Favreau v. Miller, 591 A.2d 68 (1991)

Citation: Favreau v. Miller, 591 A.2d 68 (1991)
Parent Document: Favreau v. Miller, 591 A.2d 68 (1991)
Jurisdiction: Vermont (state)
Effective Date: 1991-03-29
Original Source: https://www.courtlistener.com/opinion/1996620/favreau-v-miller/ ↗

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The second major defect in the charge is acknowledged by the majority. In the part of the charge ostensibly defining defendant’s standard of liability, the trial court added language *236clearly stating that a tenant who “voluntarily rents an apartment” knowing it has a “less than convenient stairway” assumes the risk of injury if the tenant “fails to use the care required to descend the stairs successfully.” I find two errors in this statement. It adds a “secondary” assumption of the risk defense, although we have held that assumption of the risk of this type is simply an aspect of contributory negligence. See Sunday v. Stratton Corp., 136 Vt. 293, 304, 390 A.2d 398, 404 (1978). Accordingly, “use of assumption of risk language is irrelevant and confusing in a jury instruction on comparative negligence.” Id.; see also Perkins v. Windsor Hospital Corp., 142 Vt. 305, 310, 455 A.2d 810, 814 (1982) (use of assumption of risk language reversible error because “parties were entitled to a jury free from irrelevancies and possible confusion”).

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