The Three Wicked Sisters… that sounds like a good name for a nasty underwater rock formation. These three sisters actually involve a topic that students often see in the first year of law school. It refers to a trio of legal defenses commonly thrown at injury victims during the days of the Industrial Revolution.
The three sisters consisted of the following legal concepts: (1) contributory negligence (2) fellow-servant rule, and (3) assumption of risk. Even if not by these exact names, readers may recognize these legal doctrines in form and substance. The first means you can’t recover if you were partly to blame.
The second says a worker can’t recover for injuries against an employer if another worker was responsible. Workers’ compensation laws have made this more or less irrelevant. The third, assumption of risk, means you can’t recover when you knowingly accept the risks of your dangerous activity. Keep in mind that this was the nineteenth century, when children endured twelve-hour workdays in textile mills.
It was the last of these three legal doctrines, assumption of risk, which became an important issue during a sailboat race on San Francisco Bay many years ago. The race had been sponsored by the Yacht Racing Association of San Francisco Bay and the U.S. Sailing Association. A collision occurred between two of the sailboats as they rounded one of the marks.
One of the sailboats protested the collision. A committee was formed at the Corinthian Yacht Club and it disqualified the other sailboat under the International Yacht Racing Rules (IYRR). The amount of the claim was $25,000, consisting of damage to the boat and lost wages for the owner.
An issue raised in the ensuing lawsuit was the third element of this legal trio, assumption of risk. After all, “inherently dangerous” could be a very apt way to describe a setting where fast moving sailboats are vying with each other in close quarters like pounding racehorses running nose to nose.
While sailboat racing could be seen as a pleasant way to enjoy salt air and warm sunlight, the element of inherent danger is strong. We’re looking at massive pieces of fiberglass hurtling downwind with the force of freight trains, offering their crews an environment of tightly winched sails ready to burst at the seams, violently swinging booms, unwieldy spinnaker poles, and slippery decks whose slope could change as violently as the snap of a jibe.
But it wasn’t going to be that easy to attempt to apply this doctrine of assumption of risk here. The Fourth Circuit’s courts held that “the tenets of admiralty law, which are expressly designed to promote uniformity, do not permit assumption of risk in cases of personal injury whether in commercial or recreational situations. De Sole v. United States, 947 F.2d 1169 (1991). There is no assumption of risk defense in the context of a Jones Act seaman’s injury, Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424 (1939) or in the context of a recreational boating accident involving personal injury. Skidmore v. Grueninger, 506 F.2d 716 (1975).
The Supreme Court barred the doctrine of assumption of risk in commercial collisions. The California federal court here was confronted with the question of whether a sailboat race presented an exception to the rule. After examining applicable case law, the court decided that assumption of risk was not a valid defense under the general maritime law of the United States.
Assumption of risk is an interesting concept and it is still thrown at accident victims who engage in activities that are inherently dangerous. One has to keep in mind that this legal trio was borne out of the days when technology was changing rapidly. New forms of manufacturing and transportation were arriving on the scene, replacing horses with steam, and with them came new occupational and personal hazards.
Sometimes it can be interesting to look back in time to get a better understanding of how the laws we have today came to be. And sometimes it can be promising to look ahead in time with the best of hopes and aspirations for the coming year. The year we leave behind has been a difficult one for many. May the year ahead hold happiness, health, and the best of everything for all of you… Happy New Year! Tim, Erol
Ref: Manning v. Gordon and the and the yacht S/V NEVER AGAIN II, 853 F. Supp. 1187 (1994), U.S. District Court, Northern District of California