Pachunka v. Rogers Constr., Inc.

271 Neb. 950, 716 N.W.2d 728 (2006)



Before the defense of assumption of risk is submissible to a jury, the evidence must show that the plaintiff (1) knew of the specific danger, (2) understood the danger, and (3) voluntarily exposed himself or herself to the danger that proximately caused the damage. When a defendant pleads the affirmative defense of assumption of risk in a negligence action, the defendant has the burden to establish the elements of assumption of the risk before that defense, as a question of fact, may be submitted to the jury.


Jerry Pachunka brought the present negligence action against Rogers Construction, Inc. for injuries suffered as a result of a fall while exiting a house built by Rogers Construction. In March 2001, Pachunka was employed by Rogers Realty Company as a sales agent. As part of his job duties, Pachunka was required to show model houses built by Rogers Construction to prospective buyers. The houses were in various stages of construction at the time they were shown by Pachunka. On March 23, Pachunka was inspecting a house that was under construction at the time to make sure it was ready for viewing by a potential buyer. The house was the only one available of that particular model. Because of muddy conditions, a walkway made up of excess construction lumber was laid on the ground to provide access to the house. On that particular day, there was also a board angled from the walkway to the front stoop of the house, which stood approximately 16 inches off the ground, creating a ramp up to the stoop. Although there was another entrance through the garage, Pachunka was not provided a key for that entrance. Consequently, in order to enter the house, Pachunka had to either use the ramp or walk through the mud and step up onto the stoop. At trial, Pachunka testified that a back condition prevented him from stepping up or down that far; therefore, it was necessary for him to use the ramp, which he used without incident while entering the property. However, while exiting the house on the ramp, Pachunka slipped and fell. Pachunka suffered injuries to his ankle as a result. The agent argued that the trial court erred in submitting the defense of assumption risk to the jury and failing to submit to the jury the agent's proposed jury instruction on assumption of risk. The agent asserted that the company failed to establish that his use of the ramp was voluntary because he was given no reasonable alternative course to using the ramp.


Did the trial court err in instructing the jury on the issue of assumption of risk?




The Supreme Court agreed, finding that the evidence reflected that in order to access the front door, the agent had to use the wooden ramp or step up onto the stoop. Because of a back problem, it was necessary for the agent to use the ramp. The agent did not voluntarily assume the risk of using the ramp, and the trial court erred by submitting the issue to the jury. Because the jury was not presented with a separate verdict form addressing the issue of assumption of risk, it was impossible for the supreme court to tell whether or not the jury reached that issue. The trial court erred in instructing the jury on the issue of assumption of risk.

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