Pachunka v. Rogers Construction, Inc.

716 N.W.2d 728 (2006)

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Nature of the Case

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Facts

P was employed by D as a sales agent. P was required to spec houses built by D to prospective buyers. The houses were in various stages of construction. On March 23, P was inspecting a house that was under construction at the time to make sure it was ready for viewing by a potential buyer. The house was the only one available in that particular model. Because of muddy conditions, a walkway made up of excess construction lumber was laid on the ground to provide access to the house. There was also a board angled from the walkway to the front stoop of the house, which stood approximately 16 inches off the ground, creating a ramp-up to the stoop. There was another entrance through the garage. P was not provided a key for that entrance. P had to either use the ramp or walk through the mud and step up onto the stoop. A back condition prevented P from stepping up or down that far; therefore, it was necessary for him to use the ramp. While exiting the house on the ramp, P slipped and fell. P suffered injuries to his ankle as a result. P sued D. D asserted assumption of risk. P requested that the following jury instruction further describing assumption of risk be given to the jury: 'A Plaintiff does not assume a risk of harm unless he voluntarily accepts the risk. A Plaintiff's acceptance of a risk is not voluntary if the Defendant's conduct has left Plaintiff no reasonable alternative course.' This request was denied. The jury found for D and P appealed.