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filed: January 27, 1988.


Appeal from the judgment of the Court of Common Pleas, Civil Division of Philadelphia County, Civil No. 2807 March Term 1983.


Charles W. Craven, Philadelphia, for appellant.

Francis J. Moran, Philadelphia, for Malinder, appellee.

Cirillo, President Judge, and Brosky, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia and Johnson, JJ. Olszewski, J., files a dissenting statement. Beck, J., files a dissenting opinion in which Wieand and Olszewski, JJ., join.

Author: Rowley

[ 371 Pa. Super. Page 416]

This is an appeal from a judgment entered in favor of appellees, Roosevelt and Harriet Malinder, and against Utica Insurance Company, (Utica) and Allied Enterprises (Allied); and in favor of Utica and against Allied on Utica's cross-claim. We reverse the judgment in favor of the Malinders and remand for the entry of judgment n.o.v. in favor of Utica.

On September 9, 1982, appellee Roosevelt Malinder was struck in the head by a freight elevator at his place of employment. There is no factual dispute as to the condition of the premises when the incident occurred or as to the events which transpired. A typical and safe method of summoning the freight elevator in this case was to use the building's intercom system. On the day of his injury, despite the fact that the intercom system was working, Malinder called for the elevator from the landing door by tilting his head through the space created by a missing glass panel in the landing door and yelling to the elevator operator. When Malinder tilted his head through the opening, he was struck by the elevator.

Malinder filed suit against various defendants, including Utica Insurance Company and Allied Enterprises. Utica was the insurer of Malinder's employer, and under Pennsylvania law it was required to inspect the elevator twice a year. Utica retained Allied to conduct these inspections. Both Utica and Allied filed cross-claims against each other seeking indemnity. Prior to trial, it was agreed that the issue of indemnity would not be submitted to the jury but would be resolved by the judge after trial.

At trial, Malinder testified that he did not believe it was dangerous for him to tilt his head through the opening because he assumed there was a three to four inch clearance from the elevator floor. However, he also testified that he knew he would be struck if the elevator was coming. Evidence was also introduced at trial that several months prior to the accident involved here, when the elevator

[ 371 Pa. Super. Page 417]

    had last been inspected, the glass pane had been missing but had not been reported on the elevator inspection report.

The trial court refused to charge the jury on the defense of assumption of risk but instead charged it on comparative negligence. The jury returned a verdict against Allied and Utica for $55,000, but also found that Malinder was 30% contributorily negligent. Accordingly, the award was reduced to $38,500. Post-trial motions were denied and the court granted Utica indemnity from Allied as a matter of law. Both Utica and Allied appealed from the judgment entered against them, and their appeals were consolidated.

By an unpublished decision, a panel of this court affirmed the trial court's decision. Utica filed a petition for reargument before the court en banc, but Allied failed to do so. Therefore, the Court made an Order granting the petition for reargument as to Utica only and directing that it would not entertain reargument on the indemnification issue raised by Allied. In the present procedural posture, only the appeal of Utica is before us.

Utica argues that the trial court erred when it refused to grant Utica a directed verdict on the basis that Malinder assumed the risk as a matter of law because the risk was both obvious and understood by Malinder, and because Utica breached no duty to Malinder. Alternatively, Utica argues that the trial court erred in refusing to instruct the jury on assumption of the risk doctrine. We hold that Malinder assumed the risk of his injuries as a matter of law, and therefore reverse the judgment and remand for entry of a judgment n.o.v.

At issue in this case are the questions of whether the doctrine of assumption of the risk is a viable defense under the unique factual circumstances presented in this case especially in light of the Comparative Negligence Act, 42 Pa.C.S. § 7102, and, if it is still a viable defense, whether the doctrine of assumption of the risk must be applied to these facts as a matter of law because there is no factual dispute for a jury to resolve. Although the facts of this case are unique, they are substantially similar to those in a

[ 371 Pa. Super. Page 418]

    case decided by the Pennsylvania Supreme Court, Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). In that case, the Supreme Court addressed these same concerns, and therefore we will follow its decision here.

The basic premise of the doctrine of assumption of the risk is that a party who voluntarily and knowingly assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover damages for such harm. Restatement (Second) of Torts, § 496 A (1965). However, as stated by at least one commentator, "[assumption of the risk] has been a subject of much controversy, and has been surrounded by much confusion, because 'assumption of the risk' has been used by the courts in several different senses, which traditionally have been lumped together under the one name, often without realizing that any differences exist." Prosser and Keeton on Torts, 5th Edition, § 68 (Footnotes omitted).

The authors of the Restatement (Second) of Torts § 496 A, comment c (1965) divide assumption of the risk into four categories. Comment c to § 496 A provides as follows:

     c. Meanings of assumption of risk.

"Assumption of risk" is a term which has been surrounded by much confusion, because it has been used by the courts in at least four different senses, and the distinctions seldom have been made clear. These meanings are as follows:

1. In its simplest form, assumption of risk means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk. The result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff . . . .

2. A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so

[ 371 Pa. Super. Page 419]

    is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff . . . .

3. In a third type of situation the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it. For example, an independent contractor who finds that he has been furnished by his employer with a machine which is in a dangerous condition, and that the employer, after notice, has failed to repair it or to substitute another, may continue to work with the machine. He may not be negligent in doing so, since his decision may be an entirely reasonable one, because the risk is relatively slight in comparison with the utility of his own conduct; and he may even act with unusual caution because he is aware of the danger. The same policy of the common law which denies recovery to one who expressly consents to accept a risk will, however, prevent his recovery in such a case . . . .

4. To be distinguished from these three situations is the fourth, in which the plaintiff's conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by his implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible. (See § 467.)

In the first three of these categories, as a result of the plaintiff's conduct, there is no duty owed by the defendant, to the plaintiff. Consequently, the application of the defense in those cases constitutes a complete bar to the plaintiff's recovery. In the fourth category, however, there

[ 371 Pa. Super. Page 420]

    are two negligent acts: the defendant's and the plaintiff's, and the defendant's "duty" to the plaintiff is not dissolved. Thus, the Restatement's four categories could be reclassified into only two categories of assumption of the risk: 1) those in which the plaintiff's conduct relieves the defendant of any duty; and 2) those in which both the plaintiff and the defendant have a duty and each breaches his or her respective obligation.

The Restatement's four categories are not the only ones often used to distinguish different types of assumption of the risk. Assumption of the risk has also been divided into different categories by other authorities. For example, in Assumption of Risk in Products Liability Cases, Keeton, 1961, 22 La.L.Rev. 122, assumption of the risk is divided into six different types: express, subjectively consensual, objectively consensual, by consent to conduct or condition, associational, and imposed. In Prosser and Keeton on Torts, 5th Edition, § 68, assumption of the risk is divided into only three categories: express consent perspective, duty perspective, and misconduct defense perspective. Assumption of the risk has also been analyzed by some courts as consisting of only two types: primary and secondary. See, e.g. Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971); Wilson v. Gordon, 354 A.2d 398 (Me., 1976). See also: Smollett v. Skayting Development Corp., 793 F.2d 547 (3rd Cir.1986). "Primary" assumption of the risk involves those situations in which there is no duty owed by the defendant to the plaintiff to protect from a risk of harm. The Restatement's first three categories, in which the defendant owes no duty to the plaintiff because of the plaintiff's conduct, would constitute "primary" assumption of the risk. "Secondary" assumption of the risk is similar to the fourth Restatement category in which the defendant owes a duty to the plaintiff, but the plaintiff's voluntary encountering of the risk is unreasonable and therefore the plaintiff too has been contributorily negligent. These different approaches to explaining assumption of the risk demonstrate that there are many different concepts which

[ 371 Pa. Super. Page 421]

    have been utilized by courts and scholars to analyze the doctrine of assumption of the risk.

Although the doctrine of assumption of the risk is available as a defense in Pennsylvania, a majority of the Pennsylvania Supreme Court has not yet adopted the Restatement's four-part analysis, the Keeton six-part analysis, the Prosser and Keeton three-part analysis or the two-part analysis utilized by some courts to analyze those cases in which the doctrine is applicable. In Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), three justices of the Supreme Court discussed the Restatement's analysis and applied it to the particular facts of the case. However, the opinion in Rutter was not joined in by a majority of the justices and therefore is not binding precedent. See Rutter, Id., 496 Pa. at 617, n. 2, 437 A.2d 1211, n. 2.

In this case it is not necessary for us to decide which of the analyses of the doctrine of assumption of the risk is the one to be followed in Pennsylvania. Furthermore, it is not necessary for us to explore the extent and impact of a particular analysis. Such determinations are the prerogative of the Supreme Court of Pennsylvania. Rather, we are compelled to follow the Supreme Court's decision in Carrender in factual situations of the same class, which we find the present case to be. Where the Supreme Court has spoken on a particular subject, it is our obligation, as an intermediate appellate court, to follow and apply that decision so as to establish some measure of predictability and stability in our case law. In the absence of a legally relevant distinction between the facts of a previous case and the case before us, we are obliged to follow the dictates of the Supreme Court's decision in the prior case. Resolving cases by attempting to create irrelevant, factual distinctions impedes application of the doctrine of stare decisis, the principal function of which is to imbue the judicial system with some measure of predictability and stability, and places the development of the law in a constant, uncertain state of flux such that neither practioners nor trial

[ 371 Pa. Super. Page 422]

    judges can, with any degree of predictability, determine the proper application of the law to each new case involving similar facts that comes before them. It also is not our prerogative to apply different methods of analysis where our Supreme Court has made clear which particular analysis it believes should be applied to a particular situation. With the foregoing precepts in mind, we have reviewed the record in this case and find that there are no legally relevant factual distinctions between this case and Carrender. Therefore, although we would be free to apply a different analysis and obtain a different resolution of the case immediately before us if there were no precedent for us to follow, we are compelled to follow the analytical framework established by the Supreme Court in Carrender and reach a similar conclusion.

In Carrender, the plaintiff brought an action against the owners of a parking lot and chiropractic clinic for injuries which she sustained after falling on the ice in the parking lot. The space in which the plaintiff, a patient at the chiropractic clinic, chose to park her car was on an incline and was covered with ice; other areas of the parking lot were free of ice and snow. Before getting out of her car, appellant became aware of the ice on the parking lot, and despite the fact that she wore a prosthesis consisting of an artificial lower leg and knew that because of the prosthesis, maneuvering on ice was particularly dangerous for her, she nevertheless kept her car parked on the ice, necessitating her walking across the ice. The plaintiff successfully negotiated the ice when walking from her car to the door of the clinic, but after she had returned to her car and was holding onto her car while attempting to get back into it, she slipped and fell.

A jury found the property owners to be sixty-five percent negligent and the plaintiff to be thirty-five percent negligent. The defendants filed a motion for judgment n.o.v. and a motion for new trial, but both were denied. On appeal, the Superior Court affirmed the judgment entered on the jury's verdict, and rejected the defendants' argument

[ 371 Pa. Super. Page 423]

    that the trial court erred in refusing to charge the jury on the defense of assumption of the risk. The Supreme ...

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