assumption of the risk doctrine in Pennsylvania

2019See Hughes v. Seven Springs Farm Inc., 563 Pa. 501 , 762 A.2d 339 , 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer , 503 Pa. 178 , 469 A.2d 120 , 125 (1983) (explaining that one's assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel , 95 A.3d 900 , 906 (Pa. Super. 2014) (citation omitted) (acknowledging that

2019See Hughes v. Seven Springs Farm Inc., 563 Pa. 501 , 762 A.2d 339 , 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer , 503 Pa. 178 , 469 A.2d 120 , 125 (1983) (explaining that one's assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel , 95 A.3d 900 , 906 (Pa. Super. 2014) (citation omitted) (acknowledging that

1999Struble v. Valley Forge Military Academy, 445 Pa.Super. 224 , 665 A.2d 4, 5-6 (1995). ¶ 13 Applying this standard, the majority’s error in finding that Frey assumed the risk as a matter of law, despite the jury’s entirely reasonable rejection of this defense, is clear. ¶ 14 Although in recent years the assumption of the risk doctrine has been substantially modified when analyzed in the context of a negligence action, the doctrine has remained unchanged when, as here, assumption of the risk is raised in the context of a strict product liability action.

1999Struble v. Valley Forge Military Academy, 445 Pa.Super. 224 , 665 A.2d 4, 5-6 (1995). ¶ 13 Applying this standard, the majority’s error in finding that Frey assumed the risk as a matter of law, despite the jury’s entirely reasonable rejection of this defense, is clear. ¶ 14 Although in recent years the assumption of the risk doctrine has been substantially modified when analyzed in the context of a negligence action, the doctrine has remained unchanged when, as here, assumption of the risk is raised in the context of a strict product liability action.

1991Cf. Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118 , 542 A.2d 525 (1988) (discusses concepts of “no duty” and the assumption of the risk defense); see also id., 374 Pa.Superior Ct. at 140, 542 A.2d at 536 (“It is true that defendants have no duty to protect roller skaters against the typical risks of roller skating, such as falling down or being bumped by other skaters.

1991Cf. Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118 , 542 A.2d 525 (1988) (discusses concepts of “no duty” and the assumption of the risk defense); see also id., 374 Pa.Superior Ct. at 140, 542 A.2d at 536 (“It is true that defendants have no duty to protect roller skaters against the typical risks of roller skating, such as falling down or being bumped by other skaters.

2019See Hughes v. Seven Springs Farm Inc., 563 Pa. 501 , 762 A.2d 339 , 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer , 503 Pa. 178 , 469 A.2d 120 , 125 (1983) (explaining that one's assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel , 95 A.3d 900 , 906 (Pa. Super. 2014) (citation omitted) (acknowledging that

2019See Hughes v. Seven Springs Farm Inc., 563 Pa. 501 , 762 A.2d 339 , 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer , 503 Pa. 178 , 469 A.2d 120 , 125 (1983) (explaining that one's assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel , 95 A.3d 900 , 906 (Pa. Super. 2014) (citation omitted) (acknowledging that

1996In Fish v. Gosnell, 316 Pa. Super. 565 , 463 A.2d 1042 (1993),. the Pennsylvania Superior Court addressed the effect of the Pennsylvania Comparative Negligence Act on the assumption of the risk defense, “[S]ince the advent of comparative negligence, 42 Pa.C.S. §7102 (effective September 7,1976), careful attention to the nature of the judicially created assumption of [the] risk defense has become essential to ensuring the proper outcome of a case, for assumption of risk wholly bars recovery, whereas comparative negligence permits even a 50 percent negligent plaintiff to recover.

1996In Fish v. Gosnell, 316 Pa. Super. 565 , 463 A.2d 1042 (1993),. the Pennsylvania Superior Court addressed the effect of the Pennsylvania Comparative Negligence Act on the assumption of the risk defense, “[S]ince the advent of comparative negligence, 42 Pa.C.S. §7102 (effective September 7,1976), careful attention to the nature of the judicially created assumption of [the] risk defense has become essential to ensuring the proper outcome of a case, for assumption of risk wholly bars recovery, whereas comparative negligence permits even a 50 percent negligent plaintiff to recover.

2017The assumption of the risk doctrine has two elements: “The risk must be perceived, and the risk must be faced voluntarily.” Id. at 131 . ____________________________________________ 1We analyze Spady’s assumption of the risk in conjunction with Appellees’ duty because [o]ur [S]upreme [C]ourt appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court’s duty analysis, and not a matter for jury determination. . . . [A]ssumption of risk is no longer an affirmative defense in most cases; rather, it is incorpo

2012This Court observed that there are two components to the doctrine of assumption of the risk: “[t]he risk must be perceived, and the risk must be faced voluntarily.” Id. at 131 (emphasis added).

2019See Hughes v. Seven Springs Farm Inc., 563 Pa. 501 , 762 A.2d 339 , 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer , 503 Pa. 178 , 469 A.2d 120 , 125 (1983) (explaining that one's assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel , 95 A.3d 900 , 906 (Pa. Super. 2014) (citation omitted) (acknowledging that

2019See Hughes v. Seven Springs Farm Inc., 762 A.2d 339, 343 (Pa. 2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer, 469 A.2d [J-14-2018] - 6 120, 125 (Pa. 1983) (explaining that one’s assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel, 95 A.3d 900, 906 (Pa. Super. 2014) (citation omitted) (acknowledging that the assu

2006See also Loughran v. Phillies, 888 A.2d 872 (Pa.Super.2005) (reviving and recognizing some form of the assumption of the risk doctrine for cases involving baseball), appeal denied, 588 Pa. 783 , 906 A.2d 543 (Pa., Aug. 8, 2006), citing Romeo v. The Pittsburgh Associates, 787 A.2d 1027 (Pa.Super.2001) (same).

2005Or has it? ¶ 3 A year after Hughes announced that the doctrine of assumption of the risk had been abolished as a common law defense, a panel of this Court essentially resurrected the essence of the assumption of the risk doctrine, at least as it applied to profes sional baseball clubs, in Romeo v. Pittsburgh Associates, 787 A.2d 1027 (Pa.Super.2001).

2015The Howell case was a non- binding plurality opinion, however, and as late as 2009, this Court has continued to apply the assumption of the risk doctrine, albeit while acknowledging that its “continuing vitality ... remains in doubt.” Zeidman v. Fisher, 980 A.2d 637, 640 (Pa. Super. 2009).

2014The Howell case was a non-binding plurality opinion, however, and as late as 2009, this Court has continued to apply the assumption of the risk doctrine, albeit while acknowledging that its “continuing vitality ... remains in doubt.” Zeidman v. Fisher, 980 A.2d 637, 640 (Pa.Super.2009).

1992Nine years after the Rutter decision the Pennsylvania Superior Court commented on the uncertain state of the law as it regards assumption of the risk in Ott v. Unclaimed Freight Company, 395 Pa.Superior Ct. 483, 493, 577 A.2d 894, 898 (1990), stating: “[A] majority of the Supreme Court has yet to directly address the issue of whether the assumption of the risk doctrine remains viable, and panels of this court have continued to apply the doctrine.” In furtherance of the proposition that the doctrine has not been abolished, the City relies on the cases of Carrender v. Fitterer, 503 Pa. 178 , 469

1992Nine years after the Rutter decision the Pennsylvania Superior Court commented on the uncertain state of the law as it regards assumption of the risk in Ott v. Unclaimed Freight Company, 395 Pa.Superior Ct. 483, 493, 577 A.2d 894, 898 (1990), stating: "[A] majority of the Supreme Court has yet to directly address the issue of whether the assumption of the risk doctrine remains viable, and panels of this court have continued to apply the doctrine." In furtherance of the proposition that the doctrine has not been abolished, the City relies on the cases of Carrender v. Fitterer, 503 Pa. 178 , 469

2017Regarding assumption of the risk, this Court has held that: the assumption of the risk doctrine is a “function of the duty analysis” required in any negligence action .... [Montagazzi v. Crisci, 994 A.2d 626, 636 (Pa.Super. 2010) ].

2015In a subsequent case, Montagazzi v. Crisci, 994 A.2d 626 (Pa. Super. 2010), this Court indicated that the assumption of the risk doctrine is a “function of the duty analysis” required in any negligence action, citing to the following passage in Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983): Appellee misperceives the relationship between the assumption-of-risk doctrine and the rule that a possessor of land is not liable to his invitees for obvious dangers.

2017Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010).

2017Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174 , 1185–1186 (Pa. 2010) (internal citations omitted).

2000Id. at 241-42 , 645 A. 2d at 841 .

2000Id. at 241-42 , 645 A. 2d at 841 .

2014Id.

2005See also Frey v. Harley Davidson Motor Company, 734 A.2d 1, 8 (Pa.Super.1999) (reiterating that once court decides that the assumption of the risk doctrine does not bar the plaintiff's claim, the jury is to be charged only on comparative negligence) (quotation omitted). [5] Compare Carrender v. Fitterer, 503 Pa. 178 , 469 A.2d 120 (1983) (determining no question as to whether the injured party knew of the risk of slipping when she admitted that she saw the ice next to her car, appreciated the danger that she might fall, and chose to step onto the ice instead of moving her car to a clear spot i

2001Although our determination that the trial court properly granted summary judgment under the immunity provision of the Act provides sufficient basis to affirm the trial court’s order, we feel compelled to address the trial court’s erroneous application of the doctrine of assumption of the risk." Based on the precedent established by the Pennsylvania Supreme Court in Howell v. Clyde, 533 Pa. 151 , 620 A.2d 1107 (1993), which this Court followed in Duquesne Light Company v. Woodland Hills School District, 700 A.2d 1038 (Pa.Cmwlth.1997), we conclude that the doctrine of assumption of the risk is n

2001Duquesne Light Company, 700 A.2d at 1053 . *917 The instant matter does not involve a strict liability theory, nor does it involve a statute that preserves assumption of risk as an affirmative defense available to the School District. 3 Therefore, in order for the School District to invoke the doctrine of assumption of the risk, it must show that Erika expressly assumed the risk.

1990See Ferencz v. Milie, 517 Pa. 141 , 535 A.2d 59 (1987) (if ice patch in hospital parking lot was obvious and avoidable, the hospital would have owed the plaintiff no duty to remove it because of the assumption of the risk doctrine); Carrender v. Fitterer, 503 Pa. 178 , 469 A.2d 120 (1983) (a holding that a risk has been assumed is in many cases tantamount to a determination that, as a matter of law, the defendant owed the plaintiff no duty); Johnson by Johnson v. Walker, 376 Pa.Super. 302 , 545 A.2d 947 (1988); Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414 , 538 A.2d 509 (1988)

1990See Ferencz v. Milie, 517 Pa. 141 , 535 A.2d 59 (1987) (if ice patch in hospital parking lot was obvious and avoidable, the hospital would have owed the plaintiff no duty to remove it because of the assumption of the risk doctrine); Carrender v. Fitterer, 503 Pa. 178 , 469 A.2d 120 (1983) (a holding that a risk has been assumed is in many cases tantamount to a determination that, as a matter of law, the defendant owed the plaintiff no duty); Johnson by Johnson v. Walker, 376 Pa.Super. 302 , 545 A.2d 947 (1988); Malinder v. Jenkins Elevator & Machine Co., 371 Pa.Super. 414 , 538 A.2d 509 (1988)

2025Accordingly, when the defense under subsection 7102(c) applies, a “defendant is said to owe no duty of care to plaintiff, and plaintiff’s negligence cause of action must fail.” Bell, supra at 269 (citation omitted). -5- J-A22013-25 or other improper conduct.

2025Thus, notwithstanding this Commonwealth’s doctrine of comparative negligence, when our legislature enacted subsection 7102(c), it did so to “specifically retain[] the doctrine of assumption of the risk as a defense with respect to the sport of downhill skiing,” Bell v. Dean, 5 A.3d 266, 268 (Pa. Super. 2010), in order to recognize that there is no duty to protect patrons from “obvious and avoidable risks.” Hughes v. Seven Spring Farm, Inc., 762 A.3d 339 , 342 (Pa. 2000).

2017Staub v. Toy Factory, Inc., 749 A.2d 522, 526 (Pa.Super. 2000) (internal citations and quotations omitted). -5- J-S06004-17 Thus, “[b]efore . . . assumption of the risk will be applied to prevent recovery, the evidence must establish conclusively that the plaintiff was subjectively aware of the risk.” Id.

2017Staub v. Toy Factory, Inc., 749 A.2d 522, 526 (Pa.Super. 2000) (internal citations and quotations omitted). -5- J-S06004-17 Thus, “[b]efore . . . assumption of the risk will be applied to prevent recovery, the evidence must establish conclusively that the plaintiff was subjectively aware of the risk.” Id.

2015See Schneider, 817 F.2d at 995-96 .

2010See, e.g., Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir.2008) (ski resort owed no duty under Pennsylvania Skier’s Responsibility Act to protect skier from lack of safety netting, improper course plotting and placement of course gates, or soft loose snow; “cognizable risks inherent in ski racing are legion”); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir. 1991) (under Pennsylvania law, ski resort had no duty of care to injured skier because inherent dangers of skiing “double black diamond” expert slope with rocks and trees were obvious); Smith v. Seven Springs Farm, Inc., 716 F.2

2010See, e.g., Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir.2008) (ski resort owed no duty under Pennsylvania Skier's Responsibility Act to protect skier from lack of safety netting, improper course plotting and placement of course gates, or soft loose snow; "cognizable risks inherent in ski racing are legion"); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir.1991) (under Pennsylvania law, ski resort had no duty of care to injured skier because inherent dangers of skiing "double black diamond" expert slope with rocks and trees were obvious); Smith v. Seven Springs Farm, Inc., 716 F.2d