No. 36 M.D. Appeal Docket, 1983, Appeal from the Order of the Superior Court at No. 154 Harrisburg, 1980, entered February 11, 1983, affirming the Order of the Court of Common Pleas of Dauphin County, Civil Division, at No. 1509-5 1979, dated July 29, 1980, Pa. Super. ,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Flaherty, J., joins in this opinion and files a concurring opinion in which Larsen, J., joins.
This appeal arises from an action in trespass brought by appellee Ruth Carrender in which appellee sought to recover for injuries sustained when she slipped on a patch of ice in a parking lot owned by appellants Paul and Linda Fitterer and used by appellants to provide parking to patients attending appellants' chiropractic clinic.*fn1 A jury found appellants to have been sixty-five percent negligent and appellee to have been thirty-five percent negligent, and awarded appellee damages of $70,000, an amount which was molded by the trial judge to reflect the parties' percentages of negligence. The judgment entered was affirmed by a panel of the Superior Court, and this Court granted allowance of appeal.
We conclude that the evidence presented by appellee was insufficient to support a verdict in her favor. Accordingly, we reverse the order of the Superior Court and remand the record to the Court of Common Pleas of Dauphin County with the direction that judgment be entered in favor of appellants.
Appellee had been a patient of appellants' clinic for approximately seven years prior to the accident. On January 16, 1979, the day of the accident, appellee drove to appellants' clinic to receive treatment for a back ailment. She parked her car next to a parked car in the patients' lot, which is built on an incline contiguous to the clinic. A sheet of smooth ice covered the area of the parking lot between the two cars, but the rest of the surface of the parking lot
was free of ice and snow. Upon opening the driver's door, appellee placed both feet on the icy surface and prepared to alight from her vehicle. At trial, appellee testified that, while still seated in her car, she had become aware of the slippery conditions of the surface below her.*fn2 Appellee, who wears a prosthesis consisting of an artificial lower leg, also testified that she had been aware of the particular danger that maneuvering on ice presented to a person with a prosthesis.*fn3
Although appellee was aware that several convenient parking spaces free of ice were available, she kept her car
in the space which she had chosen, alighted from her vehicle, and proceeded across the ice toward the clinic, placing her hand on the adjoining vehicle to help negotiate the slippery surface. She entered the clinic some thirty feet away without incident. After receiving treatment, appellee retraced her steps to the rear of her car, where she again encountered the icy conditions. Again appellee gripped the adjoining automobile for support and proceeded across the ice toward the driver's door of her own automobile; once there, she abandoned her support and reached into her pocketbook to get her keys. Seconds later, she slipped and fell to the parking lot, sustaining a fracture of the left hip.
Appellee brought the present trespass action alleging that appellants had been negligent in failing to maintain the parking lot properly. At the close of appellee's case, appellants requested the entry of a compulsory non-suit on the ground that appellee had failed to establish a prima facie case of negligence. The trial court denied the request and directed appellants to proceed with their evidence.
At the conclusion of the parties' presentation of evidence, the trial court instructed the jury that a possessor of land has only a limited duty to prevent harm to invitees from known or obvious dangers. The court also instructed that if the jury should find that appellee had been contributorily negligent, such negligence could be taken into account in apportioning fault, and that any negligence on appellee's part would mitigate appellants' liability, if any, to appellee. The court, however, refused appellants' proposed "assumption of risk" charge, reasoning that the defense of assumption of risk as a complete bar to recovery had been wholly merged with the defense of contributory ...