Hawaii’s highest courts have addressed the defense of “assumption of risk” as it applies in products liability actions. This is addressed in two leading cases: Larsen v. Pacesetter Systems, Inc., 71 Haw. 1, 837 P.2d 1273 (1992) and the recent case of Foronda v. Hawaii Intern’l Boxing Club, 96 Haw. 51, 25 P.3d 826 (Haw. App. 2001). Putting aside express assumption of risk, it appears that no aspect of the assumption of risk defense has survived the adoption in this jurisdiction of comparative negligence in products liability claims (whether those claims are based upon strict liability or implied warranty).

The explanation and reasoning for the decision to abolish “assumption of risk” from products liability actions is described at length by Chief Justice Herman T.F. Lum in the Larsen case and Justice John S.W. Lim in the Foronda case. The following is an extended quotation from Larsen v. Pacesetter Systems, Inc., supra, outlining the reasoning of the Supreme Court of the State of Hawaii in abolishing the “assumption of risk” defense in products liability cases:

“In this jurisdiction, principles of pure comparative negligence apply to strict products liability actions. Armstrong v. Cione, 69 Haw. 176, 180-83, 738 P.2d 79, 82-83 (1987); Hao v. Owens- Illinois, Inc., 69 Haw. 231, 236, 738 P.2d 416, 418-19 (1987). Under Armstrong, and our reasoning in part II. D. of this decision, we join those jurisdictions that have merged pure comparative negligence with personal injury suits in implied warranty. Armstrong, 69 Haw. at 180-83, 738 P.2d at 82- 83; Pepsi Cola Bottling Co. of Anchorage v. Superior Burner Serv. Co., 427 P.2d 833 (Alaska 1967); Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984); West v. Caterpillar Tractor Co., 336 So.2d 80 (Fla.1976). Where comparative negligence principles apply, assumption of risk that is a form of contributory negligence serves to reduce, rather than bar, plaintiff’s recoveries. See, Kaneko v. Hilo Coast Processing, 65 Haw. 447, 463, 654 P.2d 343, 352 (1982); Bulatao v. Kauai Motors, Ltd., 49 Haw. 1, 15, 406 P.2d 887, 895, reh’g denied, 49 Haw. 42, 408 P.2d 396 (1965). However, it is not clear from our previous decisions whether assumption of risk that is not a form of contributory negligence survives the merger of comparative negligence and products liability.

“The doctrine of assumption of risk has been a subject of much controversy and confusion, in large part because it encompasses, under the deceptively simple construct that a plaintiff has deliberately subjected himself to danger, the concepts of plaintiff’s consent, defendant’s lack of duty, and plaintiff’s contributory negligence. J. Wade, The Place of Assumption of Risk in the Law of Negligence, 22 La.L.Rev. 5, 14 (1961); see generally, F. James, Assumption of Risk, 61 Yale L.J. 141 (1952); Keeton, supra, 68 at 480. The defense is not a favored one and the trend in the law has been toward abolishing it. Blackburn, 348 So.2d at 289; F. Harper, F. James, & O. Gray, 4 The Law of Torts 21.0 n. 4 at 190 (2d ed. 1986); see generally, H. Woods, Comparative Fault 6 at 131-163, 499-788 (2d ed. 1987). The doctrine has been criticized as duplicative of more widely understood concepts such as duty and as adding “nothing to modern law except confusion,” James, supra, at 169; Wade, Assumption of Risk, supra, at 14; Harper, *35 supra, 21.0 at 193 (describing “The Battle of the Wilderness,” the name by which drafters of Restatement (Second) of Torts designated debate over whether to include the defense).

“Assumption of risk may be express, in the sense of an express contract. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo.1989) (express release waiving any claim as a result of physical injury incurred while horseback riding); Tunkl v. Regent of Univ. of Cal., 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441 (1963) (hospital patient’s express agreement to assume risks of medical negligence invalid as contrary to public policy); Schneider v. Revici, 817 F.2d 987 (2d Cir.1987) (statute recognizing “covenant not to sue”).

“Implied assumption of risk has been used in the context of negligence cases to describe two distinct theories under which a defendant may avoid liability. The “primary” sense of implied assumption of risk emerged, along with the global doctrine itself, out of the common law action of a servant against his master. Keeton, supra, 68 N. 1 at 480. Used in its primary sense, assumption of risk describes the act of a plaintiff, who has entered voluntarily and reasonably into some relation with a defendant, which plaintiff knows to involve the risk. It is an alternate expression of the proposition that a defendant owes no duty to a plaintiff. Restatement (Second) of Torts, 496A comment c; Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 48, 155 A.2d 90, 93 (1959). [footnote omitted] Primary implied assumption of risk may be illustrated by the case in which a plaintiff has been injured as a natural incident of engaging in a contact sport. It may also be seen in the act of a spectator entering a baseball park, thereby consenting that the players proceed without taking precautions to protect her from being hit by the ball. Restatement (Second) of Torts, 496A, comment c; Ordway v. Superior Court, 198 Cal.App.3d 98, 105, 243 Cal.Rptr. 536 (1988).

“In its ‘secondary’ sense, implied assumption of risk focuses on a plaintiff’s conduct, and describes a situation where plaintiff knows of the danger presented by a defendant’s negligence and proceeds voluntarily and unreasonably to encounter it. Meistrich, 31 N.J. at 53, 155 A.2d at 93-94; Restatement (Second) of Torts, 496A comment c. A plaintiff’s assumption of risk is unreasonable, and a form of contributory negligence, where the known risk of harm is great relative to the utility of plaintiff’s conduct. Restatement (Second) of Torts, 496A comment c. It is implied assumption of risk in this secondary sense, i.e. unreasonable assumption of risk, that has been merged with comparative negligence by the decisions of this court in products liability cases.

“We conclude that express assumption of risk survives the merger with comparative negligence in products liability cases and hold that express assumption of risk is available as a separate defense that may bar plaintiff’s recovery in tort and warranty strict products liability actions. Express assumption of risk is essentially contractual in nature and does not conflict with the basic concept of apportionment under comparative fault involving negligence. Keeton, supra, 68 at 496; A. Best, Comparative Negligence Law 4.20[2] at 444 (1992). Thus, courts abolishing implied assumption of risk under comparative negligence have recognized the continued vitality of express assumption, see Valley Nat’l Bank v. National Ass’n for Stock Car Auto Racing, Inc., 153 Ariz. 374, 736 P.2d 1186 (Ct.App.1987); Farley v. MM Cattle Co., 529 S.W.2d 751 (Tex.1975); Black v. District Bd. of Trustees, 491 So.2d 303 (Fla.App.1986); the same is true in jurisdictions in which comparative negligence statutes have expressly abolished the defense of assumption of risk. See, e.g., Blair v. Mt. Hood Meadows Dev. Corp., 291 Or. 293, 630 P.2d 827, reh’g denied, 291 Or. 703, 634 P.2d 241 (1981).

“However, we join those courts that have abolished primary implied assumption of risk in strict products liability and implied warranty actions for personal injury and have retained secondary implied assumption of risk solely as a form of contributory negligence to be compared against defendant’s fault. [footnote omitted] [emphasis added] Setting express assumption of risk to one side, we limit the following analysis to implied assumption of risk. Under the merger of comparative negligence and implied assumption of risk, only reasonable implied assumption of risk remains as a potential bar to a plaintiff’s recovery. Accordingly, if the concept of primary implied assumption of risk were retained by this court, it would bar recovery only where plaintiff’s primary implied assumption was also reasonable. [footnote omitted] The concept of reasonable primary implied assumption of risk makes sense in the products liability context under one set of circumstances–where plaintiff is injured while reasonably using a product that is not defective, e.g., plaintiff has reasonably assumed the risk of being cut while using an ordinary knife. However, as applied to a defective product, the concept is absurd; if a plaintiff is injured while reasonably using a defective product, a defendant should not be relieved of liability. Indeed, a defective product is one that causes injury when it is used in a reasonable manner, and the tort and implied warranty doctrines of products liability were designed to compensate plaintiffs for these very injuries. We therefore decline to retain the concept of reasonable primary implied assumption of risk where it unnecessarily duplicates the “defect” analysis and has the clear potential to generate confusion and error. To the extent that there may be unreasonable primary implied assumption of risk, we find that the policy it represents–the notion that no duty is owed–has been rendered invalid by the merger of comparative negligence and implied assumption of risk. See Armstrong, 69 Haw. at 182, 738 P.2d at 82-83. We consequently hold that in implied warranty and strict products liability tort actions, the concept of primary implied assumption of risk is abolished, and implied assumption of risk provides a defense to liability only when plaintiff’s “assumption of risk” is a form of contributory negligence. [emphasis added] Cf. Restatement (Second) of Torts, supra, 402A comment n at 356 (contributory negligence). ” Larsen, supra, 74 Haw. 33-39, 837 P.2d 1289-1292.

Similarly, in Foronda v. Hawaii Intern’l Boxing Club, supra, the Hawaii Supreme Court went on to say:

“In Larsen, the question was, whether the various forms of assumption of risk survived the advent of comparative negligence in products liability cases. Id. at 34, 837 P.2d at 1290. The supreme court concluded that express assumption of risk survived, but that implied assumption of risk did not. With respect to the latter holding, the supreme court first concluded that the application of primary implied assumption of risk is absurd in the context of ‘implied warranty and strict products liability tort actions’… The supreme court then concluded that secondary implied assumption of risk, or what it termed ‘unreasonable primary implied assumption of risk,’ was subsumed in, and therefore merged with, the concept of comparative negligence.” 96 Haw. at 58, 25 P.3d at 833.

Hence, in this jurisdiction there is no independent secondary assumption of risk, since secondary assumption of risk is better viewed as part of the comparative negligence doctrine. “Assumption of risk is a form of contributory negligence.” Cir. 1993). “… assumption of risk that is a form of contributory negligence…” Larsen v. Pacesetter Systems, Inc., 74 Haw. 34 (1992). “plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence.” Record v. Reason, 73 Cal.App. 4 472 at 476 (1999).

Sports Venue Primary Assumption of Risk Not Applicable in Products Liability Cases.

As mentioned above, the Hawaii Appellate Courts have further addressed the “assumption of risk” defense in the Foronda v. Hawaii Intern’l Boxing Club, supra, case. This case is important because it discusses the “assumption of risk” defense in sports and sports-related litigation. Primary assumption of risk in the sports context involves assumption of the risk by one participant of the risks of being injured by another participant, a sponsor or a property owner. (Skiing, touch football, horse training, golf, etc.) Record v. Reason, 73 Cal.App. 4 472 (1999), Bjork v. Mason, 77 Cal.App. 4 544 (2000), Campbell v. Derylo, 75 Cal.App. 4 823 (1999), Wright v. Mt. Mansfield Lift, 96 F.Supp. 786 (D.Vt. 1951). The doctrine’s purpose is to prevent a chilling effect on sports participation and promotion arising out of the threat of a lawsuit from known risks of the sport. It does not go to the provision of defective equipment for use in sports activities.

The following discussion is taken from the Foronda case.

“Shortly after Larsen was decided, the United States District Court for the District of Hawai’i, in Tancredi v. Dive Makai Charters, 823 F.Supp. 778 (D.Hawai’i 1993), overruling on other grounds recognized by, McClenahan v. Paradise Cruises, Ltd., 888 F.Supp. 120 (D.Hawai’i 1995), a diving fatality case, discussed Larsen and concluded that ‘[t]he Hawaii Supreme Court has not yet addressed implied assumption of risk, either secondary or primary, in the context of recreational sports.’ Id. at 788 (footnote omitted). Because it was sitting in diversity, the federal court exercised its ‘best judgment in predicting’ that ‘the Hawaii Supreme Court would allow the defense [of primary implied assumption of risk] in an appropriate sports-related case.’ Id. (citation and internal quotation marks omitted).

“In making its prediction, the Tancredi court reasoned that primary implied assumption of risk contemplates a plaintiff who reasonably chooses to bear a particular risk of harm. Conversely, the defendant owes no legal duty to protect the plaintiff from any harm that risk may entail. There being no legal duty to breach, there can be no talk of negligence, Bidar v. Amfac, Inc., 66 Haw. 547, 551, 669 P.2d 154, 158 (1983) (‘it is fundamental that a negligence action lies only where there is a duty owed by the defendant to the plaintiff’ (citations omitted)), and thus, primary implied assumption of risk remains a discrete and complete defense quite apart from comparative negligence. As stated by the Tancredi court, ‘[a]ssumption of the risk acts as a complete bar where plaintiff’s conduct in assuming a particular risk was reasonable (for instance, where a spectator chooses to attend a baseball game and as a consequence is injured by a stray ball). A successful pleading of assumption of the risk precludes a finding of breach of duty. See Comment Note–Distinction Between Assumption of Risk and contributory [sic] Negligence, 82 A.L.R.2d [1218] 1227, citing Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959).’ Tancredi, 823 F.Supp. at 788-89. On the other hand, secondary implied assumption of risk refers to a plaintiff’s unreasonable decision to confront a risk of harm created by the defendant’s negligence. The balancing of respective faults in those circumstances is quintessential comparative negligence and hence, subsumed therein, leaving no residue of independent existence for the defense of secondary implied assumption of risk: ‘In secondary implied assumption of risk, the inquiry is whether or not plaintiff’s conduct was unreasonable. It is a form of contributory negligence and the question is to what extent did Tancredi breach a duty of care for his own safety. In Hawaii, secondary implied assumption of risk is a form of comparative negligence to be compared against defendant’s fault. ‘Where comparative negligence principles apply, assumption of risk that is a form of contributory negligence serves to reduce, rather than bar, plaintiff’s recovery.’ Larsen 837 P.2d at 1290[sic], citing Kaneko v. Hilo Coast Processing, 65 Haw. 447, 463, 654 P.2d 343, 352 (1982); Bulatao v. Kauai Motors, Ltd., 49 Haw. 1, 15, 406 P.2d 887, 895, reh’g denied, 49 Haw. 42, 408 P.2d 396 (1965). The trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibilities of the parties.’ Id. at 790.

“The upshot of the rationale is, that if primary implied assumption of risk does not completely bar the plaintiff in any particular case, then general comparative negligence principles apply. And this was exactly the outcome in the Tancredi case. Id. at 788-90…

“In an oft-cited case which predated Larsen by a few years, Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (1986), the Court of Appeals of New York examined the defense of primary implied assumption of risk in the professional sports arena. The plaintiff, Ronald J. Turcotte, was a famous and well-journeyed professional jockey. He had ridden the incomparable Secretariat when that horse won the Triple Crown in 1973. Turcotte was seriously injured and rendered paraplegic when the horse he was riding clipped the heels of another, tripped and fell. He sued another jockey in the race, claiming that the other rider had caused the accident by negligently and in violation of New York Racing and Wagering Board rules crossing into Turcotte’s lane of travel. Turcotte also sued the owner and operator of the Belmont Park racetrack, charging that uneven watering of the track had made it hazardously muddy. Id. at 966.

“The New York court stated its understanding of the general doctrine of primary implied assumption of risk: The risk assumed has been defined a number of ways but in its most basic sense it means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. The situation is then the same as where the plaintiff consents to the infliction of what would otherwise be an intentional tort, except that the consent is to run the risk of unintended injury. The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence. Id. at 967-68 (citations and internal quotation marks omitted).

“The New York court identified primary implied assumption of risk as the category of assumption of risk implicated in sporting events:

The doctrine has been divided into several categories but as the term applies to sporting events it involves what commentators call ‘primary’ assumption of risk. Risks in this category are incidental to a relationship of free association between the defendant and the plaintiff in the sense that either party is perfectly free to engage in the activity or not as he wishes. Defendant’s duty under such circumstances is a duty to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. Plaintiff’s ‘consent’ is not constructive consent; it is actual consent implied from the act of the electing to participate in the activity. When thus analyzed and applied, assumption of risk is not an absolute defense but a measure of the defendant’s duty of care and thus survives the enactment of the comparative fault statute. Id. at 968 (citations omitted).

“From these general principles, the New York court promulgated principles of application in the sports context that continue to resonate today.

“First, and generally, the defense applies to ‘those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation[,]’ except for ‘acts which are reckless or intentional.’ Id. (citations omitted). Clearly, a plaintiff’s actual knowledge of risk does not circumscribe the defense.

“Second, application of the defense differs with the defendant. With respect to co-participant defendants, such as the jockey whom Turcotte had sued, [w]hether a professional athlete should be held under this standard to have consented to the act or omission of a coparticipant [sic] which caused his injury involves consideration of a variety of factors including but not limited to: the ultimate purpose of the game and the method or methods of winning it; the relationship of defendant’s conduct to the game’s ultimate purpose, especially his conduct with respect to rules and customs whose purpose is to enhance the safety of the participants; and the equipment or animals involved in the playing of the game. The question of whether the consent was an informed one includes consideration of the participant’s knowledge and experience in the activity generally. Id. at 969.

“On the other hand, nonparticipant defendants, such as the racetrack owner, owed the same general duty to those using its property as to owners of real property generally, the duty to exercise reasonable care under the circumstances. Reasonable care may vary, however, depending upon the party seeking relief and his purpose in being on the premises.

“[The racetrack owner’s] duty to plaintiff is similarly measured by [plaintiff’s] position and purpose for being on the track … and the risks he accepted by being there. In deciding whether plaintiff consented to the conditions which existed at the time, the court should consider the nature of professional horseracing and the facilities used for it, the playing conditions under which horseracing is carried out, the frequency of the track’s use and the correlative ability of the owner to repair or refurbish the track, and the standards maintained by other similarly used facilities. Id. at 970 (citations and internal quotation marks omitted).

“Last, the policy underlying the defense is ‘the belief that the law should not place unreasonable burdens on the free and vigorous participation in sports[.]’ Id. at 968 (citation and internal quotation marks omitted).

“Applying the foregoing principles, the New York court decided that Turcotte’s complaint should have been dismissed as to all defendants. Id. at 966-67. It is worth noting that in doing so, the court held that rules of the sport, even those relating to safety, are rules and

consequences on their own terms which often address instances of mere carelessness, and while worthy of consideration in the application of the defense, do not supplant the governing principles it enunciated. Id. at 969-70…

“We hold that primary implied assumption of risk is a discrete and complete defense where the defendant’s conduct at issue is an inherent risk of the sports activity. In determining whether the defendant’s conduct is an inherent risk of the sports activity, we consider the nature of the activity, the relationship of the defendant to the activity and the relationship of the defendant to the plaintiff. A defendant may be held liable to the plaintiff for creating or countenancing risks other than risks inherent in the sport, or for increasing inherent risks, and in any event will be held liable for recklessly or intentionally injurious conduct totally outside the range of ordinary activity involved in the sport, but liability should not place unreasonable burdens on the free and vigorous participation in the sport.” Foronda, et. al. v. Hawaii Intern. Boxing Club, 96 Haw. at 60-66, 25 P.3d at 835-841.

The discussion in the Foronda case makes it clear that the type of sport-related cases in which the defense of primary implied assumption of risk has survived is the type of case in which an injured athlete is suing a co-participant, a coach, an athletic department, a premises owner, or an event sponsor for injuries received due to the inherent risks involved in participating in a sport. This is not a defense for the manufacture of a defective product.