• Homepage
»
• Torts
»
• Negligence

109. Assuming that the store has raised an assumption-of-risk defense and that both sides have filed summary judgment motions based on the facts set out above, how should the trial court rule?

The friend has sued the store for negligence. The jurisdiction has a system of modified comparative fault but also recognizes assumption of risk as a distinct and complete defense.

A moment later, the friend noticed that the padlock from the truck's rear doors had fallen to the dock floor between him and the truck. Without saying anything to the manager or the driver, the friend took several steps forward to retrieve the lock. At that instant, the manager succeeded in cutting the rope, and the boxes that had been held in place by the rope fell and hit the friend's head, injuring him.

The driver and the friend stood back as the manager opened the doors; no boxes fell out. With the doors open, all three observed a nylon rope that ran tightly across some of the boxes near the doors. As the manager began to cut through the rope, the driver, who with the friend remained at a distance, said, «Are you sure you want to do that?»

On this occasion, when the driver was about to open the rear doors, she observed through the doors' windows that some large boxes appeared to be pressed against the doors. At that point, she sought assistance. Two people who were on the loading dock responded to her request: the store's shipping manager and the manager's adult friend who was a former employee of the store and was visiting to catch up with the manager.

A delivery driver backed her truck up to the loading dock of a large home improvement store. Although it was not her job to unload the truck, the driver would sometimes open the truck's rear doors after parking it in position.