Langlois v. Allied Chemical Corporation

SUMMERS, Justice (dissenting). I agree that the assumption of risk doctrine may properly be invoked as a defense to strict liability. Therefore, a plaintiff who, with full knowledge and appreciation of the danger, voluntarily exposes himself to the risk and embraces the danger cannot recover damages for injury which may occur. I cannot agree, however, that plaintiff was unaware of or did not assume the risk under the facts of this case. Plaintiff was, at the time of his injury, a paid, trained fireman in the employ of the city of Baton Rouge. This occupation is generally and properly regarded as hazardous. Firemen are routinely exposed to risk of injury or death by the duties they are called upon to perform. One of their duties involves res'cue of persons endangered by harmful gas. Plaintiff had been taught to work in areas contaminated by gas and he was made aware of the nature of the risk involved. Proper use of safety breathing equipment was part of that training. One precaution this training emphasized was that firemen should assume the worst when in the presence of an unknown gas — the first rule of safety being to protect himself for, if disabled, he was rendered ineffective to perform his duties. This training stressed that the question of self-protection was a matter of individual judgment for firemen. In addition, the fire truck was equipped with breathing devices consisting of metal air tanks designed to be worn on a fireman’s back. They were held in place by •shoulder straps. A hose connected the oxygen in the tank to a full face mask. This device would make plaintiff’s duty as a truck driver impracticable, but if it was *1093 necessary for him to don the breathing apparatus, regulations permitted him to turn over his driving duties to someone else. Knowing that he was being called to a rescue mission involving dangerous gas, knowing the precautions he should take to protect himself and realizing that the possibility of injury was part of the risk of his employment as a fireman, plaintiff should not be permitted to recover in this case. McGee v. Adams Paper and Twine Co., 26 A.D.2d 186 , 271 N.Y.S.2d 698 (1966) appealed to Court of Appeal of N. Y., 19 N.Y.2d 673 , 278 N.Y.S.2d 864 , 225 N.E.2d 555 (1967) and Chesapeake & Ohio Ry. Co. v. Crouch, 208 Va. 602 , 159 S.E.2d 650 , cert. denied, 393 U.S. 845 , 89 S.Ct. 128 , 21 L.Ed.2d 115 (1968). It is no defense to the burden of care imposed on plaintiff by the doctrine of assumption of risk, to contend that other firemen took no precautions and received no injuries, and hence he could not be expected to avail himself of safety precautions, such as the use of the breathing apparatus. Especially is this so when plaintiff experienced definite physical reactions to the gas in time to protect himself, whereas the other firemen did not. Plaintiff was well aware, from his training, that tolerance of individuals to the ill effects of gas varied. I respectfully dissent.