Hildebrand v. Minyard

Arizona Court of Appeals, Division Two · Torts

TortsAssumption of RiskContributory NegligenceJury Instructionsassumption of riskimplied assumption of riskexpress assumption of riskcontributory negligence

Facts

George Hildebrand was repairing a steam steering ramp on a Michigan loader in the Herseth Packing Company yard after positioning the loader so that it partially intruded into a driving area. He was told he was parked in a roadway and ought to move, but both he and a Herseth employee believed there was still room for vehicles to pass, and several vehicles did so safely before the accident. While Hildebrand was working on the loader, George Minyard, driving a tractor pulling two fertilizer trailers for his employer, struck the loader while making a turn. The impact caused the loader's wheel to crush Hildebrand, and there was some evidence Hildebrand was facing in Minyard's direction just before the collision.

Issue

Was an instruction on implied assumption of risk warranted by the evidence where the decedent parked the loader partly in a roadway but believed vehicles could safely pass? Also, was the evidence so one-sided on liability that plaintiff was entitled to a directed verdict?

Rule

Implied assumption of risk requires: (1) a risk of harm to the plaintiff caused by the defendant's conduct or by the condition of the defendant's land or chattels; (2) the plaintiff's actual knowledge of the particular risk and appreciation of its magnitude; and (3) the plaintiff's voluntary choice to enter or remain within the area of that risk under circumstances manifesting willingness to accept that particular risk. The doctrine is grounded in consent, not merely failure to use due care, and a plaintiff is not required to anticipate the negligent conduct of others. The standard is subjective, focusing on what the particular plaintiff in fact saw, knew, understood, and appreciated.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tucson, Miguel Ortega stopped a large asphalt roller partly along an internal lane at a construction yard so he could tighten a leaking hose. A supervisor warned him the roller was close to traffic, but Miguel replied there was still enough room, and several pickup trucks passed without incident before Dana Pike, driving a delivery truck, turned too sharply and struck the roller, injuring Miguel.

Was an implied-assumption-of-risk instruction warranted on these facts?

Explanation. Implied assumption of risk requires actual knowledge of the particular risk, appreciation of its magnitude, and a voluntary choice manifesting willingness to accept that specific risk. General awareness that the roller was near traffic is not enough, and a plaintiff is not required to anticipate another's negligent driving. These facts support, at most, contributory negligence rather than consent to relieve the driver of a duty of due care. (Derived from Hildebrand v. Minyard (n.d.).)