IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-CT-01365-SCT

JAMES H. DONALD AND BARBARA LINDSAY

DONALD

v.

TRIPLE S WELL SERVICE, INC.

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: 11/08/93

TRIAL JUDGE: HON. R. I. PRICHARD, III

COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT

COURT

ATTORNEY FOR APPELLANTS: JAMES KENNETH WETZEL

ATTORNEY FOR APPELLEE: RICHARD F. YARBROUGH, JR.

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

DISPOSITION: REVERSED AND REMANDED - 3/12/98

MOTION FOR REHEARING FILED: 3/25/98

MANDATE ISSUED: 5/27/98

EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. In this case we determine whether the introduction of evidence of alcohol use, where that

evidence is ultimately found to be insufficient to create a viable issue as to any fact to be tried, is such

error as to dictate reversal. We conclude that under some circumstances it is and that the judgment

here must be reversed.

I.

¶2. On March 3, 1992, James H. Donald and Barbara Lindsay Donald filed a complaint against

Apache Corporation and Triple S Well Service, Inc. The Donalds allege that Mr. Donald sustained

personal injuries in two unrelated incidents, the first on August 1, 1989 and the second on July 9,

1990. Mr. Donald claimed he was injured while working on two different well sites owned by Apache

in Jefferson Davis County, Mississippi. Apache had contracted with Triple S to provide work over

services at both well sites. In his complaint, Donald asserted that Apache, as owner of the wells, and

Triple S, as owner of the work over rigs, were liable for his injuries due to failure to provide him a

safe place to work and for failing to provide drilling equipment in a safe condition.
¶3. The Donalds negotiated a settlement with Apache immediately prior to trial. Thereafter, a five

day trial ensued against the remaining defendant, Triple S. On November 5, 1993, the jury returned a

verdict in favor of Triple S. The Court of Appeals affirmed the jury verdict and judgment of the trial

court. The Donalds then filed a petition for rehearing which was denied by the Court of Appeals.

¶4. In their petition for certiorari, the Donalds present two issues for review by this Court: (1)

whether the lower court erred in denying their motion in limine to exclude evidence relating to

alleged alcohol use by Mr. Donald on the job prior to the injuries in question, and (2) whether the

lower court erred in granting assumption of the risk instructions to Triple S. We granted certiorari on

both issues.

II.

¶5. James H. Donald, at the time of the injuries alleged in this litigation, was working at certain gas

well drilling sites in Jefferson County owned by Apache Corporation. He had worked in the field for

forty years, and testimony at trial was unanimous that Donald was an excellent worker who "knew

how to get the job done." Donald's employer, Homco, Inc., had contracted to assist Apache in

performing a "work over" of two existing wells. This work consisted of removing and replacing

deteriorated piping in the well in order to improve its performance. A special work over rig was

required for such work, and Apache had contracted with Triple S to provide the equipment and

personnel to assist in the operation of the rig.

¶6. Donald's position involved special skills and was known in the trade as a "fishing tool operator."

The process of reworking a well involves lowering a cutting tool into the well, cutting loose lengths

of the existing piping, then extricating the severed section along with any obstructions that may have

accumulated. The process continues until all deteriorated piping is removed and new piping inserted.

The fishing tool operator's duties include supervising the lowering of the cutting tool, operating the

tool once it is lowered into the well, and removing the pipe and obstructions. Much of the actual

physical labor involved in handling the old sections of pipe, once they are returned to the surface, is

performed by manual laborers referred to as "floor hands." The actual lowering of the fishing tools

and the removal of the old piping is accomplished by a motor-operated drilling apparatus controlled

by a throttle, a clutch, and a lever-operated braking mechanism.

¶7. Once an older section of pipe is removed from the well, the lower end of the pipe is guided to a

slide mechanism by the floor hands. The driller then lowers the upper end of the pipe, thereby

pushing the lower end along the slide until the pipe section is flat on the slide. It is then detached

from the drilling rig and manipulated onto an adjoining pipe rack by the floor hands so that the

process can begin again.

¶8. Donald's first alleged injury occurred August 1, 1989. On that occasion, Donald claims that

during the process of laying down a section of old pipe just removed from the well, the lower end

broke through the slide and became lodged. The two floor hands were attempting to manipulate the

lower end of the pipe back onto the sliding mechanism so that the lowering process could be

resumed, but were encountering difficulties. Donald decided to assist in the process and the three of

them were successful in manipulating the lower end of the pipe onto a track where it would continue

to slide away from the rig as the upper end descended. In the process, however, Donald claims that
he slipped and fell, injuring his back. He alleges that the area around the pipe slide was muddy and

slippery, and that this condition caused him to fall.

¶9. Donald's claim against Triple S is based upon an assertion that Triple S failed to provide a raised

catwalk apparatus along the area where the pipes were being lowered. According to Donald and his

expert witness, a catwalk would have permitted him to assist the floor hands without encountering

the muddy conditions that caused his fall. There was testimony that such catwalks are provided on

some occasions during a work over operation; even Donald testified, however, that only thirty to

forty percent of work over rigs have such a catwalk as standard equipment. There was ample proof

that it is not uncommon for the area around the pipe slide to become wet due to the combination of

inclement weather and drainage of liquids from the old piping. There was conflicting testimony in the

record as to the condition of this particular site at the time of the alleged accident, which occurred,

according to Donald, at 1:30 a.m. There is also conflicting evidence as to what had been placed on

the ground around the slide: ground oyster shells, washed gravel, plain gravel or nothing at all.

¶10. Triple S claims that the slip and fall incident never occurred, arguing that its witnesses could not

corroborate Donald's testimony as to the incident. The record reflects, however, that Donald reported

this incident to his supervisor the following morning. Moreover, Donald saw his physician three or

four days later, and surgery was performed within ten days, requiring Donald to leave the job for a

period of approximately three months. Donald had experienced back problems some years prior to

this incident, but those problems involved a different region of the spine, and different discs. Donald's

injury is consistent with his explanation of the accident, and Triple S offers no other explanation as to

how Donald received the injury to his back. Triple S claims that even if the incident did take place, it

was not responsible. It argues that the ground was in good condition and that catwalks are not

normally provided.

¶11. Donald's second alleged injury occurred on July 9, 1990. On that occasion, Donald claims that

he was engaged in a jarring operation to free a section of old pipe that could not be removed by

normal methods. Donald testified that the procedure involved a series of jerks on the pipe through the

use of the throttle, clutch and braking mechanism on the drilling rig in an attempt to shake loose the

lodged pipe. He stated that it was important to maintain a balance between applying sufficient sudden

force to dislodge old pipe and such excessive force as would strip free the newly-made attachment.

Excessive force would likely damage expensive fishing tool equipment and cause the entire well

operation to shut down.

¶12. Donald claims that the failure of the rig's braking mechanism, due to improperly maintained

brakes, was the cause of his second injury. He stated that he was attempting to apply the brakes when

the mechanism failed and the brake lever went all the way to the floor, putting everything attached to

the rig in free fall. He testified that by strenuously jerking back on the brake lever he was able to reset

the brakes and stop the free fall. He claims, however, that the strenuous jerking motion necessary to

reset the malfunctioning brake caused an injury to his neck. Surgery following this incident left him

with a permanent twenty-five to thirty percent (25-30%) disability. Testimony by the defendant's

expert witness was that Donald could possibly "do some work as a security guard, if such work was

available, and it did not involve being on his feet for long periods of time." Normally, the operation of

the drilling mechanism is the duty of an individual designated as the driller. Donald testified, however,

that it is not uncommon for the fishing tool operator to take over the actual operation of the drilling
mechanism, especially during critical phases of the fishing operation.

¶13. Donald claims that for some time prior to the incident, it had been known that the braking

mechanism was in a state of disrepair because the brake bands were warped, causing the brake pads

to wear out prematurely. Every person testifying at trial, whether for the plaintiff or the defendant,

corroborated Donald's testimony that it was commonly known that there was a problem with the

brakes. Donald had asked Randy Quevas to replace the bands. Two days after the accident, the rig

was shut down for fourteen hours and the brakes were replaced.

¶14. This second incident was also reported to Donald's supervisor, and followed immediately by

surgery. According to Donald's physician and his expert vocational rehabilitation witness, this

accident has resulted in a permanent disability, leaving Donald with very limited mobility. He is

unable to drive, stand or sit for extended periods of time.

¶15. Triple S claims that the second accident, like the first one, never took place. In the alternative,

Triple S alleges that if the accident did take place then Donald assumed the risk of injury because he

performed his work knowing the brakes were dangerous. Triple S paid Donald his full salary

following the accident in exchange for Donald's workers' compensation checks being signed over to

the company.

¶16. None of Triple S's witnesses verified that they had seen the accidents occur. One witness

admitted that he was not even at the scene at the time of the alleged incident; another testified that he

was sleeping at the time. Donald's supervisor verified that the second accident had been duly reported

and written up, although the employer never followed up by questioning anyone at the scene or

investigating the accident in any way.

III.

¶17. The Donalds argue that the trial court erred in overruling their motion in limine concerning Mr.

Donald's possible use of alcohol on the job on other occasions, since there was insufficient proof of

his use of alcohol on the dates in question to submit that issue to the jury as contributory negligence.

The Donalds argue that upon a close jury verdict, this testimony resulted in extreme prejudice.(1)

¶18. Counsel for the Donalds filed a motion in limine seeking to prevent any mention of alcohol

consumption by Mr. Donald "unless proof of intoxication is offered through way of direct testimony

that there is [sic] any witnesses to said allegations . . . . " Defense counsel argued that such proof was

admissible under Miss. R. Evid. 406 in that the intended proof would demonstrate a "habit" of

alcohol use on the job sufficient to support a permissible inference by the jury that Donald was using

alcohol on the "particular occasion" of his injuries "in conformity with the habit. . . ." See Miss. R.

Evid. 406. Based on these representations, the trial court denied the motion in limine, but determined

that the proof would be limited to evidence of alcohol use on the job.

¶19. There was no testimony at trial that Donald had ever been observed taking a drink; there was

ample testimony that he was an excellent fishing tool operator and that he had never been observed

acting in an impaired or intoxicated manner on the job. Five witnesses for the defense testified that

they smelled alcohol on Donald's breath whenever they were around him. One of the five, Donald

Madison, could not identify Donald in the courtroom. Russell Doyle Carroll said he smelled alcohol
on Donald's breath, but did not say how often, and did not establish that he smelled it on more than

one occasion. Furthermore, this was the only question asked of Doyle, who was not on site the night

of the accident. Wayne Beech testified that he had never seen Donald drink. Despite having worked

with him for twelve years, he stated that he had smelled alcohol on Donald's breath only on the last

few days before Donald left the job. Randy Quevas stated that he smelled alcohol on Donald more

than once in the month preceding the accident. Paul McKean also testified that he had smelled

alcohol on Donald, but said, "I don't know what the date was . . . I didn't even know what his name

was."

¶20. The record reflects, and the trial court agreed at the conclusion of the trial, that the proof never

reached the level of showing intoxication on the job at any time. The trial court refused an instruction

requested by Triple S which instructed the jury that if it determined that Donald was under the

influence of alcohol on the occasion of his injuries and that his condition was the sole proximate

cause of his injuries, then they should return a verdict for Triple S. The lower court ruled:

Let the record show the court will refuse that instruction as there is no proof in the record that

anybody testified to that he was under the influence at any time. That the most of the proof was

that they did smell alcohol every time they were around him. And the jury, in the Court's

opinion, should just this,[sic] if they believe it, as just part of the facts of this case, but not be

instructed that intoxication caused or contributed to the accident to bar the plaintiff in that there

is no such proof showing that he was either incapacitated through the use of alcohol or acted in

any method or manner inconsistent with the work he was performing.

¶21. The Donalds contend, however, that the continuous interjection of innuendos throughout trial

regarding the use of alcohol on the job severely prejudiced their case. In opening argument, counsel

for Triple S had stated:

We're going to have testimony, again from Mr. Griffith as well as Triple S [sic] crew, that Mr.

Donald had a habit, a daily habit of consuming hard liquor, probably vodka.

These are people that worked face to face with him. They took orders from him, verbal orders.

You'll hear testimony about his use of alcohol at the work site. It's not Triple S's fault if Mr.

Donald has that problem. Please don't hold it against us. We think the proof is going to show

that alcohol had a big part in causing these injuries, incidents, if, in fact, they occurred at all.

¶22. This is but one of several misleading statements by defense counsel, both at trial and in Triple S's

briefs and response to the petition for writ of certiorari. The "Mr. Griffith" referred to in the

defendant's opening argument is Wyatt Magee Griffith, an Apache boss, who worked with Donald

continuously for over twelve years. His actual testimony was as follows:

Q. Now, Mr. Griffith, there's been a lot of testimony about alcohol in this lawsuit. Do you know

whether or not Mr. Donald ever drank alcohol on any of the work sites that you worked on

with him?

A. I never saw him.

Q. Did you ever smell alcohol on his breath?
A. No, I didn't.

Q. Never did. All right, sir.

A. See, he couldn't have and he know it. I'd have to send him to the house if I'd caught him or

smelled it.

¶23. In Reyes v. Missouri Pac. R.R. Co., 589 F.2d 791 (5th Cir. 1979), the Fifth Circuit suggested

evidentiary guidelines on the subject of the use of alcohol as habit evidence:

Although a precise formula cannot be proposed for determining when the behavior may become

so consistent as to rise to the level of habit, "adequacy of sampling and uniformity of response"

are controlling considerations. Notes of Advisory Committee on Proposed Rules, Fed. R. Evid.

406, 28 U.S.C.A. at p. 153. Thus the probative force of habit evidence to prove intoxication on

a given occasion depends on the "degree of regularity of the practice and its coincidence with

the occasion. McCormick on Evidence § 195 n.16 (2d ed. 1972).

We do not undertake here to prescribe the precise quantum of proof necessary to transform a

general disposition for excessive drinking into a "habit" of intemperance; we simply find that

four prior convictions for public intoxication spanning a three and one-half year period are of

insufficient regularity to rise to the level of "habit" evidence. Consequently, we hold the

evidence to be inadmissible under Rule 406 as well.

A principal purpose behind the exclusion of character evidence, as we have said, is the

prejudicial effect that it can have on the trier of fact. This concern is especially compelling here

where the character evidence relates to one of the critical issues in the case, i.e., the

contributory negligence of Reyes. Finding the introduction of the prior convictions to be

extremely prejudicial, we feel that the error affected the substantial rights of Reyes, thus

requiring a new trial.

Reyes, 589 F. 2d at 795 (citations omitted).

¶24. In the present case, the evidence clearly did not establish that Donald had a habit of drinking on

the job. Even if the evidence had been admissible under Rule 406, however, it was still subject to the

balancing test of Rule 403. See Hans Constr. Co., Inc. v. Drummond, 653 So. 2d 253, 265 (Miss.

1995) (although evidence was admissible under Rule 406, the question remained "whether the

information was substantially more prejudicial than probative under Rule 403"). Rule 403 provides:

"[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . . " Miss. R. Evid.

403; see also id.

¶25. In Gustavson v. Gaynor, 503 A.2d 340 (N.J. Super. Ct. App. Div. 1985), the New Jersey

Supreme Court held as follows regarding the admissibility of drinking or evidence of intoxication as it

relates to negligent driving:

In those jurisdictions which have considered this question, the rule followed is that evidence of

prior drinking is admissible as being relevant to the issue of the driver's fitness only when there

is some supplementary evidence from which the trier of the fact may reasonably conclude that
the drinking affected the safe operation of the vehicle. . .

The mere fact that a driver had consumed some alcoholic beverages is by itself insufficient to

warrant an inference that the driver was intoxicated and that the intoxication was of such a

degree as to render him unfit to drive at the time of the accident. The admission of such

testimony without supporting evidence is unduly prejudicial in view of its capacity to inflame

the jury. . . . Accordingly, questions cannot be asked which intimate to the jury that a party was

intoxicated at the time of the accident unless there is supporting evidence; in the absence of

supporting evidence, testimony concerning the drinking of intoxicants should be stricken, and

under certain circumstances, may constitute reversible error notwithstanding a sustained

objection.

Id. at 342-43 (emphasis added) (citations omitted).

¶26. The Illinois Appellate Court, in Wagner v. Zboncak, 443 N.E. 2d 1085 (Ill. App. Ct. 1982),

held the following concerning the admissibility of evidence of drinking:

Evidence of drinking is so prejudicial that more than mere drinking must be shown; actual

intoxication with impairment of physical or mental capacities is required. . . . Insinuations or

innuendos of intoxication based upon evidence of drinking are impermissible and irrelevant

when there is no evidence of intoxication.

Wagner, 443 N.E. 2d at 1087 (emphasis added) (citations omitted). See also Benuska v. Dahl, 410

N.E. 2d 249, 252 (Ill. App. Ct. 1980) ("[i]t is well established that the subject of drinking may not be

raised or examined by a party unless that party can prove actual intoxication"). The evidence of

intoxication must reveal actions or conduct which either directly or by reasonable inference

established that the individual's conduct at and before the accident was or may have been affected by

the use of alcoholic beverages. Clay v. McCarthy, 392 N.E. 2d 693, 696 (Ill. App. Ct. 1979); (citing

Shore v. Thurman, 210 N.E. 2d 232, 236 (Ill. App. Ct. 1965)).

¶27. In the present case, Triple S failed to establish that anyone had ever observed Donald taking a

drink or acting in an impaired or intoxicated manner on the job. Nevertheless, innuendo blanketed the

entire proceeding. Counsel for the defense made repeated remarks to the jury concerning on-the-job

use of alcohol by Donald. Counsel for the Donalds was forced to discuss the matter with every

witness in order to refute the allegations of intoxication. This evidence undoubtedly had an impact

upon the jury.

¶28. The crucial question is whether the admission of this evidence affected the verdict. In Allen v.

Blanks, 384 So. 2d 63 (Miss. 1980), the defense attorney made unwarranted innuendos concerning

the plaintiff's failure to procure a driver's license for the purpose of showing lack of due care on the

part of the plaintiff. In considering whether the error was harmless, this Court stated:

the sharp conflict in the testimony of the witnesses demonstrates the case is factually close on

the liability issue, particularly in view of the application of comparative negligence. Under these

circumstances, even slight prejudice must be assumed to have been outcome-determinative.

Allen, 384 So.2d at 69. See also Glorioso v. Young Mens Christian Ass'n of Jackson, 556 So. 2d
293, 295 (Miss. 1989).

¶29. As in Allen, there was a great deal of conflict in the testimony regarding the ultimate issue of

liability. The record reflects, however, that as the result of the lower court's overruling of the

Donalds' motion in limine, the issue of alcohol and use of alcohol on the job became one of the main

issues in the trial of this matter. Repeated insinuations of alcohol abuse were injected into the case

and prevented the Donalds from receiving a fair trial. Triple S failed to show that alcohol affected

Donald in any way on the two days that Donald was injured. The testimony never rose to the level

required to establish habit evidence. Moreover, Triple S did not assert intoxication as an affirmative

defense. The testimony served no legitimate purpose, but only confused and misled the jury.

¶30. The trial court erred in not requiring at least a proffer of testimony by Triple S before it

overruled Donald's motion in limine. Testimony of alleged alcohol consumption should not be

allowed before the jury without a minimal showing of admissibility or causal connection between the

alleged consumption of alcohol and the accidents involving Donald. We cannot say on this record

that no prejudice resulted to the Donalds, as the entire proceeding was permeated by innuendos of

consumption of alcohol on the job site. No proof was established that this took place, or if it did, that

there was any causal connection between the accidents and consumption of alcohol. Rather, the proof

showed that nobody had ever seen Donald acting in an impaired manner while performing his duties.

Accordingly, we must reverse the judgment.

IV.

¶31. Defendant Triple S's Instruction D-6, which referred to the first alleged accident in which

Donald was involved, read as follows:

The Court instructs the jury that if you find by a preponderance of the evidence that on August

1, 1989, the date which the Plaintiff claims to have fallen due to the conditions at the Booth

well site, that the Plaintiff was aware of such conditions and knew and understood that it would

not be safe, or that it would be dangerous to work under the conditions then and there existing,

that the Plaintiff deliberately and voluntarily chose to work in those conditions in such a manner

as to expose himself to danger or place him in a position inconsistent with his own safety, then,

under the law, the Plaintiff assumed the risk involved and if you further find from a

preponderance of the evidence that such actions on the Plaintiff's behalf were the sole proximate

cause of the injuries, then Plaintiff is entitled to recover nothing on this claim of August 1,

1989.

Defendant's Instruction D-7, referring to the second alleged incident which left Donald permanently

disabled, read as follows:

The court instructs the jury if you find by a preponderance of the evidence on July 9, 1990, the

date which the Plaintiff claims to have been injured due to alleged unsafe conditions of the

brake on the work over rig, that your Plaintiff was aware of the condition of the brakes and

knew and understood that it would not be safe, or that it would be dangerous to work under the

conditions that then and there existed, and that the Plaintiff deliberately and voluntarily chose to

work with the brakes on the work over despite the condition of the brakes in such manner as to

expose himself to danger or place himself in a position inconsistent with his own safety, then
under the law, Plaintiff assumed the risk involved and if you further find from a preponderance

of the evidence that such action on the Plaintiff's behalf was the sole proximate cause of the

injuries in question, then the Plaintiff is entitled to recover nothing on this claim and, if you so

find, it is your sworn duty to return a verdict for the Defendant, Triple S. Well Service, Inc., on

the Plaintiff's claim of July 9, 1990.

¶32. The Donalds submit that jury instructions D-6 and D-7 misled the jury and that the verdict based

on these instructions combined with other instructions given by the court resulted in "a miscarriage of

justice." Triple S requested no jury instructions on contributory negligence. The only instructions

granted regarding a defense submitted by Triple S were based on assumption of the risk. The

Donalds contend that the trial court, by allowing the assumption of the risk instruction to have been

given in conjunction with the comparative negligence instruction offered by them, misled the jury on

the law that should have been applied in this case.

¶33. In Horton v. American Tobacco Co., 667 So. 2d 1289 (Miss. 1995), we considered the issue of

assumption of the risk instructions. In that case, the jury was given a comparative fault instruction

telling the jury that if it found that the plaintiff negligently contributed to his injuries, then it should

determine the percentage of each party's fault and render a verdict for the plaintiff deducting the

percentage of the plaintiff's fault from any damages sustained. The jury was also given an assumption

of the risk instruction telling the jury that if it found that the plaintiff appreciated the risk of using

cigarettes and voluntarily used them in violation of that risk, then the jury should find for the

defendant tobacco company. Horton, 667 So.2d at 1292.

¶34. A majority of this Court concluded that the trial court erred in granting the assumption of the

risk instruction. Id. at 1289-90. The rationale for this conclusion is that the concept of assumption of

the risk is subsumed in our comparative fault doctrine. Id. at 1293 (Banks, J., writing for the

plurality) and 1305-06 (Lee, P.J., concurring in part and dissenting in part). In other words,

assumption of the risk on the part of the plaintiff merely goes to the percentage of fault attributable to

the plaintiff; it no longer affords a complete defense to the defendant unless the jury finds that the

plaintiff's assumption of risk proportionately reduces damages to zero. Id. at 1292. See also Tharp v.

Bunge Corp., 641 So. 2d 20, 23-25 (Miss. 1994) (where jury finds any negligence on the part of a

defendant property owner in allowing a dangerous condition to exist, the "open and obvious"

doctrine will not provide complete defense; rather, the doctrine of comparative negligence will

determine the recovery, if any, to be had by a negligent plaintiff).

¶35. We note that while 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. Only if the jury so finds is the plaintiff entitled to recover

nothing. This requirement is in line with our law of comparative fault.

¶36. We trust that the trial court will be guided by subsequent legal developments regarding

assumption of the risk when and if this matter is retried.

V.

¶37. For the foregoing reasons the judgment of the circuit court is reversed and this matter is

remanded to that court for further proceedings.
¶38. REVERSED AND REMANDED.

SULLIVAN AND PITTMAN, P.JJ., CONCUR. PRATHER C.J., CONCURS IN PART.

McRAE, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION. MILLS, J.,

DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY ROBERTS AND SMITH,

JJ. PRATHER, C.J., JOINS IN PART. WALLER, J., NOT PARTICIPATING.

McRAE, JUSTICE, SPECIALLY CONCURRING:

¶39. I agree with the majority's conclusion that the case should be reversed. I write separately,

however, to highlight Instructions D-6 and D-7, which served to mislead the jury on the issues of

assumption of risk and comparative negligence. As we explained in Tharp v. Bunge Corp., 641 So.

2d 20 (Miss. 1994), where this Court held that the "open and obvious" defense could no longer serve

as an absolute bar to recovery under our comparative negligence standard,

Mississippi led the nation at the turn of this century by being the first state to adopt a pure

comparative negligence standard. Mississippi Code Ann. § 11-7-17 (1972) reads that "all

questions of negligence and contributory negligence shall be for the jury to determine." Miss.

Code Ann. § 11-7-17 (1972). For the open and obvious defense to be a complete bar to a

negligence claim, the plaintiff must be one hundred percent (100%) negligent himself. Miss.

Code Ann. § 11-7-15 (1972). Mississippi Code Ann. § 11-7-15 states the fact that "the person

injured, or the owner of the property ... may have been guilty of contributory negligence shall

not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of

negligence attributable to the person injured, or the owner of the property...." Miss. Code Ann.

§ 11-7-15 (1972).

Tharp, 641 So. 2d at 23. While 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.

Especially in cases such as this, where an employee is compelled to assume whatever risks his duties

may hold or otherwise lose his job, he should not be held fully accountable for injuries arising from

that employment or the negligence of his own employer in ordering or forcing him to work in such a

situation. In other words, when the employer and another are negligent, then there should not be any

comparative negligence placed on the employee. Only when the actual negligence of the employee

that has been proven should a comparative negligence instruction be given.

¶40. The language of Instruction D-6, further, is too broad. It fails to set out what conditions Donald

was aware of and chose to work in despite the risks posed. Especially in light of Instruction D-7, the

lack of specificity in Instruction D-6 only made the directions given to the jury more confusing and

misleading.
MILLS, JUSTICE, DISSENTING:

¶41. The majority goes too far when it concludes that assumption of the risk "... is subsumed in our

comparative fault doctrine." (citing Horton v. American Tobacco Co., 667 So.2d 1289 (Miss.1995))

. Horton lacks clear precedential authority for any rule of law. Additionally, Tharpe v. Bunge Corp.,

641 So.2d 20 (Miss.1994) has no application to the facts before us. Assumption of risk is still a viable

doctrine in Mississippi. Braswell v. Economy Supply Co., 281 So.2d 669 (Miss.1973). In Braswell,

Justice Sugg states that:

We do not abolish the doctrine of assumption of risk, but where assumption of risk overlaps

and coincides with contributory negligence the rules of the defense of contributory negligence

shall apply. This rule does not prevent a defense on the ground that a plaintiff's injury was

caused by his negligence, if his negligence was the sole proximate cause of the injury.

Braswell, 281 So.2d at 677.

¶42. Furthermore, Miss.Code Ann. § 11-1-63 (Supp.1993) specifically provides that assumption of

the risk is valid as a defense in products liability cases. It should remain a valid defense in other

negligence cases.

¶43. In the case sub judice, the jury received both assumption of risk and comparative negligence

instructions. It was the jury's duty to apply the law under the theory they thought best applied to the

case. This they did. I would continue to allow juries this option.

¶44. For this reason, I respectfully dissent.

ROBERTS AND SMITH, JJ., JOIN THIS OPINION. PRATHER, C.J., JOINS IN PART.

1. The jury verdict in this case was 9 to 3.