Becker v. Beaverton School Dist. No. 48

• Decision Date: 28 June 1976
• Citation: 25 Or.App. 879,551 P.2d 498
• Parties: Leo J. BECKER, by Gen Becker, his guardian ad litem, Appellant, v. BEAVERTON SCHOOL DISTRICT NO. 48, Respondent.
• Court: Oregon Court of Appeals

Page 498

551 P.2d 498

25 Or.App. 879

Leo J. BECKER, by Gen Becker, his guardian ad litem, Appellant, v. BEAVERTON SCHOOL DISTRICT NO. 48, Respondent.

Court of Appeals of Oregon.

Argued and Submitted May 20, 1976.

Decided June 28, 1976.

Alex Christy, Portland, argued the cause and filed the briefs for appellant.

Larry A. Brisbee, Hillsboro, argued the cause for respondent. With him on the brief were Schwenn, Bradley, Batchelor & Bailey, Hillsboro.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

Plaintiff is an elementary school student who was injured in a fall from a piece of playground equipment at one of defendant's schools. This particular apparatus was a climbing structure constructed of timbers supporting a wooden platform approximately six feet off the ground. There was a hole or opening in the center of the platform. Plaintiff played on this structure frequently and was aware of the playground rule forbidding students from jumping across this opening in the platform. On the day he was injured, he tried to jump across the opening while playing a game of tag. Plaintiff testified: 'Somehow I tripped and fell through the hole.'

Plaintiff brought this action for injuries resulting from the fall. The jury returned a verdict in favor of defendant.

Plaintiff assigns as error the trial court's denial of his motion to strike defendant's affirmative defense which stated that

'AS A FURTHER SEPARATE ANSWER AND DEFENSE the defendant alleges that all risks and hazards pertaining to the timber structure and particularly the risk and hazard of falling from the same was open and obvious. That the plaintiff knew of said risks and hazards when he climbed upon the timber structure and appreciated the risks and hazards of falling therefrom and that he therefore assumed the risks and hazards of falling from said structure.'

Plaintiff contends that the defense of assumption of the risk was abolished by ORS 18.470 (1973). ¹ He also contends that defendant's pleading alleged assumption of the risk in its secondary sense, i.e., contributory negligence, and that when contributory negligence is pleaded in terms of assumption of the risk the allegation should be stricken. ²

ORS 18.470 (1973) provided:

'Contributory negligence, including assumption of the risk, shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property if such negligence contributing to the injury was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of such negligence attributable to the person recovering.'

Plaintiff's contention that this statute completely abolished the defense of assumption of the risk is erroneous. Nor, for the reasons which follow, do we agree that the defendant intended or the court construed the pleading in question as, in effect, a pleading of contributory negligence.

The Oregon Supreme Court has adopted the definition of assumption of the risk in its primary sense given by Harper and James:

"The term * * * refers to risks that are incidental to a relationship of free association between plaintiff and defendant, that is to say, one which either is at liberty to take or leave as he will * * *. In such a case defendant's duty toward plaintiff is limited. It does not extend to the use of care to make the conditions of the relationship reasonably safe--at most the duty is one of care to make these conditions as safe as they appear to be and it may fall short of that * * *. If these risks are fully comprehended, or perfectly obvious, or Of the kind which plaintiff and not defendant must look out for, then plaintiff will be held to have assumed them by voluntarily entering into the relationship which entails them * * *.'

(Emphasis supplied.) Harper and James, The Law of Torts (1956 ed) 1163, § 21.1.' Renner v. Kinney et al., 231 Or. 553, 559, 373 P.2d 668, 671 (1962).

Harper and James also state that assumption of the risk in its primary sense is 'only the counterpart of the defendant's lack of duty to protect the plaintiff from that risk.' 2 F. Harper & F. James, The Law of Torts 1162, § 21.1 (1956). In its secondary sense, assumption of the risk is "a mere phase of contributory negligence." Ritter v. Beals et al., 225 Or. 504, 521, 358 P.2d 1080, 1088 (1961) (quoting from Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 54, 155 A.2d 90 (1959)); Accord, 2 F. Harper & F. James at 1164. In defendant's affirmative defense, the only risks which he alleged that plaintiff assumed were 'the risks and hazards of falling from (the timber) structure.' Defendant pleaded that that risk was fully comprehended and perfectly obvious. In other words, defendant pleaded assumption of the risk in its primary sense and not contributory negligence. The trial court was correct in not striking the defense because it was a valid defense ³ whether or not the comparative-damages formula in ORS 18.470 (1973) applied to it, and because it was properly pleaded.

Next, plaintiff assigns as error the trial court's failure to give his requested instructions regarding comparative negligence. After the court read its instructions to the jury, including instructions on assumption of the risk but not on comparative negligence, plaintiff's counsel made no exceptions. As a result, defendant contends that we should not consider this assignment.

In Crow v. Junior Bootshops, 241 Or. 135, 404 P.2d 789 (1965), the Oregon Supreme Court held that the defendant had preserved his claim of error for consideration on appeal by requesting a specific instruction even though no exception was taken when the court did not give that instruction. This was temporized by the holding of Holland v. Srs. of Saint Joseph, Seeley, 270 Or. 129, 141, 522 P.2d 208, 526 P.2d 577 (1974), to the effect that there must be something in the requested instruction which 'clearly and directly' calls the trial court's attention to its error. This was the case here, and will be the case whenever an instruction is requested on a topic on which the court ultimately gives no instruction at all. Therefore, we consider plaintiff's assignment of error on its merits.

We hold that the former comparative-negligence statute, which Prosser says should be called a 'damage-apportionment' or 'comparative-damages' statute, ⁴ applied only to assumption of the risk in its secondary sense. The wording of the statute suggests this. As noted above, the statute provided:

'Contributory negligence, including assumption of the risk, shall not bar recovery in an action * * * if Such negligence contributing to the injury was not as great as the negligence of the person against whom recovery is sought * * *.' ORS 18.470 (1973). (Emphasis supplied.)

The choice of the term 'such negligence' in the second clause of the statute required the term 'contributory negligence' or its equivalent as an antecedent. Therefore, we conclude that the phrase 'including assumption of the risk' was merely used as a synonym for 'contributory negligence,' the words immediately preceding the phrase. See, V. Schwartz, Comparative Negligence 160, § 9.2 (1974). Since the statute did not apply to assumption of the risk in its primary sense and since defendant pleaded assumption of the risk in that sense, it would not have been proper for the trial court to give plaintiff's requested instructions on comparative negligence. Under ORS 18.470 (1973), assumption of the risk in its primary sense remained a complete bar to a negligence action.

Plaintiff also assigns two evidentiary matters as error. On direct examination plaintiff elicited testimony from the person who was principal of the school prior to plaintiff's accident that a pupil named Easterly had reported that he had been injured on the same climbing structure. Presumably, this was intended to prove that defendant had knowledge or notice of the dangerous condition of the apparatus. On cross-examination of that principal and on cross-examination of the person who was principal at the time plaintiff was injured, defense counsel asked several questions about Easterly. One principal testified that Easterly had some adjustment problems and would sometimes feign being hurt to get attention, that he was a 'cry wolf'-type. The other testified that Easterly was very dramatic about feigning illness. Plaintiff's objections to the relevancy of the questions eliciting these responses were overruled. Plaintiff contends that because this was evidence of Easterly's character, it should not have been allowed.

Wigmore lists several different modes in which knowledge of the dangerous qualities of a thing might be obtained by its owner. He also states that there are two considerations which should be examined in relation to the particular mode in which a person obtained this knowledge: '* * * (a) The probability that the person received an impression of Any fact at all; and (b) The probability that from the particular occurrence he would gain an impression as to the Specific fact in question * * *.' II Wigmore, Evidence 43, § 245 (3d ed. 1940) (emphasis in original).

Wigmore illustrates his analysis of evidence used to prove knowledge with an example that is analogous to the case at hand. He states:

'* * * (A) former accident to apparatus owned by A may indicate that A learned of the defect in the apparatus, either because he probably observed the former accident or because he probably was told of it by his subordinate having charge of the apparatus, or because complaint was probably made to him; and not only is the probability (a) of his having learned of the former accident thus involved, but also the probability (b) that the former accident would have revealed to him specifically the existence of the defect * * *.' II Wigmore, supra, at...