which presents obvious danger, the plaintiff may be taken to accept it, and to agree that he will look out for himself [and his property], and relieve the defendant of responsibility', Prosser, Torts, Sec. 51, pp. 377, 383. It may be noted in passing that the doctrine has found increasing application against participant and spectator plaintiffs who are injured in the course of sporting events, Rauch v. Pennsylvania Sports and Enterprises, Inc., 367 Pa. 632, 81 A.2d 548; Clark v. State, 195 Misc. 581, 89 N.Y.S.2d 132; Ingersoll v. Onondaga Hockey Club, Inc., 245 App.Div. 137, 281 N.Y.S. 505.
Libellant, in his brief, has anticipated this defense and argues that he did not assume the risk of damage resulting from negligence, unseaworthiness, or failure to comply with the rules under which the race was run. Assuming, arguendo, that there is sufficient evidence from which fault resulting from negligence of any of the respondents could be found, Prosser, again in Section 51 at page 385, says: 'It is also said on occasion * * * that the plaintiff never assumes the risk of defendant's negligence. Such a statement is a confusion in terms: if the plaintiff consents to the risk, there is no duty to him, and hence no negligence.'
As has already been stated, if a defect in the 'Captain Rocking Chair II' did in fact exist at the time of the race (and this fact is not at all clear in the record) so as to make it unseaworthy, said defect was not discoverable in the exercise of reasonable diligence by respondents. It may also be noted that if the defect then existed it was not of such nature as to affect the safe operation of the boat except possibly in the close quarters and at the high speeds imposed by racing.
Respondents in their answers to interrogatories admit of their belief that the race was run under the rules and auspices of the American Power Boat Association and their testimony confirms the holding of such belief. It may be taken that they therefore considered themselves bound by such rules. Whether the rules were in fact binding on the parties or not, it does not appear definitely that there was a violation of the rules up until the time and relative positions at which the boats were in extremis. Young Dunion's testimony indicates that he himself may have violated Rule XVI. This rule, which deals with overtaking, provides in part, '* * * the leading boat shall not alter her course so as to compel an overtaking boat to pass within the 10-foot limit.' Dunion's own testimony is that his boat was twenty-five feet from the buoy when struck and had been and was continuing on an arc which would keep him that distance from the buoy. Disregarding any restrictive effect of the 15-foot 'lanes' and assuming that he meant that the port gunwale rather than the center of his boat was twenty-five feet from the buoy, then in order for the 'Captain Rocking Chair II' to pass around the buoy, and yet keep ten feet of clear water between the 'Jay Dee' and herself, she would have been required to maintain an arc having a radius of not more than twelve feet (assuming the boats to be at least six feet wide). This means that a twenty-two foot boat would be turning on a twenty-four foot circle at thirty miles per hour or more. Dunion stated that he was not familiar with the provisions of this particular rule.
Libellant having chosen to enter his boat in a racing event in which he knew it would encounter high speed maneuvers in close proximity to other craft operating in rough and confused water must be left to bear the loss which has resulted. He will not be heard to say that he should recover because other drivers were less skillful than his or that other boats were groomed to a lesser degree of mechanical perfection than the 'Jay Dee' had been. These facts are precisely what he hoped to demonstrate by having his boat the first to cross the finish line.
As before stated, the Court's Findings of Fact and Conclusions of Law are set forth in the foregoing narrative. An exception is given to each party to the extent that the foregoing differs from the requested findings of fact and conclusions of law.
An order will be entered dismissing the libel.
© 1992-2004 VersusLaw Inc.