On March 1, 2007, when Patterson’s superintendent arrived for work, he moved his excavator near the overhang and began excavating the blasted rock. AJC’s crew arrived sometime later and checked on the progress. AJC’s driller did not advise or warn the overhang was still dangerous because, according to the driller, Patterson’s superintendent knew it was dangerous. When AJC’s driller stopped by the area more than an hour later, he noticed the superintendent was working directly below the overhang so he signaled for him to exit the excavator. Almost immediately after exiting, an entire section of rock above the excavator collapsed and crushed it. The superintendent was not injured. AJC denied liability for the accident.

On September 11, 2007, Patterson filed suit. AJC denied all charges and counterclaimed for breach of contract and money owed. The case proceeded to a jury trial. The jury returned a verdict that AJC’s blasting caused Patterson’s damages regarding the crushed excavator, but Patterson and its employees assumed the risk of harm. The jury allocated fault 51% to AJC and 49% to Patterson, and awarded damages to Patterson of $50,000. The jury also ruled in favor of AJC’s breach of contract claim and awarded damages to AJC of $19,255.16. Patterson appealed the jury’s verdict regarding assumption of the risk.

The Montana Supreme Court examined the doctrine of assumption of the risk. The court determined that given Patterson’s superintendent’s knowledge of the danger of operating his excavator beneath the rock overhang, he possessed subjective knowledge of the danger the overhang posed. AJC’s personnel expressed concern to the superintendent about the rock overhang that eventually fell on the excavator and told him “it was a very hazardous” condition. Patterson’s superintendent testified that he “also, felt it was very hazardous.” In fact, he testified that placing the excavator “right underneath” the overhang would have been “very dangerous.” As a result, the court upheld the jury’s verdict.

This case illustrates the intersection of the doctrines of abnormally dangerous activities and assumption of the risk. Blasting is an abnormally dangerous activity resulting in strict liability. However, in Patterson, the superintendent’s subjective knowledge of the danger of operating his excavator beneath the rock overhang was enough to apply assumption of the risk. As a result, the blasting subcontractor, AJC, avoided what otherwise could have been a crushing defeat.

Assumption of the risk is a legal doctrine that can be used in a variety of contexts, including blasting and other activities involving an inherent risk of injury to voluntary participants. Its proper application, which varies depending upon the jurisdiction, can result in offsetting, and even negating, plaintiff’s claims.