Restat 2d of Torts, § 496B

• Restatement of the Law, Second, Torts
• Division 2- Negligence
• Chapter 17A- Assumption of Risk
• § 496B Express Assumption of Risk

A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.

Comment:

a.  Assumption of risk by express agreement.  The risk of harm from the defendant's conduct may be assumed by express agreement between the parties. Ordinarily such an agreement takes the form of a contract, which provides that the defendant is under no obligation to protect the plaintiff, and shall not be liable to him for the consequences of conduct which would otherwise be tortious. It is not, however, essential that such an agreement be for consideration. A non-contractual consent, as in the case of one who rides on a train or enters a place of amusement on a pass, may be sufficient. The agreement may be a general one, relieving the defendant of all obligation to protect the plaintiff, or it may be limited to specific risks, as where the plaintiff stores his automobile in the defendant's garage during the winter, and it is agreed that the defendant is under no obligation to provide heat, and shall not be liable for harm to the car resulting from freezing.

b.  There is no general policy of the law which prevents the parties from agreeing that the defendant shall be under no such general or specific duty tothe plaintiff. As stated in § 892, the parties may agree that the defendant shall not be liable even for conduct intended to invade the plaintiff's interests. Likewise they may agree that the defendant shall not be liable for conduct which would otherwise be negligent or reckless. Where such an agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no social interest with which they interfere, it will generally be upheld. Thus the plaintiff may agree, for or without consideration, that an adjoining landowner may carry on blasting operations which involve such a high degree of risk of harm to the plaintiff's house that they would otherwise be considered reckless.

There are, however, certain agreements to assume the risk which, as stated in Comments e to j below, will not be enforced.

c.  In order for an express agreement assuming the risk to be effective, it must appear that the plaintiff has given his assent to the terms of the agreement. Particularly where the agreement is drawn by the defendant, and the plaintiff's conduct with respect to it is merely that of a recipient, it must appear that the terms were in fact brought home to him and understood by him, before it can be found that he has accepted them.

Illustration:

1. A, attending a theatre, checks his hat in B's check room. He is handed a ticket, on the back of which, in fine print, it is stated that B will not be liable for any loss or damage to the hat. Reasonably believing the ticket to be a mere receipt, A accepts it without reading it. B negligently loses the hat. A is not bound by the provision on the back of the ticket.

d.  In order for the agreement to assume the risk to be effective, it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm. Again, where the agreement is drawn by the defendant and the plaintiff passively accepts it, its terms will ordinarily be construed strictly against the defendant. In particular, general clauses exempting the defendant from all liability for loss or damage will not be construed to include loss or damage resulting from his intentional, negligent, or reckless misconduct, unless the circumstances clearly indicate that such was the plaintiff's understanding and intention. On the same basis, general clauses exempting the defendant from all liability for negligence will not be construed to include intentional or reckless misconduct, or extreme and unusual kinds of negligence, unless such intention clearly appears.

Illustrations:

2. A is given, and accepts, a pass permitting him to ride free on a train of B Railroad. The pass states on its face that A travels at his own risk, and that B Railroad shall not be liable to him for any negligence in the operation of the train. B's engineer recklessly operates the train at excessive speed around a curve, as a result of which the train is derailed and A is injured. A is not barred from recovery by the terms of the pass.

3. A stores goods worth $ 2,000 in B's warehouse. A is given a storage receipt, which recites that B's liability for any negligence which may result in loss or damage to the goods is limited to $ 100. By a negligent mistake, B misdelivers the goods to C. A brings an action against B for conversion of the goods. In the conversion action, A is not bound by the $ 100 limitation.

e.  Agreements contrary to public policy.  There are certain situations and relations in which theouts refuse to give effect to express agreements by which the plaintiff assumes the risk. Comments f to j below deal with some of these situations, which have arisen most frequently. The list is not an exclusive one, and there may be other situations and relations in which the policy of the law may lead to such a result.

f.  Employer and employee.  Where the defendant and the plaintiff are employer and employee, and the agreement relates to injury to the employee in the course of his employment, the courts are generally agreed that it will not be given effect. The basis for such a result usually is stated to be the disparity in bargaining power and the economic necessity which forces the employee to accept the employer's terms, with the general policy of the law which protects him against the employer's negligence and against unreasonable contracts of employment.

g.  Those charged with a duty of public service.  Where the defendant is a common carrier, an innkeeper, a public warehouseman, a public utility, or is otherwise charged with a duty of public service, and the agreement to assume the risk relates to the defendant's performance of any part of that duty, it is well settled that it will not be given effect. Having undertaken the duty to the public, which includes the obligation of reasonable care, such defendants are not free to rid themselves of their public obligation by contract, or by any other agreement. Such a defendant may, however, limit his liability, as stated in Comments h and i.

Since there is ordinarily no duty upon a common carrier or other public servant to render free service, the rule stated in this Comment usually has no application unless compensation is paid. Such compensation may, however, be received indirectly, or from other sources than the plaintiff.

Illustration:

4. A Company ships cattle over B Railroad. C, an employee of A Company, travels with the cattle as a caretaker. B Railroad issues to C a pass, which states that C is traveling free, and that he assumes all risks of injury, including those resulting from any negligence on the part of the Railroad. B Railroad operates its train negligently, and C is injured. The terms of the pass are not effective, since compensation for C's travel has been paid in the form of freight for the cattle.

h.  Valuations and liquidated damages.  Although a common carrier or other public servant is not free to contract away all liability for its failure to use proper care in the performance of its public duty, it may limit its liability to a valuation, or an amount of damages, agreed in advance. Such an agreement is one for liquidated damages, estimated at the time the agreement is made. As in the case of other agreements for liquidated damages, such a provision will be enforced if it is a fair and reasonable forecast as to the probable amount of the loss. Such valuations are common in the case of goods shipped by carrier or stored in a public warehouse, but there may be other agreements than those for the valuation of pproperty. Thus in the case of a telegraph message it may be agreed that all damages for negligence in transmission, including pecuniary loss and mental disturbance or its physical consequences, shall be limited to a fixed sum.

i.  Such an agreement on the part of a common carrier or other public servant will be upheld and enforced only if the patron is given the option of full protection upon proper payment of an alternative rate. Where no such option is given, the agreement is merely a compulsory limitation, although a partial one, upon the liability for failure to perform the public duty, and will therefore be held to be ineffective. The matter is now extensively regulated by statutes, which prescribe rates and control the limitation of liability.

j.  Disparity of bargaining power.  An express agreement for the assumption of risk will not, in general, be enforced where there is such disparity of bargaining power between the parties that the agreement does not represent a free choice on the part of the plaintiff. The basis for such a result is the policy of the law which relieves the party who is at such a disadvantage from harsh, inequitable, and unfair contracts which he is forced to accept by the necessities of his situation. The disparity in bargaining power may arise from the defendant's monopoly of a particular field of service, from the generality of use of contract clauses insisting upon assumption of risk by all those engaged in such a field, so that the plaintiff has no alternative possibility of obtaining the service without the clause; or it may arise from the exigencies of the needs of the plaintiff himself, which leave him no reasonable alternative to the acceptance of the offered terms.

Illustration:

5. In a crowded city, A drives his car around for half an hour without finding a place to park it. Having no other way to leave his car in order to transact important business, he drives it into B's garage. B gives him a ticket, of a type in general use in garages and parking places in the city, which states on its face that the car is left entirely at A's risk, and that B will not be liable for any loss or damage, even though it is due to his negligence. A reads the ticket and accepts it without comment. Through the negligence of B the car is stolen. The terms of the ticket are not effective to bar A's recovery from B for the loss of the car.

k.  See, for analogy, §§ 574 and 575 of the Restatement of Contracts.

This Section has been added to the first Restatement, in lieu of the old § 893, now omitted.

See generally, in support of the rule stated, Gonzales v. Baltimore & Ohio R. Co., 318 F.2d 294 (4 Cir. 1963); Quimby v. Boston & Me. R. Co., 150 Mass. 365, 23 N.E. 205, 5 L.R.A. 846 (1890); Atlantic Greyhound Lines v. Skinner, 172 Va. 428, 2 S.E.2d 441 (1939); Louisville & N. R. Co. v. George, 279 Ky. 24, 129 S.W.2d 986 (1939); Martin v. Greyhound Corp., 125 F. Supp. 362 (M.D. Tenn. 1954), reversed, 227 F.2d 501, 55 A.L.R.2d 761 (6 Cir.), certiorari denied, 350 U.S. 1013, 76 S. Ct. 657, 100 L. Ed. 873; O'Callaghan v. Waller & Beckwith Realty Co., 15 Ill. 2d 436, 155 N.E.2d 545 (1958); Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960); Hall v. Sinclair Ref. Co., 242 N.C. 707, 89 S.E.2d 396 (1955); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y. 2d 294, 220 N.Y.S.2d 962, 177 N.E. 2d 925 (1961); Griffiths v. Henry Broderick, Inc., 27 Wash. 2d 901, 182 P.2d 18, 175 A.L.R. 1 (1947); Nichols v. Hitchcock Motor Co., 22 Cal. App. 2d 151, 70 P.2d 654 (1937); Caita v. Windsor Bank, 251 N.Y. 152, 167 N.E. 203 (1929).

Illustration 1 is based on Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 29 Ohio Op. 426, 58 N.E.2d 658 (1944); Maynard v. James, 109 Conn. 365, 146 A. 614, 65 A.L.R. 427, 29 N.C.C.A. 249 (1929); Lebkeucher v. Pennsylvania R. Co., 97 N.J.L. 112, 116 A. 323 (1922), affirmed, 98 N.J.L. 271, 118 A. 926; Jones v. Great Northern R. Co., 68 Mont. 231, 217 P. 673, 37 A.L.R. 754 (1923); Dodge v. Nashville, C. & St. L. R. Co., 142 Tenn. 20, 215 S.W. 274, 7 A.L.R. 1229 (1919); Van Noy Interstate Co. v. Tucker, 125 Miss. 260, 87 So. 643 (1921).

Illustration 2 is based on Friedman v. Lockheed Aircraft Corp., 138 F. Supp. 530 (E.D. N.Y. 1956); Thomas v. Atlantic Coast Line R. Co., 201 F.2d 167 (5 Cir. 1953); Cooper v. Raleigh & G. R. Co., 110 Ga. 659, 36 S.E. 240 (1900); Wabash R. Co. v. Brown, 152 Ill. 484, 39 N.E. 273 (1894); Ringling Bros.-Barnum & Bailey Combined Shows v. Olvera, 119 F. 2d 584 (9 Cir. 1941). Compare, as to conversion by negligent misdelivery: Page v. Allison, 173 Okla. 205, 47 P.2d 134, 99 A.L.R. 261 (1935); Arizona Storage & Dist. Co. v. Rynning, 37 Ariz. 232, 293 P. 16 (1930); Menuez v. Julius Kindermann & Sons, Inc., 19 F. Supp. 7 (S.D. N.Y. 1937); Glinsky v. Dunham & Reid, 230 App. Div. 470, 245 N.Y.Supp. 359 (1930).

Comment f:  This is supported by Tarbell v. Rutland R. Co., 73 Vt. 347, 51 A. 6, 56 L.R.A. 656, 87 Am. St. Rep. 734 (1901); Blanton v. Dold, 109 Mo. 64, 18 S.W. 1149 (1891); Johnston v. Fargo, 184 N.Y. 379, 77 N.E. 388, 7 L.R.A. N.S. 537, 6 Ann. Cas. 1 (1906); Pittsburgh, C. C. & St. L. R. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, L.R.A. 1917D, 641, Ann. Cas. 1918B, 286, 17 N.C.C.A. 269 (1916); Hughes v. Warman Steel Casting Co., 174 Cal. 556, 163 P. 885 (1917).

Comment g is supported by Denver Consol. Elec. Co. v. Lawrence, 31 Colo. 301, 73 P. 39 (1903); Collins v. Virginia Power & Elec. Co., 204 N.C. 320, 168 S.E. 500 (1933); Oklahoma Natural Gas Co. v. Appel, 266 P.2d 442 (Okla. 1953); Reeder v. Western Gas & Power Co., 42 Wash. 2d 542, 256 P.2d 825 (1953); Bowman & Bull Co. v. Postal Telegraph-Cable Co., 290 Ill. 155, 124 N.E. 851 (1919), certiorari denied, 251 U.S. 562, 40 S. Ct. 342, 64 L. Ed. 415; Boston & Maine R. Co. v. Piper, 246 U.S. 439, 38 S. Ct. 354, 62 L. Ed. 820, Ann. Cas. 1918E, 469 (1918); Franklin v. Southern Pac. Co., 203 Cal. 680, 265 P. 936, 59 A.L.R. 118 (1928), certiorari denied, 278 U.S. 621, 49 S. Ct. 24, 73 L. Ed. 542; Oceanic Steam Nav. Co. v. Corcoran, 9 F.2d 724, 57 A.L.R. 163 (2 Cir. 1925).

Illustration 3 is based on New York Cent. R. Co. v. Lockwood, 17 Wall. (U.S.) 357, 21 L. Ed. 627 (1873); Buckley v. Bangor & Aroostook R. Co., 113 Me. 164, 93 A. 65, L.R.A. 1916A, 617 (1915); Weaver v. Ann Arbor R. Co., 139 Mich. 590, 102 N.W. 1037, 5 Ann. Cas. 764 (1905); Rogow v. United States, 173 F. Supp. 547 (S.D. N.Y. 1959).

Comment h:  This is supported by Hart v. Pennsylvania R. Co., 112 U.S. 331, 5 S. Ct. 151, 28 L. Ed. 717 (1884); Alair v. Northern Pac. R. Co., 53 Minn. 160, 54 N.W. 1072, 19 L.R.A. 764, 39 Am. St. Rep. 588 (1893); Greenwald v. Barrett, 199 N.Y. 170, 92 N.E. 218, 35 L.R.A. N.S. 971 (1910); Franklin v. Southern Pac. Co., 203 Cal. 680, 265 P. 936, 59 A.L.R. 118 (1928), certiorari denied, 278 U.S. 621, 49 S. Ct. 24, 73 L. Ed. 542; George N. Pierce Co. v. Wells Fargo & Co., 236 U.S. 278, 35 S. Ct. 351, 59 L. Ed. 576 (1914); George v. Bekins Van & Storage Co., 33 Cal. 2d 834, 205 P.2d 1037 (1949).

Comment j:  Illustration 5 is based on Miller's Mut. Fire Ins. Assn. of Alton v. Parker, 234 N.C. 20, 65 S.E.2d 341 (1951). See also Nagaki v. Stockfleth, 141 Neb. 676, 4 N.W.2d 766 (1942); Scott Auto & Supply Co. v. McQueen, 111 Okla. 107, 226 P. 372, 34 A.L.R. 162 (1924); Pilson v. Tip-Top Auto Co., 67 Or. 528, 136 P. 642 (1913); Denver Union Terminal R. Co. v. Cullinan, 72 Colo. 248, 210 P. 602, 27 A.L.R. 154 (1922); Hotels Statler Co. v. Safier, 103 Ohio St. 638, 134 N.E. 460, 22 A.L.R. 1190 (1921); Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (1963).

ALR Annotations:

Duty and liability of garage keeper to owner of car. 15 A.L.R. 681, 42 A.L.R. 135, 65 A.L.R. 431.
Carrier's liability in respect of baggage checked in parcel room. 7 A.L.R. 1234, 27 A.L.R. 157.
Responsibility of carrier for acts or omissions of redcaps, or porters other than train employees. 59 A.L.R. 126.
Validity of contractual provision by one other than carrier or employer for exemption from liability, or indemnification, for consequences of own negligence. 175 A.L.R. 8.

Digest System Key Numbers:

Contracts 114
Negligence 105