dissenting.
I respectfully dissent from that part of the majority opinion on the issue of assumption of risk. In adopting strict liability in Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779 (Tex.1967), the Court recognized voluntary exposure or assumption of risk as a valid defense while abolishing contributory negligence as a defense. Such defense has continued to be recognized in later cases. Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1974); Sales and Perdue, The Law of Strict Tort Liability in Texas, 14 Hous.L.Rev. 1 at 70 (1977). [As to suggestions that assumption of risk be abolished as a complete defense in product liability cases, see: Wenzel v. Rollins Motor Company, No. 6814 (Tex.Civ.App.—El Paso, March 5, 1980), and Edgar, Products Liability in Texas, 11 Tex.Tech.L. Rev. 23 at 46 (1979).]
This is a defense which has been considered and applied by the courts of this State for many years, particularly in cases involving premise liability. The leading case during the application of the doctrine in that area of the law was Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948). In that case, the Bank customer fell on stairs which had been used at “irregular intervals.” The Court denied recover and said “the Plaintiff is barred from recovery because Mrs. Adair voluntarily exposed herself to such risks as existed.”
Following the holding in the Adair case, the Court again denied recovery in Wesson v. Gillespie, 382 S.W.2d 921 (Tex.1964), where the plaintiff tripped and fell over the threshold as she exited the 8-Ball Lounge. *642The evidence in that case reflected that the bar was rather dark inside, the threshold was about one inch high, and at floor level it was difficult to see. The plaintiff had been over the threshold at least 500 times. In holding that the invitee was charged with knowledge and appreciation of the danger, the Court in an opinion by Justice Greenhill said:
The condition was static and part of the permanent construction. It was so situated that unquestionably she had stepped on it, or deliberately stopped over it, on most of her departures from the 8-Ball. In any event, while as we said in Triangle Motors that one exposure to a danger may not relieve the owner, there must be some limit to the number of times when a person exposed to a dangerous condition will be charged with knowledge of the condition and knowledge and appreciation of the danger. If it were only a few times, we would have a different problem. But two to five exposures a week for four or five years under the same conditions, in our opinion, must fall within the area of charged knowledge and appreciation. We hold that it does.
In an article entitled “Assumed Risk,” 20 Sw.L.J. 1 at 13 (1966), Justice Greenhill delineated how the doctrine had been applied as between static conditions and activities and said:
Generally speaking, full knowledge and appreciation of the risks involved in a static condition * * * are more easily acquired. * * * One merely needs to observe or be informed of the condition to acquire knowledge and appreciation of the danger involved. On the other hand, it is more difficult to acquire full knowledge and appreciation of risks involving activities.
In our case, the defect was confined to a static condition, i. e., a step attached to the Caterpillar. This is a step which the Plaintiff admitted he had climbed off of some 3,000 times, and many times in the mud. He had operated this Caterpillar for over one and a half years. Each day he operated it, he would get up and down the step many times.
It takes no great legal mind or design engineer to recognize that 3,000 times off the step was substantially greater exposure to the dangerous step than 500 times over the dangerous threshold. It takes no great legal mind or design engineer to recognize that the danger of a step as seen in daylight for one and a half years was more evident than a small threshold on the floor of a dimly lighted bar. It takes no great legal mind or design engineer to recognize that the danger of falling from a step nearly two feet off the ground was greater than that of tripping over a one inch threshold at ground level.
To anyone who ever looked at the step or climbed off the machine, it was obvious that the step was back under the track on the Caterpillar and the operator was required to lean away from the machine in order to reach the step when dismounting. (See item B on the attached picture). If this be a defect, as the jury found, it was one “any fool could plainly see.” Greenhill, Assumption of Risk, 16 Baylor L.Rev. Ill at 118 (1964). Certainly, the condition of mud on the step would be just as obvious as shown by the testimony quoted in the opinion by the Texas Supreme Court, 571 S.W.2d 867 at 870 and 871 (1978). With regard to the failure to have an adhesive or anti-skid material on the step, it is very clear that this was not the solid surface type of step on which such a material could be placed to avoid slipping. This step was a “U” shaped piece of angle iron with an opening in the middle rather than a solid surface type step. Again, the condition of the step, as well described by Justice Steakley (571 S.W.2d 867 at 869) was one “any fool could plainly see.”
Following the reasoning in Wesson v. Gillespie, supra, I conclude that the Plaintiff “must fall within the area of charged knowledge and appreciation.” I would sustain the Appellant’s point of error No. 2. Since the Court has found that there is insufficient evidence to support recovery on a negligence theory, and having concluded ■that assumption of risk bars recovery on the strict liability theory, I would reverse the judgment of the trial Court.
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