Jacobsen Construction Co. v. Structo-Lite Engineering, Inc.

CROCKETT, Chief Justice

(concurring in result).

I must confess my inability to see either necessity or desirability in the main opinion’s treatment of what impresses me as an

*313effort to discredit the doctrine of assumption of risk in order to decide this case. It is my view that the trial court gave a correct and appropriate instruction as applied to the evidence. That is sufficient to dispose of the issue.

Though it may be true that assumption of risk is but a specialized aspect of contributory negligence, it has its uses in more closely focusing attention upon certain fact situations.1 The broad principle which underlies contributory negligence is that the plaintiff fails to use reasonable care for his own safety. A particular aspect thereof is where he knows of a danger, and has a reasonable opportunity to make an alternative choice, but nevertheless voluntarily proceeds and assumes the risk of harm.2

This Court has but recently dealt with this problem in Rigtrup v. Strawberry Water Users Ass’n,3 wherein we stated:

Plaintiffs urge that inasmuch as the trial court had adequately instructed on contributory negligence, it was error to also instruct on assumption of risk. They argue that this defense is spurious and should be abolished, citing cases from states where they assert that has been done by judicial declaration.* We do not so read those cases. They deal for the most part with whether there are meaningful distinctions between contributory negligence and assumption of risk. Howsoever that might be, we decline the invitation to so change our law. One of the important values in our system which tends to produce confidence in and respect for the law is that the law as it is declared and known has sufficient solidarity and continuity that it can be relied on with assurance. We think that those objectives are best served by the judicial branch refraining from legislating any abrupt or dramatic changes of a substantial nature in the law and by leaving any such changes therein to the legislature, whose constitutional prerogative it is.*
Though there have been some differences in view as to the defense of assumption of risk and its relation to other aspects of contributory negligence, it has since time immemorial been regarded as a valid defense in the law of this State.
* * * * * *
That our conclusion just stated is the correct one under our law is supported, not only by the reasoning just stated and the cases cited, but is made abundantly clear by the fact that the legislature, apparently in order to avoid any misunderstanding thereon, appended the last sentence as quoted above that: as used in this act, “contributory negligence” includes “assumption of the risk.” That sentence indicates a clear legislative intent to recognize the doctrine of “assumption of risk” as an aspect of contributory negligence in Utah law. Therefore any attempt on our part to judicially abolish that defense would amount to a direct repudiation of the legislative expression and thus a clear usurpation of the legislative prerogative. * * * See citations in original. [Emphasis added.]

In accordance with what has been said above, I do not join in the main opinion’s treatment of what I regard as the time-honored and, in some instances, useful doctrine of assumption of risk; first, because I do not think that treatment is necessary to the correct and satisfactory disposition of this case; and second, because I think the previous decisions of this Court are sound and useful applications of the law to the particular fact situations and that others will likely continue to occur in the future.

. See discussion by Justice Henriod, speaking for the Court, in Clay v. Dunford, et al, 121 Utah 177, 239 P.2d 1075 (1952).

. See Jacques v. Farrimond, 14 Utah 2d 166, 380 P.2d 133 (1963), citing Prosser on Torts, p. 311; Johnson v. Maynard, 9 Utah 2d 268, 342 P.2d 884 (1959).

.Utah, 563 P.2d 1247 (1977).