Brittain v. Booth
601 P.2d 532 (1979)
Rule of Law:
In Wyoming, the doctrine of assumption of risk is considered a form of contributory negligence and is therefore subject to apportionment under the state's comparative negligence statute, rather than operating as an absolute bar to recovery.
Facts:
- On August 7, 1974, Randy Brittain, age 16, had been an employee of Hartsook Equipment and Pump Service, Inc. for approximately one month.
- Hartsook Equipment and Pump Service, Inc. had a contract to place two large gasoline tanks underground and subcontracted the excavation work to Roland Booth, d/b/a Del-Hi Construction Company, Inc.
- Booth made an excavation that was 11 feet deep, 12 feet wide, and 30 feet long, with vertical sides that were not sloped or shored, and the soil was not tested to determine if sloping or shoring was necessary.
- Randy Brittain, Roland Booth, and John Ramirez (another employee of Hartsook Equipment and Pump Service, Inc.) entered the excavation for one of the tanks to level its floor.
- Brittain testified he was not directly ordered into the excavation but Opha Hartsook (his supervisor) stated, 'We have to level these holes,' and Ramirez then told Brittain, 'Come on Randy, let's go level the hole.'
- Brittain noticed the composition of the soil and called it 'shaley,' but he had limited experience with excavations.
- After a crane arrived, a portion of the north side of the excavation caved in, covering Brittain with about six inches of dirt (to his knees) and injuring him while he was in a crouched or stooped position.
Procedural Posture:
- Randy Brittain (plaintiff) initiated a personal injury action against Roland Booth, d/b/a Del-Hi Construction Company, Inc., and Opha Hartsook.
- A and A Oil Company, James Welding, and Hartsook Equipment and Pump Service, Inc. were originally parties to the action but were dismissed prior to trial.
- The case proceeded to a jury trial, where the jury assessed Brittain's total damages at $10,000.
- The jury found no negligence on the part of Roland Booth and apportioned negligence 49% to Randy Brittain and 51% to Opha Hartsook.
- Based on the jury's verdict, a $5,100 judgment was entered.
- Brittain filed a motion for a new trial, which the trial court denied, finding that the verdict was a conclusion to which honest jurors might come.
- Randy Brittain, the appellant, appealed the judgment to the Supreme Court of Wyoming, contending the verdict was inadequate and irregular, and that there was no evidence to support the finding of negligence on his part.
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Issue:
Does the doctrine of assumption of risk, when considered a form of contributory negligence, operate as an absolute bar to recovery in a personal injury action, or is it subject to apportionment under Wyoming's comparative negligence statute?
Opinions:
Majority - Rooney, J.
No, assumption of risk, as a form of contributory negligence, is not an absolute defense in Wyoming but is a basis for apportionment of fault under the comparative negligence statute. The court affirmed that Wyoming precedent has consistently treated assumption of risk as a form of contributory negligence. With the enactment of the comparative negligence statute, the legislative intent was to include this form of negligence within the fault apportionment scheme, diminishing damages rather than barring recovery entirely. The court distinguished this from an express agreement to hold one blameless. The jury's finding of 49% negligence on Brittain's part was supported by substantial evidence. Testimony indicated the excavation was hazardous and should have been shored or sloped according to Occupational Health and Safety Agency regulations, which were presented to the jury. Experienced witnesses testified they would have sloped the sides if they knew someone would enter. The jury could reasonably conclude that entering an 11-foot deep, 12-foot wide excavation with vertical, unshored, and unsloped sandy or shaley sides constituted an act a reasonable person of ordinary prudence would not undertake, and that failure to recognize such a danger could itself be negligence, relying on common knowledge and experience. The court also held that the jury's determination of damages would only be disturbed if it were so inadequate as to shock the judicial conscience, which was not the case here.
Dissenting - Rose, J.
Yes, the appellant's actions did not constitute contributory negligence, and therefore, the doctrine of assumption of risk should not have been applied to diminish his recovery. Justice Rose dissented, arguing there was no substantial evidence to support a finding of negligence on the part of the inexperienced 16-year-old appellant. The burden of proving contributory negligence and assumption of risk rests with the defendant, and the dissent found this burden was not met. The dissent emphasized that Brittain was acting under the implied direction of his supervisory employer, Opha Hartsook, and an experienced co-worker, and that he had no warning or appreciation of the danger. Mere knowledge of a 'shaley' soil composition did not equate to an appreciation of the risk of a cave-in for someone with Brittain's limited experience. The dissent highlighted that the danger was not 'obvious or apparent,' given that even more experienced employees and the employer himself did not prevent entry or take safety precautions. The evidence cited by the majority, according to the dissent, primarily pointed to the employer's negligence in maintaining an unsafe workplace, rather than the employee's negligence in entering it. Therefore, Justice Rose concluded that the plaintiff's percentage of negligence should not have been set off against the defendant's, and Brittain should have been awarded the full damages found by the jury.
Analysis:
This case is critical for clarifying the role of assumption of risk within Wyoming's comparative negligence system, affirming that it acts as a factor in fault apportionment rather than an outright bar to recovery. It underscores the judiciary's deference to jury findings of negligence and damages when supported by substantial evidence and absent clear indications of impropriety. The dissenting opinion highlights the persistent challenges in applying negligence standards to employees, particularly minors, who may operate under supervisory direction or lack the experience to fully appreciate workplace hazards, underscoring the ongoing debate over the balance of responsibility between employers and employees for workplace safety.
