assumption of risk doctrine in Iowa

1986See Rippel v. J.H.M. of Waterloo, Inc., 328 N.W.2d 499, 501 (Iowa 1983) (passenger of automobile could not recover from tavern in dramshop action where driver was intoxicated; passenger knew driver was intoxi *720 cated; passenger neither sought nor wanted other transportation and voluntarily assumed risk of riding with known intoxicated driver); Berge v. Harris, 170 N.W.2d 621, 626-27 (Iowa 1969).

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

2022In examining that question, the court started with a history lesson on the assumption of risk doctrine, which had its genesis in “master-servant law.” Id.

2000The school district asserts the disputed portion of the instruction is supported by Dudley and basically embodies the primary assumption of risk doctrine we first recognized in Rosenau v. City of Estherville, 199 N.W.2d 125 (Iowa 1972).

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

1971White v. McVicker, 216 Iowa 90, 94 , 246 N.W. 385, 387 (“The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies.”) ; Johnson v. McVicker, 216 Iowa 654 , 247 N.W. 488 ; Stanbery v. Johnson, 218 Iowa 160 , 254 N.W. 303 ; White v. Center, 218 Iowa 1027 , 254 N.W. 90 ; Stingley v. *214 Crawford, 219 Iowa 509, 512 , 258 N.W. 316, 318 (“The material point is that, before the doctrine of assumption of risk can apply, the plaintiff must have known of the danger.”); Whi

2022Coker v. Abell-Howe Co., 491 N.W.2d 143, 147 (Iowa 1992); see also Rini v. 6 Oaklawn Jockey Club, 861 F.2d 502 , 506–07 (8th Cir. 1988) (describing the overlap between the two defenses “as intersecting circles, with a considerable area in common, where both exist and neither excludes the possibility of the other” (quoting W.P.

2022Coker v. Abell-Howe Co., 491 N.W.2d 143, 147 (Iowa 1992); see also Rini v. 6 Oaklawn Jockey Club, 861 F.2d 502 , 506–07 (8th Cir. 1988) (describing the overlap between the two defenses “as intersecting circles, with a considerable area in common, where both exist and neither excludes the possibility of the other” (quoting W.P.

2022The only instructional error the court considered in Morgan was the 12 even if they had, Instruction 18 would still conflict with our supreme court’s holding in Coker, which also considered an assumption of risk instruction as a species of fault. 491 N.W.2d at 146 (noting “the trial court instructed the jury on three separate theories of fault,” one of which was the plaintiff’s “contributory negligence” and another instructing the jury that the plaintiff “may be at fault if he ‘unreasonably assumed a risk of harm from the conduct of another’”).

1986See Rippel v. J.H.M. of Waterloo, Inc., 328 N.W.2d 499, 501 (Iowa 1983) (passenger of automobile could not recover from tavern in dramshop action where driver was intoxicated; passenger knew driver was intoxi *720 cated; passenger neither sought nor wanted other transportation and voluntarily assumed risk of riding with known intoxicated driver); Berge v. Harris, 170 N.W.2d 621, 626-27 (Iowa 1969).

1984E.g., Armstrong v. Mailand, 284 N.W.2d 343, 352 (Minn.1979) (In a wrongful death action, fireman’s primary assumption of risk can be invoked to relieve defendants other than landowners of their duties with respect to reasonably apparent risks that were part of firefighting); Steelman v. Lind, 97 Nev. 425, 427-28 , 634 P.2d 666, 667 (1981) (Public safety officer, in accepting salary and fringe benefits assumes all normal risks inherent in employment as a matter of law and may not recover from one who negligently creates such a risk); Lipson v. Superior Court, 31 Cal.3d 362, 371 , 182 Cal.Rptr.

1984E.g., Armstrong v. Mailand, 284 N.W.2d 343, 352 (Minn.1979) (In a wrongful death action, fireman’s primary assumption of risk can be invoked to relieve defendants other than landowners of their duties with respect to reasonably apparent risks that were part of firefighting); Steelman v. Lind, 97 Nev. 425, 427-28 , 634 P.2d 666, 667 (1981) (Public safety officer, in accepting salary and fringe benefits assumes all normal risks inherent in employment as a matter of law and may not recover from one who negligently creates such a risk); Lipson v. Superior Court, 31 Cal.3d 362, 371 , 182 Cal.Rptr.

1984E.g., Armstrong v. Mailand, 284 N.W.2d 343, 352 (Minn.1979) (In a wrongful death action, fireman’s primary assumption of risk can be invoked to relieve defendants other than landowners of their duties with respect to reasonably apparent risks that were part of firefighting); Steelman v. Lind, 97 Nev. 425, 427-28 , 634 P.2d 666, 667 (1981) (Public safety officer, in accepting salary and fringe benefits assumes all normal risks inherent in employment as a matter of law and may not recover from one who negligently creates such a risk); Lipson v. Superior Court, 31 Cal.3d 362, 371 , 182 Cal.Rptr.

1984E.g., Armstrong v. Mailand, 284 N.W.2d 343, 352 (Minn.1979) (In a wrongful death action, fireman’s primary assumption of risk can be invoked to relieve defendants other than landowners of their duties with respect to reasonably apparent risks that were part of firefighting); Steelman v. Lind, 97 Nev. 425, 427-28 , 634 P.2d 666, 667 (1981) (Public safety officer, in accepting salary and fringe benefits assumes all normal risks inherent in employment as a matter of law and may not recover from one who negligently creates such a risk); Lipson v. Superior Court, 31 Cal.3d 362, 371 , 182 Cal.Rptr.

1984E.g., Armstrong v. Mailand, 284 N.W.2d 343, 352 (Minn.1979) (In a wrongful death action, fireman’s primary assumption of risk can be invoked to relieve defendants other than landowners of their duties with respect to reasonably apparent risks that were part of firefighting); Steelman v. Lind, 97 Nev. 425, 427-28 , 634 P.2d 666, 667 (1981) (Public safety officer, in accepting salary and fringe benefits assumes all normal risks inherent in employment as a matter of law and may not recover from one who negligently creates such a risk); Lipson v. Superior Court, 31 Cal.3d 362, 371 , 182 Cal.Rptr.

1984E.g., Armstrong v. Mailand, 284 N.W.2d 343, 352 (Minn.1979) (In a wrongful death action, fireman's primary assumption of risk can be invoked to relieve defendants other than landowners of their duties with respect to reasonably apparent risks that were part of firefighting); Steelman v. Lind, 97 Nev. 425, 427-28 , 634 P.2d 666, 667 (1981) (Public safety officer, in accepting salary and fringe benefits assumes all normal risks inherent in employment as a matter of law and may not recover from one who negligently creates such a risk); Lipson v. Superior Court, 31 Cal.3d 362, 371 , 182 Cal.Rptr.

1972This means that only the traditional notions of negligence and contributory negligence should govern cases such as we have here and that the defense of assumption of risk should not be a defense and should not be used." See also Burrows v. Hawaiian Trust Company, 49 Hawaii 351 , 417 P.2d 816 (1966) ("Plaintiff did not assume the risk of injury which she reasonably hazarded in the performance of her duty as a nurse, and which ensued despite her fulfillment of her obligation of due care."); Huckabee v. Bell & Howell, Inc., 47 Ill.2d 153 , 265 *132 N.E.2d 134 (1970) ("However, it is now clear tha

1972This means that only the traditional notions of negligence and contributory negligence should govern cases such as we have here and that the defense of assumption of risk should not be a defense and should not be used.” See also Burrows v. Hawaiian Trust Company, 49 Hawaii 351 , 417 P.2d 816 (1966) (“Plaintiff did not assume the risk of injury which she reasonably hazarded in the performance of her duty as a nurse, and which ensued despite her fulfillment of her obligation of due care.”); Huckabee v. Bell & Howell, Inc., 47 Ill.2d 153 , 265 N.E.2d 134 (1970) (“However, it is now clear that so-

1972This means that only the traditional notions of negligence and contributory negligence should govern cases such as we have here and that the defense of assumption of risk should not be a defense and should not be used." See also Burrows v. Hawaiian Trust Company, 49 Hawaii 351 , 417 P.2d 816 (1966) ("Plaintiff did not assume the risk of injury which she reasonably hazarded in the performance of her duty as a nurse, and which ensued despite her fulfillment of her obligation of due care."); Huckabee v. Bell & Howell, Inc., 47 Ill.2d 153 , 265 *132 N.E.2d 134 (1970) ("However, it is now clear tha

1972This means that only the traditional notions of negligence and contributory negligence should govern cases such as we have here and that the defense of assumption of risk should not be a defense and should not be used." See also Burrows v. Hawaiian Trust Company, 49 Hawaii 351 , 417 P.2d 816 (1966) ("Plaintiff did not assume the risk of injury which she reasonably hazarded in the performance of her duty as a nurse, and which ensued despite her fulfillment of her obligation of due care."); Huckabee v. Bell & Howell, Inc., 47 Ill.2d 153 , 265 *132 N.E.2d 134 (1970) ("However, it is now clear tha

1972In Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968), the Alaska Supreme Court refused to allow an assumption of risk instruction in a passenger death case, stating, "The just concept should be whether a reasonably prudent man in the exercise of due care would have incurred the risk despite that knowledge, and if so, whether he would have conducted himself in the manner in which the plaintiff acted in the light of all the circumstances, including the appreciated risk.

1972In Leavitt v. Gillas-pie, 443 P.2d 61, 68 (Alaska 1968), the Alaska Supreme Court refused to allow an assumption of risk instruction in a passenger death case, stating, “The just concept should be whether a reasonably prudent man in the exercise of due care would have incurred the risk despite that knowledge, and if so, whether he would have conducted himself in the manner in which the plaintiff acted in the light of all the circumstances, including the appreciated risk.

1971“This is an ordinary case of negligence and contributory negligence and the matter of as sumption of risk should not be injected into the case.” For fuller development of the history of encroachment of the assumption of risk doctrine into ordinary negligence cases, see dissent in Wright v. Peterson, 259 Iowa 1239, 1249 , 146 N.W.2d 617, 623 (1967).

1971“This is an ordinary case of negligence and contributory negligence and the matter of as sumption of risk should not be injected into the case.” For fuller development of the history of encroachment of the assumption of risk doctrine into ordinary negligence cases, see dissent in Wright v. Peterson, 259 Iowa 1239, 1249 , 146 N.W.2d 617, 623 (1967).