Staub v. Toy Factory3/23/2000
itted an error of law in granting summary judgment in favor of the defendants on the doctrine of assumption of the risk by: reviewing the evidence in the light most favorable to the moving parties and resolving material issues of fact against the nonmoving parties; ruling that an employee is required to quit his employment when his safety is imperiled; and finding that appellant's assumption of the risk was voluntary under the circumstances. Appellant's brief at 4 (paraphrased).
Because we find that reasonable minds could differ as to whether appellant voluntarily assumed the risk of his injuries, and that the trial court erred when it concluded that an employee is required to quit his employment when his safety is imperiled, we reverse in part. We note first our standard and scope of review of an order granting summary judgment:
When presented with a challenge to an order granting summary judgment, we view the record in the light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996). Concerning questions of law, our scope of review is plenary. Id. We are not bound by a trial court's conclusions of law; instead, we may draw our own inferences and reach our own conclusions. Butterfield v. Giuntoli, 448 Pa.Super. 1, 670 A.2d 646 (1995), appeal denied, 546 Pa. 635, 683 A.2d 875 (1996). Borden, Inc. v. Advent Ink Co., 701 A.2d 255, 258 (Pa.Super. 1997), appeal denied, 555 Pa. 725, 725 A.2d 178 (1998).
"The moving party has the burden of proving the nonexistence of any genuine issue of material fact." Salazar v. Allstate Ins. Co., 549 Pa. 658, , 702 A.2d 1038, 1040 (1997). Our review of the record is plenary. Keselyak v. Reach All, 660 A.2d 1350, 1352 (Pa.Super. 1995).
6 Our supreme court 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. Howell v. Clyde, 533 Pa. 151, , 620 A.2d 1107, 1112- 1113 (1993) (plurality). See also Struble v. Valley Forge Military Academy, 665 A.2d 4, 8 (Pa.Super. 1995). In Hardy v. Southland Corp., 645 A.2d 839, 842 (Pa.Super. 1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994), this court concluded that until the supreme court adopts clearer standards, assumption of risk should be analyzed according to the lead (plurality) opinion in Howell. Under this "modified" form of the doctrine, assumption of risk is no longer an affirmative defense in most cases; rather, it is incorporated into an analysis of whether the defendant owes a duty to the plaintiff. Id.; Zinn v. Gichner Sys. Group, 880 F.Supp. 311, 318 (M.D.Pa. 1995). "Howell states that the trial court is obligated to review the factual scenario and determine whether ' nder those facts, . . . the defendant, as a matter of law, owed the plaintiff no duty of care.'" Hardy, 645 A.2d at 542, citing Howell, supra at , 620 A.2d at 1113.
7 This court has also held that "a plaintiff will not be precluded from recovering except where it is beyond question that he 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." Struble, 665 A.2d at 6, citing Long v. Norriton Hydraulics, Inc., 662 A.2d 1089 (1995), appeal denied, 544 Pa. 611, 674 A.2d 1074 (1996) (emphasis in Struble).
8 As the plurality observed in Howell, supra, "the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately an
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