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MARY CATHERINE OSWALD v. ARTHUR STEWART AND ARLENE STEWART V. RAYMOND C. FLORENCE T/D/B/A FLORENCE REAL ESTATE (05/14/82)

filed: May 14, 1982.

MARY CATHERINE OSWALD, APPELLANT,
v.
ARTHUR STEWART AND ARLENE STEWART V. RAYMOND C. FLORENCE T/D/B/A FLORENCE REAL ESTATE



No. 1071 April Term, 1979, Appeal from the Judgment of the Court of Common Pleas, Civil Division of Allegheny County, at No. GD 75 - 25036.

COUNSEL

Arnold M. Friedman, Pittsburgh, for appellant.

Warren D. Ferry, Pittsburgh, for appellees.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 301 Pa. Super. Page 464]

This is an appeal from an order denying a motion for new trial. Appellant seeks to recover for personal injuries incurred in a fall through a basement door on property owned by appellee. She argues, among other matters, that the lower court erred in charging the jury on the "choice of paths" doctrine. We agree, and therefore reverse and remand for new trial.

Appellant is a real estate agent, and appellee's property was the first she had ever listed for sale. On January 7,

[ 301 Pa. Super. Page 4651974]

, appellant visited appellee's property for the second time. Another real estate agent, Richard Fassinger, who was her senior and had been to the property several times before, was with her. Since they could not enter the property through the front door, appellant and Mr. Fassinger walked around the side of the house to the back porch. There they were confronted by two gates, side-by-side, which barred their access to the back porch and the back door.

The gate to the left was an accordian gate, about twenty inches high, which was opened and closed by means of a mechanical latch. The gate to the right was a chicken wire gate, about three feet high, which was fastened in two places by wiring. Mr. Fassinger opened the accordian gate and proceeded through it, stepping over a wooden basement door that was flush with the cement floor of the back porch area. Appellant followed him through the gate, but stepped on the basement door. The basement door gave way, and appellant tumbled through it for about six feet into the basement below.

The lower court charged the jury, in pertinent part, as follows:

Now in this case one of the points that counsel has stressed and you have listened to this argument concerns what we call the alternate safe course rule. I am reading now to you from Feldman's book, Pennsylvania Trial Guide, and in section 30.19 he lucidly states, "Where a person has a choice of two ways, one of which is perfectly safe and the other of which is subject to risks and dangers, and the person voluntarily chooses the course of risks and dangers, he is guilty of contributory negligence and may not recover." However, there is no law which requires anybody to follow a particular course, and even if an alternative course could be determined to be hypothetically safer that the one still -- but the one chosen is still free of hazard, he is not contributorily negligent merely because he could have taken an alternative route. Basically he concludes the question is whether the path chosen was

[ 301 Pa. Super. Page 466]

    an obviously dangerous one and whether a reasonably prudent person would not have followed the path chosen by the plaintiff. So that if you find that the one path leading from the alleyway between the two houses to the back yard, shall we say, or to the area near that stairway which connected the upper porch with the level of the land in the back yard, if you find that the one course of travel involved an obvious hazard, that is, through what has been referred to here as the accordian gate connecting the rear of the house with the post supporting the porch in the rear, if you find that that was hazardous and that the other way was alternatively available, and that has been called the chicken wire gate, fence, if you find that that was a known danger and that an alternative course should have been taken, you could determine that the plaintiff was contributorily negligent. However, if you find that was not an obvious danger, the door we are talking about, and was not a known hazard, then, of course, the rule wouldn't apply.

N.T. 408a-410a.

Appellant argues that this charge was error because "no evidence was presented in this case that the door constituted an obvious danger which the appellant was aware of or should have been made aware of." Appellant's Brief at 10. We agree.

At the outset, it is important to point out that the choice of ways -- or choice of paths -- doctrine has a narrow scope of application. Many cases refuse to apply the doctrine, and suggest that it is to be applied in only the clearest case. See, e.g., Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971); Quinn v. Kumar, 437 Pa. 268, 263 A.2d 458 (1970); Hopton v. Donora Borough, 415 Pa. 173, 202 A.2d 814 (1964); Cooper v. Heintz Manufacturing Co., 385 Pa. 296, 122 A.2d 699 (1956); Downing v. Shaffer, 246 Pa. Superior Ct. 512, 371 A.2d 953 (1977); Eller v. Work, 233 Pa. Superior Ct. 186, 336 A.2d 645 (1975) (suggesting doctrine not applicable without reaching question); Miller v. Miller, 224 Pa. Superior Ct. 569, 308 A.2d 115 (1973); Garvin v. Pittsburgh, 161 Pa. Superior Ct. 140,

[ 301 Pa. Super. Page 46753]

A.2d 906 (1947); Graham v. Reynoldsville Borough, 132 Pa. Superior Ct. 296, 200 A. 681 (1938). Indeed, we have been able to find only two modern cases applying the choice of paths doctrine, and they demonstrate how obvious must be the risk of the path chosen. In DeFonde v. Keystone Valley Coal Co., 386 Pa. 433, 126 A.2d 439 (1956), the decedent could have walked around the front end of a bulldozer to reach his truck but instead, he "darted forward between the rear of the [mechanical] shovel and the bulldozer and was there caught and crushed between the two vehicles due to the recoil of the shovel over the three or four foot gap which separated it from the bulldozer." Id., 386 Pa. 436, 126 A.2d at 440. The Supreme Court held that the decedent's choice to "duck", id., between the two machines rather than walk around them was an "obviously dangerous one." Id., 386 Pa. 434, 126 A.2d at 440. Similarly, in Tharp v. Pennsylvania Railroad Co., 332 Pa. 233, 2 A.2d 695 (1938), the decedent did not use a bridge over the railroad tracks but chose to cross over a set of four railroad tracks, and was struck by an oncoming train in the second track.

In contrast to both DeFonde and Tharp, the danger of the path appellant chose -- through the accordian gate and over the cellar door rather than through the chicken wire gate -- was not at all obvious. Appellant testified that the cellar door "seemed to be okay to walk on." N.T. 36a. Mr. Fassinger, the realtor who accompanied appellant in her visit to the house, and who proceeded through the accordian gate before appellant, testified that the door "did not look dangerous," and that he knew it was dangerous, and therefore stepped over it, only because he had examined the door on earlier visits to the house:

Q. Describe how the door appeared as it was before you stepped across.

A. Well, the door did not look dangerous.

Q. Tell us what you mean about how it looked first.

A. There was a tongue-grooved very old door, say it would be close to forty years old.

[ 301 Pa. Super. Page 468]

Q. Did it look or did it not look dangerous?

A. To someone walking across the first time, it would not appear dangerous.

MR. FERRY:

Object to that since he has been ...


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