Legal Opinion · Dissent
Friedman v. N. B. C. Motorcycle Imports, Inc.
Court of Appeals for the Second Circuit
Decided December 16, 1971No. Nos. 18-20, Dockets 71-1242, 71-1292 and 71-1293Published
1DissentMoore, Circuit Judge
I disagree with the majority that the district court’s failure to charge the jury on assumption of risk was harmless error; I would therefore reverse and remand for a new trial.
As the majority apparently concedes, it was clear error for the district court to fail to instruct the jury that recovery for plaintiff would be barred if they found that plaintiff did realize or should have realized the danger involved in photographing an oncoming motorcycle. This failure, however, the majority excuses on the ground that the contributory negligence charge was tantamount to an assumption of risk charge.
2Cases cited6 opinions
- Shields v. . Van Kelton Amusement Corp.New York Court of Appeals · 1920
- Nucci v. Warshaw Construction Corp.New York Court of Appeals · 1962
- Greelish v. New York Central RailroadNew York Court of Appeals · 1969
- Greelish v. New York Central RailroadAppellate Division of the Supreme Court of the State of New York · 1968
- Avery v. Order of St. Basil GreatAppellate Division of the Supreme Court of the State of New York · 1967
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