No. 12108 INTHE SUPREME COURT OF THE STATE OF MONTANA

ELEANOR 

### M. KIPP, 

### As Guardian Ad 

### Litem of JEWELL ANN KIPP, a Minor, Plaintiff and Appellant,

CHUCKWILLOUGHBY, 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. oliearyargued,

Butte, Montana. For Respondent: Corette, Smith and Dean, Butte, Montana R. D. Corette, 

### Jr. argued, Butte, Montana.

Submitted: January 23, 1973 Decided

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# EB26'

## 1973

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### ~iIr

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## 8'i973

### Mr. Justice Gene B. Daly delivered the Opinion of the Court. This appeal 

### is from a judgment entered on a jury verdict infavor of defendant Chuck Willoughby inthe district court of the secondjudicial 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 streetknown asFour-and-a-HalfMile Vue Road which runs north and south on the southern outskirts of the cityof Butte. The time was approximately 4:45 p.m.; the weather conditions were clear and dry; visibilitywas good. Willoughby testifiedhe had gone to the residence of a 

### Mr. Chapman for the purpose of obtainingused auto parts for a friend, Keith Smith, who accompanied him. The Chapman driveway 

### isperpendicular toand adjoins Four-and-a-Half-Mile Vue Road, Immediately before the collisionWilloughby was either inthe process of backing out orhad completed backing out of the driveway, turning the rear end of hisvehicle to the south so that it would be facing ina northerly direction. 

### Hisown testimony appears inconflict as towhether he was moving atthe time of the impact

# .Jewell Kipp and a passenger, Phyllis Baxter, aged 12,
were proceeding north on the motorbike ata speed of about 15 to 20 miles per hour. Jewell Kipp testified shewas unable to see into the Chapman driveway from the road because of numerous wrecked cars and a tractor in the lotadjacent to the driveway, Willoughby testified he had a clearview of the road from 20 feetwithin 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 slightbump on the back of his car. Jewell Kipp testified she first saw the Willoughby carwhen 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 toturn the motorbike to the left to avoid the car, itwas hitby the leftrear fender of theWilloughby

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 theWilloughby car, testified that he did not know whether the carwas moving at the time of the impact and was firstaware of the collision when he heard the impact

# .Jewell Kipp had owned a Honda 

### 50 motorbike sinceMarch 1969, and had more recently received the Honda 

### 70 as a gift from her father. 

### On appeal, two assignments of error arepresented on behalf of appellant: (1) That the district court erred ingiving an instruction on the law of assumption of risk and permitting defendant to argue that plaintiff assumed the risk of injurybecause she had

no Montana driver's license. (2) That the district court erred inpermitting jury argument that failure tohave a Montana driver's license constituted negligence afterhaving refused defendant's instruction on that theory. We find merit inthe firstassignment of error. The assumption of risk instructionwas improper inthis case. There

was no evidence introduced at trialwhich 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 considerableargument and some record reference and argument during settlement of instructions concerning statute violations, some ofwhich went to the question of negligence of both parties. Therewas considerable reference to a statuteviolation 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 hewas driving. Neither the violations of statuteby Jewell Kipp nor thoseby Willoughby place either of them in a legal classification of "trespasser" on the streetsnor do the violations invoke any legal doctrine of "assumption of risk" toward either of them. The assumption of risk instructionhas no application to the determinationswhich were required to be made by the jury and, consequently,could only serve to confuse and mislead it. The doctrine of assumption of riskhas its historical origin in the master-servant relationshipand was gradually given application to other types of contractualrelationships. See: Meistrich v. Casino Arena Attractions, 31N,J. 

### 44, 155 A.2d 90, 82ALR2d 1208. 7 C.J.S. Assumption,p. 137,gives this definition of assumption of risk:

II



### 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 hasbeen defined as the acquiescenceof an ordinarilyprudent man 

### in a 

### known dan er, the risk ofwhichhe assumes by contract.

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However, the doctrine has been extended beyond the contractual and quasi-contractualrelationships and applied as a theory of defense to preclude recovery innegligence cases. An explanation of these applicationswas 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 ithas 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 inwhich it isinvoking the defense, the court willconsider all of them. In 

### its simplest sense the doctrine means that plaintiff has given his express consent torelieve 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 relationwith the defendant which necessarily involves danger of harm from a known risk, and thus impliedly consents totake his own chances. In a third sense, the plaintiff may act entirely reasonably but, by voluntarily encountering a known riskwhich defendant has negligently allowed to come intobeing, 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, therewas no contractual, quasi-contractual or consentual relationship between the litigants. So it 

### is the fourth of the above enumerated applications of assumption of riskwith 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 itwas
a matter forjury determination whether the facts indicated that Jewel1 Kipp in operation of the motorbike contributed as 

### a proximate cause toher injury in the collisionbetween her motorbike and the vehicle of Willoughby. The second assignment of error involves arguments made by counsel to thejury in closing argument. This Court has no record from which to determine what specific arguments were made. For thisreason, we cannot review the second assignment of error. The judgment of the district court isreversed and the
cause remanded for a new trial.



# - Associate Justice

### Concur: 

# 1/Chief Justice


# /

# P ssociate ~ust/ices 

# u Mr, JusticeWesley Castles dissenting:



### Idissent. 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 simplyran into the rear end of Willoughby's car. Willoughby's carwas 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 itwas 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-examinationshe admitted she did not see the
car except in the street pointing in the same direction the motorbikewas going. There is some slight conflict in the evidence on the above facts,but the jury resolved those, 

### Iagreewith the majority that

# "*** in light of the evidence presented, that itwas a matter for jury determination whether the facts indicated that Jewel1Kipp in operation of the motorbike contributedas a proximate cause to her injury in the collisionbetweenher motorbike and the vehicle of Willoughby." This the jury did, and 

### Iwould affirm.

~ssocia ~JUS 

### tice

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