Capps v. McCarley & Co.

Frank Holt, Justice. This is an action to recover damages for the physical injuries sustained by the appellant, Mrs. Capps, when she slipped and fell on a wet spot in her garage. Appellants alleged that the accident was caused by the appellee contractor’s negligence in failing to provide adequate drainage in the construction of the driveway of appellants’ home and in failing to correct the alleged defect after notice was given to it. At the close of appellants’ proof, the trial court granted appellee’s motion for a directed verdict. Appellants contend that the trial court erred in finding that, as a matter of law, there was an assumption of risk by Mrs. Capps. Assumption of risk bars recovery whenever it is shown, as a matter of law, that a dangerous situation existed which was inconsistent with the safety of the plaintiff; that the plaintiff knew the dangerous situation existed and realized the risk of injury from it; and that the plaintiff voluntarily exposed himself to the dangerous situation which proximately caused his claimed injuries. Spradlin v. Klump et al, 244 Ark. 841, 427 S.W. 2d 542 (1968); McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972); Price v. Daughterty, 253 Ark. 421, 486 S.W. 2d 528 (1972); and AMI Civil 2d § 612. The primary thrust of appellants’ argument is that the testimony of Mrs. Capps clearly shows there was no voluntary assumption of risk. During the three months the appellants had occupied their new home, they had noticed on several occasions that water collected in the garage following a rainfall. This was caused by a half inch “crown” in the driveway during its construction. The “crown” diverted water into the garage. Appellee was made aware of this defect and had not corrected it at the time of the accident. Mrs. Capps worked during the daytime and regularly returned home at lunchtime to tend to the needs of her mother who was bedfast as a result of a broken hip. On the day Mrs. Capps fell, it rained just before lunchtime resulting in the collection of water in the garage. There were three entrances into her house. The entrances, other than from the garage, were locked from the inside. Mrs. Capps testified that she used the garage door entrance because she “had no other choice but to go through the water.” However, she walked “very carefully” to avoid a mishap since she recognized that it was “dangerous” to walk through the water. In McDonald v. Hickman, supra, we quoted with approval: As Prosser puts it: ‘Knowledge of the risk is the watchword of assumption of risk.’ Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself. Prosser on Torts, § 68 (4th ed., 1971). See also Restatement of Torts (2d), § 496 D (1965) .... In Price v. Daugherty, supra, we said: Assumption of risk occurs only when the injured person actually knows and appreciates the danger. The standard is a subjective one, being based upon what the particular person in fact sees, knows, understands, and appreciates. Here the defective condition was completely open and obvious. Mrs. Capps readily admitted on cross-examination that she saw, knew, and understood the hazardous condition and appreciated it to the extent that she felt it was necessary to walk “very carefully” in the area. This was not an emergency situation since Mrs. Capps regularly came home at lunchtime to tend to the needs of her mother. In the circumstances, although we view the evidence most favorable to appellants, as we do on appeal from a directed verdict, we must hold that the court correctly held that the appellants’ action is barred by Mrs. Capps’ assumption of the risk. See Spradlin v. Klump, el al, supra. Appellants’ final contention for reversal is that the trial court erred in admitting an offer and acceptance agreement between the parties, because provision 9 of the agreement contains language which excludes certain warranties. This contention is without merit since it clearly appears from the record that the exhibit was not considered by the court in directing a verdict on the grounds of assumption of risk. Affirmed. Roy, J., dissents.