Wirtz v. Gillogly

Wirtz (plaintiff) volunteered, unpaid, to help his friend Dennis and Dennis's father David (defendants) fell trees near cable lines; after days of only stacking wood and observing Dennis wear a hardhat, Wirtz repeatedly declined a hardhat himself. When helping fell a specific tree designed to fall toward him (with an escape plan in place), the tree's trunk split mid-cut; the group discussed how to proceed, and Dennis offered Wirtz the chance to stop helping, but Wirtz chose to continue operating the cable ratchet. The tree split further and part of it struck Wirtz's head, injuring him. He sued for negligence, and the trial court granted the defendants summary judgment based on assumption of risk.

Whether implied primary assumption of risk bars a plaintiff from recovering for an injury if the plaintiff impliedly consents to relieve the defendant of a duty to him about specific, known, and appreciated risks, and the plaintiff engaged in conduct that implies consent.