Sunday, August 30, 2009

Pennsylvania Superior Court Continues to Question the Ongoing Validity of the Assumption of Risk Doctrine

In the recent case of Zeidman v. Fisher, 2009 WL 2462563 (Pa.Super. August 13, 2009), the Superior Court elected to apply general negligence principles to a claim presented by a plaintiff injured by an errant shot on a golf course. In so ruling, the Superior Court overruled the trial court's decision that the plaintiff's claims were barred by the assumption of risk doctrine, i.e. that the plaintiff assumed the risks associated with playing on a golf course.

In so ruling, this panel of the Superior Court noted that the continuing validity of the doctrines of assumption of the risk and its near-equivalent, the “no-duty” rule, were in doubt. As such, the Superior Court vacated the trial court’s application of those doctrines to grant the defendant's motion for summary judgment. Finding instead issues of fact to exist under the application of general negligence principles, the Superior Court remanded the case back down for further proceedings.

This Zeidman case again illustrates the need for clarification from the Pennsylvania Supreme Court on whether the assumption of risk doctrine should be deemed to be alive and well in Pennsylvania. Hopefully, that clarification will come someday soon.

In the words of Pennsylvania Supreme Court Justice Stephen A. Zappala in his concise dissenting opinion found in Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) over 15 years ago: "Until such time as this Court arrives at a clear-cut majority, we will continually muddy the waters in the sensitive areas of both comparative negligence and the assumption of risk, both of which are cornerstones of the negligence law in this Commonwealth."

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