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VARGUS v. PITMAN MFG. CO.

March 11, 1981

Wendy VARGUS, Ind. and as Administratrix of the Estate of Jesse H. Vargus, Dec'd
v.
PITMAN MANUFACTURING COMPANY v. HENKELS & McCOY, INC.



The opinion of the court was delivered by: WEINER

MEMORANDUM OPINION AND ORDER

This action was brought by the plaintiff seeking damages under the Pennsylvania Wrongful Death and Survival Statutes. Plaintiff's husband was electrocuted in Liberia while operating a hydra-lift truck-mounted crane to pick up a partially empty cable reel, when the boom of the crane came in contact with an overhead 12,000 volt high tension line, or came close enough to cause an arcing of current from the line to the boom. Trial was held before this court, sitting with a jury. The court provided the jury with special verdict interrogatories, and the jury returned a verdict finding that defendant Pitman Manufacturing Company was negligent, that the negligence was a proximate cause of the accident, and that the plaintiff's deceased husband had assumed the risk of harm, by voluntarily exposing himself to an obvious or known danger, and, under the court's direction, ended its inquiry at that point. Presently before the court is the motion of the plaintiff for a new trial. For the reasons which follow, the motion is denied.

  I.

 Plaintiff claims that the court erred in placing the special jury interrogatory as to plaintiff's assumption of risk before the interrogatory concerning the issue of wanton and willful misconduct of defendant Pitman Manufacturing Company. Plaintiff argues that the jury was thereby precluded from considering that wanton misconduct overrides the defense of assumption of risk. Because under current Pennsylvania law assumption of risk is a complete bar to recovery even in an action for reckless, wanton and willful misconduct, we must reject this argument.

 In the past, the distinction between assumption of the risk and contributory negligence has often been blurred because of the lack of need to distinguish between the two defenses so long as either remained a complete bar to a plaintiff's recovery. However, as a result of statutory and case law development in Pennsylvania, the distinction has acquired renewed significance. See, Timby and Plevyak, The Effect of Pennsylvania's Comparative Negligence Statute on Traditional Tort Concepts and Doctrines, 24 Villanova L.Rev. 453 (1979).

 In Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479 (3d Cir. 1965), cert. denied, 382 U.S. 987, 86 S. Ct. 549, 15 L. Ed. 2d 475 (1966), the Third Circuit divided Pennsylvania assumption of risk cases into two categories. Assumption of risk in its primary and strict sense was defined as a "voluntary exposure to an obvious known danger which negates liability." Id. at 484. Assumption of risk in its secondary sense was defined as ordinarily synonymous with contributory negligence and involv(ing) a failure to exercise reasonable care for one's own safety." Id. While assumption of risk in its secondary sense has been merged into the definition of contributory negligence, see, Stephenson v. College Misericordia, 376 F. Supp. 1324, 1327 (M.D.Pa.1974), and Joyce v. Quinn, 204 Pa.Super. 580, 205 A.2d 611 (1964), assumption of risk in its primary and strict sense has survived as a separate and distinct defense. See, Henrich v. Cutler Hammer Co., 460 F.2d 1325 (3d Cir. 1972); Elder v. Crawley Book Machinery Co., 441 F.2d 771 (3d Cir. 1971; McCown v. International Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975). It is that primary and strict sense of assumption of risk with which we are now concerned.

 The policy reasons for a distinction between assumption of risk and contributory negligence are clear. The defense of assumption of risk (in its primary and strict sense) is based upon a policy of "refus(ing) recovery to persons who consciously expose themselves to known dangers ... (and is) deemed stronger than the one, reflected in the normal law of contributory negligence, which denies recovery to individuals whose conduct is merely lacking in due care under the circumstances." McCown v. International Harvester Co., 463 Pa. at 18-19, 342 A.2d at 383-84 (Pomeroy, J., concurring). Recovery is barred because the plaintiff is assumed to have relieved the defendant of any duty to protect him. Pritchard v. Liggett & Myers, 350 F.2d at 484.

 Stated in another way, by Dean Prosser, "assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of a reasonable man." W. Prosser, Law of Torts, § 68 at 441 (4th ed. 1971). For further discussion see the scholarly discourse on the doctrines of contributory negligence, assumption of risk, and comparative negligence, and their application to the law of the Virgin Islands, in Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir. 1979), in which Judge Hunter, writing for a unanimous panel, concluded that the defense of assumption of risk did survive adoption of a comparative negligence act.

 In this case, assumption of risk is asserted as a defense to an action for reckless, wanton and willful misconduct. The issue raised by plaintiff is whether the doctrine of assumption of risk continues to survive in Pennsylvania as a bar to recovery, or, like contributory negligence, has it been merged into the Comparative Negligence Act, thus allowing for recovery, according to the terms of the statute, despite a finding of assumption of risk. We conclude that under current Pennsylvania law, assumption of risk is still a valid defense to a claim of reckless, wanton and willful misconduct.

 The Comparative Negligence Act provides as follows:

 
In all actions brought to recover damages for negligence resulting in death or injury to a person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

 42 Pa.Cons.Stat.Ann. § 7102(a) (1978).

 No Pennsylvania case which we have found has as yet expounded upon the effect of the Comparative Negligence Act upon the doctrine of assumption of risk or upon the doctrine of reckless, wanton and willful misconduct. Within the context of a § 402A *fn1" products liability action, though, the Pennsylvania Supreme Court has abolished the defense of contributory negligence, McCown v. International Harvester Co., 463 Pa. 13, 342 A.2d 381 (1975), despite its retention of the defense of assumption of risk, Ferraro v. Ford Motor Co., 423 Pa. 324, 223 A.2d 746 (1966). Moreover, even under the Comparative ...


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