## Facts

- Jerry Pachunka worked as a real estate sales agent responsible for showing model homes built by Rogers Construction, Inc.
- Pachunka was required to inspect a partially completed model home to ensure it was ready to show to a prospective buyer.
- Due to muddy conditions, excess lumber formed a walkway, and a board ramp connected the walkway to a front stoop about 16 inches above the ground.
- An alternative entry through the garage existed, but Pachunka was not provided a key for that entrance.
- Pachunka testified that a back condition prevented him from stepping up or down the 16-inch stoop from the mud, making the ramp necessary for entry and exit.
- Pachunka entered using the ramp without incident but slipped and fell while exiting, injuring his ankle.
- Pachunka sued for negligent maintenance of the premises; the case proceeded to jury trial solely against Rogers Construction.
- The jury returned a verdict for Rogers Construction after the trial court submitted the affirmative defense of assumption of risk and instructed the jury on that defense.

## Issues

1. Whether the evidence supported submitting the affirmative defense of assumption of risk to the jury, particularly the requirement that the plaintiff voluntarily accepted the risk.
2. Whether the trial court’s assumption-of-risk instructions, including refusal of Pachunka’s proposed voluntariness-focused instruction, constituted reversible error.

## Decision

- The Nebraska Supreme Court reversed the defense verdict and remanded for a new trial.
- The court held it was error to submit assumption of risk to the jury because the evidence did not support the voluntariness element.
- The court concluded the error was not harmless because the verdict may have rested on the improperly submitted, complete-bar defense.
- The court further determined the instructions given failed to adequately convey the voluntariness requirement where the plaintiff has no reasonable alternative.

## Legal Principles

- Assumption of risk requires proof that: (1) the plaintiff knew of the specific danger, (2) understood and appreciated the risk, and (3) voluntarily exposed himself to it.
- A plaintiff does not assume a risk unless the acceptance of the risk is voluntary.
- Acceptance is not voluntary if the plaintiff has no reasonable alternative to encountering the risk.
- Submitting an unsupported affirmative defense to the jury is reversible error when it may have affected the verdict, particularly where the defense is a complete bar to recovery.

## Conclusion

Because Pachunka lacked a reasonable alternative to using the ramp given the lack of access to another entrance and his physical limitation, the evidence did not show voluntary exposure to the risk; the erroneous submission and instruction on assumption of risk required reversal and a new trial.


Pachunka v. Rogers Constr., Inc., 716 N.W.2d 728 (Neb. 2006)