Perez v. McConkey

• Citation: 872 S.W.2d 897
• Court: Supreme Court of Tennessee
• Decision Date: 28 February 1994
• Parties: Nancy S. PEREZ, Plaintiff-Appellant, v. James McCONKEY, d/b/a J & V Sales, Defendant-Appellee.

Page 897

872 S.W.2d 897

Nancy S. PEREZ, Plaintiff-Appellant, v. James McCONKEY, d/b/a J & V Sales, Defendant-Appellee.

Supreme Court of Tennessee at Knoxville.

Feb. 28, 1994.

Charles W. Swanson, Susano, Sheppeard, Giordano, & Swanson, Knoxville, for appellant.

Jeffrey L. Cunningham, Carter, Harrod & Cunningham, Athens, for appellee.

John A. Day, Jeffrey A. Garrety, Nashville, for amicus curiae, Tennessee Trial Lawyers Ass'n.

OPINION

ANDERSON, Justice.

In this appeal, we are asked to decide whether and to what extent the common-law doctrine of assumption of risk retains its vitality in view of our recent decision in McIntyre v. Balentine, 833 S.W.2d 52 (Tenn.1992). There, we held that contributory negligence no longer serves as a complete bar to a plaintiff's recovery, but is to be considered in apportioning damages according to the principles of modified comparative fault so long as the plaintiff's negligence remains less than the defendant's negligence. For the reasons stated herein, we conclude that the doctrine of implied assumption of risk, as well as the terminology associated with that defense, should be abolished. Express assumption of risk is unaffected by our holding since its vitality stems from a contractual undertaking to relieve a potential defendant from any duty of care to an injured party.

BACKGROUND

The defendant, Jamie McConkey d/b/a J & V Sales of Englewood, Tennessee, employed the plaintiff, Nancy S. Perez, as an operator of screen printing machinery which was located in the back room of another business. The back room was approximately twenty-five feet wide and thirty feet long. One component of the screen printing equipment Perez used in the discharge of her duties was a dryer which heated up to three hundred and ten (310) degrees Fahrenheit. In addition to the excessive heat generated by the dryer, Perez testified that the printing process itself produced smoke and vapors which caused her to experience flu-like symptoms. Perez contends that on several occasions she complained to the defendant about the oppressive heat and the lack of adequate ventilation, to no avail.

On July 10, 1989, while working on a printing assignment in the back room, Perez testified she fainted and fell due to the heat and vapors. As a result of the fall, she was hospitalized for several days with heat exhaustion and a head injury, and thereafter underwent surgery.

Perez filed a common-law negligence action against the defendant-employer, McConkey, ¹ alleging that inadequate ventilation resulted in conditions that rendered the work place unsafe and that, despite her persistent complaints, the defendant negligently failed to remedy the situation.

At the trial, after the plaintiff rested her proof, the defendant moved for a directed verdict, asserting the affirmative defense of implied assumption of risk. The trial court granted the directed verdict motion, finding as a matter of law, that the plaintiff had assumed the risk of the injuries she sustained. The plaintiff appealed. The Court of Appeals initially and accurately concluded that the principles of comparative fault enunciated in McIntyre are applicable to this case. ² The Court then discussed the effect of our adoption of comparative fault on the common-law doctrine of assumption of risk, and quoted extensively from an analysis of the issue by Professor Carol A. Mutter contained in a law review article entitled Moving to Comparative Negligence in an Era of Tort Reform: Decisions for Tennessee, 57 Tenn.L.Rev. 199 (1990) ³, in the formation of their own opinion.

According to that analysis, ⁴ there are two basic types of assumption of risk, express and implied. Express assumption of risk refers to an express release, waiver, or exculpatory clause, by which one party agrees to assume the risk of harm arising from another party's negligence. Such agreements are of a contractual nature and will generally be enforced by a court unless it is contrary to a sound public policy. Id. at 285. Implied assumption of risk refers to at least two different concepts, primary implied assumption of risk and secondary implied assumption of risk. Implied assumption of risk, in its primary sense, applies to bar recovery when a plaintiff has assumed known risks inherent in a particular activity, such as observing a baseball game from an unscreened seat. Id. at 286. In this situation, an assumption of risk defense is simply an alternative manner of stating that the plaintiff has failed to establish a cause of action, because the defendant has no duty to protect the plaintiff from the inherent risk. Id. Secondary implied assumption of risk applies when the plaintiff, either reasonably or unreasonably, ⁵ decides to encounter a known risk. When the plaintiff's decision to take the risk is unreasonable, secondary assumption of risk is indistinguishable from contributory negligence, and should only reduce, not preclude, recovery under a comparative fault analysis. Id. When the plaintiff's decision to encounter the risk is reasonable, the plaintiff is not negligent, but because the decision is voluntary, commentators are split as to whether a plaintiff's recovery, under comparative fault, should be precluded, reduced or unaffected. Id.

After considering Professor Mutter's analysis, the Court of Appeals concluded that:

Tennessee's adoption of the doctrine of comparative fault affects the principle of assumption of risk in the following ways: first, express assumption of risk or consent, such as a contract between the parties, as qualified in Olson v. Molzen, 558 S.W.2d 429 (Tenn.1977), remains an absolute bar to recovery by a plaintiff; second, primary assumption of risk, as when a plaintiff voluntarily assumes known risks inherent in an activity, retains its viability under comparative negligence as a complete bar to recovery; but third, under comparative fault, secondary implied assumption of risk, which is nothing more than an aspect of contributory negligence, may serve to reduce a plaintiff's damages, but not necessarily--depending on the degree of the plaintiff's negligence--preclude recovery. ⁶

The Court of Appeals vacated the judgment of the trial court and remanded the matter to the trial court for proceedings in accordance with the newly adopted standard. We granted the defendant's application for permission to appeal and now modify and affirm the judgment of the Court of Appeals on the separate grounds stated below.

HISTORICAL DEVELOPMENT

The Latin maxim volenti non fit injuria, which means--to one who is willing no harm is done, was often described as a synonym for assumption of risk. It was originally applied in Roman-Law as a means of validating the process by which a free citizen sold himself into slavery. ⁷ Although the date it first appeared in recorded English case law was 1305, ⁸ the first notable expression of the contemporary common-law doctrine of assumption of risk has been traditionally traced to Lord Abinger's opinion in Priestly v. Fowler, 3 M. & W. 1, 150 Eng.Rep. 1030 (Ex.1837). There, the plaintiff, a servant of the defendant, was injured by being thrown to the ground when a "van," overloaded by another of the defendant's servants, broke down. ⁹ Lord Abinger denied recovery, concluding that "the plaintiff must have known as well as his master, and probably better, whether the van was sufficient, whether it was overloaded, and whether it was likely to carry him safely." Id., 150 Eng.Rep. at 1033. Although Lord Abinger was addressing himself to domestic servants such as chamber maids, coachmen, and footmen, the doctrine of assumption of risk expanded and was extensively applied in master-servant cases during the ensuing industrial revolution where it was interposed to defeat countless claims of injured workers.

Inevitably, the doctrine became a part of American common law as an instrument of public policy to be applied in the American Industrial Revolution. In a refinement of the holding in Priestly, Chief Justice Shaw of the Supreme Judicial Court of Massachusetts in Farwell v. Boston & Worcester RR Corp., 45 Mass. 49 (1842), during our nation's Industrial Revolution, found that a worker's contract of employment impliedly includes the risks of his profession. The court identified three justifications for its holding: (1) the chance of injury is reflected in compensation; (2) the employee is as likely to know of the dangers as the employer; and (3) non-compensation of injuries tends to make workers more careful. Id. The United States Supreme Court thereafter endorsed the doctrine in Tuttle v. Detroit, Grand Haven & Milwaukee Ry., 122 U.S. 189, 7 S.Ct. 1166, 30 L.Ed. 1114 (1886) as a necessary "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." Id. 122 U.S. at 196, 7 S.Ct. at 1169.

In Tennessee the doctrine of assumption of risk developed in a similar fashion. The applicable rule of law was stated in Nashville & Chattanooga Railroad Co. v. Elliott, 41 Tenn. 611, 616 (1860), as follows:

The servant on entering into the service knows, or is taken to know, that there are extraordinary dangers inseparable from such a service, which human care and foresight cannot always guard against; he is not bound to incur these known perils incident to the service, and may refuse to do so, or he may, as far as can be done, provide for them, in the rate of compensation or otherwise. But if he voluntarily engages to serve, in view of all the hazards to which he will be exposed, it is well settled that, as between himself and his employer, he undertakes to run all the ordinary risks of the service....

Thereafter, this Court consistently applied the doctrine in the employer-employee context. See e.g. Acme Box Co. v. Gregory, 119 Tenn. 537, 105 S.W. 350 (1907); Moore v. Chattanooga Elec. R.R., 119 Tenn. 710, 109 S.W. 497 (19...