to Spectators Struck by Batted or Thrown Balls , 1951 Wash. U.L.Q. 434, 442, 443; Pona v. Boulevard Arena , 35 N.J. Super. 148, 153 (App. Div. 1955). As to the English law, see Winfield, Torts (1954), 46.
Prosser concedes the soundness of the above analysis, but claims the term assumption of risk serves a useful purpose in both situations, for it focuses attention upon the fact that the plaintiff in both situations has voluntarily accepted the risk. Prosser, Torts (2 d ed. 1955), 305. In any event, it seems to us that the term is worth preserving in the sense first stated. For in that situation, though the assumption of risk gives rise to a lack of duty on the defendant's part, nevertheless (notwithstanding that the plaintiff usually has the burden of proving that the defendant owes him a duty) the defendant here has the burden of proving the assumption of risk -- that is, the burden of proving the lack of duty. See De Eugenio v. Allis-Chalmers Mfg. Co. , 210 F.2d 409, 413 (3 Cir. 1954), and James, supra , at 167 (indicating that defendant has the burden of proving assumption of risk in both senses of the term). Moreover the law bears down on the defense of assumption of risk (in both senses) to this extent: the court is not permitted to dismiss an action on the ground of assumption of risk except in the clearest case or where the requisite elements of the defense have been established clearly and conclusively. Rapp v. Public Service Coordinated Transport, etc. , 9 N.J. 11, 18 (1952); Scheirek v. Izsa , 26 N.J. ...