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PETER JOSEPH JOHNSON v. ROBERT WALKER AND JOSEPHINE WALKER D/B/A JOSEPHINE'S STEAK & HOAGIE SHOP AND DAVID MASTER (08/08/88)

filed: August 8, 1988.

PETER JOSEPH JOHNSON, A MINOR, BY HIS PARENTS AND NATURAL GUARDIANS, PETER JOSEPH JOHNSON III AND JEANETTE JOHNSON, AND PETER JOSEPH JOHNSON III AND JEANNETTE JOHNSON, IN THEIR OWN RIGHT, APPELLANTS,
v.
ROBERT WALKER AND JOSEPHINE WALKER D/B/A JOSEPHINE'S STEAK & HOAGIE SHOP AND DAVID MASTER, A MINOR BY HIS PARENTS AND NATURAL GUARDIANS, ROBERT MASTER AND KATHERINE MASTER AND MICHAEL FRANZ



Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 2013 FEB 1982

COUNSEL

Mary Ann Abella, Philadelphia, for appellants.

D. Jackson Loughhead, Philadelphia, for appellees.

Tamilia, Kelly and Hester, JJ.

Author: Tamilia

[ 376 Pa. Super. Page 303]

This is an appeal from the trial court Order granting summary judgment to all appellees/defendants. The facts are not in dispute. On June 26, 1980, at about 9:45 p.m.,

[ 376 Pa. Super. Page 304]

    appellant Johnson and appellee Franz were engaged in a one-on-one game of stickball at the intersection of 65th and Theodore Streets in Philadelphia. After two innings of play, appellee Master asked Johnson if he could take a turn at bat, whereupon Johnson handed the broomstick/bat to Master and proceeded to walk over to a car parked approximately ten feet away from Master. A few minutes later, Johnson saw Master swing at the ball, hitting it in his direction on a foul tip. Before he could react, the ball struck Johnson in his right eye, ultimately causing him to lose sight in the eye.

Johnson and his parents initiated the instant cause of action against Franz, Master and his parents, and Robert and Josephine Walker d/b/a Josephine's Steak and Hoagie Shop which is accessed by the sidewalk on which the boys were playing. Franz filed a motion for summary judgment and the other defendants joined in this motion. The trial court granted the motion and this appeal followed.

Appellants raise three issues for our review: 1) whether the trial court erred in relying on Bowser v. Hershey Baseball Association, 357 Pa. Super. 435, 516 A.2d 61 (1986); 2) whether the trial court erred in not allowing the question of minor appellant's assumption of the risk go to the jury; and 3) whether the trial court viewed the evidence in a light most favorable to appellants.

The trial court relied on this Court's holding in Bowser, supra, to find minor appellant had voluntarily assumed the risks inherent in playing the game of stickball. However, we stated in Bowser that even though the doctrine of voluntary assumption of the risk is applicable to situations such as ours, the doctrine of negligence with its basic elements is equally applicable. A party must show the following to sustain a cause of action founded upon negligence:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of ...


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