Plotts v. Albert’s Empirical Analysis

Citation profile

18 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 18 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““ . . The doctrine of assumption of risk is based on the theory that there has been a voluntary acceptance of a risk, and such acceptance, whether express or implied, requires knowledge and appreciation of the risk. [Citing cases.] Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of risk; but where it merely appears that a person could or should have discovered the danger by the exercise of ordinary care, the defense is not assumption of risk but contributory negligence. ’ ’ It is now well settled in California that the doctrine of assumption of risk does not apply unless there is actual knowledge of the danger. Of course proof of such knowledge may be circumstantial. The instructions given told the jury wrongfully that the doctrine might apply and be a defense to the action even though Ward did not have knowledge of the risk if in the exercise of ordinary care he should have had knowledge. On this issue, therefore, the only remaining question is whether or not the error in giving the instructions was prejudicial to the point where the judgment appealed from must be reversed. We think it was. This was a case where the defense verdict might have been based upon a finding by the jury that respondent had not been guilty of wilful misconduct as that term is defined in the guest statute. (Veh. Code, § 403.) It might also have been based upon a finding by the jury that ”

   1 later decision quote this exact passage
   e.g. Ward v. Knapp