DEFENSES IN SLIP AND FALL CASES
By:
I.
Joseph R. Fowler, Esquire
Lee H. Eckell, Esquire
ASSUMPTION OF RISK
A.
Current Status
The Restatement (Second) of Torts §343 provides that a possessor of land is subject to
liability for physician harm caused to his invitees by a condition on the land, if but only if, he:
a.
knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk
of harm to such invitees, and
b.
should expect that they will not discover or realize the danger, or
will fail to protect themselves against it, and
c.
fails to exercise reasonable care to protect them against the danger.
Section 343A of the Restatement provides:
a possessor of land is not liable to his invitees for physical harm caused to
them by any activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite
such knowledge or obviousness.
Sections 343 and 343A of the Restatement (Second) of Torts preclude liability for a
possessor of land where an invitee is injured as a result of a condition whose danger is known or
obvious to the invitee, unless the possessor anticipated the injury despite the invitee’s knowledge
or the obviousness of the condition. Restatement (Second) of Torts §343A(1). As the cases
below illustrate, where a danger is “open or obvious,” the possessor of land does not owe the
invitee a duty to take precautions against or warn of open or obvious dangers.
Under Pennsylvania law the assumption of the risk doctrine applies to absolve the
landowner from liability for injuries sustained if the plaintiff: (1) knows of the risk or hazard,
and (2) voluntarily proceeds in that activity.
There is substantial uncertainty as to the status of the assumption of the risk doctrine in
Pennsylvania. Which party bears the burden to establish these elements is currently the subject
of debate in Pennsylvania courts. Uncertainty arises as to whether assumption of the risk is part
of the duty analysis, therefore making it a question of law and placing the burden of proof on the
plaintiff or a question of fact for the jury. Traditionally, assumption of the risk was viewed as an
affirmative defense placing the burden of proof on the defendant.
B.
Duty Analysis vs. Affirmative Defense
Most recently the Pennsylvania Superior Court examined the doctrine of assumption of
the risk in Zachardy v. Geneva College, 733 A.2d 648 (Pa.Super. 1999) appeal denied 751 A.2d
193 (Pa. 2000). In Zachardy, plaintiff, a baseball player for Point Park College, stepped in a
divot/hole/imperfection in the outfield while in pursuit of a fly ball and suffered an injury to his
knee. Plaintiff asserted defendant, Geneva College, failed to maintain the ball field in a
reasonably safe condition. The court acknowledged that assumption of the risk involved two
components; the first, plaintiff’s knowledge or awareness of the risk, and the second, plaintiff’s
voluntarily facing the risk. Id. at 651. “Where a [plaintiff] voluntarily and with the awareness of
specific risks inherent in the activity proceeds in the face of a known risk, he absolves the
[property owner] from a duty to protect him from injuries thus sustained.” Id.
The court observed that the Pennsylvania Supreme Court has held that implied
assumption of the risk, where plaintiff’s encountering of the risk is unreasonable, has become
part of the duty analysis for the trial court and not part of the case to be determined by the jury.
Id. at 650 citing Howell v. Cyde, 620 A.2d 1107, 1112-1113 (Pa. 1993) (for discussion of
Howell see infra). The court held that defendant was absolved of the duty to protect plaintiff
from injury, as he voluntarily and knowingly proceeded in the face of an obvious and dangerous
condition. Id. at 651.
The Superior Court has also recently examined assumption of the risk in product liability
actions. In Frey v. Harley Davidson Motor Company, Inc., 734 A.2d 1 (Pa.Super. 1999) appeal
denied 751 A.2d 191 (Pa. 2000), plaintiff attempted to persuade the court that “the question
whether a plaintiff assumed the risk of injury is for the jury, because it involves a factual finding
as to the plaintiff’s subjective knowledge of the specific defect that caused the injury.” Id. at 6.
The court rejected this argument and held that assumption of the risk is a question of law and not
a matter for jury determination. Id. For a plaintiff to be precluded from recovery based on
assumption of the risk, he must know of a specific defect in the product and voluntarily proceed
to use the product with knowledge of the danger caused by the defect. Id. However, the
plaintiff’s knowledge and understanding of the risk can be shown by circumstantial evidence and
inferred from the surrounding circumstances; actual proof that the plaintiff knew, understood or
appreciated the risk is not needed. Id.
The United States Court of Appeals for the Third Circuit in Kaplan v. Exxon Corp., 126
F.3d 221 (3d. Cir. 1997), attempted to predict how the Pennsylvania Supreme Court will rule on
the doctrine of assumption of the risk. Following the plurality opinions in Carrender v. Fritterer,
469 A.2d 120 (Pa. 1983) and Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) (see infra for a
discussion of Carrender and Howell), the Third Circuit held that under Pennsylvania law,
assumption of the risk is incorporated into the duty analysis. A defendant owes no duty to a
plaintiff who discovered a dangerous condition which was obvious and avoidable and who
nevertheless proceeded voluntarily to encounter it. Id.
In Howell v. Clyde, 620 A.2d 1107 (Pa. 1993), plaintiff was injured while attending a
party at his neighbor’s home when a fireworks cannon, owned by the host-neighbors, exploded.
The trial court entered an involuntary non-suit, holding that the plaintiff had assumed the risk of
the injury, and the Superior Court reversed and remanded. Reversing the Superior Court and
reinstating the judgment of the trial court, the Supreme Court held that since the plaintiff
voluntarily assumed the risk of injury, the defendant owed him no duty. Id. at 1113. Thus,
where a plaintiff voluntarily and intelligently undertakes an activity which he knows to be
hazardous and likely to cause him injury, no duty exists on the part of the property owner as a
matter of law. Id. at 1112-13. The court noted that this modified form of assumption of the risk
deals with situations not covered by comparative negligence because plaintiff’s negligence or
fault is not relevant to an assumption of the risk analysis; rather, the relevant inquiry is whether
the plaintiff voluntary chose to encounter the risk. Id. at 1112. In other words, a court should
incorporate assumption of the risk into its duty analysis. In this way, the Howell court’s
modified assumption of the risk doctrine is consistent with the “open or obvious danger”
doctrine.
In Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), plaintiff slipped and fell on a patch of
ice in the parking lot of her chiropractor’s clinic. A sheet of smooth ice covered the area
between plaintiff’s car and another parked car, but the remainder of the parking lot was free of
snow and ice. The trial court entered judgment in favor of plaintiff, and the Superior Court
affirmed. Reversing and remanding, the Supreme Court held that plaintiff failed to establish the
requisite element of duty to establish a prima facie case of negligence. Id. at 124. That is, the
defendant was under no duty to either take precautions against or to warn of the dangerous
condition presented by the isolated patch of ice on the parking lot as plaintiff recognized the
danger and could have avoided it. Id. at 123.
The Pennsylvania Supreme Court first recognized the applicability of §§343 and 343A
with respect to the duty owed by a possessor of land to an invitee in Carrender. 469 A.2d at 123
(quoting Restatement (Second) of Torts §§343 and 343A). The court noted that a danger is
“obvious” when both the condition and the risk are apparent to, and would be recognized by, a
reasonable person in the position of the invitee while exercising normal perception, judgment
and intelligence. Id. (quoting Restatement (Second) of Torts §343A, cmt. b). The court
concluded that the danger posed by the isolated patch of ice was both obvious and known. The
court reasoned that plaintiff’s own testimony showed that the existence of the ice was obvious to
a reasonably attentive invitee, and also that plaintiff herself was aware of the ice and appreciated
the risk of walking on it. Id. at 124. The court concluded further that the defendant could
reasonably have expected that, in light of the number of clear parking spaces available, invitees
would recognize the danger posed by the patch of ice and choose to park elsewhere to avoid it.
Id. Thus, there was no duty on the part of defendant. Id.
The Pennsylvania Superior Court reinforced the proposition that assumption of the risk
involves a duty analysis in Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa.Super. 2000). Plaintiff
Staub was a roofer who fell through an opening in the roof that had been cut for the installation
of skylights. In a motion for summary judgment, defendants contractor and subcontractor
asserted that they owed plaintiff no duty and posited plaintiff had assumed the risk. The trial
court denied defendants’ motion as to the duty issue, but determined that plaintiff had indeed
voluntarily and knowingly assumed the risk of possible injuries. Id., at 532. In arriving at its
determination, the Superior Court cited recent precedent, namely Howell v. Clyde, 620 A.2d
1107, 1112-13 (Pa. 1993), and its progeny, in support of the duty analysis approach to
assumption of the risk. Staub, 749 A.2d at 526. The Superior Court reversed in part, holding
that because “the [trial] court was unable to resolve the duty issue in favor of [defendants], it is
for the jury to decide whether [plaintiff’s] conduct in performing his job despite his awareness of
the roof openings was reasonable or unreasonable.” Id., at 532.
In Hardy v. Southland Corp., 645 A.2d 839 (Pa. Super. 1994), plaintiff slipped and fell
when she entered a 7-Eleven store on a day when it had been raining. The linoleum floor on
which she stepped was wet. Just prior to stepping onto the floor, plaintiff glanced down and
noticed that it was wet. However, plaintiff did not interrupt her normal walking gait, notice the
condition of the floor and think about it for a moment and then proceed to walk on it anyway,
appreciating that it might be slippery. The court concluded that, under these circumstances, the
assumption of the risk doctrine should not operate as a complete bar to plaintiff’s recovery. Id.
at 841. Rather, these circumstances invited comparison of negligence. Id.
The Hardy court noted that the exact status of the assumption of risk doctrine as valid law
in Pennsylvania was less than clear. As a result, the court purported to clarify the status of the
doctrine. The court canvassed prior case law dealing with assumption of the risk and concluded
that the doctrine had not been formally abolished in Pennsylvania. Id. at 842. Rather, the court
determined that it was obligated to apply the modified assumption of risk doctrine as set forth in
Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) (see infra for a discussion of Howell). That is, the
doctrine is incorporated in a duty analysis such that the trial court must review the factual
circumstances and determine whether defendant, as a matter of law, owed plaintiff no duty. Id.
Applying this analysis, the court concluded that a store owner has a duty to keep its floors dry
and otherwise safe for its patrons. Id. at 843.
A recent Common Pleas case which followed Howell, was Sidmonds v. Vill, PICS No.
98-2115-22-00 (C.P. Philadelphia, September 28, 1998). In Sidmonds, plaintiff was walking
from work to her car via defendant’s sidewalk, when she slipped on an alleged depression in the
sidewalk. Plaintiff had been using the sidewalk for approximately two years prior to the incident
in issue. Plaintiffs filed a post-trial motion after a unanimous verdict for defendants, claiming
the court erroneously charged the jury on landowner liability for an unsafe sidewalk, improperly
excluded the testimony of the city inspector and improperly charged on assumption of the risk.
The jury was instructed almost verbatim from § 342 of the Restatement (Second) of Torts
with the addition of the following sentence: “If the person knows of it [the risk] or has reason to
know of it, but nevertheless knowingly and voluntarily proceeds in the face of it, then the
landowner has no liability.” Appellants argued the jury was erroneously charged on assumption
of the risk instead of on comparative negligence. The court cited Howell, stating that although it
severely abrogated the doctrine of assumption of the risk as an affirmative defense, it did not
abrogate assumption of the risk insofar as it lessened or eliminated the duty of the defendant
toward the plaintiff. The court noted that plaintiff’s argument ignored the:
distinction between assumption of the risk as an affirmative defense and
assumption of the risk as part of the duty analysis in a prima facie
negligence case. One need not reach the issue of an affirmative defense
where a prima facie case has not been made out. In this case, plaintiff
failed to make out a prima facie case for negligence by failing to prove
that defendant owed her a duty. The reason that the defendant did not owe
the plaintiff a duty is that the jury found that plaintiff voluntarily and
knowingly encountered this risk, the trial court was constrained to find
that defendant owed no duty to the plaintiff and to enter a judgment
against the plaintiff on that basis. . . . The affirmative defenses of
assumption of the risk and comparative negligence are not even reached
where a plaintiff’s conduct relieves the defendant of its duty. Without a
duty, there can be no negligence, and without a prima facie case for
negligence, there is no need for an affirmative defense.
Id.
In Chang v. Camelback Ski Corp., PICS No. 99-2129-23-00 (C.P. Monroe August 30,
1999), plaintiff alleged the ski resort was negligent for not maintaining a perfectly groomed ski
slope. Plaintiff argued that the slope was icy and caused plaintiff to loose control and become
injured. Plaintiff, an inexperienced skier, proceeded down an expert/black diamond trial, and
lost control on a patch of ice. Plaintiff claimed that he could not have known of the dangerous
conditions, even though he admitted they were caused by a severe weather anomaly. Plaintiff
claimed the ski resort should have prevented him from using the slope. The court held that a ski
resort owes no duty to protect skiers from the inherent risks of skiing.
Skiing is a dangerous sport. If we were to find that Plaintiff pled a
viable cause of action in this case under a theory that Defendant
was negligent in not maintaining a perfectly groomed downhill ski
slope with no ice or other conditions usually found on ski slopes,
particularly here where Plaintiff tells us that the ice was caused by
a weather anomaly, what could happen to one of the most popular
winter sports in America?
Id. at 7.
C.
Knowledge of the Risk
The traditional application of assumption of risk in cases involving injury to skiers
remains unscathed by the evolution of the doctrine in other areas tort law. The idiosyncratic
application of assumption of risk in ski injury cases was explained by the Pennsylvania Supreme
Court in Hughes v. Seven Springs Farm, Inc., 762 A.2d 339 (Pa. 2000). The Hughes Court noted
that a significant factor in the diminution of assumption of risk has been the Pennsylvania
General Assembly’s adoption of comparative fault scheme with the passage of the Comparative
Negligence Act (CNA) in 1978. Id., at 341 (citing 42 Pa.C.S. §7102 (a)-(b)). The Generally
Assembly, however, passed the Skier’s Responsibility Act (SRA) only two years later, amending
the CNA and expressly removing assumption of risk as it applies to downhill skiing from the
purview of the original statute. Id. (citing 42 Pa.C.S. §7102(c)).
The Hughes case itself arose when the plaintiff skier was struck by an unidentified skier
as she made her way to the lift at the end of her run. Id., at 340. Despite signing a release
agreement upon purchasing her lift ticket, plaintiff sued the ski resort. Id. The trial court granted
defendant ski resort’s motion for summary judgement based on assumption of risk and supported
by the SRA. The Superior Court reversed, holding in part, that a question of fact remained as to
whether skiing toward the lift constituted “downhill skiing” as it appears in the SRA. Id. The
Supreme Court found the Superior Court’s application of the SRA too narrow and reversed the
lower appellate court’s decision, reinstating the trial court order granting summary judgment for
defendant ski resort. Id., at 345-46. Specifically, the Hughes Court held that the SRA’s
preservation of the assumption of risk doctrine in downhill skiing cases ‘bars a suit brought
against a ski resort by a skier who, while skiing towards the ski lift through a common area at the
base of the mountain, is struck and injured by another skier coming down that mountain.” Id., at
240.
In another sports case, Kevan v. Manesiotis and North Allegheny School District, 728
A.2d 1006 (Pa. Commw. 1999), the Commonwealth Court held that knowledge of the particular
risk is essential to a defense of assumption of the risk. In Kevan, plaintiff, a high school baseball
player was hit in the face with a baseball during indoor practice in the school gymnasium. Due
to inclement weather, practice was held inside. During the practice the coach was taking full
swings at the ball instead of the usual half swings taken during indoor practice. Defendants
argued that plaintiff assumed the risk, as he had testified that he was aware that there was a
chance he could be hit by a baseball. The Commonwealth Court held that while a baseball
player generally assumes the risk of being hit by a batted ball, this was an unusual situation in
which balls were being hit at an abnormally high velocity in an allegedly poorly lit gymnasium.
While plaintiff knew of the risk of being hit, he did not know of the risk of being hit by a
baseball which was batted with a full swing, as it was not the coach’s usual practice. Id. at 1009.
The Superior Court has also evaluated the assumption of risk defense in the case of
Barrett v. Fredavid Builders, Inc., 685 A.2d 129 (Pa. Super.1996). In Barrett, plaintiff was
injured in a falldown incident while installing insulation at a construction site. When plaintiff
arrived at his work site on the day of the incident, he saw that it was cluttered with vinyl siding
and other insulation materials. He tried to clean up the area by moving the materials out of his
way. In order to install the insulation, plaintiff worked on stilts which were two feet high.
Unfortunately, he stepped on some of the siding while on his stilts and fell to the ground
suffering his injuries. Judge Albert Sheppard, Philadelphia Court of Common Pleas, upon
review of plaintiff’s deposition transcript, entered summary judgment in favor of defendant.
Judge Sheppard concluded that plaintiff was aware of the risk incident to walking on stilts in an
area where there were work materials on the floor. Judge Sheppard ruled as a matter of law that
plaintiff had voluntarily undertaken a known dangerous risk, thereby obviating liability on the
part of defendant. On October 9, 1996, the Superior Court reversed Judge Sheppard’s entry of
summary judgment against plaintiffs and remanded the case to the trial court. Senior Judge John
P. Hester wrote “before the doctrine of the assumption of risk will be applied to prevent
recovery, the evidence must establish conclusively that the plaintiff was subjectively aware of
the risk. [The plaintiff] did not have subjective knowledge that he was going to slip on a piece of
insulation because he subjectively thought that by clearing a path, he had eliminated that risk.”
Id. at 131. Judge Hester further ruled that “the determination that the plaintiff has assumed the
risk of his injuries such that recovery is prevented should occur only where it is beyond question
that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous
condition.” Id.
In Beizer v. Graduate Hospital, Inc., PICS No. 96-7512 (C.P. Philadelphia, October 10,
1996;), aff’d 711 A.2d 1036 (Pa. Super. 1998), plaintiff, an 83 year old physician, tripped over a
box in his path as he approached the doorway at Graduate Hospital. The box had been placed
there by employees of an independent contractor. The independent contractor’s employees
wrote the words “do not enter” on the side of the box facing away from plaintiff. Plaintiff
attempted to step over the box and apparently either tripped or lost his balance. After a verdict
for plaintiff in a non-jury trial, Judge Hill rejected defendant’s argument on post-trial motions
that plaintiff assumed the risk. Judge Hill wrote that “instantly the facts establish that [plaintiff]
lacked any subjective awareness of a potential injury; plaintiff testified that he did not anticipate
any danger in his attempt to step over the box nor did he believe the box to be dangerous.”
Again, the requirement that plaintiff subjectively appreciate and recognize that he was
encountering a risk of injury was the standard applied by the court.
In Bullman v. Giuntoli, 761 A.2d 566 (Pa.Super. 2000), the Superior Court articulated
that in order for assumption of risk to apply, the resulting injury has to be the same injury that
was assumed by the plaintiff. Giuntoli involved a plaintiff injured when she fell through an
unfinished porch at the construction site of her parent’s new home. Plaintiff had walked a
narrow plank across an excavation ditch leading to the interior of the homesite. Plaintiff was
injured when she stepped off the plank and on to the porch, which appeared solid, but was
merely covered by insulation material. The trial court granted defendants’, parents and builders,
motion for summary judgment based on assumption of risk doctrine. Id., at 569. In reversing
the trial court, the Superior Court reasoned that plaintiff had assumed the risk of falling from the
plank into the ditch, but had not assumed the risk of falling through the unfinished porch. Id., at
573-74.
Prior to arriving at its holding, the Superior Court analyzed and explained all relevant,
recent cases involving assumption of the risk. Id., at 570-73. The material included therein
represents the most comprehensive and helpful discussion of assumption of risk, and will remain
a valuable reference until the Pennsylvania Supreme Court finds occasion to firmly settle the
doctrine. With regard to its research of precedent, the Superior Court wrote, “if one thing is clear
from a thorough review of assumption of the risk law it is that a failure to apprehend a danger
that then occasions injury is negligence, not assumption of the risk. An apprehension of a
danger, followed by a conscious decision to tempt fate and accept what fate may bring, which
then occasions injury, while indeed constituting contributory negligence, is additionally
assumption of the risk, and a complete bar to recovery.” Id., at 570 (emphasis in original). The
Court characterized the complete bar as a form of estoppel in a tort context. Id.
In Chiricos v. Forest Lakes Council Boy Scouts of America, 571 A.2d 474 (Pa. Super.
1990), a non-slip and fall case which is instructive on the known or obvious danger doctrine,
plaintiff, after being injured when he placed himself in the path of an oncoming all-terrain
vehicle (ATV), sued the property owner where the accident occurred. The court noted that
plaintiff’s testimony showed he was aware of the obvious danger posed by the activity that
caused his injury — placing himself in front of an oncoming ATV. Id. at 479. Cognizant of the
danger attendant to the ATV, plaintiff made a conscious choice to place himself in a position of
danger from which he could not escape until it was too late. Id. The court characterized
plaintiff’s activity as an “obvious” risk apparent to and recognizable by a reasonable man in like
circumstances. Id. at 479-80. The court also noted that plaintiff took no steps to protect himself.
Id. at 480. Thus, the court held that defendant owed no duty of care to plaintiff because plaintiff
“discovered” the dangerous condition, which was both obvious and avoidable. Id. The court
held further that the injury incurred by plaintiff was not something that could or should have
been anticipated or foreseen by property owner. Id.
In Long v. Norriton Hydraulics, Inc., 662 A.2d 1089 (Pa. Super. 1995), plaintiff,
instituted a products liability action to recover for damages he sustained when a hydraulic
automobile lift suddenly shifted downward while he was working under the lift.
Summary judgment for defendants was granted by the trial court on defendants’
argument that because plaintiff was aware that the lift shifted downward, he had assumed
the risk of injury. Plaintiff appealed. The Superior Court held that the question of
whether plaintiff has assumed the risk of his injuries should not be decided as a matter of
law except where it is beyond question that plaintiff voluntarily and knowingly proceeded
in the face of an obvious and dangerous condition and thereby must be viewed as
relieving defendant of responsibility for his injuries. Id. at 1091. In the present case,
there was a question as to whether the risk was faced voluntarily and whether the risk was
a known or obvious risk; therefore, summary judgment was inappropriate. Id.
D.
Voluntary Undertaking
In Struble v. Valley Forge Military Academy, 665 A.2d 4 (Pa. Super. 1995),
plaintiff, was severely injured when he attempted to untangle the lanyard on a toy
cannon. The trial court entered judgment in favor of plaintiff and defendant appealed.
The issue on appeal was whether defendant was entitled to judgment notwithstanding the
verdict because the plaintiff had voluntarily assumed the risk of his injuries. Id. The
court held that a plaintiff will not be precluded from recovering except where it is beyond
question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious
and dangerous condition and thereby must be viewed as relieving the defendant of
responsibility for his injuries. Id.
In Wallis v. SEPTA, 723 A.2d 267 (Pa.Commonw.Ct. 1999) appeal denied 759
A.2d 390 (Pa. 2000). plaintiff sued SEPTA for injuries he suffered while boarding a
train. He alleged when he attempted to board, the train began to move without warning,
and that the train conductor was absent from the platform while passengers were
boarding (in violation of SEPTA’s procedures). On cross, Wallis acknowledged that he
understood it is dangerous to board a moving train and that signs at the train station warn
of that danger. He also acknowledged that although he did not see a conductor, he did
not specifically look for one on the platform. The jury found in favor of Wallis after
finding SEPTA 80% negligent and Wallis 20% negligent in causing his injuries. In post
trial motions, SEPTA alleged that the trial judge erred in refusing to charge the jury on
the defense of Wallis’ assumption of the risk. In assessing whether an instruction on
assumption of the risk applied, Judge Colins reviewed testimony that the train was not in
motion when Wallis attempted to board. Thus, she ruled, the facts did not establish
express or implied assumption of the risk pursuant to Howell and Struble.
II.
CONTRIBUTORY NEGLIGENCE
The general rule for contributory negligence is that where a plaintiff has a choice of two
distinct paths, one of which is perfectly safe while the other is subject to dangers and risks, and
the plaintiff chooses the dangerous path, she is contributorily negligent as a matter of law. Stowe
v. Booker, 424 A.2d 1388, 1391 (Pa. Super. 1981). The following cases provide a sampling of
factual scenarios under which Pennsylvania courts have grappled with the issue of contributory
negligence.
A.
Choice of Ways
The above rule has become known as the “Choice of Ways Doctrine” and is illustrated by
the following cases.
In Updyke v. BP Oil Company, 717 A.2d 546 (Pa.Super. 1998), the Superior
Court explained the choice of ways doctrine. Plaintiff, Dorothy Updyke, broke her
ankle after slipping on a patch of ice at a combination gas station/convenience store
owned and operated by BP. After her car broke down on a public road adjoining BP’s
property, Updyke entered BP’s premises to use the telephone. Upon approaching the
store, she passed, without noticing, a public pay phone located at the periphery of the
property. She entered the shop and asked the clerk to use the store’s private phone. The
clerk denied the request pursuant to company policy, and directed her to use the pay
phone outside. When the phone would not accept her change, Updyke walked back to
the store to use the private phone. On her way, she slipped and fell on a patch of clear
ice. One of defendant’s several claims on appeal was that the trial court erred in
refusing to instruct the jury on the “choice of ways” doctrine, which is as follows:
“Where a person, having a choice of two ways, on of which is perfectly safe, and the
other of which is subject to risks and dangers, voluntarily chooses the latter and is
injured, he is guilty of contributory negligence. . .” Id. at 551 (quoting Quinn v. Funk
Building Co., 263 A.2d 458, 461 (Pa. 1970).
The court explained that to warrant an instruction on “choice of ways,” there must
be evidence that the plaintiff made an unreasonable decision which exposed him to a
hazard that he knew or should have known existed. There must be evidence of:
(1)
a safe course;
(2)
a dangerous course; and
(3)
facts which would put a reasonable person on notice of the danger
or actual knowledge of the danger.
Updyke, 717 A.2d at 552. This doctrine still exists in Pennsylvania despite substitution
of comparative negligence for contributory negligence. Id. (citing O’Brien v. Martin,
638 A.2d 247 (Pa. Super. 1994)). The court went on to rule that BP was not entitled to a
jury instruction on the doctrine, as Updyke had neither actual nor constructive notice of
the ice patch. There was evidence that it was difficult to see, and “penny thin.” Thus, if
it was difficult to see when looking for it, a reasonable person in Updyke’s position
could not have been expected to use a different route.
The burden is upon defendant to prove comparative negligence on the part of
plaintiff. Ordinarily, plaintiff need not make out a case free of contributory negligence,
for that would be the equivalent of placing the burden upon plaintiff, and a jury
instruction to this effect would be reversible error. Calhoun v. Jersey Shore Hospital,
378 A.2d 1294 (Pa.Super. 1977).
Contributory negligence is not established when the dangerous condition is not
obvious or reasonably known to plaintiff. However, plaintiff cannot escape contributory
negligence by alleging mere ignorance of the condition when the facts reveal that he
should have known of the condition. Peair v. Home Asso. of Enola Legion No. 751,
430 A.d 665 (Pa.Super. 1981).
B.
Reasonable Plaintiff Cases
In determining whether the plaintiff is negligent, the standard of care is that of a
reasonably prudent person. Jewell v. Beckstine, 386 A.2d 597 (Pa. Super. 1978). The required
perception is that of a normal, ordinary person and not one endowed with extraordinary facilities
and the standard permits consideration of the person’s knowledge of the existing circumstances.
Clewell v. Pummer, 121 A.2d 459 (Pa. 1956).
In Donlin v. J.J. Newberry Co., 466 A.2d 174 (Pa. Super. 1983), upon exiting the
defendant’s store, plaintiff slipped and fell when her right foot was snagged by a metal strip
protruding from the crumbling concrete sidewalk. The jury returned a verdict in favor of
plaintiff. On appeal, defendant argued that plaintiff was contributorily negligent as a matter of
law because she knew the sidewalk was crumbling and she failed to look down as she exited the
store. Affirming the judgment of the trial court, the Superior Court held that plaintiff was not
contributorily negligent as a matter of law. Id. at 176. The court reasoned that contributory
negligence could only be found in clear cases where it was beyond dispute that a dangerous
condition was so apparent that an ordinarily prudent person would appreciate it as a hazard and
attempt to avoid it. Id. The court noted that although a pedestrian must look where she is going
(quoting Villano v. Security Savings Assoc., 407 A.2d 440 (1979), discussed infra), it would not
hold pedestrians responsible for walking so tentatively as to detect nearly latent defects. Id. The
facts of this case show that although plaintiff noticed the general condition of the sidewalk, she
did not notice the specific defect which actually caused her injury, so that she did voluntarily
expose herself to a known risk. Id. at 175-76.
In Fisher v. Findlay, 465 A.2d 1306 (Pa. Super. 1983), plaintiff was injured when he fell
down the cellar stairs of the defendant’s house. Plaintiff, who was unfamiliar with the house,
asked for directions to the restroom. Defendant showed him where the hallway was and told him
the light switch was on the left. Id. at 1307. Plaintiff, upon entering the hallway, went to the
first door on the left, opened it inward and tumbled down the stairway. The trial court granted a
compulsory nonsuit.
Reversing and remanding, the Superior Court held the evidence did not warrant the
granting of a non-suit. Id. at 1310-11. Notably, the court first determined that because plaintiff
was a social guest of the defendant, he was a licensee, to whom the defendant owed the duties
contained in the Restatement (Second) of Torts §342 (see supra). Id. at 1309. The court,
distinguishing Felix v. O’Brien, held that there was sufficient evidence for the jury to conclude
that defendant would have had reason to believe that the plaintiff would not have been able to
discover the dangerous condition. Id. at 1310.
The court then addressed the contributory negligence issue. The trial court had found
that plaintiff was contributorily negligent as a matter of law because he entered a totally dark
area--the stairwell. Id. The court noted, however, that nothing in the record substantiated such a
finding and that the only evidence with respect to the degree of light in the stairwell was that it
was still light outside and that a large window filtered light into the hallway. Id. Based on this
evidence, the court stated that a jury could have reasonably concluded that the stairwell was light
or semi-light. Id. As a result, plaintiff would not have been contributorily negligent as a matter
of law. Id. The court noted, however, that whether plaintiff was indeed contributorily negligent
was a question of fact for the jury. Id. Thus, the entry of a compulsory non-suit was reversible
error.
Persons are contributorily negligent for failing to watch where they are going. In Villano
v. Security Savings Assoc., 407 A.2d 440 (Pa. Super. 1979), plaintiff, a business visitor, tripped
and fell on the front steps of the defendant bank. The jury returned a verdict in favor of plaintiff.
Reversing, the court held that plaintiff was contributorily negligent as a matter of law. Id. at 441.
The court noted that it is hornbook law in Pennsylvania that a person must look where he is
going. Id. Moreover, the law requires that a person must exercise reasonable care and diligence
in crossing the street, walking on the sidewalk or entering a commercial establishment. Id.
Here, plaintiff was distracted by a woman exiting the bank immediately prior to his attempted
ascent up the step. Id. at 442.
A plaintiff’s failure to look where she is going will not necessarily absolve a defendant
store owner of personal injury liability where an attractive store display distracted the plaintiff.
See Neve v. Insalico’s, _ A.2d _, 2001 Pa. Super 71 (Pa.Super. 2001) see also Zito v. Merit
Outlet Stores, 647 A.2d 573 (Pa.Super 1994). Plaintiff Neve was focused on a frozen food
display in front of her when she injured her foot by stepping on a raised grate on the floor of
defendant supermarket. Plaintiff’s claim rested on the doctrine of res ipsa loquitur. The trial
court entered a compulsory nonsuit against the plaintiff, holding that she failed to exclude other
potentially responsible causes for the grate’s raised position, and therefore could not fulfill the
requirements of res ipsa. Neve, 2001 Pa.Super at 4.
The Superior Court disagreed, removed the trial court’s nonsuit, and concluded its
opinion by addressing the plaintiff’s duty to look where she was walking. Id. at 15-16.
“[A]lthough a person is normally responsible to observe visible dangers, proprietors must
anticipate that store patrons will be distracted by displays designed to attract their attention.” Id.,
(citing Zito, 647 A.2d at 575). The court noted that it was the supermarket’s duty to anticipate
that eye level displays would distract shoppers and cause them to divert their eyes from the
floor. Id. A shopper injured in such a situation, therefore, should not be precluded from
recovering damages merely because the elevation of the grate was visible. Id. at 16 (citing Zito,
647 A.2d 575).
While McDevitt v. Terminal Warehouse, Co., 450 A.2d 991 (Pa. Super. 1982), is not a
slip and fall case, it is however, instructive on the issue of contributory negligence. Plaintiff was
working in an unlit area when he stepped into a hole from which he could not extricate himself.
Plaintiff was subsequently injured by an oncoming vehicle. A jury returned a verdict in favor of
plaintiff. Affirming in part and reversing in part, the court held the issue of contributorily
negligence was properly submitted to the jury because it could not hold, as a matter of law, that
plaintiff was contributorily negligent. Id. at 999. The court concluded that reasonable minds
could differ as to whether plaintiff unreasonably placed himself in a situation known to be
dangerous. Id.
In reaching its conclusion, the court outlined the applicable legal principles. The court
noted that in the absence of a compelling necessity courts generally find that a person who
sustains injuries as a result of following an unfamiliar course in the dark or stepping into a
darkened and unfamiliar space, relying on his sense of touch instead of obtaining and using
adequate lighting, is contributorily negligent as a matter of law. Id. at 995 (quoting Just v. Sons
of Italy Hall, 368 A.2d 308, 312 (Pa. Super. 1976), as quoted in McNally v. Liebowitz, 418 A.2d
460,461 (Pa.Super. 1980)). The controlling factors are the degree of darkness and the
justification for the injured party’s presence in the place of danger. Id. (quoting Dively v. PennPittsburgh Corp., 2 A.2d 831(Pa. 1938); Just v. Sons of Italy Hall, 368 A.2d 308)). The court
concluded that plaintiff did have a fairly compelling reason for being in the unlit area because he
was in the process of performing his job. Id. With respect to the degree of darkness, the court
concluded that it was a question for the jury to decide because there was conflicting and
inconsistent testimony. Id. at 999.
In Claytor v. Durham, 417 A.2d 1196 (Pa. Super. 1980), plaintiff suffered a fractured hip
when she slipped and fell on an icy sidewalk. The ice had apparently accumulated in a
depression in the sidewalk and was covered by snow. She sued both the City of Philadelphia and
the owners of the premises on which the sidewalk was located. A verdict was entered against the
defendants.
The City had contended that plaintiff was guilty of contributory negligence. Apparently,
plaintiff had testified that earlier in the day she had seen patches of ice along the street. On her
return trip, however, the sidewalk was covered with snow. The court concluded that plaintiff
was not required to remember the precise location of each icy spot after they had been covered
by the snow. Id. at 1199. Plaintiff’s decision to walk along the sidewalk rather than step into the
street was not so unreasonable as to make her guilty of contributory negligence as a matter of
law. Id. The court noted that such a determination can only be made where it “is so clearly
revealed that there is no room for reasonable disagreement as to its existence.” Id. (quoting
Lavely v. Wolota, 384 A.2d 1298, 1302 (Pa. Super. 1978)).
Notably, the court also touched on the “hills and ridges” doctrine. Because the
evidence showed an artificially created defect in the sidewalk which allowed ice to accumulate
and create a dangerous condition, the hill and ridges doctrine was inapplicable. Id. at 1198. The
court noted that the evidence showed that the property owners had knowledge of the existing
defect. Id. at 1199. Thus, they knew or should have known that the defect allowed an
accumulation of water which froze in cold weather. Id.
III.
TRIVIAL DEFECT
A.
Introduction
The law does not require that sidewalks be free of defects, imperfections, irregularities,
unevenness, etc. A reasonably safe condition is all that is necessary. Pennsylvania’s climate
with its rain and snow, freezing and melting, frost and thaw makes the perfection of evenness
impossible. Gosha v. City of Philadelphia, 7 Phila. 302 (1982). As such, an elevation, a
depression or an irregularity on a street or sidewalk may be so trivial that courts may hold, as a
matter or law, that there was no negligence in permitting such a depression or irregularity to
exist. The standard that has been established for determining triviality is “that a paving defect is
trivial when ‘it would be completely unreasonable, impractical and unjustifiable’ to hold a
defendant liable for its existence.” Gosha v. City of Philadelphia, 7 Phila. at 313 citing Bosack
v. Pittsburgh Railway Co., 189 A.2d 877, 880 (Pa. 1963).
The factors which must be looked at to determine whether the irregularity is trivial are:
the amount of travel over the location, the actual location of the rise or depression, the character
and material with which the pavement is constructed, the nature of the irregularity, and other
circumstances. Bullick v. Scranton, 302 A.2d 849 (Pa. Super. 1973).
B.
Trivial Defects
Cobblestone sunk one and one-half to two inches are trivial, Bosack v. Pittsburgh
Railway Co., 189 A.2d 877 (Pa 1963), as is, a hole in the street three feet long, one inch wide,
and one-half inch deep, Bullick v. Scranton, 302 A.2d 849 (Pa. Super. 1973).
In Bullick, plaintiff tripped on a hole in street which she described as three feet long, one
inch wide, and one-half inch deep. The court held that such a defect is trivial and “one who, in
broad daylight, walks into an obvious defect in a sidewalk is presumptively negligent and the
burden is upon that person to show conditions outside himself which prevented his seeing the
defect, or which would excuse failure to observe it.” Bullick at 850 citing Knapp v. Bradford
City, 247 A.2d 575 (Pa. 1968).
In Cline v. Statler, (C.P. Adams Co. Aug. 12, 1997), aff’d 726 A. 2d 1073 (Pa. Super.
1998), plaintiff tripped and fell on a rise in the sidewalk joint between sections. The court
granted summary judgment holding that a two or three inch difference in sidewalk level between
joints or divisions is only a trivial defect. The court reasoned that there were no holes or breaks
in the concrete and that other than the fact that the two sections do not meet on precisely the
same plane, the sidewalk was in good condition.
C.
Non-Trivial Defects
In Gosha v. City of Philadelphia, 7 Phila. 302 (1982), the Philadelphia Court of Common
Pleas held that a hole in the sidewalk which is large enough to catch a person’s heel during a
normal step is not so small as to be a trivial defect.
In Burns v. City of Philadelphia, 504 A.2d 1321 (Pa. Super. 1986), plaintiff
tripped in a tree well located on the sidewalk. The City argued that the well was recessed several
inches, and was therefore, obvious to pedestrians, or in the alternative, was only a trivial defect.
The court held that a six foot square which was recessed several inches in the middle of a
sidewalk was not a trivial defect.
IV.
THE “HILLS AND RIDGES” DOCTRINE
A.
Introduction
The “hills and ridges” doctrine governs when an injured party may recover for a fall on
an ice or snow covered sidewalk, parking lot or other paved surface. The doctrine is not
inconsistent with §343 of the Restatement (Second) of Torts, but rather is essentially a
refinement or clarification of the duty owed by a possessor of land. Wentz v. Pennswood
Apartments, 518 A.2d 314, 316 (Pa. Super. 1986).
Under the Hills and Ridges Doctrine, plaintiff must prove:
(1)
that snow and ice had accumulated on the sidewalk in ridges or
elevations of such size and character as to unreasonably obstruct
travel and constitute a danger to pedestrians;
(2)
that the property owner had notice, either actual or constructive, of
the existence of such a condition; and
(3)
that it was the dangerous accumulation of snow or ice that
caused the plaintiff to fall.
Id. (citing Rinaldi v. Levine, 406 Pa. 74, 78-79, 176 A.2d 623, 625-25 (1962)).
B.
Examples
The following cases discuss when the doctrine applies, the plaintiff’s burden under the
doctrine, and exceptions to the doctrine.
In Mahoney Area School District v. Budwash, 604 A.2d 1156 (Pa. Commw. 1992), the
court applied the three factors listed above and noted, however, that the doctrine is not applicable
in all situations. Proof of hills and ridges is necessary only if the accident occurred when general
slippery conditions prevailed in the community. Id. (quoting Tonik v. Apex Garages, Inc., 442
Pa. 373, 376, 275 A.2d 296, 298 (1971)) (emphasis added). For example, the doctrine is not
applicable where the plaintiff slipped on a specific, localized patch of ice and the sidewalk was
otherwise free of ice and snow. Id. (quoting Tonik at 376, 275 A.2d at 298) (emphasis added).1
The Budwash court concluded that the doctrine did not apply in this case because general
slippery conditions were not prevailing in the community. Id.
In Budwash, plaintiff slipped and fell on a patch of ice while walking on a path from a
school football stadium. Defendant moved for summary judgment, raising the defenses of
governmental immunity and hills and ridges. The trial court granted defendant’s motion, holding
that plaintiff would not have had an action under common law because plaintiff had not met all
of the elements under the “hills and ridges” doctrine. The court vacated and remanded, holding
that the trial court erred in basing its grant of summary judgment on the “hills and ridges”
doctrine because plaintiff fell on a localized patch of ice. Id. at 1158.
Harmotta v. Bender, 601 A.2d 837 (Pa. Super. 1992), decided just a little over a month
before Budwash, involved a plaintiff who slipped and fell in a snow and ice covered church
parking lot. The trial court instructed the jury on plaintiff’s burden under the hills and ridges
doctrine. The Superior Court held that this instruction was proper. Id. at 842. The court
reasoned that, snow and ice upon a pavement create merely transient danger, and the only duty
upon the owner is to act within a reasonable time after notice to remove it when it is in a
dangerous condition. Further the doctrine can only be applied where the snow and ice
complained of resulted from an entirely natural accumulation, following a recent snowfall. Id. at
841 (quoting Bacsick v. Barnes, 341 A.2d 157, 160 (1975) see infra). The court noted further, as
the Budwash court did, that the doctrine is not applicable when general slippery conditions are
not prevailing in the community, nor where the icy condition is caused by the defendant’s
In such a case, a court is likely to apply the “known or obvious danger” doctrine to
determine whether liability should be imposed. See infra the discussion of Carrender where the
court imposed liability under the “known or obvious danger” doctrine.
1
neglect, as where a city maintains a defective hydrant, water pipe, drain or spigot. Id. at 842
(quoting Bacsick, 341 A.2d at 160 see infra).
The doctrine of hills and ridges only applies to pedestrian walkways. In Gilligan v.
Villanova University, 584 A.2d 1005 (Pa. Super. 1991), a student slipped and fell while walking
across a snow covered grassy area. The Superior Court held that the hills and ridges doctrine did
not apply in this case because the plaintiff fell in a grassy area, which was not intended to be
traversed by pedestrians. Id. at 1007. The court concluded that the doctrine applies only to areas
such as sidewalks, parking lots and other paved areas where pedestrians would be expected to
travel. Id. 2
The doctrine does not apply when snow and ice is not the result of a natural accumulation
following a recent snowfall. In Bacsick v. Barnes, 341 A.2d 157 (Pa. Super. 1975), the Superior
Court held the doctrine of hills and ridges did not apply to a snowbank plowed from snow on the
street. The plaintiff was forced to walk in the street when a three foot high snowbank, which had
been plowed from the street to the edge of the sidewalk was blocking access. While walking in
the street she was struck by a car. The doctrine did not apply as the snowbank was from an
artificial origin rather than natural accumulation. Id. at 160.
Two decisions from the United States Court of Appeals for the Third Circuit and the
United States Eastern District suggest that the “hills and ridges” doctrine is somewhat
“unsettled” under Pennsylvania law. In Metzler v. Principal Mutual Life Insurance Company, 92
F.3d 1172 (3d Cir. 1996), plaintiff fell after leaving an office building on what he described as a
“patch of black ice” which he did not see and which caused him to sustain a comminuted fracture
of his right leg. The District Court entered summary judgment in favor of the property owner on
the basis that plaintiff was aware of the general icy conditions in the area. The Third Circuit
analysis focused on whether plaintiff actually saw the “black ice” that he slipped on; whether a
reasonable person would not have seen the ice; and whether there was an alternative route to
follow other than the route he took through the parking lot where he fell. The Third Circuit
reversed the entry of summary judgment and remanded the matter to the District Court for
further proceedings.
In Smith v. Allen and O’Hara Developments, Inc., (1996 U.S. Dist. LEXIS 13699), the
United States District Court for the Eastern District for Pennsylvania, denied summary judgment
in a case in which plaintiff allegedly slipped and fell on a patch of ice in the driveway of the
hotel where he had been staying for several days. The property owner moved for summary
judgment on the ground that the recovery was barred under the “hills and ridges” doctrine, where
if there are generally slippery conditions in the area, the plaintiff must show that the ice was high
or rutted in order to be successful. The court ruled that the Pennsylvania Supreme Court had not
given a clear direction on when the “hills and ridges” doctrine should apply and what constitutes
generally slippery conditions. The court specifically made reference to the Supreme Court ruling
in Ferencze v. Mile, 535 A.2d 59 (Pa. 1987), where the most recent snow fall had been two days
before the accident. In Ferencze, the Supreme Court ruled that a jury could have concluded that
the defendant had a duty to take care of ice patches once it knew of its existence. Based upon the
2
In Wentz v. Pennswood Apartments, 518 A.2d 314, 316 (Pa. Super. 1986), the Superior
Court held that the doctrine applies to both public and private walks.
unsettled status of whether the “hills and ridges” doctrine applied only when fresh snow was on
the ground, or whether it applied whenever the ground might be slippery due to frozen water,
the court utilized standard tort law regarding the duty of a land owner. Accordingly, summary
judgment was denied. Smith v. Allen and O’Hara Developments, Inc., (Eastern District of
Pennsylvania 1996; PICS No. 96-7372).
The “hills and ridges” doctrine applies with equal force to both public and private spaces.
Morin v. Traveler’s Rest Motel, Inc., 704 A.2d 1085, 1088; Wentz, supra at 316. In that case,
plaintiff, who slipped and fell on “black ice” in a motel parking lot which had accumulated the
night before, argued that the doctrine should not have been applied by the trial court to a
private/business landowner, claiming business owners do not face the same problems of
snow/ice removal that entire cities, municipalities or towns face. The Superior Court rejected her
argument, opining that she was merely reiterating the argument espoused and rejected in Wentz.
Morin, supra, at 1088. The court quoted part of the Wentz decision:
. . . we are at a loss to find any justification for the distinction
which appellee would have us create. Weather conditions in this
hemisphere have the same effect on privately owned walks as they do on
public sidewalks, and there is no valid reason for imposing different
standards of care with respect to the two. Therefore, we reject appellee’s
contention that the doctrine of “hills and ridges” can have no application
to ice and snow covered walks, which are privately owned.
Id.
In Knight v. Pocmont Lodge, PICS No, 98-1820-23-00 (C.P. Pike County, July 30,
1998), the defendant moved for summary judgment when plaintiff fell and was injured on
defendant’s property. Plaintiff alleged that the fall was caused by the collection of snow and ice
that existed on a pathway on defendant’s property, claiming this accumulation of snow
constituted a dangerous condition that defendant negligently allowed to continue to exist. The
court applied the “hills and ridges” doctrine set out in Giosa and Wentz, in ruling that plaintiff
failed to establish any evidence in the record that would allow the court to hold that defendant
acted unreasonably in its removal of the snow, thereby failing to establish a prima facie case.
The Philadelphia Court of Common Pleas in Giletti v. Jamoneau, PICS No. 99-0978
(C.P. Philadelphia, May 12, 1999), has held that the hills and ridges doctrine may not apply
equally to steps to a building as it would to sidewalks or walkways. In Giletti, plaintiff slipped
on fresh snow and ice which had not yet been removed from the steps of his apartment building.
Defendant contended that the hills and ridges doctrine applied as, defendant did not yet have
time to remove the snow. The court held that steps to an apartment building are a structural part
of the building and, therefore different than walkways. On a walkway the pedestrian has the
option of choosing a different path, whereas there is no choice with steps to a building, as they
are the only means of ingress and egress.
In Thorpe v. Grant, PICS Case No. 1411 (Pa. Super. Aug 28, 2002), the court held that
where plaintiff established that there were bumps in the snow that had accumulated on the
sidewalk in front of defendant’s house, but failed to establish the size and character of the
bumps, the hills and ridges doctrine precluded her from recovery. There, the plaintiff fell while
she was attempting to walk across defendant’s sidewalk. Testimony at trial established that the
snow on defendant’s sidewalk was bumpy, hilly and marked with footprints, but did not indicate
the size or character of the bumps. The court, citing Rinaldi, held that it is insufficient to merely
show that the snow and ice had been trampled into lumps or bumps by passerby. Rather, the
court held, “the snow must have been turned into lumps by some other means, creating a hazard
to those walking on the sidewalk”. Additionally, the court held that there must also be testimony
regarding the size and character of the bumps.
V.
MISCELLANEOUS ISSUES
A.
Defending Unincorporated Associations
1.
The General Rule:
In Pennsylvania, it is well-settled law that a member of an unincorporated association
cannot sue the association in tort. De Villars v. Hessler, 70 A.2d 333 (Pa. 1950); Roschmann v.
Sanborn, 172 A. 657 (Pa. 1934); Zehner v. Wilkinson Mem’l United Methodist Church, 581
A.2d 1388 (Pa. Super. 1990); Plasterer v. Paine, 544 A.2d 985 (Pa. Super. 1988). The reasoning
behind that rule of law can be stated as follows:
the members of an unincorporated association are engaged in a
joint enterprise, and the negligence of each member in the
prosecution of that enterprise is imputable to each and every other
member, so that the member who has suffered damages . . .through
the tortious conduct of another member of the association may not
recover from the association for such damages.
Zehner v. Wilkinson Mem’l United Methodist Church, 581 A.2d 1388 (Pa. Super. 1990), quoting
Plasterer v. Paine, 544 A.2d 985, 987 (Pa. Super. 1988).
2.
Case Law
A.
Zehner v. Wilkinson Mem’l United Methodist Church, 581
A.2d 1388 (Pa. Super. 1990)
In Zehner, Plaintiff was injured while leaving a Christmas service at the United
Methodist Church. Plaintiff, who was a member of the church at the time of the accident,
alleged that her fall was due to the church’s negligent care for the premises. Further, Plaintiff
argued that even though she was a member of the church, she was attending the service as a
member of the general public and as such was entitled to recover for her injuries.
The Zehner court disagreed, however, and reasoned that the question was not one of
plaintiff’s status on the property or the duty owed to her, but rather her capacity to sue an
unincorporated organization to which she belongs. The Court held that the well-settled rule in
Pennsylvania is that members of unincorporated associations cannot sue the association in tort.
The rule, the Court found, is not based on a plaintiff’s status on the premises at any given
moment, but rather their membership in the association. Moreover, the Court found, this rule
applies even if members of the general public were present or allowed to be present during the
time when the accident occurred.
B.
Plasterer v. Paine, 544 A.2d 985 (Pa. Super. 1988)
In Plasterer, Plaintiff was a member of the Liberty Fire Company Marching Club, and
was injured when he and another member engaged in a fight during a club social event. Plaintiff
sued the Club alleging that the Club was negligent in that they knew of the other member’s
violent propensities and still allowed the member to frequent the Club. Although the Club was
found liable at trial, the Court granted a judgment notwithstanding the verdict for the Club
because any negligent act by one member of the Club was imputed to the Plaintiff.
In making their decision, the Plasterer Court reasoned that because members of an
unincorporated association are engaged in a joint enterprise, the negligence of any other member
of the association is imputed to the Plaintiff. The Court opined as follows:
we find that Pennsylvania law is clear on its following of the
general rule that members of an unincorporated association may
not recover from the association in tort because the negligence of a
member, including the association and its officers, is imputed to all
of the members.
C.
Bowser v. Hershey Baseball Ass’n, 516 A.2d 61 (Pa. Super. 1986)
In Bowser, Plaintiff was struck by a batted ball during baseball team tryouts conducted
under the auspices of an unincorporated, not-for-profit association. Plaintiff filed suit against the
association for the injuries sustained. The trial court dismissed Plaintiff’s case against the
association because Plaintiff was a member of that organization, and therefore could not sue the
organization in tort.
The Superior Court upheld the order of the trial court on the theory that any negligence of
the association was imputed to Plaintiff. The Court reasoned that since Plaintiff was involved in
organizing and conducting the baseball tryouts, he could not turn around and sue the association
because he was a part of a joint enterprise. In this regard, the Bowser court relied on the
DeVillars case which in these materials.
D.
DeVillars v. Hessler, 70 A.2d 333 (Pa. 1950)
In this case, Plaintiff was a member of the Kiser Hill-Meade Grange fraternal
organization, which was an unincorporated association. As part of a county fair, the fraternal
organization had concession for the sale of food. While working the concession, Plaintiff was
injured when a gas steam table exploded. Plaintiff thereafter filed suit against the unincorporated
association and the individuals in charge of the concession.
The DeVillars court dismissed Plaintiff’s claim against the association on the “joint
enterprise” theory. Specifically, while the court refused to dismiss Plaintiff’s claims against the
individual defendants, it disposed of the claim against the fraternal organization because any
negligent act performed by the individuals was automatically imputed to the Plaintiff. In this
regard, the court entered judgment for the fraternal organization on the pleadings.
E.
Roschmann v. Sanborn, 172 A. 657 (Pa. 1934)
In Roschmann, the members of an unincorporated fraternal organization participated in a
social excursion in a bus owned by the organization. Plaintiff was injured when the bus was
involved in an automobile accident. Plaintiff sued the unincorporated association and its
trustees. Once again, it was held that since the outing was clearly a joint enterprise in which
Plaintiff himself was involved, Plaintiff could not recover in tort because the negligence of the
driver was imputed to Plaintiff as it was to all other members of the organization. Therefore, the
Supreme Court upheld the trial court’s entry of judgment notwithstanding the verdict.
F.
Pennsylvania Rule of Civil Procedure 2154
Rule 2154 states as follows:
An action may be prosecuted at law by an association against one
or more of the members thereof, or against such members together
with persons not members; or by one or more members, or by such
members together with other persons not members, against the
association.
Pa.R.C.P. 2154. Despite the seemingly strong language of Rule 2154, there are no Pennsylvania
cases which use this Rule to allow a member of an unincorporated association to sue that
association in tort. Rather, when a member of an unincorporated association does have a right of
action against the association (i.e. in contract), Rule 2154 allows for that action to be brought
against the association in its own name. Rule 2154 is procedural only, and does not create a new
substantive right where none existed prior to the adoption of the Rule. Mastrini v. Nuova Loggia
Monte Grappa, 1507, 1 D.&C.2d 245 (Cambria 1954). Therefore, Rule 2154 does not overrule
the numerous Pennsylvania cases which hold that members of an unincorporated association
cannot sue the association in tort.
3.
The Exception: The Intentional Tort
Jackson v. Local Union 542, 2000 U.S. Dist. LEXIS 10609 (July 25, 2000)
In Jackson, the court ruled that a member of an unincorporated association could sue the
association under a theory of intentional tort. In this case, Plaintiff sued his union for intentional
infliction of emotional distress. While the Eastern District recognized that Pennsylvania follows
the general rule that members of an unincorporated association cannot sue that association in
tort, the Jackson court distinguished its case from the general rule because Plaintiff alleged an
intentional tort. Specifically, the court reasoned that while it makes sense to impute negligence
based on the joint enterprise theory, the rule falls apart when the defendant is charged with an
intentional tort. The tortfeasor is not in concert with any other member when the intentional tort
occurs. Therefore, the court denied the defendant’s motion for judgment on the pleadings.
B.
Medical Expenses Recoverable
In Moorhead v. Crozer Chester Medical Center, 765 A.2d 786 (Pa. 2001), the
Pennsylvania Supreme Court held that Plaintiff is not entitled to recover damages for medical
expenses that have been forgiven or written-off by a defendant-health care provider. Rather, the
amount paid and accepted by the provider as payment in full for medical services rendered to
Plaintiff is the amount Plaintiff is entitled to recover as compensatory damages. As a result,
evidence with respect to the amount of medical expenses forgiven or written-off by the provider
is no longer admissible evidence at trial against that provider. Prior to the Moorhead decision,
Plaintiff was entitled to the “reasonable value” of medical services rendered, and a jury could
consider the full amount of medical expenses billed to Plaintiff, even though not all of it was
paid. Therefore, after Moorhead, the introduction of evidence with respect to medical expenses
forgiven or written-off would be irrelevant, prejudicial, and could actually serve to improperly
inflate a jury’s ultimate award of damages. Although not specifically dealt with by the Supreme
Court, many believe that the Moorhead decision can be extended to non-health care provider
defendants.
C.
NEW JOINT AND SEVERAL STANDARD
On June 19, 2002, Senate Bill 1089 (Act 57) was signed into law by the Governor of the
Commonwealth of Pennsylvania. Section 2 of Act 57 amends the Comparative Negligence Act,
42 Pa. C.S. §7102 and essentially eliminates the Doctrine of Joint and Several Liability in many
instances. This bill went into effect on August 18, 2002, 60 days after it was signed by the
Governor and shall apply to all causes of action accruing after August 18, 2002.
The new Joint and Several Liability law requires each defendant, in all but a limited
number of instances, to pay a plaintiff only for the defendant’s apportioned share of liability.
Thus, a defendant is only found jointly and severally liable when that defendant is found to be
more than 60 percent liable for plaintiff’s overall damages. Thus, under the new law, where two
defendants are both 50 percent liable to a plaintiff, joint and several liability does not apply, even
though each defendant is equally liable.
However, there are several exceptions to the new Joint and Several Liability law.
Specifically, a defendant found to be less then 60 percent liable to plaintiff may still be required
to pay the full amount of the award apportioned by the jury if the plaintiff shows that the
defendant intentionally injured the plaintiff or made an intentional misrepresentation.
Additionally, there are also limited dram shop and toxic tort exceptions that allow for joint and
several liability.
The new Joint and Several Liability law also addresses the impact of a defendant who has
previously entered into a release with the plaintiff. Under the new law, liability can be
apportioned to any defendant who has been released from the case and is not at trial, as long as
that defendant has entered into a release and is no longer a party to the case. The overall impact
of this portion of the new Joint and Several Liability Law will be to decrease that plaintiff’s
incentive to enter into joint-tortfeasor releases.
Additionally, the new law essentially abolishes joint and several liability. Previously, if
multiple tortfeasors were found to be joint tortfeasors, they were jointly and severally liable to
the plaintiff and each was liable for the total damage sustained to the plaintiff or injured party,
regardless of individual fault. Under the new law, a defendant who was one of multiple
tortfeasors, is only severally liable, and liability will be apportioned with separate damage
awards made against each defendant.
147022
February 13, 2016