assumption of risk doctrine in Mississippi

1979NOTES [1] "The Court instructs the jury that in this case, the Defendant, Munford, Inc. was negligent as a matter of law." [2] Morris v. Lammons, 243 Miss. 684 , 139 So.2d 867 (1962) and Saxton v. Rose, 201 Miss. 814 , 29 So.2d 696 (1947) hold that an assumption of risk instruction is proper in a case involving an intoxicated driver.

1955In the case of Saxton v. Rose, 201 Miss. 814 , 29 So. 2d 646 , the Court recognized the well settled principle that in order for one to be barred of recovery under the doctrine of assumption of risk, he must know and appreciate the danger and deliberately expose himself thereto.

1999In Donald , this Court reversed on grounds unrelated to the assumption of risk instruction, but Justice Banks, joined by Presiding Justices Sullivan and Pittman, stated the doctrine of assumption of risk had been subsumed into comparative negligence: In Horton v. American Tobacco Co., 667 So.2d 1289 (Miss.1995), we considered the issue of assumption of the risk instructions....

1998While the plurality in Horton v. American Tobacco Co., 667 So.2d 1289 (Miss. 1995) declined to abolish the doctrine of assumption of risk, it did, as today's majority points out, recognize that assumption of risk has been subsumed in our comparative negligence doctrine.

1985Appellants cite and rely upon Braswell v. Economy Supply Co., 281 So.2d 669 (Miss. 1973), for authority that the lower court erred in granting the assumption of risk instruction without granting a contributory/comparative negligence instruction.

1979In Braswell, supra, this Court had this to say about our comparative negligence statute and its effect on the doctrine of assumption of risk: "Since our comparative negligence statute (Section 1454 Mississippi Code 1942 Annotated) was first adopted in 1910, the doctrine of assumption of risk has been recognized in some cases as a bar to an action by plaintiff and is deeply ingrained in the law of this state.

2000The first case, Jackson Ready-Mix Concrete v. Sexton, 235 So.2d 267 (Miss.1970), was decided many years before the assumption of risk doctrine was held to be subsumed into comparative negligence and could not, as a matter of law, create a complete bar to recovery.

1996The first case, Jackson Ready-Mix Concrete v. Sexton, 235 So. 2d 267 (Miss. 1970), was decided many years before the assumption of risk doctrine was held to be subsumed into comparative negligence and could not, as a matter of law, create a complete bar to recovery.

1999Our most recent pronouncement on the validity of the assumption of risk doctrine is found in Donald v. Triple S Well Service, Inc., 708 So.2d 1318 (Miss.1998).

1996Our most recent pronouncement on the validity of the assumption of risk doctrine is found in Donald v. Triple S Well Service, Inc., 708 So. 2d 1318 (Miss. 1998).

1999Penney Co., 236 Miss. 367 , 109 So.2d 876 (1959), this Court found that an assumption of risk instruction was error because it eliminated any distinction between assumption of risk and contributory negligence.

1999Penney Co., 236 Miss. 367 , 109 So.2d 876 (1959), this Court found that an assumption of risk instruction was error because it eliminated any distinction between assumption of risk and contributory negligence.

1973See Shurley v. Hoskins, 271 So.2d 439 (Miss. 1973); White v. Mississippi Power & Light Company, 196 So.2d 343 (Miss. 1967); Mississippi Power & Light Company v. Walters, 248 Miss. 206 , 158 So.2d 2 , 160 So.2d 908 (1963); Wallace v. J.C.

1973See Shurley v. Hoskins, 271 So.2d 439 (Miss. 1973); White v. Mississippi Power & Light Company, 196 So.2d 343 (Miss. 1967); Mississippi Power & Light Company v. Walters, 248 Miss. 206 , 158 So.2d 2 , 160 So.2d 908 (1963); Wallace v. J.C.

1990NORTH CAROLINA: Nicholson v. Hugh Chatham Memorial Hosp., Inc., 300 N.C. 295 , 266 S.E.2d 818 (1980) (requiring joinder); Southerland v. Kapp, 59 N.C.

1990NORTH CAROLINA: Nicholson v. Hugh Chatham Memorial Hosp., Inc., 300 N.C. 295 , 266 S.E.2d 818 (1980) (requiring joinder); Southerland v. Kapp, 59 N.C.

1990NEW YORK: Daniels v. Zelco, Inc., 159 A.D.2d 538 , 552 N.Y.S.2d 403, 406 (1990) ("Where the husband's cause of action has been terminated either by judgment, settlement, or otherwise, that should operate to bar the wife's cause of action for loss of consortium.") (quoting Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498 , 293 N.Y.S.2d 305, 311 , 239 N.E.2d 897, 903 (1968)); McNally v. Addis, 65 Misc.2d 204 , 317 N.Y.S.2d 157 (1970) (Assumption-of-risk doctrine barred loss-of-consortium action); Fischbach v. Auto Boys, Inc., 106 N.Y.S.2d 416 (N.Y.Sup.), rev'd on other grounds, 279 A

1990NEW YORK: Daniels v. Zelco, Inc., 159 A.D.2d 538 , 552 N.Y.S.2d 403, 406 (1990) ("Where the husband's cause of action has been terminated either by judgment, settlement, or otherwise, that should operate to bar the wife's cause of action for loss of consortium.") (quoting Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498 , 293 N.Y.S.2d 305, 311 , 239 N.E.2d 897, 903 (1968)); McNally v. Addis, 65 Misc.2d 204 , 317 N.Y.S.2d 157 (1970) (Assumption-of-risk doctrine barred loss-of-consortium action); Fischbach v. Auto Boys, Inc., 106 N.Y.S.2d 416 (N.Y.Sup.), rev'd on other grounds, 279 A

1990NORTH CAROLINA: Nicholson v. Hugh Chatham Memorial Hosp., Inc., 300 N.C. 295 , 266 S.E.2d 818 (1980) (requiring joinder); Southerland v. Kapp, 59 N.C.

1990NEW YORK: Daniels v. Zelco, Inc., 159 A.D.2d 538 , 552 N.Y.S.2d 403, 406 (1990) ("Where the husband's cause of action has been terminated either by judgment, settlement, or otherwise, that should operate to bar the wife's cause of action for loss of consortium.") (quoting Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498 , 293 N.Y.S.2d 305, 311 , 239 N.E.2d 897, 903 (1968)); McNally v. Addis, 65 Misc.2d 204 , 317 N.Y.S.2d 157 (1970) (Assumption-of-risk doctrine barred loss-of-consortium action); Fischbach v. Auto Boys, Inc., 106 N.Y.S.2d 416 (N.Y.Sup.), rev'd on other grounds, 279 A

1990NEW YORK: Daniels v. Zelco, Inc., 159 A.D.2d 538 , 552 N.Y.S.2d 403, 406 (1990) ("Where the husband's cause of action has been terminated either by judgment, settlement, or otherwise, that should operate to bar the wife's cause of action for loss of consortium.") (quoting Millington v. Southeastern Elevator Co., Inc., 22 N.Y.2d 498 , 293 N.Y.S.2d 305, 311 , 239 N.E.2d 897, 903 (1968)); McNally v. Addis, 65 Misc.2d 204 , 317 N.Y.S.2d 157 (1970) (Assumption-of-risk doctrine barred loss-of-consortium action); Fischbach v. Auto Boys, Inc., 106 N.Y.S.2d 416 (N.Y.Sup.), rev'd on other grounds, 279 A

1979In Yarbrough v. Phipps, 285 So.2d 788 (Miss. 1973), this Court had this to say about an assumption of risk instruction: "The instruction should seldom be employed except where the plaintiff's conduct is venturous...". 285 So.2d at 790 .

1979In Yarbrough v. Phipps, 285 So.2d 788 (Miss. 1973), this Court had this to say about an assumption of risk instruction: "The instruction should seldom be employed except where the plaintiff's conduct is venturous...". 285 So.2d at 790 .

1979In Alley v. Praschak Machine Company, 366 So.2d 661 (Miss. 1979), in discussing an assumption of risk instruction, this Court said: "Three (3) essentials must appear in the doctrine of assumption of risk.

1979In Alley v. Praschak Machine Company, 366 So.2d 661 (Miss. 1979), in discussing an assumption of risk instruction, this Court said: "Three (3) essentials must appear in the doctrine of assumption of risk.

1979NOTES [1] "The Court instructs the jury that in this case, the Defendant, Munford, Inc. was negligent as a matter of law." [2] Morris v. Lammons, 243 Miss. 684 , 139 So.2d 867 (1962) and Saxton v. Rose, 201 Miss. 814 , 29 So.2d 696 (1947) hold that an assumption of risk instruction is proper in a case involving an intoxicated driver.

1979NOTES [1] "The Court instructs the jury that in this case, the Defendant, Munford, Inc. was negligent as a matter of law." [2] Morris v. Lammons, 243 Miss. 684 , 139 So.2d 867 (1962) and Saxton v. Rose, 201 Miss. 814 , 29 So.2d 696 (1947) hold that an assumption of risk instruction is proper in a case involving an intoxicated driver.

1979NOTES [1] "The Court instructs the jury that in this case, the Defendant, Munford, Inc. was negligent as a matter of law." [2] Morris v. Lammons, 243 Miss. 684 , 139 So.2d 867 (1962) and Saxton v. Rose, 201 Miss. 814 , 29 So.2d 696 (1947) hold that an assumption of risk instruction is proper in a case involving an intoxicated driver.

1973See Shurley v. Hoskins, 271 So.2d 439 (Miss. 1973); White v. Mississippi Power & Light Company, 196 So.2d 343 (Miss. 1967); Mississippi Power & Light Company v. Walters, 248 Miss. 206 , 158 So.2d 2 , 160 So.2d 908 (1963); Wallace v. J.C.

1967In the case of Watson v. Holeman, 169 Miss. 585 , 153 So. 669 (1934), this Court has said: "Although limited exceptions are admitted, the doctrine of assumption of risk ordinarily appertains only to contractual relations * * *." In the case of Cumberland Telephone & Telegraph Company v. Cosnahan, 105 Miss. 615 , 62 So. 824 (1913), where a telephone company was negligent in permitting its wires to become entangled with the wires of an electric company, a workman for the telephone company assumed the risk as to the telephone company, but not as to the negligence of the electric company.

1967In the case of Watson v. Holeman, 169 Miss. 585 , 153 So. 669 (1934), this Court has said: "Although limited exceptions are admitted, the doctrine of assumption of risk ordinarily appertains only to contractual relations * * *." In the case of Cumberland Telephone & Telegraph Company v. Cosnahan, 105 Miss. 615 , 62 So. 824 (1913), where a telephone company was negligent in permitting its wires to become entangled with the wires of an electric company, a workman for the telephone company assumed the risk as to the telephone company, but not as to the negligence of the electric company.

1967In the case of Watson v. Holeman, 169 Miss. 585 , 153 So. 669 (1934), this Court has said: "Although limited exceptions are admitted, the doctrine of assumption of risk ordinarily appertains only to contractual relations * * *." In the case of Cumberland Telephone & Telegraph Company v. Cosnahan, 105 Miss. 615 , 62 So. 824 (1913), where a telephone company was negligent in permitting its wires to become entangled with the wires of an electric company, a workman for the telephone company assumed the risk as to the telephone company, but not as to the negligence of the electric company.

1967In the case of Watson v. Holeman, 169 Miss. 585 , 153 So. 669 (1934), this Court has said: "Although limited exceptions are admitted, the doctrine of assumption of risk ordinarily appertains only to contractual relations * * *." In the case of Cumberland Telephone & Telegraph Company v. Cosnahan, 105 Miss. 615 , 62 So. 824 (1913), where a telephone company was negligent in permitting its wires to become entangled with the wires of an electric company, a workman for the telephone company assumed the risk as to the telephone company, but not as to the negligence of the electric company.

1967In 19 Miss.L.J. p. 370, `The elements which must be found in order to constitute a defense of assumption of risk are generally stated in some such terms as follows: (1) Knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition.'" In Mississippi Power & Light Company v. Walters, 248 Miss. 206, 255-256 ,

1967In 19 Miss.L.J. p. 370, `The elements which must be found in order to constitute a defense of assumption of risk are generally stated in some such terms as follows: (1) Knowledge on the part of the injured party of a condition inconsistent with his safety; (2) appreciation by the injured party of the danger in the condition; and (3) a deliberate and voluntary choice on the part of the injured party to expose his person to that danger in such a manner as to register assent on the continuance of the dangerous condition.'" In Mississippi Power & Light Company v. Walters, 248 Miss. 206, 255-256 ,

1939It is next insisted that by the evidence which we have set forth, the appellee, Anna Goosby, assumed the risk, and that the doctrine of assumption of risk applies to *799 property as well as to individuals, and cites the case of McDonald v. Wilmut Gas & Oil Co., 180 Miss. 350 , 176 So. 395 .

1939It is next insisted that by the evidence which we have set forth, the appellee, Anna Goosby, assumed the risk, and that the doctrine of assumption of risk applies to *799 property as well as to individuals, and cites the case of McDonald v. Wilmut Gas & Oil Co., 180 Miss. 350 , 176 So. 395 .

1934Co. v. Guin, 109 Miss. 187 , 68 So. 78 , it was held that, where a plaintiff yard foreman was acting under the orders of his superior, he was not a “ conductor, ” so that plaintiff injured while on duty was entitled to recover, and that the doctrine of assumption of risk did not apply to him.

1934Co. v. Guin, 109 Miss. 187 , 68 So. 78 , it was held that, where a plaintiff yard foreman was acting under the orders of his superior, he was not a “ conductor, ” so that plaintiff injured while on duty was entitled to recover, and that the doctrine of assumption of risk did not apply to him.