# Dean v. First National Bank of Great Falls

> Montana Supreme Court · March 24, 1969 · 152 Mont. 474

URL: https://www.frixlaw.com/law-library/cases/9544635

## Case

- **Full name:** LILA N. DEAN, Plaintiff and Appellant, v. FIRST NATIONAL BANK OF GREAT FALLS, a Corporation, Defendant and Respondent
- **Court:** Montana Supreme Court
- **Decided:** March 24, 1969
- **Citations:** 152 Mont. 474; 452 P.2d 402; 1969 Mont. LEXIS 491
- **Precedential status:** Published
- **Opinion:** Concurrence by Haswell
- **Judges:** Bonner, Haswell, Castles, Harrison
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9544635

## Opinion text

MR. JUSTICE HASWELL
(especially concurring) :
I concur in the result reached by the majority on an additional and different basis.
In my view, the defense of implied assumption of risk is bottomed on consent. Restatement, Second, Torts § 496A, Comment b and § 496C, Comment b; Prosser, Law of Torts, 3rd Ed., page 450 et seq. It is founded on the principle that he who consents to an act will not be heard to claim that he is wronged by it. Osterholm v. Boston, etc., Min. Co., 40 Mont. 508 , 107 P. 499 ; Fotheringill v. Washoe Copper Co., 43 Mont. 485 , 117 P. 86 .
An indispensable element of the defense of implied assumption of risk is a voluntary remaining or continuing in the face of the known dangerous condition. Hanson v. Colgrove, 152 Mont. 161 , 447 P.2d 486 ; D’Hooge v. McCann, 151 Mont. 353 , 443 P.2d 747 ; Wollan v. Lord, 142 Mont. 498 , 385 P.2d 102 . A plaintiff’s acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to exercise a right or privilege of which the defendant had no right to deprive him. Restatement, Second, Torts § 496E, Comment c; Prosser, Law of Torts, 3rd Ed., page 467. Thus where an employee of a tenant renting office space on the mezzanine of a hotel slips and falls descending a stairway having slick terrazzo steps, she cannot be said to have voluntarily assumed the risk so as to bar her recovery against the hotel owner because the latter’s conduct required her to undergo a risk to protect her right of employment. Seelbach, Inc. v. Mellman, 293 Ky. 790 , 170 S.W.2d 18 .
In the instant ease, plaintiff’s complaint alleges that thé torn carpet was “in the room where plaintiff had to work and was employed” and that the torn carpet was “in such a posi *485 tion that plaintiff was compelled to walk over the torn portion of the carpet daily in her work and employment.” Plaintiff’s testimony in her deposition concerning the physical layout of the premises tends to support this. In my view, this poses a jury question as to the voluntary character of plaintiff’s consent or willingness to accept the risk in question, precluding the granting of summary judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9544635. Public record. Not legal advice.