Domenico De Sole v. United States of America, Chesapeake Bay Yacht Racing Association, United States Yacht Racing Union, Incorporated, Amici Curiae

The majority holds that assumption of risk does not apply to the “facts as presented.” I believe assumption of risk should apply to preclude recovery by one racing yacht from another when ordinary negligence is claimed. Because only ordinary negligence was pleaded, the “facts as presented” require us to say that assumption of risk should apply in this case. Therefore, I respectfully dissent.1

The majority remands, in part, for the district court to determine whether the Navy may have been guilty of gross negligence. But the issue of gross negligence is raised for the first time by the majority…