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HomeMy WebLinkAbout98-1714 civilANNA MARIE SPENCE, :IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA v. :NO. 98-1741 :CIVIL ACTION-LAW TIMOTHY SPENCE and, :JURY TRIAL DEMANDED JILL SPENCE Defendants IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ORDER OF THE COURT AND NOW, January 18, 2002, upon careful consideration of Defendants' Motion For Summary Judgment, it is hereby ordered that the Motion is granted. By the Court, Duane S. Barrick, Esquire NICHOLAS & FOREMAN 4409 North Front Street Harrisburg, PA 17110-1709 Attorney for Plaintiff Amy L. Coryer, Esquire POST & SCHELL, P.C. 240 Grandview Avenue Camp Hill, PA 17011 Attorney for Defendants ANNA MARIE SPENCE 'IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 98-1741 TIMOTHY SPENCE and : CIVIL ACTION- LAW JILL SPENCE : JURY TRIAL DEMANDED Defendants IN RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OPINION HOFFER, P.J.: On or about November 20, 1998, plaintiff, Anna Marie Spence, filed a negligence action against defendants Timothy Spence and Jill Spence, arising out of an accident that occurred on March 31, 1996. The plaintiff avers in the complaint that she fell from a bridge located on defendants' property at 39 Channel Drive, Carlisle, Cumberland County, resulting in personal injuries. The plaintiff complained that the absence of hand railings on the down ramp of the bridge was the proximate cause of her fall, and that the defendants were negligent for failing to replace the handrails or warn the plaintiff that the bridge without handrails was in a dangerous and hazardous condition. : In their motion for Summary Judgment, the defendants claim that under the doctrine of assumption of risk, they are absolved from any duty to protect the plaintiff. The defendants also assert that plaintiff's negligence exceeds any alleged negligence on the part of the defendants, thus barring plaintiff from recovery. SUMMARY JUDGMENT The standard for summary judgment in Pennsylvania is well established. Summary judgment is granted properly when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Pa. R.C.P. 1035(b). Summary judgment is appropriate only in those cases which are clear and free from doubt. McConnau.qhey v. Bldq. Components, Inc., 536 Pa. 95, 98, 637 A.2d 1331, 1333 (1994) citing Musser v. Vilsmeir Auction Co. Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). The record must be viewed in the light most favorable to the non- moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Id.._~. citing Marks v. Tasman, 527 Pa. 132, 135,589 A.2d 205,206 (1991). ASSUMPTION OF RISK There is no question that the doctrine of assumption of risk is often misapplied and problematic in many judicial proceedings. The doctrine as a separate affirmative defense has only narrowly survived abolishment by our Supreme Court. Bullman v. Giuntoli, 761 A.2d 566 (Pa. Super 2000) citing Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993); Rutter v. N.E. Beaver County Sch. Dist., 496 Pa. 590, 437 A.2d 1198 (1981). Thus, as the doctrine has not been formally abolished by the Supreme Court, it still has some life in appropriate circumstances. 2 Elements of the defense for assumption of risk are that the plaintiff fully understands the specific risk and voluntarily chooses to encounter it. Fish v. Gosnell, 316 Pa. Super 565, 574, 463 A.2d 1042,1047 (1983). Stated another way, an apprehension of a danger, followed by a conscious decision to tempt fate and accept what fate may bring, which then occasions injury, is assumption of the risk, and a complete bar to recovery. Bullman, 761 A.2d at 570. In Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693 (1990), the court eloquently stated: The essence of assumption of the risk defense is not an evaluation of fault or negligence in encountering a danger but an acknowledgement that the plaintiff changed his position. Before suffering injury "he intelligently acquiesced in a known danger and abandoned his right to complain, but afterwards seeks to assert the claim he had waived." Id. quoting Fish, 463 A.2d at 1049. Similarly stated, 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 injury. Struble v. Valley Forge .Military Acad., 445 Pa. Super. 224, 229, 665 A.2d 4, 6 (1995) citing Long v. Norriton Hydraulics, Inc., 443 Pa. Super. 532, 662 A.2d 1089 (1995). Based upon the above principle, a plaintiff will not be prevented recovery, unless the danger was known and fully appreciated. Bullman, 761 A.2d at 570. To grant summary judgment on the basis of assumption of risk, it first must be concluded, as a matter of law, that the party consciously appreciated the risk 3 that attended a certain endeavor, assumed the risk of injury by engaging in the endeavor despite the appreciation of the risk involved, and the injury sustained was, in fact, the same risk of injury that was appreciated and assumed. Bullman, 761 A.2d at 570. With the forgoing as a backdrop, the Court undertakes an analysis of the facts of the present case. The bridge where the plaintiff fell is a cement bridge that is twenty-five (25) to thirty. (30) feet long and five (5) to six (6) feet wide. It has an incline as one enters the bridge, a portion that runs parallel to the ground, and then a decline. At the time of the accident, there were iron handrails along the sides of the bridge, except in the area of the decline. The plaintiff walked onto the bridge, traversed the incline and the straight portion of the bridge, and then stopped at the portion of the bride where the decline starts in order to feed geese and ducks. She threw some food out to the geese and ducks and then turned, at which time she fell off the bridge. There is no doubt that prior to falling off the bridge, the plaintiff had subjective knowledge and conscious awareness of the risk of faflling off the bridge, yet voluntarily chose to face the risk. The plaintiff testified in her deposition that she thought the bridge's missing handrails "were dangerous because maybe someone might fall off the bridge.''~ The plaintiff also acknowledged that she had conversations with one of the defendants regarding the dangerous condition of the missing handrails. The danger was open and obvious to the plaintiff, as illustrated 4 by her deposition that she was well aware of the peril of crossing the bridge. As such, it is clear that the plaintiff fully understood the specific risk and consciously appreciated the possibility of falling off the bridge. In addition to being fully aware of the possibility of falling off the bridge, the plaintiff voluntarily chose to traverse the bridge. The plaintiff testified in her deposition that it was not absolutely necessary for her to cross the bridge to exit the property.2 Additionally, the. plaintiff voluntarily traversed the bridge to walk her dog and feed the geese and ducks. Therefore, not only did the plaintiff consciously appreciate the specific risk that she may naturally lose her balance while crossing the bridge, but also she also voluntarily chose to traverse the bridge. The facts of record indicate that the plaintiff "assumed the risk" of suffering the injury she actually sustained. The plaintiff's deposition illustrated that she thought someone might fall off the bridge. Thus, it is clear that the plaintiff appreciated the possibility of falling off the bridge and sustaining an injury as a result of a fall. CONCLUSION , The plaintiff in this case has not and cannot adduce any evidence to establish liability on the part of the defendants. There is no genuine issue of material fact that the defendants had any duty to protect the plaintiff, as reasonable minds could not differ in concluding that the plaintiff voluntarily and with the ~ See Copy of Deposition transcript of Plaintiff, attatcht to Defendants' Motion as Exhibit "D" page 16. 2 See Id.__:. at 16-17. 5 subjective awareness of the specific risk involved, proceeded in the face of a known risk. As such, defendants' motion for summary judgment is granted and the Court need not address any other issues raised by plaintiff or defendants. 6