Springrose v. Willmore
| Decision Date | 10 December 1971 |
| Docket Number | No. 42833,42833 |
| Citation | 192 N.W.2d 826,292 Minn. 23 |
| Court | Minnesota Supreme Court |
| Parties | Mary T. SPRINGROSE, a minor, by James V. Springrose, her father and natural guardian, and James V. Springrose, individually, Appellants, v. Bert L. WILLMORE et al., Respondents. |
Syllabus by the Court
Implied assumption of risk, in its secondary sense as an affirmative defense in tort actions, will hereafter, including the instant case, be limited to those situations in which the voluntary encountering of a known and appreciated risk is unreasonable. It is to be considered a phase of contributory negligence, to be submitted with and apportioned under our comparative negligence statute, Minn.St. 604.01, subd. 1.
Popham, Haik, Schnobrich, Kaufman & Doty and David S. Doty, Robert A. Minish and Gary R. Macomber, Minneapolis, for appellants.
Meagher, Geer, Markham & Anderson and James Torke and O. C. Adamson, II, Minneapolis, for respondents.
Heard and considered en banc.
The central issue for determination is whether the judicially created doctrine of implied assumption of risk, as an absolute defense separate from contributory negligence, should be abolished. It arises out of an injury to a teen-age passenger in an automobile negligently operated by its teen-age driver--the claim of the injured passenger and her father against the driver and owner of the automobile having been denied solely on the ground that the passenger had assumed the risk of injury.
Assumption of risk has been conceptually distinguished according to its primary or secondary character. Primary assumption of risk, express or implied, relates to the initial issue of whether a defendant was negligent at all--that is, whether the defendant had any duty to protect the plaintiff from a risk of harm. It is not, therefore, an affirmative defense. The limited duties owed licensees upon another's property, e.g., Sandstrom v. AAD Temple Bldg. Assn., Inc., 267 Minn. 407, 127 N.W.2d 173 (1964), or patrons of inherently dangerous sporting events, e.g., Aldes v. St. Paul Ball Club, 251 Minn. 440, 88 N.W.2d 94 (1958), are illustrative. The classes of cases involving an implied primary assumption of risk are not many and, because this is not such a case, we have no occasion to determine the method by which such issue should be presented to a jury.
Secondary assumption of risk, as an affirmative defense to be proved by a causally negligent defendant, is the principal issue for our determination now. The doctrine of implied assumption of risk must, in our view, be recast as an aspect of contributory negligence, meaning that the plaintiff's assumption of risk must be not only voluntary but, under all the circumstances, unreasonable. Instruction 135, Minnesota Jury Instruction Guides, remains an appropriate definition of assumption of risk, but Instruction 136 is to be abandoned. The practical and most important impact of this decision is to mandate that, like any other form of contributory negligence, assumption of risk must be apportioned under our comparative negligence statute, Minn.St. 604.01, subd. 1.
Our departure from precedent is neither recent nor radical. The bench and bar will observe the extent to which we have responded to the landmark opinion of Mr. Chief Justice Joseph Weintraub in Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208 (1959), as well as those of other courts and commentators. 1 Quite apart from Meistrich, we have in other situations, most notably in Peterson v. W. T. Rawleigh Co., 274 Minn. 495, 498, 144 N.W.2d 555, 558 (1966), ourselves acknowledged the emerging concept that an injured plaintiff's involuntary or otherwise not unreasonable assumption of risk should not exonerate a defendant from his causal negligence. This marks, as in the case at bar, merely a return to the earlier expression of Mr. Chief Justice Henry M. Gallagher in Hubenette v. Ostby, 213 Minn. 349, 351, 6 N.W.2d 637, 638 (1942), that '(s)uch assumption of risk is but a phase of contributory negligence.'
We had an opportunity in Parness v. Economics Laboratory, Inc., 284 Minn. 381, 170 N.W.2d 554 (1969), to follow the lead of Meistrich in abolishing assumption of risk as a separate and distinct defense. Although we declined to do so then, in a situation where both contributory negligence and assumption of risk constituted absolute defenses, we expressly anticipated that 'the question will be more meaningfully presented under the recently enacted statute abolishing contributory negligence as a complete defense' (284 Minn. 386, 170 N.W.2d 558). The time has now come. 2 Although this departure from precedent is not compelled by the legislative enactment, the apportionment of loss between blameworthy plaintiffs and defendants is in harmony with its manifest determination of public policy regarding tort reparation.
Our retention of the terminology of implied assumption of risk, although only as an element of negligence, may be an unnecessary precaution in most situations. The only question for submission in the usual case, we think, will be whether the particular plaintiff was, under the circumstances, negligent in regard to his own safety, for under that general issue counsel may fully argue the issue in all its aspects. There may be unusual cases, however, where contributory negligence and assumption of risk, in any distinctive aspects, may be separately submitted, subject, of course, to a single apportionment verdict. Experience in the trial courts, as disclosed in their instructions and memoranda, will serve to demonstrate whether our reservations serve only to confuse and not to clarify the issue for the jury.
Our decision is prospective, so that if shall apply only to causes of action arising from and after the date of this decision, except that it shall apply also to the case at bar.
The situation in this appeal is not complicated. Plaintiff Mary Springrose, age 16, was a passenger in an automobile owned by defendant Bert Willmore and driven by his daughter, defendant Margaret Willmore, age 16. Mary and Margaret attended a school play at Edina High School and thereafter joined a group of about 15 other...
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