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Meistrich v. casino arena attractions inc

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We found a good home for Peluchie our family cat for the last 18 months, with 2 months away now and then the 5 month trip to Tasmania in November it was just too complicated to keep him on Sonrisa — a very sad day when he left.

Our first stop in Seattle was to Denny and Rennies, our cruising friends from Columbia several years ago — such a warm welcome.

His first unaccompanied flight, we were so proud of him as he set off. An interesting time for Huon also as this was the first instance when they have been separated — in the end the parents stressing more than the boys!

As we did last year, a magic several days down at Stretch Island in Southern Puget Sound, July 4 th fireworks, kayaking, crabbing etc with Huon happily being a shadow to 3 older boys — now one of a pack taking on all the fashions and actions of the older boys.

Plenty of activities in Seattle over the next 6 weeks along with a pleasant offer to stay in their house in Vancouver from other cruising friends we met in Costa Rica in , Gary and Jeanine from High 5 — they are taking their yacht down to La Paz, and Costa Baja Marina over the summer.

Just the odd other yacht floating around. Two weeks just getting back into the cruising mode as we are now tied to the marina most of the time.

The highlight was the diving with seals at Isla Los Islotes, where the seals where very happy to perform for the camera with an apple as a toy.

A really wonderful trip with excellent weather. Last weekend we visited La Duna for an evening with several of our local Mexican families. This rustic and very environmentally friendly resort provides a magic location just to chill and chat for the children and adults that went very late into the evening.

February was rather quite, school runs, Mel studying all rather domestic. I popped down to Barra Navidad, south of Puerto Vallarta to bring Princess 1 back to La Paz, as expected on the nose most of the way so, double the time taken to get down there, some 3 days for some miles much of the time at around 7 knots.

A few days later to Cabo San Lucas so she could be hauled out for her yearly maintenance. We had a magnificent week with our dear friends from Monaco, Poala, Antoine and Daniel their 6 year old son.

Our new old two car family made arrangements easy. Mel was also busy for a few days helping arrange provisions for a couple of large yachts, something we might consider more of later on.

Finally we actually had some of that thing called work. Princess Two in the Caribbean was within days without a crew — Mel biting the bullet, agreed to come along for 4 weeks to cook.

Leaving the boys for such a time was a very big decision, but with our delightful La Paz friends and children Igor and Daniella we could feel they were in very safe hands.

Princess Two was in St Thomas the US Virgin Islands, the first demonstration trip was cancelled and the second charter with guest from Mexico city is best not talked about we did our best in trying conditions with untrained crew — the fact that the two Mexican crew were left tips and the 3 Anglo Saxons were not says it all — funny to experience a little discrimination on our side, makes one respect what other non-white Anglo Saxon cultures have to deal with.

Our taxi driver, Sobers, providing me with several hours of laughs as we went shopping for parts and food. With 4 crew for the mile trip from St Thomas to the Bahamas a couple of long nights, made longer by the 10 minute departure in the Turks and Caicos of the rather useless South African stewardess.

Now in Hurricane Hole Marina for the last day of a very quick two day hand over to the 4 new crew. Cipriano, our hard working and delightful Mexican mariner will stay until the boat heads to Florida in April.

Looking forward to being back on Sonrisa with the boys and Peluchie for the normal Easter cruise. As with last year we headed out to Playa Bonanza for a family week over Christmas.

Clear sunny, blue skies, a magic empty beach and just a few other yachts around made for a delightful and relaxing time. Trips to see the de commissioned aircraft carrier Midway and a trip to the expansive San Diego Zoo were the touristy highlights.

Our Friends Alex and Dariella sold us their old Mitsubishi Montero, which will deal with the Mexican roads and crazy traffic much better than the aging Subaru.

By train we headed north for a few days to Santa Barbara to see our old friends Kevin and Carolyn — what a magic house they have near the beach, with many Asian touches from their house in Bali.

We all had fun in this tranquil town, Mel particularly enjoying the shopping! After getting the Montero serviced we cruised down to La Paz via Mexico Highway 1 in sections worse than our country road to Bream Creek in Tasmania very dangerous and really a poor excuse for a highway.

Three nights along the way in San Quintin, San Ignacio and Loreto were magic, each hotel having plenty of character and hospitality.

The boys finally got back to school a week late but the travels more than made up for it, though they did seem to spend most of their time watching videos or on the Kindle.

A rather quiet few months during autumn, such a quick change from the hot summer. Daylight saving has finished, so dark mornings are over and the evenings are considerably longer, delightful to lie back on a cool evening with a good book.

I, unfortunately, was doing something rather strange — working. Thankfully only a few short trips involved as I would not last any longer!

The boys continue to progress well at school, their Spanish well ahead of mine. We think there was sufficient proof to take the issue to the jury.

There was evidence that defendant departed from the usual procedure in preparing the ice, with the result that it became too hard and hence too slippery for the patron of average ability using skates sharpened for the usual surface.

From plaintiff's account of his fall, a jury could infer the stated condition of the ice was the proximate cause. We however agree with defendant that the issue of contributory negligence was properly left to the trier of the facts.

Plaintiff had noted that his skates slipped on turns. A jury could permissibly find he carelessly contributed to his injury when, with that knowledge, he remained on the ice and skated cross-hand with another.

The remaining question is whether the trial court's charge with respect to assumption of risk was erroneous. The words "the proximate cause, rule of proximate cause" appear in the charge at a point at which they are unintelligible and at which "assumption of risk" doubtless was intended.

Plaintiff's counsel objected to the charge, making specific reference to the introduction of "proximate cause" in the court's treatment of assumption of risk and adding "It is confusing in my mind and I don't see how the jury can understand it.

We cannot exclude a likelihood that the trial judge unwittingly uttered the wrong phrase, and being unaware of the slip, failed to comprehend the objection made.

In these circumstances, we cannot disagree with the view of the Appellate Division. The Appellate Division also found the trial court failed to differentiate between assumption of risk and contributory negligence.

The Appellate Division added 54 N. His actions are such as to constitute a failure to use such care for his safety as the ordinarily prudent man in similar circumstances would use.

On the other hand, assumption of risk may involve no fault or negligence, but rather entails the undertaking of a risk of a known danger.

As we read the charge, the trial court expressed essentially the same thought, i. We think an instruction to that effect is erroneous in the respect hereinafter delineated.

The error is traceable to confusion in the opinions in our State. Assumption of risk is a term of several meanings. For present purposes, we may place to one side certain situations which sometimes are brought within the sweeping term but which are readily differentiated from the troublesome area.

Specifically we place beyond present discussion the problem raised by an express contract not to sue for injury or loss which may thereafter be occasioned by the covenantee's negligence, and also situations in which actual consent exists, as, for example, participation in a contact sport.

We here speak solely of the area in which injury or damage was neither intended nor expressly contracted to be non-actionable.

In this area, assumption of risk has two distinct meanings. In one sense sometimes called its "primary" sense , it is an alternate expression for the proposition that defendant was not negligent, i.

In its other sense sometimes called "secondary" , assumption of risk is an affirmative defense to an established breach of duty.

In its primary sense, it is accurate to say plaintiff assumed the risk whether or not he was "at fault," for the truth thereby expressed in alternate terminology is that defendant was not negligent.

But in its secondary sense, i. A discussion of the subject must start with the common-law action of a servant against his master, for it was there that assumption of risk emerged or at least was distinctly developed.

The master owed a duty to provide a reasonably safe place to work. If he discharged that duty, he was not liable for damages due to the inherent risks that remained.

The master, upon that postulate, was not negligent. He might be liable if he failed to warn the uninitiate of those inherent risks, 3 Labatt, Master and Servant 2 d ed.

Quite obviously, the expression simply stated in other terms the basic thought that the master had not breached his duty. Assumption of risk, in that sense, was not a separate defense.

It was not required to be pleaded and the burden of proof was not upon the master. On the contrary, the servant had to prove the injury was caused by a risk other than one inherent in a well-run establishment, that is to say, that the master was negligent.

That assumption of risk as thus used was not a separate defense but rather another way of saying the defendant was not negligent, is further evident from the frequent statement that a servant did not assume the risk of his master's negligence.

Hence if the servant established that his injury was caused by a risk created by the master's breach of duty to furnish a reasonably safe place to work, assumption of the risk in the primary sense necessarily was negated.

But the master could press an affirmative defense, as to which the burden of pleading and proof was his, that plaintiff should nonetheless fail because he voluntarily exposed himself to a risk negligently created by the master.

Unhappily, that defense was also called assumption of risk. Thus two utterly distinct thoughts bore the same label with inevitable confusion.

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Casino defendant , Meistrich plaintiff became injured after he fell. There was evidence that on the day of the incident Casino had prepared the ice in a manner that made it too hard and too slippery.

However, Meistrich was aware that his skates slipped on turns and yet he remained on the ice and skated until he fell. Meistrich sued Casino for negligence.

After a jury trial, the court instructed the jury that if Meistrich knew, or reasonably should have known of the risk or falling and becoming injured, then he assumed the risk and could not recover damages.

The jury found for Casino and Meistrich appealed. The appellate division reversed finding the trial court erred in giving its instruction regarding assumption of the risk.

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Thank you for your support! Casino Area Attractions, Inc. Supreme Court of New Jersey A. The rule of law is the black letter law upon which the court rested its decision.

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