Summary of Verduce v. Board of Higher Education, Ct. of App. NY App Division, 
Implied Assumption of Risk
Relevant Facts: pl, Verduce, enrolled in a class Opera Workshop conducted under the auspices [authority] of df. During rehearsal pl was directed to exit, without looking down, by stepping down some twenty inches from the stage to the floor. Pl advised her instructor of the potential for harm. Df instructor advised pl that to look down would constitute a failure to comply with his direction and result in her loss of the role. PL in the act of doing so, twisted her left foot causing her to sustain injury.
Legal Issue(s): Whether the facts of the case support a finding of contributory negligence or assumption of risks by the pl?
Court’s Holding: Remand for trial ct jury to decide issues of fact.
Procedure: As a matter of law 1st trial ct dismissed, then S. Ct. App Div. affirmed, reversed by App Ct.
Law or Rule(s): For dismissal as a matter of law an absence of negligence on the df’s part, or either contributory negligence or an assumption of risk by pl.
Court Rationale: Pl made out a prima facie case of negligence. But the distinction between contributory negligence and assumption of risk is determined by issues of fact and there interpretations are left for a jury or finder of fact. When a person tries to escape a position which he was placed through the negligence of another he may do an act which has a foreseeable risk. The facts and circumstances of each case must determine whether there was an assumption of risk by the pl. The relationship between the parties must be given consideration. One was the instructor, the student. One was the director, the other was receiving directions. He was her superior whose orders she was obliged to follow. It was up to the jury to decide whether a reasonable and prudent person would consider the loss of opportunity to enjoy a future career as being more compelling as the loss of employment.
Assumption – doing an act knowing the possible or probable consequences of that act, where there is foresight of the consequences AND voluntary exposure to the danger.
Contributory – the doing of an act which in the circumstances a reasonably prudent person would not have done, AND where the danger is foreseeable although possibly the pl negligently failed to foresee it.