Pachunka v. Rogers Construction, Inc.
716 N.W.2d 728, 2006 Neb. LEXIS 101, 271 Neb. 950 (2006)
Rule of Law:
For the affirmative defense of assumption of risk to apply, a plaintiff's exposure to a known danger must be voluntary; the exposure is not voluntary if the defendant's conduct has left the plaintiff with no reasonable alternative course of action.
Facts:
- Jerry Pachunka was a sales agent for Rogers Realty Company, whose job required him to show model houses built by Rogers Construction, Inc.
- On March 23, 2001, Pachunka went to inspect a house under construction where muddy conditions necessitated a walkway made of lumber.
- A single board was angled from the walkway to the front stoop, which was 16 inches high, creating a ramp.
- Pachunka had a pre-existing back condition that prevented him from stepping up or down the 16-inch height of the stoop.
- He was not provided with a key for the only other entrance to the house, which was through the garage.
- To perform his job and enter the house, Pachunka used the ramp without incident.
- While exiting the house using the same ramp, Pachunka slipped, fell, and suffered an ankle injury.
Procedural Posture:
- Jerry Pachunka filed a negligence lawsuit against Rogers Construction, Inc. and Rogers Development, Inc. in a Nebraska trial court.
- The suit against Rogers Development was dismissed during the trial.
- Rogers Construction raised the affirmative defense of assumption of risk.
- At trial, Pachunka's motion to dismiss this defense was denied by the court.
- Pachunka's request for a specific jury instruction defining 'voluntary' assumption of risk was also denied.
- The jury returned a verdict in favor of the defendant, Rogers Construction.
- Pachunka's subsequent motion for a new trial was denied by the trial court.
- Pachunka, as appellant, appealed the judgment. The Nebraska Supreme Court transferred the case from the intermediate appellate court to its own docket for decision.
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Issue:
Does a plaintiff voluntarily assume a risk of harm, thereby allowing the assumption of risk defense to be submitted to a jury, when the defendant's conduct leaves the plaintiff with no reasonable alternative course of action to perform his employment duties?
Opinions:
Majority - McCormack, J.
No. A plaintiff’s acceptance of a risk is not voluntary if the defendant’s conduct has left the plaintiff no reasonable alternative course of conduct. Before the defense of assumption of risk can be submitted to a jury, the defendant must prove the plaintiff (1) knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself to that danger. Here, Rogers Construction failed to establish the third element, voluntariness. Pachunka was required to enter the house for his employment, he was only given access through the front door, and his back condition necessitated his use of the ramp. Rogers Construction's argument that Pachunka could have exited through the garage and walked through the mud was not a reasonable alternative, as the very purpose of the walkway was to avoid the mud. Because Pachunka was deprived of a reasonable choice, he did not voluntarily assume the risk, and the trial court erred in submitting the defense to the jury. This error was not harmless because the general verdict form made it impossible to determine whether the jury found for the defendant on the merits of the negligence claim or because it improperly applied the assumption of risk defense.
Analysis:
This decision significantly clarifies the 'voluntariness' element of the assumption of risk defense, particularly within an employment context. It establishes that a plaintiff's choice is not voluntary when there is no reasonable alternative, effectively narrowing the application of the defense. The ruling places a greater burden on defendants, such as property owners and employers, to provide safe alternatives, as they cannot simply create a hazardous condition and then claim an injured party 'assumed the risk' if that party had no other practical way to perform their required duties. The case also serves as a crucial reminder on the importance of special verdict forms, as the court's inability to determine the basis for the jury's verdict was fatal to the argument that the instructional error was harmless.
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