Parness v. Economics Laboratory, Inc., s. 41416

• Decision Date: 22 August 1969
• Docket Number: Nos. 41416,41434,s. 41416
• Citation: 284 Minn. 381,170 N.W.2d 554
• Parties: Samuel PARNESS et al., Appellants, v. ECONOMICS LABORATORY, INC., Respondent.
• Court: Minnesota Supreme Court

Page 554

170 N.W.2d 554

284 Minn. 381

Samuel PARNESS et al., Appellants, v. ECONOMICS LABORATORY, INC., Respondent.

Nos. 41416, 41434.

Supreme Court of Minnesota.

Aug. 22, 1969.

Syllabus by the Court

1. As a matter of substantive tort law, the defenses of assumption of risk and contributory negligence are separate and distinct, and assumption of risk involves neither negligence in deciding to incur the risk nor negligence in the manner of encountering the risk.

2. Where under the evidence the defenses overlapped, the trial court did not err in submitting assumption of risk in the form of Minnesota Jury Instruction Guides, Instructions 135 and 136.

3. Where plaintiff fell and sustained injury during an attempt to cross a floor covered with soapy water, the evidence is sufficient to support the jury's conclusion that her recovery was barred by either her contributory negligence or her assumption of the risk or by both.

Hvass, Weisman, King & Allen, Minneapolis, for appellants; James C. Tarbox, St. Paul, Thomas B. Cline, Aitkin, of counsel.

Tyrrell, Jardine, Logan & O'Brien, St. Paul, for respondent.

OPINION

ROGOSHESKE, Justice.

These appeals by plaintiffs question the propriety and form of, and the evidentiary justification for, the trial court's submission of the issues of contributory negligence and assumption of risk to the jury as separate and distinct defenses in a personal injury action.

Plaintiff Gertrude Parness suffered a fractured hip when she slipped and fell on a floor covered with soapy water in the kitchen of a cafe in which she was employed. In this action she sought damages and her husband, plaintiff Samuel Parness, sought consequential damages against defendant, who supplied the cafe with a detergent dispenser and detergents for its commercial dishwasher. Plaintiffs allege that one of defendant's employees, after removing the dispenser from the dishwasher, negligently left the washing tubes in a vertical rather than a horizontal position, thereby causing soapy water to be directed outside the machine and onto the floor of the kitchen when the dishwasher was turned on. Defendant denied this claim and alleged as affirmative defenses both contributory negligence and assumption of risk on the part of Mrs. Parness. The jury returned a general verdict for defendant and these appeals followed.

Plaintiffs do not question the sufficiency of the evidence to support the verdict in favor of defendant except as it relates to the issues of contributory negligence and assumption of risk. On these issues, viewing the evidence most favorably to the defendant, as we must, the jury could have found that Mrs. Parness, unaware that the washing tubes of the commercial dishwasher were not in a proper position, went to the machine, inserted a rack of dishes, and pressed the electric control to start it. Thereupon, soapy water was ejected from the machine and covered the floor of the kitchen. Mrs. Parness admits that she knew that the water contained soap, understood and appreciated that the floor was slippery, and realized that there was a danger of slipping on it. Nevertheless, she attempted to walk across the floor to reach a mop and bucket leaning against the wall opposite from where she was standing in order to mop the floor so that she and the other employees could resume preparing and serving food. As she set out across the slippery floor, she was followed closely by a coworker whom she had informed of the problem. Mrs. Parness, however, chose not to hold onto the dishwasher, the sink, other kitchen equipment, or the coworker's arm for support. Part way across the kitchen she fell, sustaining the injury for which plaintiffs bring this action.

In submitting these issues, the court refused numerous written and oral instructions requested by plaintiffs which sought to emphasize the issue of the reasonableness of Mrs. Parness' decision to proceed across the slippery floor and instructed the jury substantially in the words of Minnesota Jury Instruction Guides, Instructions 135 and 136:

'Assumption of risk is voluntarily placing oneself in a position to chance known hazards. To find that a person assumed the risk, you must find:

'1. That she had knowledge of the risk.

'2. That she appreciated the risk, and

'3. That she had a choice to avoid the risk or chance it and voluntarily chose to chance it.

'If a person has assumed the risk, she cannot recover for any injury or damage sustained by her.

'Assumption of risk should be distinguished from contributory negligence. Assumption of risk does not involve the failure to use reasonable care. A person who assumes the risk is one who voluntarily chooses to chance a danger which is known and appreciated. Contributory negligence does involve a failure to use reasonable care. A person who is contributorily negligent is one who has failed to use that care which a reasonable person would use under like circumstances.' (Italics supplied.)

On this appeal plaintiffs contend (1) that the evidence was insufficient as a matter of law to justify submitting to the jury either assumption of risk or contributory negligence with respect to Mrs. Parness' decision to walk across the slippery floor, even though plaintiffs recognize that the evidence as to the manner in which she proceeded did raise a jury question as to her contributory negligence; (2) that the court erred in submitting the defenses as separate and distinct and in doing so erroneously permitted the jury to find that Mrs. Parness assumed the risk without evaluating whether her decision to proceed was reasonable or unreasonable; and (3) that the court erred in refusing to give specific instructions requested by plaintiffs embodying the factor of reasonableness claimed to be an essential element of assumption of risk.

It is apparent that this is a case where assumption of risk and contributory negligence overlap. Our brief recital of the facts, however, demonstrates that there is an evidentiary basis for the submission of both defenses. It cannot be seriously argued that there was no evidentiary basis for the submission of contributory negligence. The jury could have justifiably concluded that Mrs. Parness failed to exercise reasonable care in deciding to attempt to walk across the water-covered floor as well as that, after having made the decision to do so, she failed to use reasonable care in the method by which she proceeded. A finding of negligence in making the decision to proceed is supported by her own admission and indeed by the undisputed testimony that no emergency or panic situation existed which required her to make a snap decision to immediately mop up or assist in mopping up the soapy water. In addition, even if Mrs. Parness' decision to proceed was not a departure from reasonable conduct, the jury could have found, as plaintiffs appear to concede, that...