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Voluntary Assumption of Risk – Volenti Non Fit Injuria

volenti non fit injuriaQ. A neighbor of mine was drunk in the hallways of our apartment building.  I took her in to be nice, but she ended up throwing up all over my couch!  Can I sue her for the cost of a new couch?

Warning, this question and answer is not for those easily grossed out!

At first glance this may seem to be straightforward. Your neighbor was reckless enough to get drunk. She vomited on your couch and therefore owes you for a new couch, right?  However, the law is never that simple.

There is a legal doctrine in latin known as volenti non fit injuria which means “to a willing person, no injury is done”. In more simple terms, it refers to one who voluntarily accepts the inherent risk of an endeavor.  A common example involves one who attends a sporting event.  While there is various case law on the issue, and each particular case depends on the circumstances, one can arguably claim that a fan in attendance at a baseball game would not be able to sue if he was sitting in the first row of the lowest level and got hit by an errant foul ball.  That is because he arguably voluntarily assumed the risk by attending a sporting event where he knew there would be stray and potentially dangerous foul balls in the area where he is sitting.

Applying this doctrine to your case, your neighbor can arguably claim that you voluntarily assumed the risk that she would vomit on your couch because you knew she was drunk!

However, she would have to demonstrate with reasonable medical evidence that drunkards indeed typically vomit.  While I am sure we all know drunken friends who have done so, does that mean you could have expected it to a necessary degree of certainty that it would happen?  The onus of proving this would be on her as the party claiming voluntary assumption of risk.

Further, even if she can prove this, she would have to prove that she was in the necessary drunken state to a point where she was going to throw up.  Perhaps, you can argue, her level of alcohol was lower than the usual point in which a drunkard would typically vomit.

Even if she could prove that drunkards are known to vomit, you may be able to argue that you were unaware of this medical fact.  After all, if you knew this, surely you would not have brought her into your apartment and placed her on your couch!  A good way of proving this would be to establish with witnesses that you personally do not get drunk often or socialize with drunkards and therefore had no reasonable idea that this person could vomit on your couch.

One final note is that even if you avoid the voluntary assumption of risk argument, you likely could not sue for the price of a brand new couch.  If it was a year old, for instance, the Small Claims Court will likely factor this in depending on the condition of the couch.

Also, the drunkard may argue that you should mitigate, i.e. lessen your damages, by having the couch cleaned rather than buying a new one.  However, I would hope a judge understands why you would no longer want to use such a couch!  As well, you should take pictures of the couch to show the extent of the vomit on it.  I pity the poor judge who has to look at the evidence!

The information herein should not be taken as legal advice and may have been changed since published. Do not treat information provided in the article as a recommendation to act or refrain from taking action, or as legal advice. The information provided is not a substitute for the assistance of a licensed legal advisor.