Staub v. Toy Factory3/23/2000
umption 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, 574 A.2d 693, 697 (Pa.Super. 1990) (Beck, J., concurring) (with the enactment of the Comparative Negligence Act, the legislature intended to abolish assumption of risk in cases where plaintiff's conduct can be characterized as negligent). See generally 57A Am.Jur.2d Negligence § 806.
12 Additionally, both opponents and proponents of the doctrine have acknowledged the difficulty of its application, especially in a negligence context. See Howell, supra at , 620 A.2d at 1108, 1110 (the complexity of the analysis in assumption of risk cases makes it extremely difficult to instruct juries; analysis also overlaps with duty and with ordinary negligence law), citing Rutter, supra; Carrender, supra; Handschuh, 574 A.2d at 697 (Beck, J., concurring); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 at 480 (5 th ed. 1984) (assumption of risk has been a subject of much controversy, and has been surrounded by much confusion). Nevertheless, 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. As previously 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., 685 A.2d 129, 131 (Pa.Super. 1996), appeal denied, 548 Pa. 653, 698 A.2d 63 (1997), citing Struble, supra and Long, supra. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Handschuh, 574 A.2d at 695. Mere contributory negligence does not establish assumption of the risk. Fish v. Gosnell, 463 A.2d 1042, 1049 (Pa.Super. 1983). Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff's injuries. Id.; Struble, 665 A.2d at 6. In order to prevail on assumption of risk, the defendant must establish both the 'awareness of the risk' prong and the 'voluntariness' prong. Jara v. Rexworks, Inc., 718 A.2d 788, 795 (Pa.Super. 1998), appeal denied, 558 Pa. 620, 737 A.2d 743 (1999); Barrett, 685 A.2d at 131.
14 As the Fish court opined, in implied assumption of risk cases, " particularly difficult element of the defense is in defining 'circumstances that manifest a willingness to accept' the risk." Fish, 463 A.2d at 1048, quoting Restatement (Second) of Torts § 496C. "To imply such waiver from conduct and circumstances alone can be a source of 'misapprehension and confusion' and 'frequent misapplication.'" Fish, 463 A.2d at 1049, quoting W. Prosser, Law of Torts, at 445 (4 th ed. 1971). Accord 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, 423 A.2d 731, 734 (Pa.Super. 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. Conduct close in time and place to the accident, on the other hand, while it may contain an element of voluntary risk-taking, does not demonstrate a deliberate aban
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