Brooks v. Dietz

Miller, J.,

concurring in part and dissenting in part: I am in complete accord with the court’s adoption of the doctrine of strict liability in tort, and with much of the court’s opinion. However, I cannot agree with subparagraph (2) of syllabus 10 and corresponding parts of the opinion. In my judgment the trial court should have sustained defendants motion for judgment non obstante veredicto.

The plaintiff has his own business, and for 12 years has installed and repaired gas fired furnaces. He has had some 25 years’ experience as a plumber, during which time he worked with gas appliances. He instructs his employees on this subject. It was he to whom Mrs. Dietz turned when she encountered difficulties with her heating plant. Plaintiff should be held to a higher standard of oare than that used to measure the conduct of the average man. He was one knowledgeable in the field, with expertise gained through long experience.

We discussed assumption of risk in Mechtley v. Price, 217 Kan. 344, 536 P. 2d 1385. At page 348, we said:

“. . , Assumption of risk generally bars recovery by [a person] who knows of the danger in a situation but nevertheless voluntarily exposes himself to that danger. In Kleppe v. Prawl, 181 Kan. 590, 313 P. 2d 227, 63 ALR 2d 175, we said:
‘. . . [Assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful to avoid; it defeats recovery because it is a previous abandonment of the right to complain if an accident occurs.’ (p. 594.)
"It should be noted the knowledge and appreciation of the risk involved is to be judged by a subjective standard, by knowledge attributable to the individual plaintiff and his situation (Prosser, Law of Torts, 4th ed., 1971, § 68, p. 447).
*711“Appellant’s testimony strongly belies his contention he did not fully apprehend the risks involved in riding an unshod horse. He had a specialized knowledge of riding cattle ponies, extending over a period of years, and their propensity to fall under certain conditions. He had taken care of many horses and their grooming. He specifically acknowledged Oakie did precisely what he knew Oakie was apt to do. . . .”

Prosser, in his Law of Torts, 4th ed. 1971, discusses the standards of conduct in chapter 5. Included in his discussion of “The Reasonable Man” appears the following:

“Superior Knowledge, Skill and Intelligence
“Thus far the question has been one of a minimum standard, below which the individual will not be permitted to fall. But if he has in fact knowledge, skill, or even intelligence superior to that of the ordinary man, the law will demand of him conduot consistent with it. . . . [A] physician who is possessed of unusual skill or knowledge must use care which is reasonable in the light of his special ability and information, and may be negligent where an ordinary doctor would not.
“Professional men in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. Most of the decided cases have dealt with physicians and surgeons, but the same is undoubtedly true of . . . skilled trades. . . .” (pp. 161, 162.)

In discussing 'assumption of risk, Prosser states:

“The defense of assumption of risk is in fact quite narrowly confined and restricted by two requirements: first, that the plaintiff must know and understand the risk he is incurring, and second, that his choice to incur it must be entirely free and voluntary. ...
“ ‘Knowledge of risk is the watchword of assumption of risk.’ . . . The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable man of ordinary prudence who appears in contributory negligence. . . .” (Emphasis supplied.) (p. 447.)

We now turn to the facts before us in the light of these rules;

When plaintiff first entered the Dietz basement, he was aware that gas had been leaking for some two hours or longer and that the odor had continued to grow stronger. He recognized the operating hot water heater as a source of imminent danger under the circumstances. He was unable to extinguish the flame from inside the basement without opening a door and increasing the hazard. He caused Mrs. Dietz and her children to vaoate the house immediately because of the danger. He knew that there was a shut-off valve on the propane storage tank outside which would stop the flow of gas to the hot water heater and extinguish *712its dangerous flame. When plaintiff, with his knowledge and his extensive experience, failed to take this simple step to insure against an explosion before re-entering the basement, he voluntarily, unreasonably and unnecessarily subjected himself to a known danger. His omission precipitated the catastrophe.

However this conduct be categorized — contributory negligence, assumption of risk, or contributory fault — it should bar plaintiff’s recovery as a matter of law. I therefore respectfully dissent.

Fatzer, C. J., and Schroeder, J., join in the foregoing concurring and dissenting opinion.