Case Law Bonus Post: Duncan v. Kendall & Keith v. Mack

Duncan v. Kendall
Notes: This one should be nearly as clear as it is short: the analysis for determining whether or not a plaintiff was reckless is exactly the same as the analysis for determining whether or not a defendant’s conduct was reckless. The defense, in using an affirmative defense, is held to the same standard as the plaintiff is in proving their own case. It’s really that simple.

Keith v. Mack
Outline:

• The basis of the assumption of risk defense is the plaintiff’s voluntary consent to:
• Accept the risk and
• Look out for the plaintiff’s own well-being
• The assumption of risk affirmative defense requires a showing of actual, subjective awareness on the part of the plaintiff:
• A plaintiff does not assume a risk arising out of the defendant’s conduct unless the plaintiff:
• Actually knows of the existence of the risk and
• Appreciates its unreasonable character.

Notes: This case explicates the second affirmative defense described in Jackson. It reiterates the main description of the affirmative defense laid out in Jackson, but the big thing it explains is what exactly the defendant has to prove in order to prove that the plaintiff assumed a risk. Referring back to Motown Car Company v. Mink can clarify the point that they’re making here. In Motown, it was established that the plaintiff doesn’t have to prove that the defendant consciously knew their actions were reckless, merely that they “should have known” their actions were reckless. Keith is very different. It requires the defense to prove that the plaintiff had “actual, subjective awareness.” The defense needs to be able to show that this particular person really did know about the risk they were assuming- not just that a reasonable person would have known, or that this plaintiff could have known. Further, they need to show not only that the plaintiff knew about the risk but that the plaintiff “appreciated its unreasonable character.” It’s not precisely clear what proving that appreciation looks like, but presumably there would need to be evidence that the plaintiff understood the probability of harm, and/or the magnitude of the harm involved.