ISSUE: The issue is whether a person attempting a rescue who enters into a vehicle when the driver has informed the person that the driver has been drinking would be barred from recovering for injuries caused by the driver by the assumption of the risk statute.
RULE: The rule is that where a plaintiff voluntarily and knowingly assumes a risk, the defendant has a defense of assumption of the risk that precludes the plaintiff from recovering. The statute creates no exceptions for minors. However, one exception where the assumption of the risk defense does not apply has to do with an emergency situation. The emergency exception is reflected in the language of the statute because B did not voluntarily assume a risk created by the emergency.
APPLICATION: Here, based solely on the facts presented, an emergency exists because A has a broken leg and is incapable of walking and is helpless in the wilderness as night is falling. B, who has no other alternative because it is a lonely road and B has already waited for a long time before this one car has appeared, is reacting to that emergency and is trying to rescue A.
CONCLUSION: Therefore, because an emergency exists in a rescue situation, the assumption of the risk defense may not apply to B and B may seek a recovery from the driver for B's injuries.