Gomes v. Byrne

CARTER, J.—I dissent.

I find nothing in the record to support the trial court’s finding that the plaintiff assumed the risk. As the majority correctly points out, one of the elements of the defense of assumption of risk is knowledge of the danger involved. This element is clearly absent in this case.

The majority has held that “the risk was obvious.” The sole predicate for its position is that “the dog had followed plaintiff along the fence for 50 feet, barking all the way.” To hold that this single piece of evidence is sufficient to show that the plaintiff had knowledge of the danger is…