Cited by

at 349 (quoting Springrose v. Willmore, 292 Minn. 23, 24 , ).

In Springrose v. Willmore, 292 Minn. 23 , this court indicated that primary assumption of risk “relates to the initial issue of whether a defendant was negligent at all — that is, whether the defendant had any duty to protect the plaintiff from a risk of harm.

Because the action arose prior to our decision in Springrose v. Willmore, 292 Minn. 23 , the trial court ruled that the finding of assumption of risk barred plaintiff’s recovery from defendant.

See, Springrose v. Willmore, 292 Minn. 23

See, Springrose v. Willmore, 292 Minn. 23

In our judgment, the record establishes as a matter of law that the plaintiff did not assume the risk of this accident so as to bar recovery under the doctrine of Springrose v. Willmore, 292 Minn. 23

In Springrose v. Willmore, 292 Minn. 23 , this court abolished, in part, the doctrine of assumption of the risk.

If you find that the Plaintiff assumed the risk in this case, you may consider it in determining his negligence, if any.” The case was submitted to the jury as indicated in Springrose v. Willmore, 292 Minn. 23

Thus Penney argues that it was entitled to judgment notwithstanding the verdict because the jury found that plaintiff assumed the risk of the flash-over; or that it should be granted a new trial with a separate instruction on assumption of risk because this case arose before Springrose v. Willmore, 292 Minn. 23

As for an instruction on assumption of risk, our decision in Springrose v. Willmore, 292 Minn. 23, 24 , was that secondary assumption of risk should “be recast as an aspect of contributory negligence, meaning that the plaintiff’s assumption of risk must be not only voluntary but, under all the circumstances, unreasonable.” Accordingly, “[t]he only question for submission in the usual ca

Springrose v. Willmore, 292 Minn. 23

Since this was a post Springrose v. Willmore ( 292 Minn. 23 , [1971]) case, assumption of risk would not have been submitted as a separate defense in any event, but would have been apportioned with comparative negligence.

If, as the Nelson case indicated, breach of warranty is a tort theory, it is reasonable to conclude, as we now do, that breach of warranty, like other tort theories, is subject to the tort defense of assumption of risk, which prior to Springrose v. Willmore, 292 Minn. 23 , constituted a complete bar to a plaintiff’s recovery.

1 We find no merit in this contention because we have expressly held that the contested general instruction is a correct and proper statement of the applicable law, Springrose v. Willmore, 292 Minn. 23 , and because the specific instruction proposed by Lotzer was not only argumentative and confusing but incomplete in that it failed to include the element of actual knowledge and appreciation of the risk with the clarity required for instructing the jury on the defense of assumption of risk.

1 This action arose prior to our decision in Springrose v. Willmore, 292 Minn. 23

*511 Because this action arose prior to our decision in Springrose v. Willmore, 292 Minn. 23 , the defense of secondary assumption of risk would have operated to bar entirely the recovery by plaintiff.

3 This cause of action arose on December 1, 1971, before the release of our opinion in Springrose v. Willmore, 292 Minn. 23

d of a landowner (or the person charged with responsibility for the condition of the land) as to licensees and invitees is no more and no less than that of any other alleged tortfeasor, and that duty is to use reasonable care for the safety of all such persons invited upon the premises, regardless of the status of the individuals.” 3 This case arose prior to our opinion in Springrose v. Willmore, 292 Minn. 23

Coenen v. Buckman Building Corp. 278 Minn. 193 , Meulners v. Hawkes, 299 Minn. 76 , Springrose v. Willmore, 292 Minn. 23

1 This cause of action arose before Springrose v. Willmore, 292 Minn. 23 , in which we held that assumption of risk in its secondary sense is to be considered as a phase of contributory negligence to be submitted with and apportioned under our comparative negligence statute, Minn. St.

We held in Springrose v. Willmore, 292 Minn. 23 , that secondary assumption of risk, 1 which is the type involved in this case, was to be considered as a phase of contributory negligence to be submitted with and apportioned under the comparative negligence statute.

In the case of Springrose v. Willmore, 292 Minn. 23 , the court held that, as to causes of action arising thereafter, assumption of risk would no longer be considered as a separate defense but would be considered as an aspect of contributory negligence.

As this action arose prior to our decision in Springrose v. Willmore, 292 Minn. 23 , the defense of secondary assumption of risk operated to bar entirely recovery by plaintiff.

This action arose before our decision of Springrose v. Willmore, 292 Minn. 23

As a part of the order denying plaintiff’s post-trial motion, the trial court included the following memorandum: “The decision of the Minnesota Supreme Court in Springrose v. Willmore [292] Minn. [23], [1971], determined that assumption of risk of the kind involved in the instant case was not to be submitted separately to the jury, but was to be regarded as a mere facet or phase of contributory negligence.