assumption of the risk instruction in Mississippi

1996The doctrine of assumption of the risk may, as for the general run of invitees, have diminished in force in Mississippi by virtue of such decisions as Braswell v. Economy Supply Co., 281 So. 2d 669, 677 (Miss. 1973).

1995Braswell v. Economy Supply Co., 281 So.2d 669 (Miss. 1973), first limited the use of the assumption of the risk defense.

1995Nichols v. Western Auto Supply, Inc., 477 So.2d 261, 264 (Miss. 1985). [3] Materials did object on the ground that Dr. Miller's testimony, on a theory in conflict with the open and obvious defense, was not legally tenable and thus irrelevant.

1989The Court's trend of removing assumption of the risk faltered in Nichols v. Western Auto Supply Co., Inc., 477 So.2d 261, 264-65 (Miss. 1985), but Braswell was distinguished, thereby leaving in place the framework for abolishing the doctrine of assumption of the risk.

1995See Singleton v. Wiley, 372 So.2d 272, 274-75 (Miss. 1979).

1989Singleton v. Wiley, 372 So.2d 272, 274-75 (Miss. 1979).

2008In this regard, Mississippi law holds that the assumption of the risk doctrine "merely goes to the percentage of fault attributable to the plaintiff; it no longer affords a complete defense to the defendant unless the [trier of fact] finds that the plaintiff's assumption of risk proportionately reduces damages to zero." Donald v. Triple S Well Serv., 708 So.2d 1318, 1325 (34) (Miss.1998) (citing Horton v. American Tobacco Co., 667 So.2d 1289, 1292 (Miss.1995)). ¶ 28.

1999Id. at 1306 .

2008In this regard, Mississippi law holds that the assumption of the risk doctrine "merely goes to the percentage of fault attributable to the plaintiff; it no longer affords a complete defense to the defendant unless the [trier of fact] finds that the plaintiff's assumption of risk proportionately reduces damages to zero." Donald v. Triple S Well Serv., 708 So.2d 1318, 1325 (34) (Miss.1998) (citing Horton v. American Tobacco Co., 667 So.2d 1289, 1292 (Miss.1995)). ¶ 28.

1999In Donald v. Triple S Well Service, Inc., 708 So.2d 1318 (Miss.1998), this Court noted that the jury in that case had been issued an assumption of the risk instruction, but we nevertheless affirmed, based on the existence of language similar to that found in DPR-14-A. This Court held in Donald that: [W]hile the instructions here in question refer to the fact that the plaintiff may have "assumed the risk," they also require the jury to consider and determine whether the plaintiff's action was the sole proximate cause of his injuries.

1995Yet even if somehow this were a case based upon negligence on the part of the defendants, they clearly should be permitted to assert assumption of the risk as a complete defense. [2] Indeed, the plurality concedes Horton's conduct could be characterized as evidence "supporting a conclusion of assumption of the risk," but incorrectly holds that the "doctrine is subsumed in our comparative fault doctrine." McDaniel v. Ritter, 556 So.2d 303, 319 (Miss. 1989), cited by the plurality in support of this holding does no such thing, but clearly recognizes the assumption of the risk doctrine, and expla

1995In his dissenting opinion in McDaniel , Justice Sullivan addressed whether "assumption of the risk should be treated the same as contributory negligence under Mississippi's comparative negligence statute." Id. at 319 .

1995Hill v. Dunaway, 487 So.2d 807 (Miss. 1986), the only other case cited by the plurality which deals with the question of assumption of the risk, also recognizes that the defense of assumption of risk is alive in Mississippi.

1995In so doing, I note that the merging of these two doctrines "lays bare the reality that assumption of risk is only an artificial way of denominating a plaintiff's negligence." Dunaway, 487 So.2d at 810, n. 1 .