Haworth v. State, 6110

• Decision Date: 02 April 1979
• Docket Number: No. 6110,6110
• Citation: 60 Haw. 557,592 P.2d 820
• Parties: Robert E. HAWORTH, Plaintiff-Appellant, v. STATE of Hawaii, Defendant-Appellee.
• Court: Hawaii Supreme Court

Page 820

592 P.2d 820

60 Haw. 557

Robert E. HAWORTH, Plaintiff-Appellant, v. STATE of Hawaii, Defendant-Appellee.

No. 6110.

Supreme Court of Hawai'i.

April 2, 1979.

James Krueger, Wailuku, Maui, for plaintiff-appellant.

Leighton Kim Oshima, Deputy Atty. Gen., Honolulu, for defendant-appellee.

1. The doctrine of assumption of risk relieves an employer from liability to an employee for failing to provide a safe workplace only when the employment relationship was entered into voluntarily by the employee.

2. Inmates of state institutions who are required to perform labor are not subject to the doctrine of assumption of risk.

3. The state has a duty to a prisoner to take reasonable action to protect the prisoner against unreasonable risk of physical harm.

4. The state's duty to a prisoner may be breached by requiring the prisoner to perform work under circumstances which involve an unreasonable risk that the prisoner may suffer harm from his own negligence.

Before RICHARDSON, C. J., OGATA and MENOR, JJ., and Retired Justice KIDWELL, assigned by reason of Vacancy. ^*

KIDWELL, Justice.

Plaintiff-appellant seeks damages for injuries incurred while working as a prisoner of the State serving a sentence at the Olinda Honor Camp, a minimum security penal institution on the island of Maui. Together with other prison inmates, appellant had been assigned to the work of removing loose boulders and rocks from embankments adjacent to and rising above a public road. Appellant suffered his injuries by a fall from such an embankment while engaged in such work, and appeals from a judgment for the State in a bench trial. We reverse.

Although the trial court found that appellant had been "required" to engage in the road work, ¹ the record does not disclose precisely the nature of appellant's assignment to the work project. Appellant testified, without contradiction, that the job had been "assigned" to him and that he was "placed" on the job by the superintendent of Olinda Camp. He had worked on the road project for approximately six months before the accident, and had been working in the general area of the accident for a couple of days. He had periodically received instructions from his superior to the effect that if at any time he encountered a dangerous task he should refrain from performing it and report it to his supervisor, who would decide upon alternative methods to accomplish the task. On the morning of the accident, before leaving the Camp, the supervisor gave instructions to appellant and the other inmates which included a reminder of the prior safety instructions, a discussion of how a large boulder at the top of the hill would be dislodged solely by a bulldozer operated by an inmate, an assignment of appellant and others to work on the lower embankments around that on which the accident took place and a caution as to the danger of being at the top of the embankment where the bulldozer would be working.

The site of the work consisted of an unimproved road on one side of which was a deep gully and on the other side of which rose an embankment resembling a bell curve, the apex of which was approximately 30 feet in height. In removing rocks from such embankments, it had been the customary procedure of appellant and other inmates to commence at the lower level and to work along the edge of the embankment to the higher level. On arrival at the site, appellant began to remove rocks at an elevation of approximately 10 to 15 feet above the road. Within an hour, he had worked another 20 to 25 feet to the top of the embankment where the bulldozer was attempting to remove the large boulder. Appellant observed a large rock protruding from the face of the embankment at its top and near the edge. In order to dislodge the rock appellant climbed down the face of the embankment to a ledge about 31/2 to 4 feet from the top, first testing the ledge with his digging bar, and began to try to pry the rock loose. He was observed in that position and ordered to return to the top of the embankment by the supervisor. As appellant attempted to press himself upward the edge of the embankment gave way and he fell.

The trial court found that, by climbing to the top of the embankment, appellant disobeyed the safety instructions and work assignment given by the superintendent, and that when he lowered himself to the ledge he disregarded the superintendent's safety instructions, was attempting an obviously dangerous task and unreasonably and unnecessarily placed himself in a dangerous position. As its conclusions of law, the trial court determined that the State owed a duty to provide appellant with proper safety equipment and had been negligent in failing to do so, but that such negligence had not been the proximate cause of appellant's injuries; that appellant knew or should have known that he was placing himself in a dangerous situation and assumed the risk of injury; and that appellant did not exercise ordinary care in the performance of his work, which negligence was the proximate cause of his injuries. Appellant was found to have suffered general damages in the amount of $25,000 and special damages of $350.

There was no finding by the trial court as to appellant's awareness of the risk to which he exposed himself in his attempt to dislodge the rock. Appellant testified that he did not consider it any more dangerous than some of the other assignments, and that "the whole job was dangerous."

At the outset of the trial, counsel for the State advised the court that "in this case the State of Hawaii is not disputing we owe the duty to the plaintiff of providing him reasonable and safe place to work." In the appeal, the State has advised us that it does not dispute the trial court's conclusion of law, as paraphrased by the State, that the State breached its common law duty of ordinary care by its failure to provide appellant with proper safety equipment. The State expressly refrains from contending that the supervisor's instructions fulfilled the State's duty of ordinary care owed to appellant. Thus the State's defense rests upon doctrines of assumption of risk or of contributory negligence.

I

In relying upon the doctrine of assumption of risk, the State seeks to place this case in the context of common law master- servant relationships. The almost universal substitution of statutory workers' compensation for common law employers' liability has rendered the common law doctrines largely obsolete. However, both parties have proceeded in this case upon the assumption, without discussion, that the Hawaii Workers' Compensation Law, HRS Chapter 386, is inapplicable, although it was not until after appellant's accident that this chapter was made expressly inapplicable to committed persons by amendment of HRS § 353-25. We have no occasion to consider claims or defenses not pleaded, and view the case as unaffected by the statute.

The common law duty of an employer to exercise reasonable care for the safety of his employees has been stated:

A master is subject to a duty that care be used either to provide working conditions which are reasonably safe for his servants and subservants, considering the nature of the employment, or to warn them of risks of unsafe conditions which he should realize they may not discover by the exercise of due care.

Restatement (Second) of Agency § 492 (1958). These duties are considered non-delegable, I. e. the employer is vicariously liable for the negligent failure to perform such duties by one he appointed to perform them.

The employer's duty to provide a safe workplace does not require him to eliminate risks which are inherent in the work, and he is further relieved of responsibility for any unnecessarily dangerous conditions of which the employee has notice. Restatement (Second) of Agency § 499, Comment (b). Nor does the employer have a duty to warn of dangers normally incident to the work, or of extraordinary dangers which the employee knows or should know because of their obviousness. Restatement (Second) of Agency §§ 492, 510 Comment a.

Thus it has been held that where an employee remains at work after learning that the employer has failed in his duty to provide a safe workplace, the employee relieves the employer from liability by assuming the risk. Morris & Co. v. Alvis, 130 Va. 434, 107 S.E. 664 (1921) (unguarded elevator shaft; premises inadequately lighted); Richter v. Razore, 56 Wash.2d 580, 354 P.2d 706 (1960) (automatic bowling pinsetting machine without protective metal guard); Eiban v. Widsteen, 31 Wash.2d 655, 198 P.2d 667 (1948) (staircase without handrail); Abbot v. McCadden, 81 Wis. 563, 51 N.W. 1079 (1892) (switch engines running at speed in excess of statutory limit); Schultz v. Chicago & N. W. R. Co., 67 Wis. 616, 31 N.W. 321 (1887) (custom as to loading of coal on railroad tender).

However, these doctrines rest upon the assumed premise that the employee is a free agent who voluntarily may accept or reject the employment and the risks which it entails. A work relationship, the terms of which the employee may bargain for and from which he is entitled to withdraw, is a fundamental assumption of common law master-servant doctrines.

The cornerstone of the common law edifice was the economic theory that there was complete mobility of labor, that the supply of work was unlimited, and that the workman was an entirely free agent, under no compulsion to enter into the employment. He was expected therefore to accept and take upon himself all the usual risks of his trade, together with any unusual risks of which he had knowledge, and to relieve his employer of any duty to protect him.

Prosser, Law of Torts 526 (4th ed. 1971).

Although arguing strenuously in support of the application in this case of common law master-servant doctrines, including particularly assumption of risk, the State has not referred us to any decision in which recovery for a work injury has been denied to a...