Sеrgio SALINAS, Plaintiff-Appellant, v. Richard P. VIERSTRA and Norma P. Vierstra, husband and wife, dba Classic Dairy, Defendants-Respondents.
No. 15236.
Supreme Court of Idaho.
Jan. 10, 1985.
Rehearing Denied Feb. 27, 1985.
695 P.2d 369
BISTLINE, Justice.
ILLEGAL BARGAINS FOR EXEMPTION FROM LIABILITY FOR WILFUL OR NEGLIGENT MISCONDUCT.
(1) A bargain for exemption from liability for the consequences of a wilful breach of duty is illegal, and a bargain for exemption from liability for the consequences of negligence is illegal if
(a) * * * * * * * *
(b) one of the parties is charged with a duty of public service, and the bargain relates to negligence in the performance of any part of its duty to the public, for which it has received or been promised compensation.
American Jurisprudence 2d recognizes the Restatement rule in above quote. In 57 American Jurisprudence 2d subject Negligence Section 27 that text recognizes that while the rule is inclusive of common carriers and other public utilities that it is also inclusive of other entities having a “duty of public service“. The rule is stated at 57 American Jurisprudence 2d at page 372 in the following language:
The application of the Restatement rule as a declaration of basic principles is not limited to the contracts of enterprises which are necessarily оr ordinarily classified as public utilities or public service companies, but has been extended to the exculpatory contracts to those who may assume a “duty of public service” at least to certain segments of the public, such as innkeepers, and to warehousemen. Also, insofar as such an agreement relates to negligence in the performance of any part of the duties for which compensation is received, the principles implicit in the rule have been applied tо those engaged in enterprises as diverse as the operation of airports, or the business of supplying bottled gas.
Certainly if innkeepers, warehousemen, operators of airports and suppliers of bottled gas are held to have a “duty of public service” so also would Outfitters and Guides particularly where the Legislature of this state has spoken on the subject.
The Plaintiff asserts that if that is the case that the various statutes that have been enacted by the Idaho Legislature regulating businesses, professions and occupations are meaningless and serve no public purpose. Followed to its logical conclusion this would include not only Outfitters and Guides but doctors, lawyers, engineers, architects and real estate brokers. With respect to the legislation enacted, regulating Outfitters and Guides, the rule rendering exculpatory clauses unenforceable has very obvious application. Its Declaration of Public Policy has the language “for the explicit purpose” of safeguarding safety and freedom from injury. It is enacted pursuant to the police power of the state. If the statutory mandate can be avoided by an exculpatory clause, unquestionably, every person licensed under the Outfitters and Guides Act, could by contract, absolve himself completely of all obligations to the public and there would be no need for the enactment of that legislation.
Robert M. Tyler, Jr., of Elam, Burke, Evans, Boyd & Koontz, Boise, for defendants-respondents.
BISTLINE, Justice.
Sergio Salinas, the plaintiff-appellant, worked for Classic Dairy as a truck driver. When his services were not needed as a driver, hе did other work, including helping other Classic Dairy employees feed cattle. Mr. Salinas had worked for Classic Dairy
He had returned from a milk-hauling run and joined a group of employees in a cattle-feeding operation. Four workers were involved in the task, each performing a different job. Ken Vierstra, the dairy owner‘s son, drove a truck pulling trailers stacked high with bales of hay; Wade Gardener stood on top of the bales and dropped the hay to the ground; Mr. Salinas straightened the bales after they were dropped; and Dave Crist cut the strings on the bales.
Mr. Salinas reached down to straighten out a bale that had hit the ground and was subsequently struck by another bale causing the injuries which are the subject of this lawsuit. Mr. Salinas testified that he was several feet behind and to the right of the truck, picking up a bale that had landed awkwardly, when the next bale hit him. Mr. Crist, who was behind Mr. Salinas, was the only witness to see the bale hit Mr. Salinas. Mr. Crist testified that the bale struck Mr. Salinas while he was in the process of pulling another bale from beneath the truck and away frоm its wheels. As with these two particular accounts, a great deal of varying and conflicting testimony surrounds the case.
Mr. Salinas filed suit alleging negligence by Classic Dairy, its owners, and its employees, in failing to properly supervise, regulate, and inspect Mr. Salinas’ working conditions. The Vierstras, owners of Classic Dairy, and the defendants-respondents, denied any negligence on their part or on the part of any of their employees. They alleged, furthermore, as an affirmative defense, that Mr. Salinas’ injuries were cаused by his own negligence. The case went to trial. The jury found the Vierstras, their employees, and Classic Dairy to have not done anything negligent which was a proximate cause in Mr. Salinas injuries. It is from the judgment pursuant to the jury verdict that Mr. Salinas appeals.
I.
Mr. Salinas argues that the trial court improperly instructed the jury concerning the doctrine of “assumption of risk.” Specifically, Mr. Salinas contends either that the doctrine is no longer available in Idaho for a fact-pattern like the one in this case, or that еven if the doctrine does still exist, the instructions tendered leave out essential elements.1 Since we agree with Mr. Salinas’ first contention, we need not address his second.
A.
An understanding of the bases for and origin of the assumption of risk doctrine will help to explain why that doctrine has no current validity in Idaho except in limited circumstances.
It is important at once to recognize that the doctrine of assumption of risk is a judicially created rule.2 It was developed by the English common law courts at the
Thus, for decades, an employee‘s suit against his or her employer for personal injuries received as a result of the employer‘s negligence was often adjudicated in light of the utility of the employer‘s contract. Eman, “Ohio‘s Assumption of Risk: The Deafening Silence,” 11 Capitol University L.Rev. 661, 663 (1982). The inevitable result was non-reсovery for the employee. The effect of this was to place the costs of industry‘s growth upon the workers.
In addition to its application in the employer-employee context, the doctrine over time expanded and grew, embedding itself in virtually every type of negligence law. Wherever it was found to apply, the doctrine‘s effect was the same: to bar any recovery by the plaintiff.
Despite the doctrine‘s growth during the first half of this century, it has most recently been on the defensive. Legal commеntators and courts alike have criticized it for the unfairness and harshness it causes,4 and for the duplicity and confusion it engenders.5 The doctrine‘s unfairness is rooted in its “all-or-nothing” approach. That is, a plaintiff can recover only if he or she is found not to have assumed the risk that caused the injury. Once the risk is found to have been assumed, however, the plaintiff is barred from any recovery, even if the risk the plaintiff assumed was reasonable and the defendant was negligent toward the plaintiff. This result is similar to that which is reached when the common law defense of сontributory negligence is found to apply.
The doctrine‘s duplicity and confusion is a result of its broad overlap with the common-law defense of contributory negligence. To understand this overlap, an analysis of the types of assumption of risk is necessary.
According to Harper and James, there are basically two types of assumption of risk. The first is an express agreement by the plaintiff to assume the risk. The second is the nature of plaintiff‘s conduct in deciding whether to assume the risk. In other words, whether plaintiff‘s dеcision to assume the risk was reasonable or unreasonable.6 See 2 Harper and James, supra, § 21.1.
The result of reasonably assuming a risk is that the plaintiff is denied recovery. The reason for this is that the plaintiff‘s assumption of risk is viewed as “only the counterpart of defendant‘s lack of duty to protect the plaintiff from that risk.” Id. In other words, the defendant is viewed as
The result of unreasonably assuming a risk is also to preclude plaintiff from recovery. The reason for this is that an unreasonable assumption of risk is but a form of contributory negligence. Prosser & Keeton, supra, § 68, at 481.7 In this instance, since either defense barred recovery, it made little difference what the defense was called. Accordingly, many courts in non-comparative negligence settings have used both defenses interchangeably without attempting to distinguish between the two.8 This has caused much confusion. Some states have attempted to distinguish the two defenses but have only further muddied any understanding of the applicability of the doctrine.9
Further confusion conсerning the doctrine‘s applicability has arisen with the adoption of comparative negligence liability in many states. Recognizing that the scope and effect of contributory negligence and assumption of risk overlap quite often, and acknowledging the policies underlying comparative negligence, a majority of courts and legislatures have either merged the two defenses or abolished assumption of risk as a defense.10 The result has been to eliminate the doctrine‘s total bar from rеcovery.
Idaho has likewise been critical of the assumption of risk defense. In Fawcett v. Irby, 92 Idaho 48, 54-56, 436 P.2d 714, 720-22 (1968), Justice Spear, in a concurrence joined by the rest of the members of the Court, severely criticized the doctrine for the confusion it creates. Justice Spear urged the “complete banishment of the assumption of risk doctrine in Idaho” with two exceptions: (1) where there is an employer-employee relationship outside the scope of the Worker‘s Compensation Act; and (2) where the plaintiff exprеssly consented with the defendant to assume any risk involved.
Subsequent to Fawcett, supra, Idaho enacted its own comparative negligence statute,
B.
The policy of insulating business from “human overhead,” however valid it may have been during the infancy of the Industrial Revolution, is diamеtrically opposed to current social policy and thought, which is to promote safety and protect the employee in his or her working environment.13 Furthermore, the “all-or-nothing” effect of application of the assumption of risk defense is inequitable. It runs counter to all sense of reason and fairness. This is particularly true in today‘s age of comparative negligence; it would be the ultimate legal inconsistency to reject contributory negligence as an absolute defense yet at the same time allow its effect to continue under the guise of assumption of risk. The scope of
Wе find no reason that justifies the continued use of assumption of risk as an absolute bar to recovery in light of
Furthermore, to avoid the confusion created by this doctrine, we hold that the use of assumption of risk as a defense shall have no legal effect in this state. The types of issues raised by a plaintiff‘s non-express assumption of risk are readily handled by resort to contributory negligence principles. Thus, such issues should be discussed in terms of contributory negligence, not assumption of risk, and applied accordingly under our comparative negligence laws.
With one important exception, we acknowledge the validity of a contractual assumption of risk operating as a total bar to recovery. The exception is the general contract rule that contracts which violate public policy are not recognized. See, e.g., Whitney v. Continental Life and Accident Co., 89 Idaho 96, 403 P.2d 573 (1965); Worlton v. Davis, 73 Idaho 217, 249 P.2d 810 (1952).
C.
Relying upon Fawcett, supra, the Vierstras argue that assumption of risk has retained its current validity in the area of employer-employee relations. As previously mentioned, Justice Spear, in Fawcett, argued that assumption of risk should not be used except in the area of employer-employee relations or where the plaintiff expressly contracted to assume the risk involved. Id., 92 Idaho at 54, 436 P.2d 714. The special concurrence was joined in by all the other justices.
Although we agree with Justice Spear‘s second exception, for several reasons, we hold that the first one is no longer а correct statement of the law in Idaho. First, Justice Spear‘s concurrence was written before Idaho‘s enactment of its comparative negligence statute. Fawcett was written in an environment of “all-or-nothing” recoveries with contributory negligence operating as a complete defense. Such is not the case any more. Written under a now outdated liability system, Fawcett‘s applicability and persuasiveness has decreased dramatically.
Second, we can find no logical reason for singling out emрloyer-employee suits and allowing assumption of risk to continue to be used as a defense. Justice Spear offered no reason. In fact, the reasons he mentioned for discrediting the use of the defense apply equally to employer-employee cases, too.
The best explanation we can hypothecate for Justice Spear‘s retention of the defense in employer-employee suits is that of stare decisis. In discussing the issue of allowing assumption of risk to continue to be used in employer-employee cases, the Justice cited Williams v. Collett, 80 Idaho 462, 332 P.2d 1032 (1958); and Deshazer v. Tompkins, 89 Idaho 347, 404 P.2d 604 (1965). Both cases were employer-employee suits in which the defense of assumption of risk operated to bar any recovery for the plaintiff. While we are cognizant of the importance stare decisis plays in the judicial process, we are not hesitant to reverse ourselves when a doctrine, a defense, or a holding in a case, has proven over time to be unjust or unwise. In Smith v. State, 93 Idaho 795, 801, 473 P.2d 937, 943 (1970), we said:
The court in the proper performance of its judicial function is required to examine its prior precedents. When precedent is examined in light of modern reality and it is evident that the reason for the precedent no longer exists, the abandonment of the precedent is not a destruction of stare decisis but rather a fulfillment of its proper function.
Stare decisis is not a confining phenomenon but rather a principle of law. And when the application of this principle will not result in justice, it is evident that the doctrine is not properly apрlicable.
For the reasons outlined above, see, supra, I.A. and I.B., we do not think stare decisis is a valid reason to continue allowing defendants to use assumption of risk as a defense in any case, including employer-
II.
The Vierstras argue that the district court‘s instructions concerning assumption of risk, if erroneous, were harmless error because the jury specifically found the Vierstras and their employees not negligent. Thus, the argument goes, since the Vierstras were found not to be negligent, the jury did not need to consider whether Mr. Salinas had in fact assumed the risk of his harm.
The Vierstras cite numerous cases, including Hayslip v. George, 92 Idaho 349, 442 P.2d 759 (1968), and Gayhart v. Schwabe, 80 Idaho 354, 330 P.2d 327 (1958), for the proposition that an erroneous instruction does not constitute reversible error where the instructions taken as whole neither mislead nor prejudice the plaintiff. While we agree with these propositions, we disagree with the Vierstras’ conclusion. We find the instructional errors in this case to be misleading and fatally prejudicial to Mr. Salinas.
We stated in Bushong v. Kamiah Grain Inc., 96 Idaho 659, 661, 534 P.2d 1099, 1101 (1975), that an “instruction complained of must be read and construed with the other instructions given” in determining whether the complained of instruction constitutes reversible error. We do not find that the remaining instructions cure the erroneous statement of law by Instruction Nos. 14 and 15. It is entirely too plаusible that the jury may have reached its verdict based on or guided by the erroneous instructions.
This conclusion is supported by the fact that nowhere on the special verdict form is there a place for the jury to decide if Mr. Salinas did assume the risk of his injuries. Instruction Nos. 14 and 15 both state that Mr. Salinas is barred from any recovery if the jury finds that Mr. Salinas either assumed the risk of the harm caused or took unnecessary risks. It is therefore reasonable to conclude that the jury would have simply checked “no” for Question No. 1, which denies Mr. Salinas any recovery, if it did in fact decide that Mr. Salinas had assumed the risk involved. This, we find, prejudices Mr. Salinas and justifies our reversing the district court, entitling Mr. Salinas to have a trial free from instructional error.
For the foregoing reasons, we reverse and remand to the district court for a new trial.
Costs to appellants; no attorney‘s fees.
DONALDSON, C.J., and HUNTLEY, J., concur.
SHEPARD, J., dissents without opinion.
BAKES, Justice, dissenting:
While I agree with the conclusion of Justice Bistline that the enactment of the Idaho comparative negligence statute,