## Facts

- George Hewitt Hildebrand, a mechanic, went to the Herseth Packing Company yard in Phoenix to repair the steering system on a Michigan front-end loader.
- Hildebrand drove and positioned the loader so that it partially intruded into a yard roadway used by vehicle traffic.
- A Herseth employee warned Hildebrand that the loader was “parked in a roadway” and should be moved to another location.
- Hildebrand left the loader where it was, apparently believing vehicles could still pass safely.
- George W. Minyard, a Green Thumb Fertilizer & Spreading Co., Inc. employee, drove a tractor pulling two fertilizer trailers through the yard within the scope of his employment.
- While negotiating a turn, Minyard’s tractor-trailer unit struck the parked loader, and a loader wheel crushed Hildebrand, causing his death.
- In the wrongful death action brought by Hildebrand’s surviving spouse, the trial court instructed the jury on implied assumption of risk over plaintiff’s objection.
- The jury returned a verdict for defendants, and plaintiff appealed based on the challenged instruction.

## Issues

1. Whether the evidence was sufficient to support a jury instruction on implied assumption of risk in a negligence/wrongful death action arising from the yard collision.

## Decision

- The court held the evidence did not justify an implied assumption-of-risk instruction.
- The trial court erred by submitting assumption of risk to the jury over plaintiff’s objection.
- Because the instruction could have barred recovery entirely, the error was prejudicial.
- The judgment for defendants was reversed and the case remanded for a new trial.

## Legal Principles

- Implied assumption of risk requires proof that the plaintiff (1) had actual knowledge of the specific risk, (2) appreciated its magnitude, and (3) voluntarily chose to encounter it in a manner showing willingness to accept the danger.
- Assumption of risk is distinct from contributory negligence; negligent or unreasonable conduct, without subjective acceptance of a known danger, supports contributory negligence but not assumption of risk.
- A trial court should not instruct on assumption of risk absent evidence supporting each element, because the doctrine (as applied) operates as a complete bar to recovery and may improperly divert the jury’s analysis.

## Conclusion

The court reversed the defense verdict because the record showed, at most, that the decedent may have acted unreasonably in leaving the loader where it partially obstructed a roadway, but did not show he knowingly and voluntarily accepted the specific risk of being struck and crushed; the case was remanded for a new trial without an unsupported assumption-of-risk instruction.


Hildebrand v. Minyard, 494 P.2d 1328 (Ariz. Ct. App. 1972)