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Jarrett v. Woodward Bros.5/25/2000
s own safety," id., so as to "relieve [Winston's of] 'all legal' duty" to him. Id. at 71 (citation omitted).
In evaluating the issue, we note the doctrinal underpinnings of assumption of risk. Unlike contributory negligence, which is based on the fault of the plaintiff, assumption of the risk "stands on a different theoretical footing." Sinai v. Polinger Co., 498 A.2d 520, 524 (D.C. 1985). "The plaintiff is not barred from recovering damages because of his 'fault,'" but on a theory that the plaintiff has "consciously relieved the defendant of any duty which he otherwise owed the plaintiff. Being under no duty, the defendant may not be charged with negligence." Id. Because the plaintiff is deemed to have waived the defendant's duty or consented to its breach, assumption of risk is applied only where "the plaintiff . . . subjectively know of the existence of the risk and appreciate its unreasonable character." Id. (citing Restatement (Second) of Torts § 496D (1965)). Where the duty which the defendant claims to have been waived by an injured plaintiff is imposed by statute, as here, we scrutinize whether the plaintiff voluntarily consented to incur the risk from which the statute sought to protect him. To make that case, a defendant must prove:
(1) that there was available to the [plaintiff] an alternative to encountering the risk; (2) that the [plaintiff's] choice between the risk and such alternative was fully voluntary; (3) that such alternative afforded the [plaintiff] the safety mandated by statute, rule or regulation; and (4) that the [plaintiff's] determination to encounter the risk was, under the circumstances, made with willful, wanton, or reckless disregard for his own safety. Martin, 395 A.2d at 74.
Thus, despite the fact that the legislature has deemed certain classes of persons in need of statutory protection, in certain circumscribed circumstances a defendant may be relieved of liability for breaching the statutory requirement if a member of the protected class has voluntarily chosen to encounter the risk from which the legislature sought to protect that person.
On the record before us, we cannot conclude, as our dissenting colleague suggests, that Adam Jarrett's conduct (assuming that a jury found it to be as the dissent characterizes) comes within the circumscribed circumstances of Martin so as to relieve Winston's of its statutory duty not to permit his drinking while at Winston's. The testimony of Adam's companions is that Adam had done some drinking earlier and was already intoxicated when he arrived at Winston's, where he continued to drink significant amounts of alcohol to the point of becoming "ridiculously drunk." In such a condition, which would have been apparent to Winston's, Adam was not able to make a "fully voluntary" choice to discontinue drinking. Moreover, in this case, there was no "alternative" that afforded the same protection as the statutory mandate. Without the protective intervention that the statute imposes on Winston's agents not to "permit [Adam's] consumption" of alcohol, Adam was on his own, at best dependent on his (also underage) companions to deflect him from further drinking. Thus, on the record before us, the defendants would not satisfy at least two of the four factors required by Martin to establish assumption of the risk in the face of a statutory obligation to protect from the risk purportedly assumed.
To preclude the liability of a tavern keeper on the theory that acceding to the request of an intoxicated underage patron as a matter of law relieves it of its statutory duty would strike at the heart of what the legislature intended to accomplish, which is precisely to impose an obligation on the liquor l
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