McGriff v. McGriff

• Decision Date: 04 May 1976
• Docket Number: CA-CIV,No. 1,1
• Parties: Hezekiah McGRIFF, Jr., Appellant, v. Snelson W. McGRIFF and Lillian McGriff, his wife, Appellees. 2713.
• Court: Arizona Court of Appeals

Page 210

549 P.2d 210

26 Ariz.App. 430

Hezekiah McGRIFF, Jr., Appellant, v. Snelson W. McGRIFF and Lillian McGriff, his wife, Appellees.

No. 1 CA-CIV 2713.

Court of Appeals of Arizona, Division 1, Department B.

May 4, 1976.

Rehearing Denied June 14, 1976.

Review Granted July 13, 1976.

Kleinman, Carroll & Kleinman, by Jan L. Kleinman, Phoenix, for appellant

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.C., by Michael E. Woolf, Jolyon Grant, Phoenix, for appellees.

OPINION

WREN, Judge.

The appellant, plaintiff below, has appealed from an adverse jury verdict and raises the following issues for our consideration: Was it reversible error for the trial court to instruct the jury on assumption of the risk and contributory negligence; and to refuse to instruct on res ipsa loquitur? Plaintiff, Hezekiah McGriff, was a passenger in a vehicle being driven by his brother, defendant Snelson W. McGriff, when it left the roadway, struck a tree and overturned several times. The vehicle, also occupied by the driver's wife, defendant Lillian McGriff, was being driven east on highway US--66 from Los Angeles, California, to Phoenix, Arizona, on the return leg of a trip that had commenced in Phoenix the day before. The facts are almost conclusive that defendant went to sleep while driving. With that causal factor in mind and with defendants, appellees herein, asserting the defense of assumption of the risk and contributory negligence as to that factor, we have retraced the sleep aspects of the trip.

Plaintiff had driven the automobile from Phoenix to Los Angeles, having left Phoenix at approximately 1:00 a.m. on the morning of February 27, 1972. Defendant admittedly slept all or most of the way except for a coffee stop at Indio. They arrived in Los Angeles several hours later at approximately 7:00 a.m. The trip was being made in order to visit a sister who was ill. After visiting her in the hospital at Los Angeles, defendant went to sleep on the evening of February 27 at approximately 10:00 p.m. at his sister's home. He was later awakened by a phone call informing him that plaintiff had to return home immediately. The following morning at approximately 1:00 a.m. plaintiff and defendant started their return. The plaintiff suggested that defendant begin the drive and defendant replied 'Well, I'll try it.' Defendant then drove a few miles from Los Angeles to Pomona, at which time defendant stated that he was getting too drowsy and could not drive any farther. He suggested to plaintiff that they should get a motel room. However, plaintiff took the wheel and drove the vehicle to Blythe, California. The defendant admittedly slept all the way from Pomona to Blythe, although he contended that he did not get any restful sleep. The plaintiff stopped the vehicle in Blythe and defendant started driving again at plaintiff's request. Approximately 40 miles later, around 5:30 a.m., and while plaintiff was sleeping, the accident occurred.

ASSUMPTION OF THE RISK

Initially it might be well to note that assumption of the risk requires the presence of the following elements set forth in Hildebrand v. Minyard, 16 Ariz.App. 583, 585, 494 P.2d 1328, 1330 (1972):

'(1) There must be a risk of harm to plaintiff caused by defendant's conduct or by the condition of the defendant's land or chattels;

'(2) Plaintiff must have actual knowledge of the particular risk and appreciate its magnitude. Vierra v. Fifth Avenue Rental Service, 60 Cal.2d 266, 32 Cal.Rptr. 193, 383 P.2d 777 (1963); Goodwin v. Bryant, 227 Cal.App.2d 785, 39 Cal.Rptr. 132 (1964); W. Prosser, Law of Torts 447--48 (4th ed. 1971). (General knowledge of 'a danger' is not sufficient. Vierra v. Fifth Avenue Rental Service, supra); and,

'(3) The plaintiff must voluntarily choose to enter or remain within the area of the risk under circumstances that manifest his willingness to accept that particular risk.

'. . . (T)he touchstone of implied assumption of risk is 'consent'. Contributory negligence arises when the plaintiff fails to exercise due care. Assumption of risk arises regardless of the due care used. It is based, fundamentally, on consent. Contributory negligence is not. Vierra v. Fifth Avenue Rental Service, supra. (T)he consent is manifested by the plaintiff's actions After he has been informed of the nature and magnitude of the specific danger involved. Therefore, when the plaintiff voluntarily enters into some relationship with the defendant, with knowledge that the defendant will not protect him against the risk, he may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take a chance. Thus he may accept employment knowing that he is expected to work with a dangerous horse; or ride a car with knowledge that the brakes are defective and the driver imcompetent; or he may enter a baseball park, sit in an unscreened seat, and thus consent that the players proceed with the game without taking any precautions to protect him from being hit by the ball. The result is that the defendant is simply relieved of the duty which would otherwise exist.' (Emphasis added.)

Viewing the facts, as we must, in a light most favorable to giving the instruction, Evans v. Pickett, 102 Ariz. 393, 430 P.2d 413 (1967); Casey v. Marshall, 64 Ariz. 232, 168 P.2d 240 rehearing denied 64 Ariz. 260, 169 P.2d 84 (1946), and applying them to the principles of law just discussed, we find that they reflect only a failure on the part of plaintiff to fully appreciate and comprehend the consequences of his own acts in requesting that the defendant drive. We point to specific and essentially uncontroverted testimony of the parties to support our conclusion in that regard.

(to defendant)

'Q. I believe you slept all the way (from Pomona) to Blythe, didn't you?

'A. Well, that's the way it's put in the record.

'Q. I beg your pardon?

'A. I was asleep.

'Q. So, I understand you correctly, you slept all the way to Blythe, or if you were awake for a very few minutes, would that be a fair statement?

'A. Yes.

* * *

* * *

'Q. Okay, At Blythe, your brother had no idea about you being sleepy or drowsy or that you couldn't drive, because at Blythe you felt like you could drive; isn't that correct?

'A. Well, I don't see how he could know whether I was sleepy or not sleepy, because he wasn't me.

'Q. And at that time--that's my point, Mr. McGriff--and at that time you didn't tell him you were sleepy, did you?

'A. No, I didn't.

'Q. And in fact, when the air hit you, you felt great?

'A. That's true.'

Obviously the central question here is whether plaintiff Knew at the time defendant resumed driving at Blythe that he was drowsy and might well go to sleep while at the wheel. On the issue of such knowledge plaintiff testified as follows:

'Q. Did he tell you at that time (Blythe) that he couldn't drive?

'A. No. He said he could drive.

'Q. Did he ever tell you at the time that you were at Blythe that he was too sleepy to drive?

'A. No. He said he was ready to drive. He didn't mention anything about sleep at all.'

Testimony from the defendant is also relevant here:

'Q. Okay. All right, at Blythe, you woke up; is that correct?

'A. Yes.

* * *

* * *

'Q. All right, and did you tell him that you were too sleepy to drive when you were at Blythe?

'A. No.

'Q. In fact, when you got to Blythe, you told him you felt like driving, or otherwise you would have stopped or told him you couldn't drive just like you did outside of Pomona; isn't that correct?

'A. That's true.

'Q. If you hadn't felt like driving that vehicle, you would have never gotten behind the wheel?

'A. Never gotten behind the wheel.

'Q. And you would have told him at Blythe that you didn't feel like driving if you hadn't felt like driving; isn't that correct?

'A. That's true.'

Our search of the record has failed to disclose any evidence that alerted plaintiff to the danger that defendant was fatigued or drowsy to the point that he might well fall asleep at the wheel, or that he impliedly consented to relieve defendant from any duty to remain awake by requesting that he drive. Although one may assume the risk of negligence of another if he is fully informed of such negligence, one is not, under the doctrine of assumption of the risk, bound to anticipate the negligent conduct of another. Hildebrand v. Minyard, supr; Vierra v. Fifth Avenue Rental Service, 60 Cal.2d 266, 32 Cal.Rptr. 193, 383 P.2d 777 (1963); Rogers v. Los Angeles Transit Lines, 45 Cal.2d 414, 289 P.2d 226 (1955).

Certainly plaintiff is charged with knowledge of the magnitude of the risk if the defendant did go to sleep while driving the automobile. He was also bound to know that loss of sleep and physical fatigue render a driver incapable to properly and safely operating a vehicle. However, the uncontroverted evidence establishes that plaintiff thought defendant was rested enough to drive safely at the time he turned over the wheel of the automobile at Blythe. Neither was there an obvious danger chargeable to plaintiff. It is true that defendant was in the course of a long trip and unquestionably his sleep and rest had been substantially interrupted. However, plaintiff knew that he had just slept for a substantial period of travel and there was nothing to 'red-flag' a dangerous situation. If defendant was in a state of drowsiness and fatigue it was not apparent and it was not known to plaintiff when he asked him to drive and then slept while he did.

Cases bearing close analogy to the one here have been cited to this Court by appellant. They reflect instances in which recovery was denied on the ground of assumed risk in passenger-driver situations when the accident was caused by weariness or intoxication of the driver. Some of them admittedly are difficult to distinguish. However, we find that in each of the cited cases the passenger-guests were found to have Realized the hazards involved. For instance, in Storlie v. Hartford Accident & Indemnity Co., ...