Delaware County, PA Personal Injury Attorney On Delaware County Personal Injury Assumption of Risk

Defendants may contend that plaintiff assumed theproceeded in the face of an obvious and dangerous
risk of an accident. The burden of showing voluntarycondition. Hardy v. Southland Corp., 645 A. 2d 839 (Pa.
assumption of risk and contributory negligence is onSuper. 1994), citing, Howell v. Clyde, 620 A. 2d 1107 (Pa.
the defendants. Whitley v. Philadelphia Transportation1993). Assumption of the risk cannot be used as a
Company, 234 A. 2d 922, 925 (Pa. Super. 1967).defense unless it is shown that plaintiff "must have
The doctrine of assumption of risk "has been veryappreciated the danger itself and the nature, character
problematic and has fallen from the favor of some ofand extent which made it unreasonable." Crance v.
the judiciary and legal commentators. In fact, theSohanic, 496 A. 2d 1230, 1232 (Pa. Super. 1985).
doctrine as a separate affirmative defense has onlyThe Pennsylvania Supreme Court in Hughes v. Seven
narrowly survived abolishment by our Supreme Court."Springs Farm, Inc., 762 A.2d 399 (Pa. 2000), discussed
Bullman v. Giuntoli, PICS No. 00-1904.the status of the doctrine of assumption ofrisk in light
The assumption of risk defense is made out only byof the passage of the comparative negligence statute
showing that a person "with appreciation andandstated that as a general rule, the doctrine of
knowledge of an obvious danger, purposely elects toassumption of the risk, with itsattendant "complexities"
abandon a position of relative safety and chooses toand "difficulties," has been supplanted by the
reposition himself in a place of obvious danger and byPennsylvania General Assembly's adoption of a
reason of that repositioning is injured." McIntyre v.system of recovery based oncomparative fault in the
Cusick, 372 A. 2d 864, 866 (Pa. Super. 1977)."Comparative Negligence Act. 42 Pa.C.S.A.
The defense of assumption of the risk will not prevent§7102(a)-(b). Where plaintiff tried to minimize her
recovery unless the evidence conclusively establishesrisk of falling, but fell nevertheless, she did not
that the plaintiff was subjectively aware of the riskvoluntarily assume the risk of falling. Barrett v. Fredavid
and voluntarily assumed it. Barrett v. Fredavid Builders,Builders, Inc., 685 A.2d 129 (Pa. Super. 1996).
Inc., 685 A.2d 129 (Pa. Super. 1996). Voluntariness isFinally, in Giosa v. School District of Philadelphia, 630
established only when the circumstances manifest aA.2d 511 (Pa. Cmwlth. 1993), defendant argued that the
willingness to accept the risk. Staub v. Toy Factory, Inc.,plaintiff assumed the risk of slipping on an icy sidewalk,
749 A.2d 522 (Pa. Super. 2000). Mere contributory"because Giosa fully understood the risk involved in
negligence does not establish assumption of the risk. Id.walking on the sidewalk, and yet voluntarily chose to
Rather, a plaintiff has assumed the risk where he hasencounter it." Id. The Court held that since defendant
gone so far as to abandon his right to complain andowed plaintiff, a member of the general public, a duty
has absolved the defendant from taking anyto keep the public sidewalks clear from any dangerous
responsibility for the plaintiff's injuries. Id. In order toconditions, the doctrine of assumption of risk did not
prevail on assumption of risk, the defendant mustapply. Id. Similarly, defendants owed plaintiff, Fran
establish both the "awareness of the risk" prong andKellenbenz, as a member of the general public, a duty
the "voluntariness" prong. Id.to keep their sidewalk clear from any dangerous
The defense is not available unless it is beyondconditions. Similarly, the doctrine of assumption of risk
question, such that no two reasonable minds coulddoes not apply and the Court should not charge the
differ, that the plaintiff voluntarily and knowinglyjury thereon.