California, United States of America
The following excerpt is from Hacker v. City of Glendale, 16 Cal.App.4th 1419, 20 Cal.Rptr.2d 847 (Cal. App. 1993):
First, unlike contributory negligence, this defense employed a subjective test, not an objective, "reasonable person" standard. The defendant had to prove this particular injured person actually knew the risk. It was not enough to prove a reasonable person would know or should know the risk. "Under contributory negligence, the plaintiff's conduct was measured against the objective standard of a hypothetical reasonable person. (Citations omitted.) Implied assumption of risk, in contrast, has always depended upon the [16 Cal.App.4th 1431] plaintiff's subjective mental state; ..." (Knight v. Jewett, supra, 3 Cal.4th at pp. 327-328, 11 Cal.Rptr.2d 2, 834 P.2d 696, Kennard, J., dis.) Thus, in the instant case it was not enough to prove a reasonable tree trimmer would know the risk. It had to be proved this particular individual tree trimmer actually knew. 1
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