Williamson v. Smith’s Empirical Analysis

Citation profile

10 federal appellate · 103 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 117 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “[W]e have decided that there are two principal meanings of assumption of the risk. In one sense — hereafter called its “primary” sense — “it is an alternate expression for the proposition that the defendant was not negligent; i.e., either owed no duty or did not breach the duty owed.” [Citations omitted.] ****** In another sense — hereafter called its secondary sense — it “is an affirmative defense to an established breach of duty.” [Citations omitted.] * * * Assumption of risk in its secondary sense is in reality nothing more than contributory negligence.”

   2 later decisions quote this exact passage
   e.g. Lopez v. Ski Apache Resort · Thompson v. Ruidoso-Sunland, Inc.

2. “Assumption risk evolved in master and servant cases. As the United States Supreme Court has observed, it developed in response to the general impulse of the common law courts “to insulate the employer as much as possible from bearing the ‘human overhead’ which is an inevitable part of the cost — to someone — of the doing of industrialized business. The general purpose behind this development in the common law seems to have been to give maximum freedom to expanding industry.” ****** The doctrine, being a manifestation of laissez faire economics, was a subject of criticism even during its early years. [Citations omitted.] As Justice Frankfurter later noted in the Tiller case, supra: “ * * * The notion of assumption of risk as a defense — that is, where the employer concedely failed in his duty of care and nevertheless escaped liability because the employee had ‘agreed’ to ‘assume the risk’ of the employer’s fault — rested, in the context of our industrial society, upon a pure fiction.” ****** The reasonableness of insulating business from human overhead, however valid it may have been during the moment of the industrial revolution, now runs directly counter to current social policy, as typified by the underlying theory of modern workmen’s compensation legislation, both general and specifically in regard to the safety of work areas. ****** Finally, in the employer-employee frame of reference, the concept of assumption of risk is one hundred eighty degrees out of phase with our l”

   1 later decision quote this exact passage
   e.g. Gutierrez v. Kent Nowlin Construction Co.

3. ““We have examined the New Mexico cases on this subject and have concluded that each occasion which has heretofore; been the subject of 'assumption of risld in the secondary sense, could have been covered entirely by the reasonable man standard of contributory negligence. Defendant should not be allowed to plead contributory negligence twice. 'Once is enough.’ ’’ (Our emphasis) (Citation omitted) .■ ,v , --”

   1 later decision quote this exact passage
   e.g. Delgado Ex Rel. Delgado v. Alexander