ABSTRACT
Better than any abstract definition, a case decided in New York in 1929 highlights the meaning of the term ‘assumption of risk’. The case is known as the ‘Flopper case’.1 A ‘Flopper’ is an attraction which could then and still can be found at fairgrounds. It consists of a belt moving upwards on which people step and either sit down or try to remain upright. Many do not manage to keep their balance and fall down, to the amusement of everyone standing by. The plaintiff, whom the judgment characterised as a ‘vigorous young man’, did just that: he stepped on the belt, fell down and suffered a fracture of his kneecap. Afterwards he sued the operators of the amusement park for damages. Cardozo CJ did not have much sympathy for the plaintiff:
A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name, above the gate, ‘the Flopper,’ was warning to the timid . . . One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary . . . The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.2
