Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 1995.
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 and conducted at the Midway High School track. She was entered in the long jump event at the track meet.
Sheppard brought suit against Midway in Cass County Circuit Court, pursuant to § 537.600,
Sheppard raises three points in her appeal. In her first point, she contends the trial court erred in giving its instruction on the issue of assumption of risk because (a) assumption of risk is not applicable as a complete defense in that Midway created the risk of injury by inadequately preparing the long jump pit, a risk not inherent in the long jump event, and (b) the assumption of risk instruction contained no requirement that the jury find Sheppard knowingly or intelligently assumed a foreseeable risk of the injury she received.
At trial, both sides presented evidence as to the cause of Sheppard's knee injury. Sheppard presented evidence that the long jump pit was wet and muddy, did not have an adequate amount of sand, and was not properly raked between jumps. Her experts testified that this was the cause of her knee injury. Midway, on the other hand, presented evidence that the long jump pit was adequately prepared and that Sheppard's injury was caused by her awkward landing.
The instructions of which Sheppard complains, Instructions 8 and 9, read as follows:
First, there was a long-jump pit on defendant Midway R-1 School District's premises that was inadequately prepared, and as a result the long-jump pit was not reasonably safe, and
Second, defendant Midway R-1 School District knew or by using ordinary care should have known of this condition in time to remedy or warn of such condition, and
Third, defendant Midway R-1 School District failed to use ordinary care to remedy or warn of such condition, and
Fourth, such failure directly caused or directly contributed to cause damage to plaintiff Terra Sheppard,
Instruction No. 9, which was submitted to the jury over Sheppard's objection, then read:
In other words, the tail on Instruction No. 8 ("unless you believe plaintiff Terra Sheppard is not entitled to recover by reason of Instruction Number 9.") coupled with Instruction No. 9 made Sheppard's assumption of risk an affirmative defense completely barring recovery: if the jury found Sheppard's injury was a reasonably foreseeable risk of participating in the long jump and that she assumed that risk by participating, she could not recover from Midway even if the jury also found Midway was negligent in preparing the pit.
Thus, the issue is whether Instruction 9 and the tail to Instruction 8, which made Sheppard's assumption of risk a complete bar to recovery, were proper. Sheppard contends they were not proper because under comparative fault, assumption of risk is not a complete bar to recovery where the risk is not an inherent part of the sport, but rather the defendant created the risk of injury through its negligence.
In 1983, the Missouri Supreme Court introduced the concept of comparative fault into Missouri negligence law in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). The court expressly adopted the Uniform Comparative Fault Act ("UCFA") and declared that "[i]nsofar as possible this and future cases shall apply the doctrine of pure comparative fault in accordance with the Uniform Comparative Fault Act." The court attached a copy of the UCFA, with commissioners' comments, to its opinion. The court in Gustafson did not specifically address the role of assumption of risk under comparative fault. However, the UCFA did. Section 1 of the UCFA states:
(Emphasis added). Furthermore, the commissioners'
While the Missouri Supreme Court has rarely addressed the role of assumption of risk under comparative fault since Gustafson,
H. Woods, at 135. See also Kirk 746 P.2d at 289 (Implied unreasonable assumption of risk is widely recognized as a form of contributory negligence, and is therefore, subsumed under contributory negligence); Stephens v. Henderson, 741 P.2d 952, 955 (Utah 1987) ("[A]ssumption of risk in its secondary sense... is to be treated as contributory negligence."); Swagger v. City of Crystal, 379 N.W.2d 183, 184 (Minn.App.1985) ("In its `secondary' sense assumption of risk means simply that the plaintiff was guilty of contributory negligence or fault.").
The Missouri Supreme Court recognized the distinction between primary and secondary assumption of risk in Krause v. U.S. Truck Co., 787 S.W.2d 708, 712 (Mo. banc 1990). And, as stated by Woods, supra, the distinction between reasonable and unreasonable assumption of risk is made in the UCFA where "fault" is defined as "unreasonable assumption of risk not constituting an enforceable consent." Therefore, while
Generally, assumption of risk in the sports context involves primary assumption of risk because the plaintiff has assumed certain risks inherent in the sport or activity. Martin v. Buzan 857 S.W.2d at 369. The nature of the activity creates the risk. For example, the risk of being hit by a baseball is a risk inherent to the game of baseball, and everyone who participates in or attends a baseball game assumes the risk of being hit by a ball. However, "[t]he assumed risks in such activities [that fall within the primary assumption of risk category] are not those created by a defendant's negligence but rather by the nature
Consequently, if, as Sheppard contends, her injury was caused not by a risk inherent in the sport of long jumping but rather by Midway's negligence in preparing the pit, secondary, rather than primary, assumption of risk applies and the question of her negligence in assuming that risk should merely be compared by the jury as an element of comparative negligence rather than being a complete bar to her recovery.
This precise issue has been addressed by courts in other jurisdictions. In Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 13 (1992), the plaintiff, a twelve year old boy, was injured as he was attending a ski school at a ski resort. As he was practicing a slalom race, he veered off the race course and ran into an unused tow-rope shack which was allegedly positioned too close to the race course. The plaintiff alleged that his injuries were caused by negligent provision of dangerous facilities (the shack was placed too close to the slalom course) or improper supervision of the ski students. The Washington Supreme Court held summary judgment was improper and stated, "[P]rimary assumption of the risk in a sports setting does not include the failure of the operator to provide reasonable safe facilities." Id. 834 P.2d at 16. The court went on to state:
Id. at 13-14 (emphasis in original).
Relying on the earlier case, Kirk, 746 P.2d 285, in which a cheerleader had sued her university to recover for injuries sustained while she was practicing cheerleading allegedly under dangerous conditions and without adequate supervision, the Washington Supreme Court said:
Scott 834 P.2d at 14 (emphasis in original).
Therefore, in the sports context, under comparative fault, if the plaintiff's injury is the result of a risk inherent in the sport in which he was participating, the defendant is relieved from liability on the grounds that by
This brings us to the case at bar. Sheppard contends her knee injury was the result of Midway's negligence in preparing and raking the long jump pit. Substantial evidence was presented at trial to establish that the long jump pit was inadequately prepared and not reasonably safe. This evidence tended to show that Sheppard's injury resulted not from a bad landing, an inherent risk of the sport of long jumping, but rather from the condition of the pit. There can be no question that Sheppard assumed the risks inherent in the sport of long jumping, but she did not assume the risk of Midway's negligent provision of a dangerous facility. Thus, as in Kirk, in a primary sense, she did not assume the risk and relieve Midway of its duty to provide a reasonably safe jumping pit, although based on her observations of the pit and continuing to participate, she may have unreasonably assumed the risk of injury in the secondary sense, i.e., have been contributorily negligent. Thus, Instruction 8, Sheppard's verdict director, and Instruction 10,
By the same token, however, Midway presented substantial evidence to support a finding that Sheppard's injury resulted exclusively from an awkward or bad landing, an inherent risk of participating in the long jump. Thus, contrary to Sheppard's contention, Midway was entitled to an instruction on the affirmative defense of primary assumption of risk. Instruction 9 was given to submit the issue. However, Instruction 9 is fatally flawed. First, it was, as noted previously, overly broad in that it required the jury to find for Midway even if it found Midway negligently prepared the pit, and that the negligent condition of the pit contributed to cause the injury. In effect, it compelled the jury to render a verdict for Midway if it found any assumption of risk, primary or secondary, by Sheppard and, therefore, it negated Instruction 10 entirely.
Instruction 9 also failed to properly instruct the jury that Sheppard must have had knowledge of and appreciated the risk. As our Supreme Court said in Ross v. Clouser, 637 S.W.2d 11 (Mo. banc 1982), while discussing assumption of risk, "[b]ased on a voluntary consent, express or implied, to accept the danger of a
For these reasons, we hold that the trial court erred in submitting instruction 9 to the jury and therefore reverse the judgment and remand for a new trial. Because of our disposition of Sheppard's Point I, we need not address her two other points, which relate to alleged errors in admission and exclusion of evidence, because the manner in which they arose at trial make it unlikely they will recur on retrial.
The judgment is reversed and the case is remanded for a new trial.
Although the comments offer some guidance on the issue of assumption of risk, the UCFA itself clearly states that "unreasonable assumption of risk not constituting an enforceable express consent" is to be considered as an element of fault to be compared.
A rigorous application of implied assumption of risk as an absolute defense could serve to undermine seriously the general purpose of a comparative negligence statute to apportion damages on the basis of fault. This is perhaps the reason that every commentator who has addressed himself to this specific problem has agreed that plaintiff should not have his claim barred if he has impliedly assumed the risk, but rather that this conduct should be considered in apportioning damages under the statute.
V. Schwartz, § 9.5 at 180. (Footnotes omitted). Professor Schwartz noted that only one jurisdiction "vigorously applies" assumption of risk as an absolute defense after the adoption of comparative negligence. Schwartz at 180, note 78.
In your verdict you must assess a percentage of fault to plaintiff Terra Sheppard, whether or not defendant Midway R-1 School District was partly at fault, if you believe: