Thomas v. Holliday By and Through Holliday, 63821

• Citation: 1988 OK 116,764 P.2d 165
• Decision Date: 25 October 1988
• Docket Number: No. 63821,63821
• Parties: Donald R. THOMAS, Plaintiff-Appellee, v. Daniel Dee HOLLIDAY, a minor child under the age of 18 years of age, By and Through his mother and next friend, Nagako HOLLIDAY, and Nagako Holliday, an individual, Defendants-Appellants.
• Court: Supreme Court of Oklahoma

Page 165

764 P.2d 165

1988 OK 116

Donald R. THOMAS, Plaintiff-Appellee, v. Daniel Dee HOLLIDAY, a minor child under the age of 18 years of age, By and Through his mother and next friend Nagako HOLLIDAY, and Nagako Holliday, an individual, Defendants-Appellants.

No. 63821.

Supreme Court of Oklahoma.

Oct. 25, 1988.

On appeal from the District court, Comanche County; Jack L. Brock, judge.

In an action to recover damages for negligently inflicted bodily injury the trial court gave judgment on jury verdict for the defendant and then granted the plaintiff a new trial. Defendant appeals.

AFFIRMED.

Jack S. Dawson, David A. Kaserman, Miller, Dollarhide, Dawson & Shaw, Oklahoma City, for defendants-appellants.

Arthur R. South, Lawton, for plaintiff-appellee.

OPALA, Justice.

The issue tendered for our decision is whether the trial court erred in granting the plaintiff's motion for new trial on the ground that its assumption-of-risk charge to the jury had been incorrectly given. We answer this question in the negative and hold that the evidence adduced at trial did not warrant an instruction on assumption of risk.

The plaintiff, Donald R. Thomas [Thomas], a security guard for Safeway and an off-duty Lawton police officer, observed the defendant, Daniel D. Holliday [Holliday], partially eat a pastry in the grocery store and then replace it on a shelf. Holliday then left the store. Thomas, along with another employee, went to the parking lot where they saw Holliday sitting inside a car. Thomas noted the license tag number and approached the vehicle. While showing his badge he asked Holliday to roll down the window and answer some questions. Holliday denied any wrongdoing and began to drive away. Thomas then opened the car door and attempted either to get inside or turn off the ignition. Unable to do either, he grabbed the back of the bucket seat while his left hand was on the door. Thomas then jumped on the side of the car and fell from it while it was turning. He sustained an injury to his shoulder.

Thomas brought this action against Holliday to recover for his injury, medical bills, lost time from work and other damages. Holliday raised the assumption-of-risk defense and requested a jury charge explaining this theory and its legal effect as a complete shield from liability. ¹ Thomas objected to the instruction, contending that under Oklahoma's comparative negligence statute ² assumption of risk should be apportioned similarly to contributory negligence.

The trial court gave the requested instruction and the jury returned a verdict for Holliday. Thomas subsequently sought a new trial on the grounds that the court had erred in giving the assumption-of-risk instruction and that the jury verdict reflects the triers' reliance on this impermissible charge to his detriment. The court granted Thomas a new trial and this appeal followed.

I. THE DOCTRINE OF ASSUMPTION OF RISK

The defense of assumption of risk is relatively new to the common law, ³ and the typical case of risk assumption draws either from a status relation or a contract between the parties. ⁴ The root of the defense, which evolved in the master/servant or employer/employee context, was used by employers to protect the emerging industries of the 19th century from claims of employment-related injuries. ⁵ The decisions held that the employee was free to contract for service to be rendered and, because of his status he assumed all risks of harm other than hazards stemming from the employer's failure to provide a safe place to work. ⁶

This aspect of risk assumption survives today mainly in situations where a plaintiff either expressly agrees that the defendant will be held blameless for the plaintiff's failure to exercise due care for his protection in certain circumstances, ⁷ or where the defendant does not owe a duty of care to the plaintiff. ⁸ In the former, the plaintiff expressly consents to relieve the defendant of an obligation of conduct to him and to take the chance of injury from a known risk arising from what the defendant is to do or leave undone. ⁹ In the latter instance, the defendant would not be negligent because he owes no duty to the plaintiff. ¹⁰ A classic example of this type of risk assumption is afforded by a fan injured while attending a sports event. ¹¹ The fan is deemed to have consented that the game may be played without taking any precautions to protect him from stray balls, and the law takes notice of the existence of a special "relational" duty between the fan and the owner.

Another aspect of risk assumption arises from Roman law and is the source of much confusion. This concept is encapsulated in the maxim volenti non fit injuria, which means: If one, knowing and comprehending the danger, voluntarily exposes himself to it, though not negligent in so doing, he is deemed to have assumed the risk and is precluded from recovery for the resulting injury. The maxim is predicated upon the theory of knowledge and appreciation of the danger and voluntary assent. ¹² A subjective standard is applied in evaluating a plaintiff's knowledge, comprehension and appreciation of the risk. ¹³

The touchstone of the assumption-of-risk defense is consent to harm and not heedlessness or indifference. In the context of general negligence law, it is not true that in every case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who crosses the street in the middle of a block through a stream of traffic traveling at excessive speed cannot be deemed to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. ¹⁴ This is simply a case for application of contributory negligence. A plaintiff may expose himself to potential harm and not consent to relieve the defendant of any future duty to act with reasonable care. ¹⁵ The defense of risk assumption is proper in the relational context previously mentioned but it should not be allowed as a substitute for what is in reality contributory negligence. In sum, where neither the law, status, nor contract calls for the application of some relational duty between the parties, which is distinct from that imposable by general negligence, neither assumption of risk nor consent to injury may be inferred in a negligence-based tort suit from a mere face-to-face chance encounter of one stranger with another. ¹⁶

II. CONTRIBUTORY NEGLIGENCE DISTINGUISHED FROM ASSUMPTION OF RISK

Contributory negligence, which was introduced to the common law a few years after assumption of risk first made its appearance, ¹⁷ is that conduct on the part of the plaintiff, contributing as a legal cause to the harm he has suffered, which falls below the standard of one to which he is required to conform for his own protection. ¹⁸ The test for contributory negligence relies on an objective standard ¹⁹ of conduct that falls below the degree of care which would be exercised by a reasonable person. The inquiry is into whether the plaintiff's conduct conforms to that of a reasonably prudent man in the protection of himself and, if not, whether it is a contributing cause to the injury. Contributory negligence implies the omission of a duty on the part of the injured person and excludes the idea of willfulness. ²⁰

What is in actuality lack of due care or heedlessness on the part of a plaintiff is often mislabeled assumption of risk. ²¹ For risk assumption to avail as a defense to a tort claim for negligence there must either be an express agreement, a pre-existing status between the defendant and plaintiff, or an element of consent to the harm that is known and appreciated by the plaintiff. Anything falling outside these areas is simply contributory negligence.

In the present case, it cannot be said that the plaintiff consented to being thrown from the car when he jumped onto it. The plaintiff may have been reckless and exhibited a lack of due care, but that would require a jury charge on contributory negligence and not on assumption of risk. The evidence clearly warranted the instruction on contributory negligence, which the trial court gave, but not one on risk assumption. Because the flawed charge gave the defendant the benefit of a complete defense ²² to which he was not entitled, the trial court's order granting plaintiff's motion for new trial rests clearly on legally tenable grounds. ²³

The trial court's order granting a new trial is affirmed.

DOOLIN, C.J., HARGRAVE, V.C.J., and HODGES, LAVENDER, ALMA WILSON and SUMMERS, JJ., concur.

KAUGER, J., concurs in part and dissents in part.

SIMMS, J., dissents.

1 Jury instruction No. 13 states:

"A person assumes the risk of injury resulting from the negligence of another if he voluntarily and unreasonably exposes himself to injury with knowledge and appreciation of the danger and risk involved. If you find that the plaintiff assumed the risk of injury, then your verdict must be in favor of the defendant." [Emphasis added.]

A complete or absolute defense is one that, if found applicable by the trier, will shield the defendant from any liability for the claim and thus operate as a bar to any recovery by the plaintiff. See Duffy v. Midlothian Country Club, infra note 8, 90 Ill.Dec. at 240-241, 481 N.E.2d at 1040-1041; Springrose v. Willmore, infra note 8, 192 N.W.2d at 827 and Blackburn v. Dorta, infra note 8 at 288-289.

2 The terms of 23 O.S.1981 § 13 provide:

"In all actions hereafter brought, whether arising before or after the effective date of this act [July 1, 1979], for negligence resulting in personal injuries or wrongful death, or injury to property, contributory negligence shall not bar a recovery, unless any negligence of the person so injured, damaged or killed, is of greater degree than any negligence of the person, firm or corporation causing such damage, or unless any negligence of the person so injured, damaged...