Williamson v. Smith

• Decision Date: 13 December 1971
• Docket Number: No. 9243,9243
• Citation: 83 N.M. 336,1971 NMSC 123,491 P.2d 1147
• Parties: John A. WILLIAMSON and Royal Globe Insurance Group, Petitioners, v. E. J. SMITH, d/b/a E. J. Smith Plumbing & Heating and J. R. Trenching and Excavating Company, Inc., Respondents.
• Court: New Mexico Supreme Court

Page 1147

491 P.2d 1147

83 N.M. 336

John A. WILLIAMSON and Royal Globe Insurance Group Petitioners, v. E. J. SMITH, d/b/a E. J. Smith Plumbing & Heating and J. R Trenching and Excavating Company, Inc. Respondents.

No. 9243.

Supreme Court of New Mexico.

Dec. 13, 1971.

Rehearing Denied Jan. 10, 1972.

Sutin, Thayer & Browne, Irwin S. Moise, Albuquerque, for petitioners.

Ideen & Johnson, J. J. Monroe, Albuquerque, for respondent Smith.

Civerolo, Hansen & Wolf, Albuquerque, for respondent J. R. Trenching & Excavating Co.

OPINION

STEPHENSON, Justice.

The plaintiff, Williamson, a journeyman plumber, sought damages against E. J. Smith, a master plumber, and J. R. Trenching and Excavating Company (J.R.), for injuries which he received from a cave-in while he was laying pipe in the bottom of a trench.

The particular work was part of a construction project of Warren Properties, who had hired Smith to do the plumbing work. Smith, in turn, had hired plaintiff through an arrangement with a local union. J. R. had cut the trench.

Williamson, in his complaint, alleged that his injuries were caused by the negligence of both Smith and J. R. in their failure to shore and crib the trench. Smith and J. R. alleged both contributory negligence and assumption of risk on the part of Williamson. The trial court granted defendants' motion for summary judgment, holding that Mr. Williamson, as a matter of law, had assumed the risk of injury which he suffered. On appeal, the Court of Appeals affirmed. Williamson v. Smith, 82 N.M. 517, 484 P.2d 359 (1971). We granted certiorari and reverse.

Mr. Williamson asserts that the trial court and Court of Appeals have failed to take into account the feature of economic coercion engrafted by our precedents upon the law pertaining to assumption of risk. However, we need not decide this issue in view of our conclusion that a larger question exists which should be resolved by us. That question is whether 'assumption of risk' should any longer be recognized as a defense in New Mexico, even assuming that it ever, in truth, differed from ordinary contributory negligence. We have decided that assumption of risk should no longer be recognized as an affirmative defense.

Many courts and writers who have considered the precedents dealing with assumption of risk have commented upon the confusion which attends it. Some courts seem to use the term interchangeably with contributory negligence, others have decided it is synonymous with contributory negligence, while others attempt to distinguish the two defenses. See Annot., 82 A.L.R.2d 1218 (1962). Justice Frankfurter, in a concurring opinion in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943), commented upon this confusion as follows:

'The phrase 'assumption of risk' is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.'

Numerous reasons doubtless exist for the confusion, entirely apart from the semantical consequences of attempting to distinguish things which are the same. Assumption of risk is supposedly the voluntary exposure of oneself to a danger which is, or should be, known. Uniform Jury Instruction 13.10. What, we inquire, does this amount to other than a failure to exercise ordinary care for one's own safety (i.e., negligence, Uniform Jury Instruction 12.1) which bars recovery by a plaintiff? (Contributory negligence, Uniform Jury Instruction 13.1.) It is sometimes said that contributory negligence involves conduct whereas assumption of risk involves a mental state of willingness or deliberation. We fail to see the significance of a 'mental state of willingness' unless it is manifested by 'conduct.'

Assumption of risk evolved in master and servant cases. As the United States Supreme Court has observed, it developed in response to the general impulse of the common law courts 'to insulate the employer as much as possible from bearing the 'human overhead' which is an inevitable part of the cost--to someone--of the doing of industrialized business. The general purpose behind this development in the common law seems to have been to give maximum freedom to expanding industry.' Any other rule 'would not only subject employers to unreasonable and often ruinous responsibilities, thereby embarrassing all branches of business,' it would also 'encourage carelessness on the part of the employee.' Opinion of Justice Black in Tiller v. Atlantic Coast Line R. Co., supra, quoting Justice Bradley in Tuttle v. Detroit, Grand Haven and Milwaukee Ry., 122 U.S. 189, 7 S.Ct. 1166, 30 L.Ed. 1114 (1887).

A general rule thus energed in this country that a servant assumes the risk of: (1) such dangers as are ordinarily and normally incident to the work; and (2) such extraordinary and abnormal risks as (a) he knows and appreciates and faces without complaint or (b) are obvious and apparent. Extraordinary risks have been said to be those which are attributable to the master's negligence. 2 Harper and and James, Law of Torts, § 21.4 at 1178 (1956).

Added to this were the various approaches which were taken when the question of voluntariness as the result of 'economic coercion' arose, i.e., the employee's belief that he either had to continue on his particular task or lose his job. Although some courts decided that this prevented a finding of assumption of risk as a matter of law (see Kaplan v. 48th Avenue Corporation, 267 App.Div. 272, 45 N.Y.S.2d 510 (1943) and cases cited thereunder), most of them relied on a more complex rationale: the employee assumed the risk of his employer's negligence until he complained of the situation and received an insurance from his employer that it would be remedied. The employee, however, could only rely upon this assurance for a 'reasonable time' until he once again began to assume the risk. 4 Labatt, Master and Servant, § 13.53 at 3894 (2nd ed. 1913); 2 Harper and James, supra, § 21.4 at 1179. Thus, what began as a concept theoretically distinct from contributory negligence, ultimately became so ornamented and adulterated that it relied upon the criterion of contributory negligence: reasonableness.

It was, however, a harsh standard of reasonableness which guided the courts in this general area. In believing that a reasonably prudent man would inevitably refrain from working under dangerous conditions, they often took the matter from the jury and found assumption of risk as a matter of law. And in regard to economic coercion in particular, Prosser states that the harsh position of the courts on this issue has been violently denounced by every writer who has ever dealt with the subject. Prosser, Law of Torts, § 67 at 467 (3rd ed. 1964).

The doctrine, being a manifestation of laissez-faire economics, was a subject of criticism even during its early years. See 3 Labatt, supra, § 960. As Justice Frankfurter later noted in the Tiller case, supra:

'* * * The notion of assumption of risk as a defense--that is, where the employer concededly failed in his duty of care and nevertheless escaped liability because the employee had 'agreed' to 'assume the risk' of the employer's fault--rested, in the context of our industrial society, upon a pure fiction.'

Nevertheless, the concept of assumption of risk did not confine itself to employer-employee relationships, but invaded other areas of negligence law such as guest statute and 'slip and fall' cases.

The history, confusion and complexity of this doctrine is evidenced by the law of New Mexico. It was stated very early in this jurisdiction that a servant assumes all of the ordinary risks of his employment, but only those extraordinary risks (those caused by his master's negligence) of which he is aware. Gutierrez v. Valley Irrigation and Livestock Co., 68 N.M. 6, 357 P.2d 664 (1960); Singer v. Swartz, 22 N.M. 84, 159 P. 745 (1916); Van Kirk v. Butler, 19 N.M. 597, 145 P. 129 (1914). But the effect of 'economic coercion' in this state is probably open to question, and there is no doubt that this openness has caused confusion. Demarest v. T. C. Bateson Construction Company, 370 F.2d 281 (10th Cir. 1966); Padilla v. Winsor, 67 N.M. 267, 354 P.2d 740 (1960); Jasper v. Lumpee, 81 N.M. 214, 465 P.2d 97 (Ct.App.1970); Williamson v. Smith, supra.

Gradually, assumption of risk was extended beyond contractual relationships, so that it applied to any relation which was voluntarily assumed. Reed v. Styron, 69 N.M. 262, 365 P.2d 912 (1961). Thus, it has even been successfully pleaded in one 'slip and fall' case. Dempsey v. Alamo Hotels, Inc. 76 N.M. 712, 418 P.2d 58 (1966).

New Mexico has occasionally intermingled assumption of risk with contributory negligence. Compare Stephens v. Dulaney, 78 N.M. 53, 428 P.2d 27 (1967) with McMullen v. Ursuline Order of Sisters, 56 N.M. 570, 246 P.2d 1052 (1952) See also Schmidt v. Southwestern Brewery & Ice Co., 15 N.M. 232, 107 P. 677 (1910), aff'd 226 U.S. 162, 33 S.Ct. 68, 57 L.Ed. 170 (1912). It has also recognized their 'close relationship.' E.g., Gutierrez v. Valley Irrigation and Livestock Co., supra. It has even been claimed by some that this state has 'merged' the two defenses. See Demarest v. T. C. Bateson Construction Company, supra. Nevertheless, it seems apparent to us that our appellate courts have steadfastly attempted to distinguish the two. See, e.g., Stephens v. Dulaney, supra; Dempsey v. Alamo Hotels, Inc., supra; Stewart v. Barnes, 80 N.M. 102, 451 P.2d 1006 (Ct.App.1969). The basis of this distinction has usually been that assumption of risk involves 'willingness' whereas contributory negligence 'excludes the idea of willingness' and concerns itself only with conduct. As stated earlier in this opinion, we find such a distinction to be...