Staub v. Toy Factory3/23/2000
d with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury." Howell, supra at , 620 A.2d at 1113 (plurality). As the Howell court continued, "If, on the other hand, the court is not able to make this determination and a non-suit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory." Id.
The Howell court noted that " nder this approach . . . assumption of the risk would no longer be part of the jury's deliberations or instructions." Id.
9 The case before us involves defendants' motions for summary judgment, however, not a motion for compulsory non-suit as in Howell. Where assumption of risk is asserted as an affirmative defense, a defendant is required to establish that there is no genuine issue of material fact that plaintiff assumed the risk. Under Howell, supra, however, if appellant assumed the risk as a matter of law, then Carrara and Grimm owed no duty to appellant, and appellant's negligence action should not proceed to a jury because he failed to establish his prima facie case of negligence. In this case, the trial court indicated that summary judgment would be appropriate whether assumption of the risk were treated as part of a "no-duty" analysis or as an affirmative defense. (Trial court opinion, 11/5/97 at 15 n.9.) Like the trial court, we will focus on the merits of the doctrine itself.
'Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the beginning of this period [the industrial revolution] to insulate the employer as much as possible from bearing the "human overhead" which is an inevitable part of the cost - to someone - of the doing of industrialized business.' Rutter v. Northeastern Beaver County School District, 496 Pa. 590,437 A.2d 1198, 1206 (1981) (plurality), quoting Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58-59 (1943). The doctrine had its origins in the individualism of the common law. While the common law protected individuals from external violence and coercion, it did not protect them from the consequences of their own behavior. Rutter, supra at , 437 A.2d at 1206, citing Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14 (1906). As a result, the doctrine has historically operated as a complete bar to a plaintiff's recovery.
10 The doctrine has, however, fallen into disfavor, as evidenced by our supreme court's two recent attempts to abolish or limit it. See Howell, supra and Rutter, supra. In fact, the prominent scholars drafting the Second Restatement of Torts hotly debated whether to include the doctrine in the Restatement at all. Jean W. Sexton, Tort Law - Assumption of Risk and Pennsylvania's Comparative Negligence Statute - Howell v. Clyde, 620 A.2d 1107 (Pa. 1993), 67 Temple L.Rev. 903, 919 n.116 (1994), quoting Fleming James, Jr., Assumption of Risk: Unhappy Reincarnation, 78 Yale L.J. 185, 188 (1968).
11 As Ms. Sexton notes, this debate occurred even before numerous jurisdictions including Pennsylvania adopted comparative negligence statutes, which apportion loss between a negligent plaintiff and a negligent defendant. Sexton, supra at 909; 919 n.116. "Courts and scholars differ as to whether assumption of risk can exist in a comparative negligence jurisdiction." Id. at 909. See also, Howell, supra at , 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, , 469 A.2d 120, 126 (1983) (Flaherty, J., concurring, joined by Larsen, J.) (retention of an ass
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