assumption of risk doctrine in Pennsylvania

2021The court concluded "to the extent that an assumption of risk analysis is appropriate in any given case, it shall be applied by the court as a part of the duty analysis, and not as part of the case to be determined by the jury," Id. at 162 , 620 A.2d at 1112-13 .

2021The court concluded "to the extent that an assumption of risk analysis is appropriate in any given case, it shall be applied by the court as a part of the duty analysis, and not as part of the case to be determined by the jury," Id. at 162 , 620 A.2d at 1112-13 .

2000Accord Handschuh, 574 A.2d at 695 . ¶ 15 As a result of this difficulty, “this Court announced, even before comparative negligence, that it would take a ‘restrictive attitude’ toward the circumstances from which the assumption of risk defense might be implied.” Fish, 463 A.2d at 1049 , citing Fahringer v. Rinehimer, 283 Pa.Super. 93, 98-100 , 423 A.2d 731, 734 (1980): Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of risk.

2000Accord Handschuh, 574 A.2d at 695 . ¶ 15 As a result of this difficulty, “this Court announced, even before comparative negligence, that it would take a ‘restrictive attitude’ toward the circumstances from which the assumption of risk defense might be implied.” Fish, 463 A.2d at 1049 , citing Fahringer v. Rinehimer, 283 Pa.Super. 93, 98-100 , 423 A.2d 731, 734 (1980): Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of risk.

2000See also, Howell, supra at 162, 620 A.2d at 1112 (plurality) (policy underlying the Comparative Negligence Act is inimical to the policy underlying assumption of risk); id. at 1114 (Nix, J., dissenting) (same); Carrender v. Fitterer, 503 Pa. 178, 189-90 , 469 A.2d 120, 126 (1983) (Flaherty, J., concurring, joined by Larsen, J.) (retention of an assumption of risk analysis in cases governed by our comparative negligence statute would be inimical to the purposes of a comparative negligence system); Handschuh v. Albert Development, 393 Pa.Super. 444, 451-52 , 574 A.2d 693, 697 (1990) (Beck, J., c

2000See also, Howell, supra at 162, 620 A.2d at 1112 (plurality) (policy underlying the Comparative Negligence Act is inimical to the policy underlying assumption of risk); id. at 1114 (Nix, J., dissenting) (same); Carrender v. Fitterer, 503 Pa. 178, 189-90 , 469 A.2d 120, 126 (1983) (Flaherty, J., concurring, joined by Larsen, J.) (retention of an assumption of risk analysis in cases governed by our comparative negligence statute would be inimical to the purposes of a comparative negligence system); Handschuh v. Albert Development, 393 Pa.Super. 444, 451-52 , 574 A.2d 693, 697 (1990) (Beck, J., c

2000Accord Handschuh, 574 A.2d at 695 . ¶ 15 As a result of this difficulty, “this Court announced, even before comparative negligence, that it would take a ‘restrictive attitude’ toward the circumstances from which the assumption of risk defense might be implied.” Fish, 463 A.2d at 1049 , citing Fahringer v. Rinehimer, 283 Pa.Super. 93, 98-100 , 423 A.2d 731, 734 (1980): Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of risk.

1990Thus our court has taken a restrictive attitude toward the circumstances from which the assumption of risk defense might imply, id., and has concluded that endeavors that contain an element of voluntary risk-taking do not necessarily demonstrate a deliberate abandonment of the right to complain, but rather, are better judged by their reasonableness under the circumstances, thus, implicating comparative negligence principles.

2015See id. at 1109 ; Bullman v. Giuntoli, 761 A.2d 566, 570 (Pa. Super. 2000); Staub, 749 A.2d at 528 ; see also Zeldman v. Fisher, 980 A.2d 637, 640 (Pa. Super. 2009) (“We acknowledge the continuing vitality of the assumption of risk doctrine remains in doubt.”).

2005Bullman, supra at 570 . “[0]ne of the problems in an assumption of risk analysis is determining what the plaintiff knew and whether the plaintiffs course of action was voluntarily and deliberately taken.” Howell v. Clyde, 538 Pa. 151, 620 A.2d 1107, 1110 (1993).

2015See id. at 1109 ; Bullman v. Giuntoli, 761 A.2d 566, 570 (Pa. Super. 2000); Staub, 749 A.2d at 528 ; see also Zeldman v. Fisher, 980 A.2d 637, 640 (Pa. Super. 2009) (“We acknowledge the continuing vitality of the assumption of risk doctrine remains in doubt.”).

2011We acknowledge the continuing vitality of the assumption of risk doctrine remains in doubt. 4 Zeidman v. Fisher, 980 A.2d 637, 640 (Pa.Super.2009); see also Montagazzi, 994 A.2d at 635 (recognizing that the assumption of the risk operates merely as a corollary of the absence of a duty).

1993Justice Flaherty reasoned: “There is a serious question as to whether the doctrine of assumption of risk ... should be permitted longer to survive.... [W]e think it should not.” Id. at 607 , 437 A.2d at 1206 . “[T]he complexity of the doctrine may not be worth the difficulty it causes, for assumption of risk is duplicative of the more widely understood concepts of scope of duty and contributory negligence.” Id. at 612 , 437 A.2d at 1209 .

1993Justice Flaherty reasoned: “There is a serious question as to whether the doctrine of assumption of risk ... should be permitted longer to survive.... [W]e think it should not.” Id. at 607 , 437 A.2d at 1206 . “[T]he complexity of the doctrine may not be worth the difficulty it causes, for assumption of risk is duplicative of the more widely understood concepts of scope of duty and contributory negligence.” Id. at 612 , 437 A.2d at 1209 .

2020While assumption of the risk has not been formally abolished by our Supreme Court, this Court has -4- J-A03021-20 acknowledged that it has fallen into disfavor, “as evidenced by our [S]upreme [C]ourt’s two . . . attempts to abolish or limit it.” Staub v. Toy Factory, Inc., 749 A.2d 522, 528 (Pa. Super. 2000) (en banc) (citing Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) (plurality), and Rutter v. Northeastern Beaver County School District, 437 A.2d 1198 (Pa. 1981) (plurality)).

2015See id. at 1109 ; Bullman v. Giuntoli, 761 A.2d 566, 570 (Pa. Super. 2000); Staub, 749 A.2d at 528 ; see also Zeldman v. Fisher, 980 A.2d 637, 640 (Pa. Super. 2009) (“We acknowledge the continuing vitality of the assumption of risk doctrine remains in doubt.”).

2009See 4 West’s Pa. Prac., Torts: Law and Advocacy § 16.2 and Kaplan v. Exxon Corp., 126 F.3d 221 (3d Cir.1997) (each discussing the opinions in Rutter v. Northeastern Beaver Cty., 496 Pa. 590 , 437 A.2d 1198 (1981), Carrender v. Fitterer, 503 Pa. 178 , 469 A.2d 120 (1983), Howell v. Clyde, 533 Pa. 151 , 620 A.2d 1107 (1993), and Hughes v. Seven Springs Farm, Inc., 563 Pa. 501 , 762 A.2d 339 (2000) wherein the viability of the doctrine has been debated in an arena now occupied by comparative negligence).

2009See 4 West’s Pa. Prac., Torts: Law and Advocacy § 16.2 and Kaplan v. Exxon Corp., 126 F.3d 221 (3d Cir.1997) (each discussing the opinions in Rutter v. Northeastern Beaver Cty., 496 Pa. 590 , 437 A.2d 1198 (1981), Carrender v. Fitterer, 503 Pa. 178 , 469 A.2d 120 (1983), Howell v. Clyde, 533 Pa. 151 , 620 A.2d 1107 (1993), and Hughes v. Seven Springs Farm, Inc., 563 Pa. 501 , 762 A.2d 339 (2000) wherein the viability of the doctrine has been debated in an arena now occupied by comparative negligence).

2000Nevertheless, until our supreme court or our legislature abrogates assumption of risk in negligence cases, the doctrine remains viable in Pennsylvania after Howell, supra. Zinn, 880 F.Supp. at 317 . ¶ 13 The Restatement (Second) of Torts sets forth the doctrine of assumption of risk at §§ 496A-496G. 9 As previ *529 ously noted, assumption of risk is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa.Super. 162, 166-68 , 685 A.2d 129

2000Nevertheless, until our supreme court or our legislature abrogates assumption of risk in negligence cases, the doctrine remains viable in Pennsylvania after Howell, supra. Zinn, 880 F.Supp. at 317 . ¶ 13 The Restatement (Second) of Torts sets forth the doctrine of assumption of risk at §§ 496A-496G. 9 As previ *529 ously noted, assumption of risk is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa.Super. 162, 166-68 , 685 A.2d 129

2024See - 60 - J-A22025-23 J-A22026-23 Pittsburgh Steel, 171 A.2d at 189 (stating, there can be no presumption that the parties intended a fee-shifting provision absent clearly expressed or unequivocal language so indicating); see also Unit Vending Corp. v. Lacas, 190 A.2d 298, 300 (Pa. 1963) (stating, “in determining the intention of the parties, the writing must be construed most strongly against the party drafting it and the interpretation which makes a rational and probable agreement must be preferred”); McMullen, 985 A.2d at 771 (finding, as way of example, that a clear agreement for a fee-sh

2024See - 60 - J-A22025-23 J-A22026-23 Pittsburgh Steel, 171 A.2d at 189 (stating, there can be no presumption that the parties intended a fee-shifting provision absent clearly expressed or unequivocal language so indicating); see also Unit Vending Corp. v. Lacas, 190 A.2d 298, 300 (Pa. 1963) (stating, “in determining the intention of the parties, the writing must be construed most strongly against the party drafting it and the interpretation which makes a rational and probable agreement must be preferred”); McMullen, 985 A.2d at 771 (finding, as way of example, that a clear agreement for a fee-sh

2022See generally Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 , 945 (Pa. 2019); see also Carrender v. Fitterer, 469 A.2d 120 , 125 (Pa. 1983) - 13 - J-A16038-22 (equating a plaintiff’s assumption of the risk with a defendant’s lack of a duty to protect against such risks).

2022See generally Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941, 945 (Pa. 2019); see also Carrender v. Fitterer, 469 A.2d 120, 125 (Pa. 1983) - 13 - J-A16038-22 (equating a plaintiff’s assumption of the risk with a defendant’s lack of a duty to protect against such risks).

2021Bovle_v, independent Lift Truck, Inc., 6 A.3d 492, 496 (Pa, 2010). (“[W]here a jury ...finds no negligence on the part of a defendant, purported error regarding questions of comparative and/or contributory negligence are non- prejudicial and does not serve as a basis for the award of a new trial.”).

2011We acknowledge the continuing vitality of the assumption of risk doctrine remains in doubt. 4 Zeidman v. Fisher, 980 A.2d 637, 640 (Pa.Super.2009); see also Montagazzi, 994 A.2d at 635 (recognizing that the assumption of the risk operates merely as a corollary of the absence of a duty).

2011Regardless, “the question of assumption of the risk typically remains for the jury.” Montagazzi, 994 A.2d at 636 .

2009Boynton v. Ryan, 257 F.2d 70, 72 (3d Cir.1958). ¶ 18 In conclusion, whether we apply the assumption of risk or “no-duty” rules, Zeidman has presented evidence vitiating the predicate of either rule that the risk of injury was one inherent or “common, frequent and expected” in the game.

2004See also, Romeo v. Pittsburgh Associates, 787 A.2d at 1031 (“With a few minor exceptions, the assumption of risk doctrine has since been abolished in Pennsylvania, and... the Pennsylvania Supreme Court [has] recast the assumption of risk analysis ... in terms of the ‘no-duty’ rule.”).

2004See also, Romeo v. Pittsburgh Associates, 787 A.2d at 1031 (“With a few minor exceptions, the assumption of risk doctrine has since been abolished in Pennsylvania, and... the Pennsylvania Supreme Court [has] recast the assumption of risk analysis ... in terms of the ‘no-duty’ rule.”).

2001Id. at 492. ¶ 12 With a few minor exceptions, the assumption of risk doctrine has since been abolished in Pennsylvania, and as previously discussed, the Pennsylvania Supreme Court recast the assumption of risk analysis of Schentzel and Iervolino in terms of the “no-duty” rule.

2001Id. at 492. ¶ 12 With a few minor exceptions, the assumption of risk doctrine has since been abolished in Pennsylvania, and as previously discussed, the Pennsylvania Supreme Court recast the assumption of risk analysis of Schentzel and Iervolino in terms of the “no-duty” rule.

2000See also, Howell, supra at 162, 620 A.2d at 1112 (plurality) (policy underlying the Comparative Negligence Act is inimical to the policy underlying assumption of risk); id. at 1114 (Nix, J., dissenting) (same); Carrender v. Fitterer, 503 Pa. 178, 189-90 , 469 A.2d 120, 126 (1983) (Flaherty, J., concurring, joined by Larsen, J.) (retention of an assumption of risk analysis in cases governed by our comparative negligence statute would be inimical to the purposes of a comparative negligence system); Handschuh v. Albert Development, 393 Pa.Super. 444, 451-52 , 574 A.2d 693, 697 (1990) (Beck, J., c

2000See also, Howell, supra at 162, 620 A.2d at 1112 (plurality) (policy underlying the Comparative Negligence Act is inimical to the policy underlying assumption of risk); id. at 1114 (Nix, J., dissenting) (same); Carrender v. Fitterer, 503 Pa. 178, 189-90 , 469 A.2d 120, 126 (1983) (Flaherty, J., concurring, joined by Larsen, J.) (retention of an assumption of risk analysis in cases governed by our comparative negligence statute would be inimical to the purposes of a comparative negligence system); Handschuh v. Albert Development, 393 Pa.Super. 444, 451-52 , 574 A.2d 693, 697 (1990) (Beck, J., c