Citation. Marshall v. Ranne, 511 S.W.2d 255, 1974 Tex. LEXIS 286, 17 Tex. Sup. J. 287 (Tex. May 1, 1974)
Brief Fact Summary.
Defendant’s hog escaped onto Plaintiff’s land. Plaintiff walked to his care even though he knew the hog was dangerous. The hog subsequently bit Plaintiff. Plaintiff sued Defendant for his injuries. The trial court ruled in favor of Defendant. The court of appeals affirmed. Plaintiff appealed.
Synopsis of Rule of Law.
Plaintiff’s acceptance of risk is not voluntary if the defendant’s tortious conduct has left the plaintiff no reasonable alternative course of conduct in order to exercise a right of which the defendant has no right to deprive him.
Ranne’s (Defendant) hog was dangerous and it escaped onto stating that Marshall’s (Plaintiff) farm. Knowing that the hog was dangerous, Plaintiff walked to his car to go into town. As he was doing so, Defendant’s hog bit his hand. Plaintiff sued Defendant for his injuries. Plaintiff testified that although he had seen Defendant’s hog charge, it had never caused damage. Consequently, the trial court held that Plaintiff assumed the risk by leaving his house and ruled in favor of Defendant.
Whether acceptance of risk is voluntary when plaintiff was left no other reasonable alternative due to defendant’s tortious conduct.
No. The court of appeals decision is reversed. A plaintiff’s acceptance of risk is not voluntary if the defendant’s tortious conduct has left the plaintiff no reasonable alternative course of conduct in order to exercise a right of which the defendant has no right to deprive him.
Assumption of risk is an affirmative defense, however, the plaintiff’s assumption must be voluntary. Knowing that Defendant’s hog was dangerous, Plaintiff accepted the risk of being attacked by Defendant’s hog. This acceptance, however, is not synonymous with assumption because it was not voluntary. Plaintiff had no choice but to leave his home while Defendant’s hog was on his farm. The only other alternative was to remain a prisoner in his own home, which is not a reasonable alternative. Hence, the decision was not voluntary and thus, not assumption of risk.