City of Tucson v. Holliday

• Decision Date: 17 February 1966
• Docket Number: CA-CIV,No. 2,2
• Citation: 3 Ariz.App. 10,411 P.2d 183
• Parties: The CITY OF TUCSON, a municipal corporation, Appellant, v. Mary E. HOLLIDAY, a widow, Appellee. * 88.
• Court: Arizona Court of Appeals

Page 183

411 P.2d 183

3 Ariz.App. 10

The CITY OF TUCSON, a municipal corporation, Appellant, v. Mary E. HOLLIDAY, a widow, Appellee. ^*

No. 2 CA-CIV 88.

Court of Appeals of Arizona, Division 2.

Feb. 17, 1966.

Rehearing Denied March 8, 1966.

Gordon S. Kipps, City Atty., Tucson, Calvin Webster, former City Atty., Dwight E. Eller, Asst. City Atty., for appellant.

Miller & Pitt, by Robert F. Miller, Tucson, for appellee.

MOLLOY, Judge.

This is a personal injury action brought by a lady who fell in downtown Tucson while crossing at the intersection of Stone and Pennington in a diagonal fashion. The fact situation insofar as the pedestrian crossing is concerned is not unlike that in the case of Vegodsky v. City of Tucson, 1 Ariz.App. 102, 399 P.2d 723 (1965). The intersection is one controlled by lights which, in one phase, flash the word 'Walk.' During this phase, pedestrians customarily 'scramble' through the center of the intersection, many of them crossing diagonally, as did the plaintiff.

At the time of this particular crossing there was a Christmas shopping crowd and a congested situation existed insofar as pedestrians were concerned. In the intersection where the plaintiff was crossing, and outside of the marked crosswalks, there was a definite depression in the pavement about two feet in diameter and about one or two inches deep. In the center of the depression was a circular metal cap approximately eight to ten inches in diameter. The top surface of the paving was beveled down to the edges of this cap. The reason for the depression was that six months prior to the accident in question the City of Tucson had placed an asphalt overlay approximately two inches thick over the existing pavement. When this new paving was performed, the metal cap was not raised and hence the beveled depression was created.

The plaintiff testified that when she stepped into this depression, her shoe became '* * * wedged in this particular hole, * * *' and that she had to '* * * take my left hand on my shoe and work it out of the hole.' The plaintiff testified that she was wearing 'wedgies' on the occasion in question, which she described as a shoe '* * * where the heel and sole all goes together * * * there is no separate detached heel.' She stated that the bottom flat surface of the shoe was the part that became wedged in the depression. She further stated that getting her foot stuck in this hole came as a 'complete surprise.'

As the result of her fall, the plaintiff suffered a fracture of the triquetrum bone in the right wrist and a fracture of the fibula at the right ankle. Additionally, she suffered certain abrasions. The fall occurred on December 6, 1962, and on February 7 1963, while exercising in accordance with her doctor's instructions, the plaintiff fell again and sprained her right ankle, which required additional medical treatment.

A jury trial resulted in a verdict for the plaintiff in the sum of $19,000.00. The defendant, City of Tucson, has appealed to this court and the assignments of error will be discussed in the order presented in the appellant's brief.

The first six assignments concern the failure of the court to give various instructions requested by the defendant on assumption of risk. Assumption of risk was one of the defenses raised in the answer and the defendant contends that under the circumstances of this case the instructions should have been given, in addition to the instructions, admittedly appropriate, on the subject of contributory negligence.

In order to determine whether an instruction on assumption of risk should have been given, the evidence should be construed most favorably to the defendant's position, Reichardt v. Albert, 89 Ariz. 322, 361 P.2d 934 (1961), and therefore a few additional bits of testimony should be stated. The plaintiff testified that she was familiar with the depression in question, that she knew that the crosswalks had a better surface for pedestrian traffic than did the center of the street where she crossed, that before crossing the intersection the plaintiff knew the approximate location of this depressed area, and that she made no effort to avoid it when she crossed the street. She stated that she kept her eyes on the 'Walk' signal and did not look down while walking because there were too many persons crossing with her so that there was no opportunity to look down.

It is the plaintiff's contention, and one accepted by the trial court, that the defenses of assumption of risk and contributory negligence completely overlap insofar as this case is concerned and that all necessary, applicable law insofar as this defense is concerned was given to the jury when the contributory negligence instructions were given.

The doctrine of assumption of risk, as a separate defense in a tort action, is under vigorous attack by certain well-recognized publicists in the field of torts. ¹ The main thrust of the attack upon the doctrine is that other well-established concepts in the law of negligence cover everything that has any validity in the assumption of risk doctrine, that it is duplicitous to give an instruction on assumption of risk and, worse, that it only adds confusion to the case because the concepts embodied in the assumption of risk rule are ill-defined and nebulous and are often misapplied by both court and jury. These attacks by negligence theorists have resulted in the doctrine of assumption of risk being abrogated except in very particularized situations by court decisions in several jurisdictions. ² The great weight of authority in this country, however, as established by near recent and current decisions is to the effect that there is a distinguishable defense, sometimes labeled 'assumption of risk' and at other times 'volenti non fit injuria,' which has pertinency to certain factual situations arising in negligence cases. ³ A general statement in this regard is found in an annotation upon this subject, 82 A.L.R.2d 1218, 1228-1230 (1962):

'Most of the courts take the view that while the defenses of assumption of risk and contributory negligence are closely associated, frequently overlapping or shading into each other, and often difficult to distinguish, the terms often being used interchangeably, nevertheless, the two defenses should not be confused, they are not synonymous, but independent, separate, and distinct defenses, which are not inconsistent and may co-exist and be present in the same case. The two defenses are based on different legal theories.'

At least two publicists have ably defended the doctrine as a separate entity. ⁴ A reading of articles attacking and defending the doctrine will indicate that there is a proclivity of theorists to divide the doctrine of assumption of risk into various 'senses' and then either to show that in all of its 'senses' the doctrine is covered by other principles of law, such as 'no duty' and contributory negligence, ⁵ or to show that in some of its 'senses' there is still a valid meaning not covered by other concepts in the law of negligence. ⁶ Interestingly, these various dissections of the doctrine end up with pieces of anatomy that only occasionally resemble one another (see notes 5 and 6, supra).

Though much of this war of ideas is carried on with verbiage which would lead the casual reader to believe that it is a battle of semantics rather than basic law involved, underneath the controversy probably lies a basic difference in philosphy. One of the earliest expositions of the doctrine was by Francis H. Bohlen, 20 Harv.L.Rev. 14 (1906) in which is the following:

'The maxim volenti non fit injuria is a terse expression of the individualistic tendency of the common law, which, proceeding from the people and asserting their liberties, naturally regards the freedom of individual action as the keystone of the whole structure. Each individual is left free to work out his own destinies; he must not be interfered with from without, but in the absence of such interference he is held competent to protect himself. While therefore protecting him from external violence, from imposition and from coercion, the common law does not assume to protect him from the effects of his own personality and from the consequences of his voluntary actions or of his careless misconduct.' 20 Harv.L.Rev. 14 (1906).

This it is this 'individualistic' concept that is under fire is indicated by the following quotation from an early treatise advocating abrogation:

'Except for express assumption of risk, therefore, the term and the concept [assumption of risk] should be abolished. It adds nothing to modern law except confusion. For the most part the policy of individualism it represents is outmoded in accident law; where it is not, that policy can find full scope and far better expression in other language.' James, Assumption of Risk, 61 Yale L.J. 141, 169 (1952).

The Wisconsin Supreme Court, when it abrogated the doctrine, expressly recognized that it was not merely duplicitous law that was being eliminated:

'In a particular situation the utility of riding with the host and the inadequacy of any alternative course may both be so obvious that the guest's acquiescence might constitute assumption of risk heretofore existing, but not a lack of ordinary care. In such circumstances the guest's acquiescence will constitute no defense under the rule we are now adopting.' (Emphasis added.) McConville v. State Farm Mutual Automobile Ins. Co., 15 Wis.2d 374, 113 N.W.2d 14, 17 (1962).

Professor Robert E. Keeton attempts to point out the substantive difference in law with the hypothetical case of Black and Blue who borrow a motorcycle, the lender fully warning Black, but not Blue, of a defect in the motorcycle (22 La.L.Rev. 122, 157-159 (1961)). Black, because of the exigencies of the situation, which, hypothetically, is the necessity for emergency medical treatment for Blue, acts as a reasonable prudent man. The defect results in injury to both...