a worker's status, Pennsylvania courts also consider other factors. These include the terms of the agreement, which party supplies tools and equipment, whether the work is part of the employer's regular business, and the right to terminate the relationship at any time. Moon Area School Dist. v. Garzony, 107 Pa. Commw. 375, 529 A.2d 540 (1987).
Under the analyses outlined above, this court finds that there are genuine issues of material fact. The terms of the agreement delegate large amounts of control to Rolick, including hiring and paying employees and providing tools and equipment. These terms are more indicative of an independent subcontractor-contractee relationship than of a master-servant relationship. Although Kane Hardwood cites instances of actual exercises of control by Nortim, its assertions are factual and contested. Because Kane Hardwood has the burden of establishing each of the elements, our analysis ends here. We will not grant Kane Hardwood's motion based on its status as a statutory employer.
C. Assumption of Risk
Kane Hardwood asserts as an affirmative defense that Rolick assumed the risk of his injury. The status of the assumption of risk doctrine is uncertain in Pennsylvania. In Rutter v. Northeastern Beaver City School District, 496 Pa. 590, 613-16 n.6, 437 A.2d 1198, 1209-11 n.6 (1981), a plurality of the court abolished the doctrine of assumption of risk except where explicitly preserved by statute or in cases of express assumption of risk. The Court found that certain applications of the assumption of risk doctrine conflicted with the policy considerations reflected in Pennsylvania's switch to comparative negligence, and felt that other available defenses adequately protected defendants. Id.
Because a majority of the Court did not join the opinion in Rutter, subsequent courts have continued to apply the assumption of risk doctrine, albeit with caution. See, e.g., Johnson by Johnson v. Walker, 376 Pa. Super. 302, 545 A.2d 947, 979 (1988); Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 533 (1988). In its most recent opinion in this area, the Supreme Court seemed to adopt the reasoning in Rutter, but acknowledged that assumption of risk tenuously remains viable. Carrender v. Fitterer, 503 Pa. 178, 189 n.6, 469 A.2d 120, 125 n.6 (1983).
At present, therefore, it seems that Pennsylvania courts continue to apply the assumption of risk doctrine. Sitting in diversity, this court will apply the doctrine within the parameters of recent state court opinions.
In Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 533 (1988), the court described the circumstances under which a defendant could escape liability under assumption of risk principles. Citing Fish v. Gosnell, 316 Pa. Super. 565, 463 A.2d 1042 (1983), the court wrote that before a plaintiff is said to have assumed a risk, he must fully understand the specific risk and voluntarily choose to encounter it under circumstances manifesting his willingness to accept the risk. Id. at 542 A.2d 533.
Normally, the question of whether the plaintiff understood and appreciated the risk is reserved for the jury. Carrender v. Fitterer, 503 Pa. 178, 189 n.6, 469 A.2d 120, 125 n.6 (1983); Verna v. Lopresti, 157 Pa. Super. 163, 42 A.2d 170 (1945). Where reasonable minds could not differ, however, the court may resolve the issue. Carrender at 469 A.2d 124.
Kane Hardwood relies principally on two affidavits to support its argument that, as a matter of law, Rolick assumed the risk of his injury. The Federal Rules of Civil Procedure provide that a movant may support a motion for summary judgment with proper affidavits. Fed. R. Civ. P. 56. The Rules require that "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed. R. Civ. P. 56(e).
Compliance with Rule 56(e)'s requirements for affidavits is essential if the court is to consider the evidence contained therein. Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2738. "Affidavits which contain conclusions of law, ultimate facts, assertions, arguments and inferences derived from the opposing party's affidavits similarly may be 'disregarded.'" Carey v. Beans, 500 F. Supp. 580, 583 (E.D. Pa. 1980), aff'd, 659 F.2d 1065 (3d Cir. 1981).
Rolick asserts that this court should not rely on the affidavits because they fail to meet the requirements of Rule 56(e). He asserts that they are based on information and belief, not on first hand knowledge, and that they contain inadmissible hearsay.
The first affidavit submitted in support of Kane Hardwood's motion is by Michael Ondik (Ondik), a Safety Education Director at the Pennsylvania Forestry Association. Appendix to Defendant's Motion for Summary Judgment and Brief in Support Thereof, Exh. E. Essentially, the affidavit attests to the truth and accuracy of the attached deposition transcript.
Large portions of the deposition testimony either contain hearsay or relate second hand, unsubstantiated information. After reviewing the transcript, we find that only certain portions are appropriate for consideration of the pending motion for summary judgment. We will ignore the portion on pages 3-4 describing what Tim McHugh told Ondik, the portions on page 9 relaying what Tim McHugh and Jamie Grubbs told Ondik, and the portion on page 13 describing what Ondik believed Rolick said to unknown third parties.
The second affidavit is by Timothy Mague (Mague), a district forester for Kane Hardwood. Appendix to Defendant's Motion for Summary Judgment and Brief in Support Thereof, Exh. E. We find similar admissibility problems with the attached deposition and will ignore the portions referring to statements by Rolick's brother on page 5. It is unclear to the court whether the statement on lines 7-10 were based on a conversation with Rolick himself or with his brother, in light of his statement on lines 14-17 and his statement on page 10. Therefore, we will also ignore that statement.
When the admissible evidence is applied to the test for assumption of risk, it is clear that the evidence falls far short of proving as a matter of law that Rolick knew and appreciated the nature of the risk and voluntarily accepted that risk. Therefore, we will not grant the motion for summary judgment based on assumption of risk.
D. No Duty
The "no duty" doctrine is very similar to the assumption of risk doctrine, and potentially applies to the facts of this case. See generally Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 533 (1988). The typical no duty case involves a possessor of land defendant and a business invitee plaintiff. Id. at 531. The doctrine provides that a land possessor has no duty to protect a business invitee from known or obvious hazards. Id. A hazard is known to the invitee if he knows it exists and recognizes and appreciates the probability and gravity of the threatened harm. Id. An obvious danger is one for which both the condition and the risk would be recognized by a reasonable man in the position of the invitee. Id. at 531-32. For the same reasons that we found genuine issues of fact as to the assumption of risk defense, we find genuine issues of fact as to the no duty defense. The obviousness of the risk and the probability and gravity of the danger simply are not sufficiently established to warrant summary judgment.
AND NOW, this 9th day of March, 1989, for the reasons set forth in the accompanying Memorandum Opinion,
IT IS HEREBY ORDERED that the defendants' Motion for Summary Judgment is DENIED.
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