Salinas v. Vierstra

• Decision Date: 10 January 1985
• Docket Number: No. 15236,15236
• Citation: 695 P.2d 369,107 Idaho 984
• Parties: Sergio SALINAS, Plaintiff-Appellant, v. Richard P. VIERSTRA and Norma P. Vierstra, husband and wife, dba Classic Dairy, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 369

695 P.2d 369

107 Idaho 984

Sergio SALINAS, Plaintiff-Appellant, v. Richard P. VIERSTRA and Norma P. Vierstra, husband and wife, dba Classic Dairy, Defendants-Respondents.

No. 15236.

Supreme Court of Idaho.

Jan. 10, 1985.

Rehearing Denied Feb. 27, 1985.

Lloyd J. Webb, of Webb, Burton, Carlson, Pedersen & Paine, Twin Falls, for plaintiff-appellant.

Robert M. Tyler, Jr., of Elam, Burke, Evans, Boyd & Koontz, Boise, for defendants-respondents.

BISTLINE, Justice.

Sergio Salinas, the plaintiff-appellant, worked for Classic Dairy as a truck driver. When his services were not needed as a driver, he did other work, including helping other Classic Dairy employees feed cattle. Mr. Salinas had worked for Classic Dairy for over six months when misfortune befell him.

He had returned from a milk-hauling run and joined a group of employees in a cattle-feeding operation. Four workers were involved in the task, each performing a different job. Ken Vierstra, the dairy owner's son, drove a truck pulling trailers stacked high with bales of hay; Wade Gardener stood on top of the bales and dropped the hay to the ground; Mr. Salinas straightened the bales after they were dropped; and Dave Crist cut the strings on the bales.

Mr. Salinas reached down to straighten out a bale that had hit the ground and was subsequently struck by another bale causing the injuries which are the subject of this lawsuit. Mr. Salinas testified that he was several feet behind and to the right of the truck, picking up a bale that had landed awkwardly, when the next bale hit him. Mr. Crist, who was behind Mr. Salinas, was the only witness to see the bale hit Mr. Salinas. Mr. Crist testified that the bale struck Mr. Salinas while he was in the process of pulling another bale from beneath the truck and away from its wheels. As with these two particular accounts, a great deal of varying and conflicting testimony surrounds the case.

Mr. Salinas filed suit alleging negligence by Classic Dairy, its owners, and its employees, in failing to properly supervise, regulate, and inspect Mr. Salinas' working conditions. The Vierstras, owners of Classic Dairy, and the defendants-respondents, denied any negligence on their part or on the part of any of their employees. They alleged, furthermore, as an affirmative defense, that Mr. Salinas' injuries were caused by his own negligence. The case went to trial. The jury found the Vierstras, their employees, and Classic Dairy to have not done anything negligent which was a proximate cause in Mr. Salinas injuries. It is from the judgment pursuant to the jury verdict that Mr. Salinas appeals.

I.

Mr. Salinas argues that the trial court improperly instructed the jury concerning the doctrine of "assumption of risk." Specifically, Mr. Salinas contends either that the doctrine is no longer available in Idaho for a fact-pattern like the one in this case, or that even if the doctrine does still exist, the instructions tendered leave out essential elements. ¹ Since we agree with Mr. Salinas' first contention, we need not address his second.

A.

An understanding of the bases for and origin of the assumption of risk doctrine will help to explain why that doctrine has no current validity in Idaho except in limited circumstances.

It is important at once to recognize that the doctrine of assumption of risk is a judicially created rule. ² It was developed by the English common law courts at the beginning of the Industrial Revolution for the purpose of insulating 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." Tiller v. Atlantic Coast Line Railroad Co., 318 U.S. 54, 59, 63 S.Ct. 444, 447, 87 L.Ed. 610 (1943). The doctrine, in effect, gave maximum legal immunity to industry. Lyons v. Redding Construction Co., 83 Wash.2d 86, 515 P.2d 821, 823 (1973). ³

Thus, for decades, an employee's suit against his or her employer for personal injuries received as a result of the employer's negligence was often adjudicated in light of the utility of the employer's contract. Eman, "Ohio's Assumption of Risk: The Deafening Silence," 11 Capitol University L.Rev. 661, 663 (1982). The inevitable result was non-recovery for the employee. The effect of this was to place the costs of industry's growth upon the workers.

In addition to its application in the employer-employee context, the doctrine over time expanded and grew, embedding itself in virtually every type of negligence law. Wherever it was found to apply, the doctrine's effect was the same: to bar any recovery by the plaintiff.

Despite the doctrine's growth during the first half of this century, it has most recently been on the defensive. Legal commentators and courts alike have criticized it for the unfairness and harshness it causes, ⁴ and for the duplicity and confusion it engenders. ⁵ The doctrine's unfairness is rooted in its "all-or-nothing" approach. That is, a plaintiff can recover only if he or she is found not to have assumed the risk that caused the injury. Once the risk is found to have been assumed, however, the plaintiff is barred from any recovery, even if the risk the plaintiff assumed was reasonable and the defendant was negligent toward the plaintiff. This result is similar to that which is reached when the common law defense of contributory negligence is found to apply.

The doctrine's duplicity and confusion is a result of its broad overlap with the common-law defense of contributory negligence. To understand this overlap, an analysis of the types of assumption of risk is necessary.

According to Harper and James, there are basically two types of assumption of risk. The first is an express agreement by the plaintiff to assume the risk. The second is the nature of plaintiff's conduct in deciding whether to assume the risk. In other words, whether plaintiff's decision to assume the risk was reasonable or unreasonable. ⁶ See 2 Harper and James, supra, § 21.1.

The result of reasonably assuming a risk is that the plaintiff is denied recovery. The reason for this is that the plaintiff's assumption of risk is viewed as "only the counterpart of defendant's lack of duty to protect the plaintiff from that risk." Id. In other words, the defendant is viewed as having committed no negligence, for any duty to care that would give rise to such liability never arose.

The result of unreasonably assuming a risk is also to preclude plaintiff from recovery. The reason for this is that an unreasonable assumption of risk is but a form of contributory negligence. Prosser & Keeton, supra, § 68, at 481. ⁷ In this instance, since either defense barred recovery, it made little difference what the defense was called. Accordingly, many courts in non-comparative negligence settings have used both defenses interchangeably without attempting to distinguish between the two. ⁸ This has caused much confusion. Some states have attempted to distinguish the two defenses but have only further muddied any understanding of the applicability of the doctrine. ⁹

Further confusion concerning the doctrine's applicability has arisen with the adoption of comparative negligence liability in many states. Recognizing that the scope and effect of contributory negligence and assumption of risk overlap quite often, and acknowledging the policies underlying comparative negligence, a majority of courts and legislatures have either merged the two defenses or abolished assumption of risk as a defense. ¹⁰ The result has been to eliminate the doctrine's total bar from recovery.

Idaho has likewise been critical of the assumption of risk defense. In Fawcett v. Irby, 92 Idaho 48, 54-56, 436 P.2d 714, 720-22 (1968), Justice Spear, in a concurrence joined by the rest of the members of the Court, severely criticized the doctrine for the confusion it creates. Justice Spear urged the "complete banishment of the assumption of risk doctrine in Idaho" with two exceptions: (1) where there is an employer-employee relationship outside the scope of the Worker's Compensation Act; and (2) where the plaintiff expressly consented with the defendant to assume any risk involved.

Subsequent to Fawcett, supra, Idaho enacted its own comparative negligence statute, I.C. § 6-801. ¹¹ The statute does away with the illogical and unfair results often reached by the "all-or-nothing" rule of the contributory negligence defense. ¹² The statute is silent, however, with respect to the assumption of risk doctrine. It is thus time to reconsider the applicability of this defense to Idaho's comparative negligence system for allocating liability.

B.

The policy of insulating business from "human overhead," however valid it may have been during the infancy of the Industrial Revolution, is diametrically opposed to current social policy and thought, which is to promote safety and protect the employee in his or her working environment. ¹³ Furthermore, the "all-or-nothing" effect of application of the assumption of risk defense is inequitable. It runs counter to all sense of reason and fairness. This is particularly true in today's age of comparative negligence; it would be the ultimate legal inconsistency to reject contributory negligence as an absolute defense yet at the same time allow its effect to continue under the guise of assumption of risk. The scope of I.C. § 6-801 is broad. It is not limited to certain types of action; it is not limited by exceptions. Rather, it covers any action in which the plaintiff is seeking to recover on grounds of negligence. ¹⁴ Section 6-801's intent is clear: Contributory negligence is not to be a complete bar to recovery; instead, liability is to be apportioned between the parties based on the degree of fault for which each is responsible. ¹⁵

We find no reason that justifies the continued use of assumption of risk as an absolute bar to recovery in light of I.C. § 6-801's mandate and intent. Rather, we...