Rabb v. Coleman ( 1971 )

STEAKLEY, Justice

(dissenting).

The assumed risk doctrine of volenti non fit injuria — he who consents cannot receive an injury — is harsh and for this reason has been rigidly confined. See Ellis v. Moore, 401 S.W.2d 789 (Tex.Sup.1966); Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963); Triangle Motors of Dallas v. Richmond, 152 Tex. 354, 258 S.W.2d 60 (1953). There must be full knowledge and appreciation of the very specific danger so that the one against whom the doctrine is invoked may be said to have intelligently chosen to put himself in the way of the particular risk. So, here, it must be shown and found that Coleman knew and appreciated that an explosion might occur outside the tank and deliberately chose to remain in danger as a result of an intelligent choice. Apart from the fact that it is hardly believable that Coleman would be unmoved if he knew an outside explosion of gas might occur in such close proximity, it is even less believable that he knew or appreciated that such an explosion might, in fact, occur. This danger certainly was not obvious to him, particularly so when the serviceman, whom Coleman had a right to presume knew his business, was also unmoved until the last second, and too late. As said in Triangle Motors, knowledge of “some danger” will not do. Moreover, Coleman did not know that the serviceman had admixed propane and butane in unsafe proportions, and he would have naturally assumed that the safety pop-off valve was performing its function of eliminating —not creating — a danger. To say that it is common knowledge that gas will explode is not to say enough. It must also be said that it is common knowledge that gas may explode in the atmosphere after a safety device has performed its function of venting excess pressure from inside a container. And it must be said that an outsider to the business would know that in performing its function the safety valve would create a danger just as deadly. This is not the way safety devices ordinarily operate.

All of this points to the correctness of the holding of the court of civil appeals that the volenti issues were improper because they did not call for a finding that Coleman knew and appreciated the particular danger, i. e., an explosion outside the tank, and remained in the danger zone by intelligent choice. One cannot be said to have acted with intelligence in this context unless he fully knows and understands the conditions and circumstances which call for a course of action. Coleman cannot be said to have had this knowledge and understanding unless it is shown and found as a fact that he knew and appreciated the danger of an explosion of the gas which had been vented into the atmosphere by the safety valve.

Issue No. 11, from which the succeeding volenti issues stemmed, asked the jury to find whether a perilous condition existed prior to the explosion in question as a result of the escaping gas. The jury could have regarded the excess pressure in the tank which activated the safety valve as the perilous condition and in the succeeding volenti issues intended to do no more than find that Coleman knew of and exposed himself to this danger. After all, this was the condition signalled by the pop-off valve. Furthermore, it is somewhat difficult to apprehend how Issue No. 11 could have been answered other than affirmatively since an explosion did in fact occur, and most would agree that a condition resulting in an explosion was a perilous one.

All of which substantiates, I think, why the generality and nonspecificity of the volenti issues cannot be reconciled with the teachings of this Court in carefully circumscribing application of the assumed risk defense. The jury was not given an opportunity to find whether Coleman' fully realized and appreciated the danger that might follow from the properly functioning safety valve. Indeed, Coleman may very well have regarded himself in less danger because the valve was doing what it was designed to do. I see a valid analogy to Ellis v. Moore. It was there held that knowledge of a defect which was found to be a proximate cause of the injury was not enough; there must be knowledge of the particular danger — there, that a tractor might overturn; here, that an outside explosion might occur. Moreover, there, as here, the specific danger was not so open and obvious as to charge the endangered party with knowledge and appreciation. As we said in Halepeska, “* * * the plaintiff must know (an issue of fact, usually) or be charged in law with knowledge and appreciation.”

I would affirm the judgment of the court of civil appeals and therefore respectfully dissent.

CALVERT, C. J., and McGEE and DANIEL, JJ., join in this dissent.