Plotts v. Albert

California Court of Appeal Sep 4, 1953 No. Civ. 8261Published

Before: Van Dyke

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Holding. The court held that an instruction on assumption of risk is erroneous if it allows for the defense based on constructive knowledge rather than actual knowledge of a danger. Because the jury may have relied on this erroneous instruction to reach its verdict, the judgment must be reversed.

Issues

Whether the trial court erred in instructing the jury that assumption of risk includes dangers that a person should have known through the exercise of ordinary care.
Whether the evidence was sufficient to support the jury's verdict regarding negligence and contributory negligence.

Disposition. reversed

Quotations verified verbatim against the opinion

“The doctrine of assumption of risk is based on the theory that there has been a voluntary acceptance of a risk, and such acceptance, whether express or implied, requires knowledge and appreciation of the risk.”

“It now seems clear that the doctrine of assumption of risk may not apply unless the person in question had actual knowledge of the danger.”

“From this record we cannot tell upon what the jury based its verdict, that is, whether on a correct premise or on a premise derived from the error in the instruction.”

[106]

VAN DYKE, P. J.

Plaintiff - appellant, Anna Plotts, sought by this action to recover damages for injuries which she received while she was a tenant of a trailer rented to her by defendants-respondents. She alleged that her injuries resulted from a fall caused by stumbling over a stake protruding from the ground in an area reserved for the common use of the tenants of a trailer court owned and operated by respondents. The jury returned a verdict in favor of respondents, and plaintiff appeals.

Briefly, the evidence shows the following. Appellant was a woman 91 years of age. She was walking on or near a pathway in an area commonly used by trailer tenants. She stumbled over some object which she neither saw nor identified. Prom the testimony of other witnesses it could be properly inferred that the object was a small stake about three inches, wide and less than an inch thick, embedded in the ground with the top protruding an inch or more above the surface. The stake was somewhat obscured from view by grass. No question is or could be raised that appellant was not lawfully using the area where she fell or that it was not an area for the common use of tenants.

Appellant urges reversal for the giving of an instruction on assumption of risk, and further claims that the evidence is insufficient as a matter of law to sustain the jury’s verdict. We are satisfied that as to the latter assignment of error it cannot be sustained, and that in view of the evidence the issues as to respondent’s negligence in the maintenance of their premises, and of appellant’s contributory negligence in failing to see the stake over which it could have been inferred she fell, were equally questions of fact for the jury’s determination. As to the first assignment of error, however, a different situation is presented.

Respondents requested that the court instruct the jury upon assumption of risk, and the court in doing so used an instruction which appears in “California Jury Instructions, Civil,” commonly called “B.A.J.I.” It is instruction No. 207 therein, and is intended as a general statement of the rule. Adapted to this case, it reads as follows:

“There is a legal principle commonly referred to by the term ‘assumption of risk’ which now will be explained to you:

Plotts v. Albert

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VAN DYKE, P. J.

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