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DANIEL P. HOWELL v. THEODORE CLYDE AND PAMELA CLYDE (04/17/89)

filed: April 17, 1989.

DANIEL P. HOWELL, APPELLANT,
v.
THEODORE CLYDE AND PAMELA CLYDE, HIS WIFE, APPELLEES



Appeal from the Judgment entered February 26, 1988 in the Court of Common Pleas of Clearfield County, Civil Division, at No. 86-775-CD.

COUNSEL

Arthur Cutruzzula, Pittsburgh, for appellant.

Darryl R. Slimak, State College, for appellees.

Olszewski, Del Sole and Kelly, JJ.

Author: Del Sole

[ 383 Pa. Super. Page 612]

Daniel Howell, Appellant, was injured when a miniature cannon owned by Theodore and Pamela Clyde, Appellees, exploded. Howell brought suit against the Clydes for damages. At the end of Howell's case-in-chief, the Clydes were granted a compulsory non-suit. Howell filed a Petition for Post-Trial Relief requesting the trial court to remove the non-suit. The trial court denied the Motion and this appeal followed.

Howell attended a "Fourth of July" party at the Clydes' home. During the party, fireworks were set off. As the evening wore on, a number of people began to talk about Theodore Clyde's cannon. This cannon was a cast iron hollowed-out piece of pipe approximately 14 inches in length which had been made by Clyde's grandfather. The partygoers discussed discharging the cannon but Clyde had no gun powder. Howell, who had previously owned a muzzle loader gun, supplied the gun powder. He helped Clyde pour the powder into the cannon and then watched Clyde pack wadding into the muzzel. When Clyde lit the fuse of the cannon he warned his guests to stand back. The

[ 383 Pa. Super. Page 613]

    majority of the guests stood behind a nearby car while Howell stood 30 to 40 feet away from the cannon but in front of the car. When the cannon fired it broke into pieces and one of the fragments hit Howell in the thigh.

The trial court found that, as a matter of law, the danger was obvious to any adult of normal intelligence, that Howell had assumed the risk and, therefore, granted the Clydes' Motion for a Compulsory Non-Suit. Howell appeals raising two issues which, taken together, ask whether the trial court properly granted a non-suit to the Clydes on the basis of the evidence presented and on the doctrine of assumption of risk. We think not and vacate the judgment of non-suit and remand for a new trial.

The applicability of the assumption of risk doctrine has been in flux in Pennsylvania for some time. In Rutter v. Northeastern Beaver School District, 496 Pa. 590, 437 A.2d 1198 (1981), a plurality of the Pennsylvania Supreme Court announced that "except where specifically preserved by statute; or in cases of express assumption of risk, or cases brought under 402A, (a strict liability theory), the doctrine of assumption of risk is abolished." 496 Pa. at 613, 437 A.2d 1198. Rutter involved a high school student who was injured during football practice. The trial court ruled that he had assumed the risk and granted the school district a non-suit. The Superior Court affirmed but the Supreme Court reversed stating that:

496 Pa. at 613, 437 A.2d 1198.

Two years later a majority of the Supreme Court reversed a trial court decision because the trial court had not given an assumption of risk instruction to the jury. In Carrender v. ...


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