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Tucker v. ADG9/21/2004
that the Oklahoma Constitution is absolute on its face that the defense of contributory negligence or of assumption of risk shall be decided by the jury pursuant to OKLA. CONST. art. 23, § 6. While this constitutional mandate has been strictly followed in many cases, Plaintiffs' argument ignores the fact that Oklahoma jurisprudence has two longstanding recognized exceptions to the rule that the defenses of assumption of the risk and contributory negligence must be submitted to a jury. See Flanders v. Crane Co., 1984 OK 88, 693 P.2d 602, 606. (footnote omitted)(citations omitted).
First, assumption of the risk and contributory negligence need not be submitted to a jury in cases where the plaintiff fails to present evidence tending to show primary negligence on the part of the defendant. . . . In the first instance, there is no need for any defense at all because where there is no duty or negligence there can be no liability.
Id. In other words, pursuant to this recognized exception, if there is no duty or negligence on the part of the defendant, there is no need for submission of the defenses of assumption of risk and contributory negligence to a jury and the determination may be made by the court as a matter of law. We have described a case such as this one-"a fan injured while attending a sports event"--as "a classic example" of implied primary assumption of the risk, "where the defendant does not owe a duty of care to the plaintiff [and therefore, would not be negligent]." Thomas v. Holliday, 1988 OK 116, 764 P.2d 165, 169. The Thomas case further explains " mplied primary assumption of risk is, arguably, not a true negligence defense since no duty is ever owed the plaintiff and no cause of action for negligence is ever alleged." Id. at 169, n.8 (citations omitted). Clearly, under the facts of this case, which amount to a classic example of implied primary assumption of the risk such that no duty is ever owed to the Plaintiff in the first instance, the case falls squarely within the first well-recognized exception to the constitutional mandate requiring submission of the defenses of assumption of the risk and contributory negligence to a jury for determination.
B. Plaintiffs' Statutory Challenge
Plaintiffs also challenge Hull and the cases following Hull on the basis that Hull conflicts with the "Good Samaritan Act," 76 O.S. 2001 § 5, arguing that this statute "provides the duty, which Hull found lacking." Plaintiffs argue that part (a) of this statute imposes legal responsibility "upon everyone" for injury occasioned by negligence, the statute "has been on the books in Oklahoma since before statehood" and notes that the statute does not expressly exclude cases involving a fan injured at a ball park.
While we acknowledge that the statutory language contained in part (a) of this particular statutory provision has been the law for many years prior to the Hull case, we note the absence of any expression of legislative intent to abrogate the common-law duty of care applicable on the facts of this case. Generally, abrogation of the common law "must be clearly and plainly expressed" by the legislature. Greenberg v. Wolfberg, 1994 OK 147, 890 P.2d 895, 900, cert. denied, 493 U.S. 1045 (1990)(footnote omitted). "A presumption favors preservation of common law rights" and the common law remains in full force and effect unless a statute explicitly "or by necessary implication" provides to the contrary. Rogers v. Meiser, 2003 OK 6, 9, 68 P.3d 967, 973 (citations omitted).
Further, we note that this Court has previously addressed the effect, if any, this particular statutory provision had on the common-law duty of care. In the 1914 case of Mid
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