Hildebrand v. Minyard
16 Ariz. App. 583, 494 P.2d 1328, 1972 Ariz. App. LEXIS 591 (1972)
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Rule of Law:
For the defense of implied assumption of risk to apply, a plaintiff must have actual, subjective knowledge of a specific risk of harm created by the defendant's conduct and voluntarily consent to relieve the defendant of their duty of care. Merely failing to appreciate the full consequences of one's actions or encountering a general danger constitutes contributory negligence, not assumption of risk.
Facts:
- George Hildebrand was called to the Herseth Packing Company to repair a Michigan bucket loader.
- Hildebrand parked the loader in a position where it partially intruded into a driving area within the company yard.
- An employee of Herseth Packing Company warned Hildebrand that he was parked in a roadway.
- Hildebrand stated he would only be there for a short time, and both men believed there was sufficient room for other vehicles to pass.
- Several other vehicles, including trucks and cattle trailers, successfully maneuvered around the parked loader without incident.
- George W. Minyard, driving a tractor pulling two trailers for Green Thumb Fertilizer, attempted to negotiate a turn near the loader.
- Minyard's tractor struck the loader, causing its left front wheel to fall and crush Hildebrand, resulting in his death.
- Minyard claimed that he could not see the loader because it was in a shadow and the sun obscured his vision.
Procedural Posture:
- The plaintiff, representing the estate of George Hildebrand, filed a negligence lawsuit against defendants George W. Minyard and Green Thumb Fertilizer and Spreading Company in the trial court.
- The case was tried before a jury.
- Over the plaintiff's objection, the trial court judge instructed the jury on the defense of assumption of risk.
- The jury returned a verdict in favor of the defendants.
- The plaintiff, as appellant, appealed the adverse jury verdict to this intermediate appellate court, arguing the assumption of risk instruction was not supported by the evidence.
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Issue:
Does a person who parks a vehicle partially in a roadway, but believes other vehicles can pass safely, assume the risk of another driver negligently colliding with the vehicle?
Opinions:
Majority - Howard, Judge.
No. A person does not assume the risk of a driver's negligence merely by parking a vehicle in a potentially hazardous location. The defense of implied assumption of risk is fundamentally based on consent, which requires the plaintiff to have actual knowledge of the specific risk posed by the defendant's conduct and to voluntarily agree to accept that risk. The court distinguished this from contributory negligence, which is the failure to exercise due care for one's own safety. Here, the evidence showed Hildebrand believed other vehicles could pass safely and, in fact, several did. There was no evidence that he knew of the specific danger that Minyard would negligently drive into the loader and implicitly consented to relieve Minyard of his duty of care. A plaintiff is not bound to anticipate the negligent conduct of others under the assumption of risk doctrine. At most, Hildebrand's actions may have constituted contributory negligence, but it was an error for the trial court to instruct the jury on assumption of risk.
Analysis:
This opinion provides a crucial clarification of the narrow scope of the implied assumption of risk defense, sharply distinguishing it from the broader concept of contributory negligence. By emphasizing the subjective requirement of actual knowledge and consent to a specific risk, the court makes it more difficult for defendants to use this defense. The decision establishes that a plaintiff's general awareness of a potential hazard is insufficient; the defense is only available when the plaintiff essentially says, 'I see the specific danger your negligence has created, and I'll take my chances.' This precedent limits the misapplication of assumption of risk in cases where a plaintiff's conduct might be careless but does not amount to a waiver of the defendant's duty of care.
