Thomas v. Holliday by and Through Holliday

OPALA, Justice.

The issue tendered for our decision is whether the trial court erred in granting the plaintiff’s motion for new trial on the ground that its assumption-of-risk charge to the jury had been incorrectly given. We answer this question in the negative and hold that the evidence adduced at trial did not warrant an instruction on assumption of risk.

The plaintiff, Donald R. Thomas [Thomas], a security guard for Safeway and an off-duty Lawton police officer, observed the defendant, Daniel D. Holliday [Holli-day], partially eat a pastry in the grocery store and then replace it on a…