No. 12108 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ELEANOR M. KIPP, As Guardian 

Ad Litem of JEWELL ANN KIPP, 

a Minor, 

Plaintiff and Appellant, 

CHUCK WILLOUGHBY, 

Defendant and Respondent. 

Appeal from: District Court of the Second Judicial District, 

Honorable John B. McClernan, Judge presiding. 

Counsel of Record: 

For Appellant: 

Burgess, Joyce, Prothero , Whelan and OILeary, 

Butte, Montana. 

Thomas F. Joyce argued and Robert T. olieary argued, 

Butte, Montana. 

For Respondent: 

Corette, Smith and Dean, Butte, Montana 

R. D. Corette, Jr. argued, Butte, Montana. 

Submitted: January 23, 1973 

Decided : EB 2 6' 1973 = 

~i I r I-B 2 8'i973 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This appeal is from a judgment entered on a jury verdict 

in favor of defendant Chuck Willoughby in the district court of the 

second judicial district, county of Silver Bow. 

The case concerns a motorbike-automobile collison on 

February 25, 1970. Jewell Ann Kipp, 15 years of age, was driving 

a 1970 Honda 70 motorbike. Chuck Willoughby, 19 years of age, 

was driving a 1965 Ford automobile. As a result of the collision, 

Jewell Kipp received a broken leg. Willoughby was not injured. 

Upon reviewing the facts concerning the collision, we 

find a conflict on several points within the testimony of the litigants and witnesses. It would appear from the record that the 

collision occurred on an unimproved street known as Four-and-a-HalfMile Vue Road which runs north and south on the southern outskirts 

of the city of Butte. The time was approximately 4:45 p.m.; the 

weather conditions were clear and dry; visibility was good. 

Willoughby testified he had gone to the residence of a 

Mr. Chapman for the purpose of obtaining used auto parts for a 

friend, Keith Smith, who accompanied him. The Chapman driveway 

is perpendicular to and adjoins Four-and-a-Half-Mile Vue Road, 

Immediately before the collision Willoughby was either in the 

process of backing out or had completed backing out of the driveway, turning the rear end of his vehicle to the south so that it 

would be facing in a northerly direction. His own testimony appears in conflict as to whether he was moving at the time of the 

impact . 

Jewell Kipp and a passenger, Phyllis Baxter, aged 12, 

were proceeding north on the motorbike at a speed of about 15 to 

20 miles per hour. Jewell Kipp testified she was unable to see 

into the Chapman driveway from the road because of numerous 

wrecked cars and a tractor in the lot adjacent to the driveway, 

Willoughby testified he had a clear view of the road from 20 feet 
within the driveway; that he did look south down the road; that 

he did not see the Kipp motorbike; and that he did not stop until 

he felt a slight bump on the back of his car. Jewell Kipp testified she first saw the Willoughby car when it backed onto the 

road in front of her and that she did not try to stop the motorbike because she felt she was unable to stop in time. She stated 

that although she attempted to turn the motorbike to the left to 

avoid the car, it was hit by the left rear fender of the Willoughby 

car. 

Phyllis Baxter, the passenger on the motorbike, testified 

that Jewell tried to avoid the car, but it kept coming and hit the 

motorbike. She also testified that she received a knee injury in 

the collision and was on crutches for two weeks. 

Keith Smith, the passenger in the Willoughby car, testified 

that he did not know whether the car was moving at the time of 

the impact and was first aware of the collision when he heard the 

impact . 

Jewell Kipp had owned a Honda 50 motorbike since March 

1969, and had more recently received the Honda 70 as a gift from 

her father. 

On appeal, two assignments of error are presented on 

behalf of appellant: 

(1) That the district court erred in giving an instruction on the law of assumption of risk and permitting defendant to 

argue that plaintiff assumed the risk of injury because she had 

no Montana driver's license. 

(2) That the district court erred in permitting jury 

argument that failure to have a Montana driver's license constituted negligence after having refused defendant's instruction on 

that theory. 

We find merit in the first assignment of error. The 

assumption of risk instruction was improper in this case. There 

was no evidence introduced at trial which indicated that Jewell 
Kipp had committed any act or omission, which under Xontana law 

could be construed as constituting an assumption of risk of the 

injury she received in the accident. 

There was considerable argument and some record reference 

and argument during settlement of instructions concerning statute 

violations, some of which went to the question of negligence of 

both parties. There was considerable reference to a statute violation on the part of Jewell Kipp for failure to have a Montana 

driver's license. The record also discloses that Willoughby had 

a valid driver's license, but failed to comply with the statute in 

regard to obtaining license plates for the vehicle he was driving. 

Neither the violations of statute by Jewell Kipp nor 

those by Willoughby place either of them in a legal classification 

of "trespasser" on the streets nor do the violations invoke any 

legal doctrine of "assumption of risk" toward either of them. 

The assumption of risk instruction has no application to the 

determinations which were required to be made by the jury and, 

consequently, could only serve to confuse and mislead it. 

The doctrine of assumption of risk has its historical 

origin in the master-servant relationship and was gradually given 

application to other types of contractual relationships. See: 

Meistrich v. Casino Arena Attractions, 31 N,J. 44, 155 A.2d 90, 

82 ALR2d 1208. 

7 C.J.S. Assumption, p. 137, gives this definition of 

assumption of risk: 

I I The term presupposes some danger, a knowledge 

thereof, a reasonable opportunity to ascertain 

the nature of the risk, and ordinarily implies 

appreciation thereof, and acquiescence therein; 

and has been defined as the acquiescence of an 

ordinarily prudent man in a known dan er, the 

risk of which he assumes by contract. 6 

However, the doctrine has been extended beyond the contractual and quasi-contractual relationships and applied as a 

theory of defense to preclude recovery in negligence cases. An 

explanation of these applications was given by the federal district court in Montellier v. United States, 202 F.Supp. 384, 394: 
"Assumption of risk is a term which has been 

surrounded by much confusion because it has 

been used by the courts in at least four different senses and the distinctions are seldom 

made clear. Since the defendant here has not 

specified the exact sense in which it is invoking the defense, the court will consider all 

of them. In its simplest sense the doctrine 

means that plaintiff has given his express consent to relieve the defendant of an obligation 

of conduct toward him and has agreed to take 

his chance of injury from a known risk. A 

second meaning is that plaintiff, with knowledge 

of the risk, has entered voluntarily into some 

relation with the defendant which necessarily 

involves danger of harm from a known risk, and 

thus impliedly consents to take his own chances. 

In a third sense, the plaintiff may act entirely 

reasonably but, by voluntarily encountering a 

known risk which defendant has negligently allowed 

to come into being, he relieves the defendant of 

liability, In the fourth sense of assumption of 

risk, plaintiff's conduct is itself unreasonable 

and amounts to and is equivalent of contributory 

negligence, Prosser, Torts, 303-04 (1955). " 

Here, there was no contractual, quasi-contractual or 

consentual relationship between the litigants. So it is the 

fourth of the above enumerated applications of assumption of 

risk with which we are concerned. Used in this sense, the concept of assumption of risk is a more conclusive form of contributory negligence, 

We hold, in light of the evidence presented, that it was 

a matter for jury determination whether the facts indicated that 

Jewel1 Kipp in operation of the motorbike contributed as a 

proximate cause to her injury in the collision between her motorbike and the vehicle of Willoughby. 

The second assignment of error involves arguments made 

by counsel to the jury in closing argument. This Court has no 

record from which to determine what specific arguments were made. 

For this reason, we cannot review the second assignment of error. 

The judgment of the district court is reversed and the 

cause remanded for a new trial. 

- 

Associate Justice 
Concur: 

1 / Chief Justice 

/ P ssociate ~ust/ices 

u Mr, Justice Wesley Castles dissenting: 

I dissent. The majority opinion admits that a conflict 

in the evidence occurred. The jury resolved those conflicts in 

favor of defendant. The evidence proved that Kipp simply ran 

into the rear end of Willoughby's car. Willoughby's car was 

in the street heading in the same direction as Kipp. The car 

was stopped and it was in forward gear, Phyllis Baxter, the 

passenger on the motorbike, testified that when she first saw 

the car it was in the street, pointed in the same direction the 

motorbike was going. While on direct examination, she said the 

car was backing out of the Chapman driveway and sideswiped the 

motorbike, on cross-examination she admitted she did not see the 

car except in the street pointing in the same direction the motorbike was going. 

There is some slight conflict in the evidence on the above 

facts, but the jury resolved those, 

I agree with the majority that "* * * in light of the 

evidence presented, that it was a matter for jury determination 

whether the facts indicated that Jewel1 Kipp in operation of the 

motorbike contributed as a proximate cause to her injury in the 

collision between her motorbike and the vehicle of Willoughby." 

This the jury did, and I would affirm. 

~ssocia ~JUS tice .