Ray v. Downes’s Empirical Analysis

Citation profile

10 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 10 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “"Risk is intrinsic to some acts.” Goepfert, 1997 SD 56, ¶ 8 , 563 N.W.2d at 143 . However this intrinsic risk is not unlimited. Certainly, Ray put himself in harm’s way by standing in a position to be run over. He frankly admitted as much. Nonetheless, he did not consent to relieve the driver of his subsequent duty to act with reasonable care. In the words of Prosser, "This is a distinction which has baffled a great many law students, some judges, and unhappily a few very learned legal writers.” Prosser & Keeton, The Law of Torts § 68, 485. It is here that there is the greatest misapprehension and confusion as to assumption of risk, and its most frequent misapplication. It is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic traveling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of the risk. And if A leaves an automobile stopped at night on the traveled portion of the highway, and his passenger remains sitting in it, it can readily be found that there is consent to the prior negligence of A, whose control over the risk has terminated, but not to the s”

   2 later decisions quote this exact passage
   e.g. Stone v. Von Eye Farms · Duda v. Phatty McGees, Inc.

2. “(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk. (2) The plaintiffs acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to (a) avert harm to himself or another, or (b) exercise or protect a right or privilege of which the defendant has no right to deprive him.”

   1 later decision quote this exact passage
   e.g. Duda v. Phatty McGees, Inc.