The South Carolina Supreme Court has ruled that a spectator at a hockey game may not sue when he is hit in the face by a puck, and cited Tennessee law in reaching its conclusion.
The South Carolina Court said: "Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inherent in a particular activity.” Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 333 S.C. 71, 81, 508 S.E.2d 565, 570 (1998) (emphasis in original).[1] The Davenport Court further explained the doctrine as follows:
Primary implied assumption of risk is not a true affirmative defense, but instead goes to the initial determination of whether the defendant’s legal duty encompasses the risk encountered by the plaintiff. . . .[T]he Tennessee Supreme Court summarized the doctrine in the following way:
In its primary sense, implied assumption of risk focuses not on the plaintiff’s conduct in assuming the risk, but on the defendant’s general duty of care. . . .Clearly primary implied assumption of risk is but another way of stating the conclusion that a plaintiff has failed to establish a prima facie case [of negligence] by failing to establish that a duty exists.
[Perez v. McConkey, 872 S.W.2d 897, 902 (Tenn. 1994)].
The Court went on to say that "[u]nder the doctrine of implied primary assumption of risk, Respondents’ duty of care did not encompass the risk involved. The risk of a hockey spectator being struck by a flying puck is inherent to the game of hockey and is also a common, expected, and frequent risk of hockey." The case was dismissed.
The case is Hurst v. East Coast Hockey League, Inc., Opinion No. 26222 (S.C. S. Ct. Nov. 13, 2006). You can read the opinion here.