Sheppard Ex Rel. Wilson v. Midway R-1 School District
1995 WL 319031, 904 S.W.2d 257 (1995)
Rule of Law:
Under a pure comparative fault system, unreasonable implied secondary assumption of risk is subsumed into contributory negligence and diminishes recovery proportionally, rather than acting as a complete bar; only express or primary assumption of risk (involving risks inherent to an activity where the defendant owes no duty) constitutes a complete bar, and any instruction on assumption of risk must require the jury to find the plaintiff subjectively knew, appreciated, and intelligently acquiesced in the specific danger.
Facts:
- On April 15, 1991, Terra Sheppard, a fourteen-year-old girl, participated in a junior high school track meet hosted by Midway R-1 School District at Midway High School.
- Sheppard was entered in the long jump event.
- During one of her jumps, Sheppard sustained a knee injury, requiring surgical replacement of a ligament and resulting in permanent disability, as she landed in the long jump pit.
- Sheppard presented evidence that the long jump pit was wet, muddy, lacked adequate sand, and was not properly raked between jumps, causing her injury.
- Midway presented evidence that the long jump pit was adequately prepared and that Sheppard’s injury was caused by her awkward landing.
- Midway alternatively contended that Sheppard had observed the pit and jumped into it several times prior to the injury.
Procedural Posture:
- Terra Sheppard brought suit against Midway R-1 School District in Cass County Circuit Court (trial court) alleging that Midway’s long jump pit was in an unreasonably dangerous condition.
- Midway denied negligence and affirmatively alleged assumption of the risk as a defense.
- Following a trial, the jury returned its verdict assessing no fault to Midway.
- The trial court entered judgment in favor of Midway pursuant to the verdict.
- Sheppard appealed this judgment to the Missouri Court of Appeals.
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Issue:
Does a jury instruction on assumption of risk, which operates as a complete bar to recovery for a plaintiff injured during a school sporting event, properly apply under a comparative fault system when the alleged injury was caused by the defendant's negligence in maintaining facilities rather than an inherent risk of the sport, and when the instruction fails to require the jury to find the plaintiff knowingly or intelligently assumed a foreseeable risk?
Opinions:
Majority - Ellis, Judge
No, the trial court erred in giving Instruction 9 as a complete bar to recovery because, under Missouri’s comparative fault system, implied secondary assumption of risk is subsumed within comparative negligence and merely diminishes recovery, not bars it completely. Furthermore, Instruction 9 was fatally flawed for failing to require the jury to find that Sheppard had knowledge of and appreciated the specific risk. Missouri adopted the Uniform Comparative Fault Act (UCFA) in Gustafson v. Benda (1983), which defines 'fault' to include 'unreasonable assumption of risk not constituting an enforceable express consent,' meaning such assumption of risk should diminish damages proportionately rather than bar recovery completely. The court distinguishes assumption of risk into three categories: express, implied primary, and implied secondary. Express assumption of risk (e.g., a signed release) and implied primary assumption of risk (where the plaintiff assumes risks inherent in an activity, and the defendant consequently owes no duty for those risks) remain complete bars to recovery. However, implied secondary assumption of risk occurs when the defendant owes a duty of care but breaches it, and the plaintiff knowingly encounters the risk. If the plaintiff's conduct in encountering the known risk is unreasonable, it amounts to contributory negligence and must be compared by the jury as an element of fault. The court emphasized that in a sports context, while participants assume risks inherent in the sport, they do not assume risks created by a defendant's negligence, such as negligently provided or maintained facilities. Sheppard assumed the inherent risks of long jumping, but not the risk of Midway’s negligent provision of a dangerous facility. Instruction 9, when combined with the tail on Instruction 8, improperly made any assumption of risk (primary or secondary) a complete bar to recovery, even if the jury found Midway negligent. This effectively negated the principles of comparative fault and the separate instruction on contributory negligence (Instruction 10). Additionally, Instruction 9 was deficient because it failed to instruct the jury that Sheppard must have 'comprehended the actual danger and intelligently acquiesced in it,' which is a crucial subjective standard for any assumption of risk defense, as established in Boss v. Clouser. The instruction merely required a finding that the injury was a 'reasonably foreseeable risk' and that Sheppard 'assumed that risk by participating,' without addressing her subjective knowledge and appreciation of the specific pit condition.
Analysis:
This case significantly clarifies the distinction between different forms of assumption of risk under a comparative fault system, particularly in the context of sporting injuries. It establishes that while individuals assume the inherent risks of a sport (primary assumption of risk, a complete bar), they do not automatically assume risks created by a defendant's negligence in maintaining facilities (secondary assumption of risk), which should be treated as comparative negligence. The ruling also reinforces the high evidentiary bar for proving assumption of risk, requiring subjective knowledge and intelligent acquiescence to the specific danger. This decision provides critical guidance for jury instructions in future negligence cases involving activities with both inherent risks and potentially negligent conditions, ensuring that comparative fault principles are correctly applied and that defendants cannot easily evade liability for their own negligence by broadly asserting assumption of risk.
