Question

waldo fell asleep while cooking and his apartment caught on fire. his roommate, malcolm, was injured when he re-entered the burning apartment to save his sister from the fire. if mancolm Sue's waldo for his injuries, can waldo successfully defend himself based on assumption of risk?

Answer 1

No, Waldo will not be able to successfully defend himself based on assumption of risk.

In this case please note that Waldo is the defendant and Malcom is the plaintiff. In order for Waldo to successfully defend himself based on assumption of risk he must prove the following:

· Malcom (the plaintiff) had actual knowledge of the risk involved

· Malcom had accepted the risk voluntarily

Here the activity that caused the fire is cooking and Waldo acted negligently by falling asleep while cooking. Malcom did not participate in this activity of cooking in any manner and hence he cannot be held by law to have voluntary participated in an activity that led to his injuries. Malcom re-entered the apartment to just save his sister from the fire which was caused by the negligence act of Waldo.