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Staub v. Toy Factory3/23/2000
rivilege to deprive him. Restatement (Second) of Torts § 496E cmt. c (1965). "The existence of an alternative course of conduct which would avert the harm, or protect the right or privilege, does not make the plaintiff's choice voluntary, if the alternative is one which he can not reasonably be required to accept." Id., cited with approval in Rutter, supra at , 437 A.2d at 1205 (plurality). See also Jara, 718 A.2d at 795. We therefore do not agree with appellees that the Restatement requires a plaintiff in an employment context to show economic coercion as a basis for refuting voluntariness.
23 In this case, the trial court found that material issues of fact remained to be resolved before it could determine whether appellees owed appellant a duty of care under the Restatement. See discussion infra. Because the court was unable to resolve the duty issue in favor of appellees, it is for the jury to decide whether appellant's conduct in performing his job despite his awareness of the roof openings was reasonable or unreasonable. In making its determination, a jury should consider all the facts and circumstances of the case, including appellant's alternatives, if any.
24 As a result, we reject outright the trial court's conclusion that appellant was required to quit his job rather than to proceed in the face of an obvious danger. (Trial court opinion, 11/5/97 at 13, citing Fitzgerald v. Pennsylvania R.R., 184 A. 299 (Pa.Super. 1936).) Instead, we find that this premise has no place in the modern law of Pennsylvania in view of workers' compensation and state and federal safety regulations requiring safe work places for workers. See Restatement (Second) of Torts § 496F cmt. d (1965) ("A factory act, requiring precautions to insure safe working conditions, may be found to be intended to protect workmen against the economic pressure which might force them into unsafe employment; and if so . . . the defense [of assumption of risk] would not be permitted "). See also Keeton, supra, § 68 at 491-492 (only vestiges of old American law, refusing to recognize the economic pressure on workers, remains in fragments but has been largely superseded by workers' compensation acts or other statutes or decisions). Comparative negligence would, however, still be available as a defense in such situations; therefore workers cannot abdicate responsibility for their own safety.
25 We therefore conclude that in the employment context, reasonable minds could differ as to whether a plaintiff/employee "deliberately and 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. As a result, we find that the trial court in this case erred in not submitting the case to the jury on a comparative negligence theory. Id.
26 Carrara also argues, however, that even if assumption of risk does not entitle Carrara and Grimm to summary judgment, we should affirm the trial court's entry of summary judgment because neither Carrara nor Grimm owed appellant a duty of care. (Carrara's brief at 40, citing Fleetway Leasing Co. v. Wright, 697 A.2d 1000, 1002 n.2 (Pa.Super. 1997) (this court may affirm a decision of the trial court for reasons other than those relied on by the trial court as long as the result is correct).) According to Carrara, relinquishing control of the roof deck to Barnhart absolved both Grimm and Carrara of any duty to Barnhart's employees for obvious and known dangers. (Carrara's brief at 39.)
27 We decline to address this argument as it pertains to Grimm because Grimm has not argued the issue on appeal to this court. Instead, on appeal, Grimm merely joined in and adopted any b
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