rejecting voluntary assumption of the risk as an issue in negligence cases based on the legislative adoption of comparative negligence and the "cogent and compelling reasons" stated in Rosas v. Buddies Food Store, 518 S.W.2d 534, 538-539 (Tex.1975) ("The heart of the matter is that the volenti doctrines represent an attempt to impose the analysis of subjective intent on a behavioral tort rather than resolve liability or not on the basis of fault under traditional concepts of negligence. Put more simply, negligence is a measure of a party's conduct and the test is generally objective, whereas volenti is a subjective inquiry into a party's actual, conscious knowledge. The standards are different.") (Justice Steakley, joined on this point by two justices)
How later courts described this case
- rejecting voluntary assumption of the risk as an issue in negligence cases based on the legislative adoption of comparative negligence and the "cogent and compelling reasons" stated in Rosas v. Buddies Food Store, 518 S.W.2d 534, 538-539 (Tex.1975) ("The heart of the matter is that the volenti doctrines represent an attempt to impose the analysis of subjective intent on a behavioral tort rather than resolve liability or not on the basis of fault under traditional concepts of negligence. Put more simply, negligence is a measure of a party's conduct and the test is generally objective, whereas volenti is a subjective inquiry into a party's actual, conscious knowledge. The standards are different.") (Justice Steakley, joined on this point by two justices)
- abolishing implied assumption of the risk but retaining affirmative defense of express assumption of the risk, when a plaintiff, before undertaking risky conduct, explicitly consents to take personal responsibility for potential injury-causing risks
- holding that "cause in fact of an injury has been said to be a particularly apt question for jury determination"
- allowing the jury to infer that the plaintiff had taken certain actions based on direct evidence of the plaintiff's characteristic behavior
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512 (1978)
529 S.W.2d 751, 754 (Tex. 1975) (duty to supervise employees’ activities, duty to furnish reasonably safe place in which to labor, and duty to furnish reasonably safe instrumentalities with which employees are to work), overruled on other grounds by Parker v. Highland Park, Inc., 565 S.W.2d 512
The opinion
STEAKLEY, Justice
(dissenting).
I agree with the views expressed in the dissenting opinion of Justice Walker with respect to the problem of proximate cause. In all other respects I am in full accord with and join in the majority opinion.