Wentz v. Deseth

• Decision Date: 26 June 1974
• Docket Number: No. 8899,8899
• Citation: 221 N.W.2d 101
• Court: North Dakota Supreme Court
• Parties: Arlan WENTZ, by his next friend, Dennis Wentz, Plaintiff and Appellant, v. Leland DESETH, Defendant and Appellee. Civ.

Page 101

221 N.W.2d 101

Arlan WENTZ, by his next friend, Dennis Wentz, Plaintiff and Appellant, v. Leland DESETH, Defendant and Appellee.

Civ. No. 8899.

Supreme Court of North Dakota.

June 26, 1974.

Syllabus by the Court

1. It is error for trial judge to instruct jury in negligence action as to doctrine of assumption of risk where there is no evidence that the plaintiff knew of an abnormal danger, had freedom of choice to avoid it, and voluntarily exposed himself to the danger, to his injury.

2. If defendant in a negligence action could not have foreseen the action of an independent intervening cause which solely caused injury to plaintiff, then a verdict dismissing plaintiff's negligence action is justified.

3. The giving of an instruction which confusingly blends elements of definitions of contributory negligence, assumption of risk, and the degree of care to which minors are held, is reversible error.

4. The erroneous submission to the jury of one of several issues is ground for granting a new trial where the jury renders a general verdict and it is impossible for the appellate court to determine whether the general verdict is based upon the erroneous issue or upon some other issue.

5. Formerly available defenses of assumption of risk and contributory negligence apply in action which arose prior to enactment of comparative negligence law by 1973 Legislative Assembly.

Duffy & Haugland, Devils Lake, for plaintiff and appellant.

Traynor & Rutten, Devils Lake, for defendant and appellee.

VOGEL, Judge.

The plaintiff, Wentz, has appealed from an order denying his motion for judgment notwithstanding the verdict or in the alternative for a new trial. He alleges that the evidence is insufficient to sustain a verdict of dismissal of his complaint and that the trial court erred in instructing the jury on the defense of assumption of risk.

Wentz brings the action against his eighth-grade teacher, Deseth, for burns suffered while in school, during a candlemaking project supervised by Deseth. Deseth left the schoolroom during a study period and the students were unsupervised for a period of fifteen minutes or more.

Before leaving the classroom, Deseth had instructed the students to put out their candles. During his absence, however, someone relit the candle sitting on Wentz's desk, and, while Wentz was seated at his desk and engaged in conversation with students immediately to his left, someone poured after-shave lotion upon the flame of his candle. After-shave lotion was being used to add scent to the candles, and Deseth was aware of its presence and intended use. The lotion, which was highly flammable, caught fire. Flames spread from the container to Wentz's clothing, severely burned him, and caused permanent injury.

There is nothing to show that Wentz had any knowledge of the dangerous flammability of the after-shave lotion, or that he had anything to do with igniting it or that he even knew it was being ignited. He was sitting at his desk obediently. He had nothing to do with the ignition of the lotion or the spread of the flames to his clothing.

Deseth admitted knowing that the after-shave lotion was volatile. There is no showing that any student had knowledge of the flammable nature of the lotion.

Wentz testified that he did not see Deseth leave the room nor did he hear him ask the students to put out their candles. However, a witness for Deseth testified that he (the witness) put out Wentz's candle when Deseth ordered the candles extinguished, and other witnesses corroborated testimony that all candles were put out before Deseth left the room. There were seven or eight students, all boys, in the room. There is testimony by one of the students that the only boys who had matches were Wentz and another boy, not named, but the other boys on occasion borrowed matches from Wentz and the other student when they wanted to light their candles.

The burning candle sitting on Wentz's desk, undisturbed, was not the proximate cause of Wentz's injuries. There was an intervening cause, put in motion by another student's pouring or squirting the after-shave lotion upon the candle, thereby igniting the lotion, which resulted in flames spewing from the container. It was these flames which caused the injury, not the flame of the candle.

The trial court appropriately instructed the jury on contributory negligence generally, following the language of North Dakota Jury Instruction No. 700. This instruction was followed by a paragraph which the trial judge, as well as the attorneys for both parties, described as an instruction on 'assumption of risk.' The instruction, to which the plaintiff appropriately objected, reads as follows:

'Another defense affirmatively interposed by the Defendant is that of assumption of risk. You are instructed that a student assumes the ordinary hazards and risks of his everyday life which he either knows, or should know and appreciate through his degree of intelligence. He assumes those dangers that are so open and obvious to his senses that one of his mental capacity and experience would in the ordinary exercise of care and prudence common to persons of like mental capacity and experience, would know and appreciate, and would be expected to be sufficiently attentive and understanding to avoid. In other words, the student's assumption of the hazards and dangers incident to his studies is to be determined by his capacity to know, understand and appreciate them, and his caution, alertness and aptitude to avoid them. In that regard you have a right to consider the Plaintiff, Arlin Wentz, as he appeared before you and his apparent ability as to experience, alertness and understanding.'

This instruction appears to be a blend of elements of instructions on assumption of risk, contributory negligence, and the degree of care required of infant plaintiffs.

As an instruction on assumption of risk, it would be inadequate and erroneous. Borstad v. La Rouque, 98 N.W.2d 16 (N.D.1959), states the required elements of the defense of assumption of risk, which are: knowledge of an abnormal danger, voluntary exposure to it, freedom of choice to avoid it, and injury proximately caused by the abnormal danger.

Since there is no basis for an instruction on assumption of risk, no instruction on the subject should have been given.

The rule as to the degree of care required of minors is stated in Moe v. Kettwig, 68 N.W.2d 853 (N.D.1955); Schweitzer v. Anderson, 83 N.W.2d 416 (N.D.1957); and Sheets v. Pendergrast, 106 N.W.2d 1 (N.D.1960), and is condensed into North Dakota Jury Instruction No. 103 as follows:

'The duty to exercise ordinary care imposed upon a minor child is properly measured by what a person of his age, capacity, intelligence and experience would have done under the same or similar circumstances. Negligence, as applied to a minor child, is the doing of that which an ordinarily prudent person of the age, intelligence, experience and capacity of such child would not do under the same or similar circumstances, or the failure to do that which such a person would do under the same or similar circumstances.'

We believe it...