Lyons v. Redding Const. Co.

Decision Date08 November 1973
Docket NumberNo. 42659,42659
PartiesDanny A. LYONS, Petitioner, v. REDDING CONSTRUCTION COMPANY, a corporation, Respondent.
CourtWashington Supreme Court

Critchlow, Williams, Ryals & Schuster, David E. Williams, Richland, for petitioner.

Olson & Olson, Roger L. Olson, Pasco, for respondent.

FINLEY, Associate Justice.

Danny Lyons has petitioned the Supreme Court to review a decision of the Court of Appeals affirming a jury instruction of the Franklin County Superior Court applying the maxim Volenti non fit injuria in a personal injury action.

Danny Lyons, an electrician, was employed by an electrical subcontractor on a construction site in Connell, Washington. On December 9, 1969, Lyons was standing on or near a foundation footing observing the work of a 'caterpillar' tractor of respondent-prime contractor spreading gravel with its front blade. A foreman of respondent operating the tractor was smoothing the gravel by repeatedly traversing a route in an entranceway abutting the foundation footing where Danny Lyons was standing. Although there is conflicting testimony, the record indicates that the tractor, upon one of its passes, either hit Danny Lyons or forced him to step back causing him to fall over the foundation footing. Liability in damages for the injuries resulting from the fall is the gist of the instant cause of action.

At trial, over the objection of petitioner, the trial judge instructed the jury on the defense of Volenti non fit injuria, as indicated above. A jury verdict for the respondent construction company was affirmed by the Court of Appeals. The sole issue for our consideration is whether the doctrine of Volenti non fit injuria has continuing viability in the common law of the State of Washington.

This court heretofore in a number of cases has regarded the maxim, Volenti non fit injuria ('damage suffered by consent is not a cause of action,' H. Broom, Legal Maxims 181 (10th ed. R. Kersley 1939)), as separate and distinct from the doctrine of assumption of the risk. Hogenson v. Service Armament Co., 77 Wash.2d 209, 461 P.2d 311 (1969); Detrick v. Garretson Packing Co., 73 Wash.2d 804, 440 P.2d 834 (1968); Walsh v. West Coast Coal Mines, 31 Wash.2d 396, 197 P.2d 233 (1948). This distinction has caused some degree of confusion and apparently some consternation amongst the commentators. See W. Prosser, The Law of Torts § 68 (4th ed. 1971); Note, 41 Wash.L.Rev. 585 (1966). Professor Prosser suggests that the maxim should be subsumed under the generic rubric, Assumption of the risk. In his view, the differentiation in our decisions is a 'distinction without a difference.' Prosser, Supra at 440. Our use of the maxim, however, has not been merely a sophomoric exercise in tautology, but a useful juristic device to pinpoint and distinguish the voluntary assumption of a known risk from the waning doctrine of assumption of the risk. Hogenson v. Service Armament Co., Supra. In view of the conclusions we reach in this case, continued differentiation of 'volenti' as a defense Wholly distinct from assumption of the risk becomes unnecessary.

Volenti not fit injuria had its original applications in Roman-Law by validating the process by which a free citizen sold himself into slavery. J. Salmond, The Law of Torts § 185, p. 664 (15th ed. R. Heuston 1969). From this obscure begining, the doctrine of assumption of the risk found its way into the common law with its first notable expression in Priestley v. Fowler (Ex.1837) 3 M. & W. 1, 150 Eng.Rep. 1030. While addressing himself to the domestic roles of chamber maids, coachmen, and footmen, Lord Abinger, C.B., laid the doctrinal foundation 1 that would be interposed to defeat in the common law courts the claims of countless injured workers in the ensuing industrial revolution. It was also in Priestley v. Fowler, Supra, that Lord Abinger created the fellow-servant exception to the vicarious liability of the master for the negligent acts of his servant. Thus, when an employee was injured by an act of his fellow worker, the employer was relieved of liability. In 1880, Parliament sought to remove this harsh result by the passage of the Employer's Liability Act, Stats. 43 & 44 Victoria, c. 42. Nonetheless, the English courts shortly thereafter narrowly construed the statute to allow an employee to contractually waive the liability of the employer under the guise of an invocation of the maxim, I.e., volenti non fit injuria. Thomas v. Quartermaine (1887) 18 Q.B.D. 685. In the throes of the great economic upheavals occurring during the industrialization of England, the English common law courts assumed the attitude that each man was his own master and, therefore, need not necessarily choose to be employed under conditions which might expose him to the occupational risks attendant to a particular vocation. If a workman were to engage in a hazardous occupation, the courts of the day assumed or envisioned his wages would be sufficiently higher to somehow compensate for any potential danger. Gow, The Defence of Volenti Non Fit Injuria, 61 Jurid.Rev. 37 (1949); Warren, Volenti Non Fit injuria in Actions of Negligence, 8 Harv.L.Rev. 457 (1895).

This individualistic spirit of the common law was newhere more evident than in the early American decision in Farwell v. Boston & Worcester RR Corp., 45 Mass. (4 Metc.) 49 (1842). In a refinement of the holding in Priestley v. Fowler, Supra, Chief Justice Shaw of the Supreme Judicial Court of Massachusetts found a workmen's contract of employment to impliedly include the risks of his profession. The Farwell case indicated the rationale for placing the burden of injury upon the employee, as one grounded in public policy emphasizing that (1) the chance of injury is reflected in compensation; (2) the employee is as likely to know the dangers as is the employer; (3) non-compensation of injuries tends to make workmen more careful.

Judicial protectivism of industrial growth was never more apparent than in Tuttle v. Detroit, Grand Haven & Milwaukee Ry., 122 U.S. 189, 7 S.Ct. 1166, 30 L.Ed. 1114 (1886). Therein the United States Supreme Court stated that non-liability of the employer for such injuries was 'a rule of public policy, inasmuch as an opposite doctrine would not only subject employers to unreasonable and often ruinous responsibilities, thereby embarrassing all branches of business.' Supra at 196, 7 S.Ct. at 1169. See Pound, The Economic Interpretation and the Law of Torts, 53 Harv.L.Rev. 365 (1940).

Judicial recognition that industry should not be nurtured at the expense of human suffering was not forthcoming until relatively recently. In Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1942), Mr. Justice Black, writing for a unanimous court, stated

(a)ssumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the beginning of (the industrial revolution) . . . 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.' Supra at 58--59, 63 S.Ct. at 447.

A more eloquent, if not stronger, indictment of the doctrine may be found in the concurring opinion of Mr. Justice Frankfurther:

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 leazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas. Thus, in the setting of one set of circumstances, 'assumption of risk' has been used as a shorthand way of saying that although an employer may have violated the duty of care which he owed his employee, he could nevertheless escape liability for damages resulting from his negligence if the employee, by accepting or continuing in the employment with 'notice' of such negligence, 'assumed the risk.' In such situations 'assumption of risk' is a defense which enables a negligent employer to defeat recovery against him. Supra at 68--69, 63 S.Ct. at 452.

Since its humble beginnings in Priestley v. Fowler, Supra, the doctrine of assumption of risk became enmeshed in the fabric of virtually every specie of negligence law. See 2 Harper & James, The Law of Torts § 21.1 (1956). Judicial treatment of the doctrine has, however, come full circle from the unquestioning 'lazy repetition' of the early common law. Legal commentators have long urged the abolition of assumption of the risk. See Harper & James, Supra § 21.8; James, Assumption of Risk: Unhappy Reincarnation, 78 Yale L.J. 185 (1968); Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14 (1906).

In Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959), the Supreme Court of New Jersey initiated the trend toward abolition of the defense. A succession of other states have followed, and in varying degrees have abrogated the doctrine as a separate defense apart from contributory negligence. For an inventory of jurisdictions restricting or abolishing the defense see Prosser, Supra, p. 454 nn. 44--52 and accompanying text and Rosenau v. City of Estherville, 199 N.W.2d 125, 131 (Iowa 1972). Commenting on the trend toward abolition, Professor Prosser points out that total abolition of the defense may muddy the waters even further. Prosser suggests that in cases

(w)here the plaintiff acts unreasonably in making his choice, it is said that there is merely one form of contributory negligence, which is certainly true; and from this it is argued that there is, or should be, no distinction between the two defenses, and that there is only useless and confusing duplication. But this is a distinctive kind of contributory negligence, in which the plaintiff knows the risk and voluntarily accepts it (a...

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