Hebert v. Maryland Cas. Co.

369 So. 2d 708 (1979)

Nanette Renee HEBERT v. MARYLAND CASUALTY CO. et al.

No. 64183.

Supreme Court of Louisiana.

March 30, 1979.

Writ denied.

TATE, J., concurs and assigns reasons.

DIXON and DENNIS, JJ., would grant the writ.

TATE, Justice (concurring in the denial).

The result is correct. However, the fault of the victim that defeats recovery for harm occasioned by strict liability imposable upon the defendant involves a voluntary exposure to the risk with full knowledge and appreciation of the danger. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So. 2d 133, 140-141. The trier of fact could properly have found that the plaintiff, an experienced horsewoman had so assumed the risk.

Although the language of the court of appeal incorrectly suggests that the objective test of contributory negligence rather than the subjective test of assumption of the risk defeats a recovery based on strict liability, the result is correct. See Daniel v. Cambridge Mutual Fire Insurance Co., 368 So. 2d 810 (La.App. 2nd Cir. 1979) in which writs were denied this day, for a correct statement of the principles involved.