concurring.
I agree with the majority that summary judgment was erroneously granted in this case. I believe that the time has come to recognize that the defense of incurred risk was greatly diminished, if not extinguished, by the adoption of Ind.Code 83-4-83-1 et seq., the Comparative Fault Act (the Act). For purposes of this discussion, the terms "incurred risk" and "assumption of the risk" are synonymous.
Prior to the adoption of the Act, an Indiana tort law action was governed by the principle of contributory negligence. Contributory negligence was defined as "the failure of a person to exercise for his own safety that degree of care and caution which an ordinarily reasonable and prudent person in a similar situation would exercise." Pugh's IGA v. Super Food Services, Inc. (1988), Ind.App., 531 N.E.2d 1194, 1199, trans. denied (quoting Kroger Co. v. Haun (1978), 177 Ind.App. 403, 379 N.E.2d 1004, 1007). A finding of any amount or degree of contributory negligence on a party's part operated as an absolute bar to a recovery in a negligence claim. Id. Pursuant to the principle of contributory negligence, the doctrine of incurred risk was an affirmative defense which the party raising such defense had the burden to prove that the other party had actual knowledge of the specific, injury-producing risk and understood and appreciated the risk. Forrest v. Gilley (1991), Ind.App., 570 N.E.2d 934, trams. denied.
With the advent of comparative fault, the fact finder is assigned the task of considering the alleged injury-producing episode and assigning percentages of fault for the occurrence among the claimant, the defendant, and any non-parties, as that term is defined in the Act. I.C. 84-4-88-5. It is my view that the comparative fault scheme obviates the need for the defense of incurred risk, or assumption of the risk. Clearly, no aspect of the defense necessitates preclusion of the apportionment of fault pursuant to the comparative fault scheme.
There is a split of authority on this question among the jurisdictions which have adopted comparative fault. See Annotation, Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R.4th 700 (1982 & Supp.1993). The arguments proffered on both sides of the question have been thoroughly explored (see id. and cases cited therein) and will not be reviewed here. I believe the better line of reasoning is exemplified by the Arkansas Supreme Court's statement in Simmons v. *799Frazier (1982), 277 Ark. 452, 642 S.W.2d 314, 316: "Because Arkansas is a comparative fault state, assumption of risk is not a complete bar to recovery but is simply a matter to be considered in deciding fault."
I acknowledge that in states which have determined that the comparative fault scheme in some degree diminishes the defense of assumption of the risk, there :is a divergence of opinion upon the questions of how much, and in what way, the defense is eroded. Some states recognize a distinction between "primary" and "secondary" assumption of the risk and have held that the former retains vitality under comparative fault, while the latter does not1 See, eg., Swagger v. City of Crystal (1985), Minn.App., 379 N.W.2d 183, rev. denied. Of those, some courts have held that primary assumption of the risk is applicable only when the necessary consent on the plaintiff's part was express, as opposed to implied. See eg., Collier v. Northland Swim Club (1987), 35 Ohio App.3d 35, 518 N.E.2d 1226. Others have held that primary assumption of the risk survives under comparative fault in foto, without regard to whether the plaintiff's consent was express or implied. See King v. Magnolia Homeowners Ass'n (1988), 205 Cal.App.3d 1312, 253 Cal.Rptr. 140. Still others have held that the defense is completely obviated under comparative fault, and that arguments that would have supported the now obsolete incurred risk defense instead become relevant in allocating fault under a comparative fault system. See, eg., Brown v. Kreuser (1977), 38 Colo.App. 554, 560 P.2d 105. The latter position has much to recommend it.
In any event, this is not the appropriate case in which to explore in detail the relative merits of each view. It is sufficient for now to register my belief that the defense of incurred risk (or assumption of the risk) has been greatly diminished, if not entirely abolished, by the fault-allocation scheme of our comparative fault system. Cf. Bob Schwartz Ford, Inc. v. Dunham (1994), Ind.App., 631 N.E.2d 953. This is especially true when, as noted by the majority, Indiana's Comparative Fault Act includes "incurred risk" in the definition of "fault".
Subject to the foregoing comments, I concur in the result reached by the majority.
. The defense of primary assumption of the risk is applicable in situations in which a plaintiff knowingly manifested consent, either express or implied, to voluntarily expose himself to the particular risk which resulted in injury. In such cases, incurred risk is not so much an affirmative defense as it is a refutation of the duty element of negligence:
''Primary assumption of the risk, express or implied, relates to the initial issue of whether a defendant had any duty to protect the plaintiff from a risk of harm." Swagger, supra, 379 N.W.2d at 185 (quoting Springrose v. Willmore (1971), 292 Minn. 23, 192 N.W.2d 826, 827).
Secondary assumption of the risk is applicable when a plaintiff has encountered an appreciated risk created by the defendant without manifesting consent to relieve the defendant of his duty. Some courts have held that secondary assumption of the risk is extinguished under comparative fault, and becomes merely "a question of comparative negligence." Swagger, supra, 379 N.W.2d at 185 (quoting Armstrong v. Mailand (1979), Minn., 284 N.W.2d 343, 348).