Scory v. LaFave’s Empirical Analysis

Citation profile

2 federal appellate · 21 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 23 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Their assumption of these risks would completely bar the guests from recovering from the host, and it would be unnecessary to consider whether or not the evidence sustained a finding of contributory negligence on the part of the guests. However, it may be well to point out, in view of the thought expressed by the trial court in its Memorandum Decision, that assumption of risk and contributory negligence are distinct legal concepts. Assumption of risk is based on a consent to the prevailing and causal circumstances. Such consent may or may not evince a failure to exercise ordinary care. Contributory negligence, of course, always involves a failure to exercise ordinary care under the circumstances, including the duty owed by the actor to others. Since assumption of risk is not necessarily negligence, it is misleading to speak of adding it to contributory negligence, as the trial court did here, to determine that the negligence of the guests was at least equal to the negligence of the driver and therefore precluded recovery by the guests. * * *”

   1 later decision quote this exact passage · from the majority
   e.g. Krolikowski v. Allstate Insurance

2. ““Assumption of risk is considered to be a matter of contract, express or implied. Contributory negligence is a matter of conduct. In the ordinary case, the distinction between the two is plain. However, cases exist wherein assumption of risk shades into and even merges into negligence. Assumption of risk is not dependent on the probability or improbability, or the imminence or remoteness of danger. Where it exists it constitutes a defense whether in assuming the risk the servant exercised ordinary care or not. If the danger assumed was so imminent and apparent that a person of ordinary care and prudence would not assume it, the assumption of it amounts to and in fact is contributory negligence. The difference between the two is thus often a matter of degree rather than kind.””

   1 later decision quote this exact passage · from the majority
   e.g. Frei v. Frei