Samuelson v. AA QUALITY CONST., 749 P.2d 73 (1988)

Did the District Court err by refusing defendant's
proposed Instruction No. 19 which pertained to assumption of
risk?
     A.A. Quality contends that the trial judge should not
have refused its proposed Instruction No. 19, which would
have instructed the jury in terms of assumption of risk.
Assumption of risk is an affirmative defense which must be
plead affirmatively. Rule 8 (c), M.R.Civ.P.  "If an af firma-
tive defense is not plead, it is generally waived."
Chandler, 642 P.2d at 1032. This affirmative defense was not
plead, and the District Court correctly refused to instruct
the jury on assumption of risk.
     In view of our holding, we need not consider A . A .
Quality's proposed Instruction No. 16 which defined warranty.
We reverse the District Court judgment and remand for retrial
on the various theories with the exception of the implied.
warranty of habitability.
       -               - We Concur: A. ~ - ~ u r i b , ,
       chief Justice , I      c.   -( sittingi for Justice a ~ b r a n d s o n