On Appeal from the District Court of the Virgin Islands Division of St. Thomas, D.C. Civil No. 81-0320
Before: Hunter, Weis, and Mansmann, Circuit Judges.
1. On February 15, 1981, Helene Smollett and her husband attended a fund-raiser at a skating rink owned by Skayting Development Corporation. Smollett, who was thirty-three years old at that time, is an experienced skater. Although she had not skated for the two years before she went to the appellant's rink, she had skated over fifty times in her life.
2. When Smollett and her husband entered the rink, they noticed that there were no guardrails. They discussed this with the owner, Les Cooper, who told them that this design was the practice at many new rinks to further safety by avoiding the use of guardrails which could became loose and collapse unexpectedly. Smollett did not take skating lessons although they were offered to everyone at the fund-raiser.
3. The skating area, which had a polyurethane surface, was raised three to five inches higher than the surrounding floor, which was carpeted. Smollett skated for about ninety minutes, until 7:50 p.m., without mishap. The rink was not overcrowded, with fifty to one hundred people skating. There were eight skateguards working that night and at least two were on the skating floor. Several signs reading "skate at your own risk" were posted in the rink. The skaters included many children and inexperienced skaters. At 7:50 p.m. Smollett's husband wished to leave. She told him she would join him after she took two last turns around the rink. On her last lap, Smollett skated behind a young child who fell. To avoid the child and a skater on her left, she swerved to the right onto the carpeted area. She fell and broke her left wrist. Her injury required surgery on the day of the accident and again one year later.
4. Smollett and her husband filed this suit against there rink. As a defense, Skayting asserted that Smollett had assumed the risk of injury. After a two day jury trial on December 17 and 18, 1984, the jury returned a verdict for Smollett but made no award to her husband. Because the jury found Smollett 50% at fault, her award was reduced from $50,000 to $25,000. The court denied Skating's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.
5. In considering a motion for a judgment notwithstanding the verdict, a court uses the same standard applied in considering a motion for a directed verdict. See Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 n.5 (3d Cir.), cert denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970). The district court must determine whether, as a matter of law, the record contains the "minimum quantum of evidence from which a jury might reasonably afford relief." Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969). As an appellate court, we must apply this same standard and determine whether there was sufficient evidence to permit the denial of a judgment notwithstanding the verdict. See Powell v. J.T. Posey Co., 766 F.2d 131, 134 (3d Cir. 1985); Acosta v. Honda Motor Co., 717 F.2d 828, 840-41 (3d Cir. 1983).
6. We hold that it was error to deny the skating rink's motion for judgment notwithstanding the verdict because there was insufficient evidence to find that Smollett had not assumed the risk of injury. The Virgin Islands has enacted a comparative negligence statute, V.I. Code Ann. tit. 5, § 1451 (Supp. 1985) and thereby removed the contributory negligence bar to recovery. Assumption of risk is still available as a complete defense to a negligence claim but it has been limited by enactment of the comparative negligence statute. Assumption of risk, to the extent it incorporates the concept of fault on the part of the actor and, therefore, overlaps with contributory negligence, is no longer available as a defense. However, assumption of risk can still be applied to "non-negligent conduct which constitutes waiver or consent" Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir. 1979) but which involved no negligence. In such cases the absolute bar to recovery remains.
7. The evidence in this case shows that Smollett fully understood the risk of harm to herself and voluntarily choose to enter the area of risk. See Restatement (Second) of Torts § 496C (1965). She, therefore, implicitly assumed the risk of injury. Smollett admitted that she was aware that there were no guardrails, that the skating area was covered with a smooth surface and was elevated, and that the area around the rink was carpeted. All of these circumstances were clearly visible as was the fact that young and inexperienced skaters were at the rink that day.
8. Smollett contends that she did not assume the risk because she was not aware of the dangerous condition created by the combination of three circumstances at the rink: 1) lack of guardrails; 2) elevated skating area; 3) difference in coefficient of friction between the skating surface and the surrounding carpeted area. We believe that Smollett was aware of the risk of falling when going from the skating area to the surrounding carpeted area. To reach the rink she had to walk on the carpeted area with her skates and, therefore, she had to be aware that the carpet slowed down the wheels on the skates. She had skated many times before and knew that other skaters might fall down in her path.
9. We conclude that Smollett assumed the risk of injury. We will reverse the judgment of the district court denying a judgment notwithstanding the verdict and direct the district court to enter ...