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St. Mary's Law Journal

Publisher

St. Mary's University School of Law

Abstract

Although Texas courts have commented on the harshness of “assumed risk” principles for quite some time, they have been reluctant to alter the situation. However, the Fifth Circuit decision in Messick v. General Motors Corporation may effectively serve to soften this well-established doctrine. Volenti non fit injuria, or “assumed risk,” will preclude recovery where the plaintiff voluntarily assumes a risk of injury arising from another’s negligence. One exception to the rule is the “hard choice” doctrine, which considers whether the defendant’s negligence left the plaintiff with a reasonable choice to avoid the danger. Interestingly, Texas courts refuse to extend the exception to instances of economic coercion in pure negligence actions, but as Messick suggests, economic coercion may still be viable against volenti in strict liability cases. In Messick, the Fifth Circuit determined that the plaintiff’s knowledge of and continued use of a vehicle purchased from General Motors did not preclude recovery on a products liability claim. The evidence showed that the plaintiff relied on the car for his livelihood and was not in the financial position to purchase another. Hence, his actions were involuntary. Doubtless, many will concede that the facts in this case arise all too frequently, and seldom would there be an instance without mitigating factors justifying the plaintiff’s assumed risk. For this reason, some scholars suggest that volenti be extensively narrowed to instances of an express agreement, or abolished entirely, as is the case in a growing number of jurisdictions. The controversies over volenti will become moot if Texas disposes of the doctrine and adopts comparative negligence principles. Conversely, if Texas retains the doctrine, then the state must restrict it. While Messick doesn’t introduce economic coercion as a defense to volenti in all instances, it may provide the impetus to allow such justification in the future.

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