Tuesday, September 22, 2009

Case in Point As To Why Complete Bar of Assumption of Risk Doctrine Still Needed

As you may recall, I have posted a couple of entries to this blog dedicated to the question of whether the Assumption of Risk Doctrine remains as a valid defense in the Commonwealth of Pennsylvania.

According to the previous posts, the Commonwealth Court of Pennsylvania appears to be firm in its belief that the doctrine is still a viable defense, while the Superior Court continues to question the ongoing validity of the defense as a complete bar to a Plaintiff's cause action. To view these posts, scroll down the right side of this blog to the "Labels" section, and then click on "Assumption of Risk."

Clearly, there is a need for a clarification from the Pennsylvania Supreme Court on this issue.

I wanted to share with you a September 18, 2009 article on the assumption of risk doctrine in California entitled "Burning Man Fire Victim's Suit Goes Up In Smoke." The article was written by Bob Egelko from the San Francisco Chronicle. The article can be found at found at:

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/09/17/BAHN19OMPU.DTL&tsp=1#ixzz0RlQTRt9N

According to this article, a plaintiff attended a bonfire at which it was customary to throw items into the bonfire. After the bonfire collapsed but was still burning, the plaintiff chose to voluntarily walk 7 to 10 feet into the flames, then took a few steps more in order to throw a photograph into the fire. As he was taking the last few steps into the inferno, he tripped, fell and was badly burned. The plaintiff later sued the San Francisco-based promoter of the event for negligently allowing people to approach the bonfire without safe pathways.

On September 16, 2009, the California Supreme Court handed down a unanimous decision upholding the trial court's dismissal of this suit under the assumption of risk doctrine. I offer this story as further support for the proposition that the defense of the assumption of risk doctrine as a complete bar to a plaintiff's cause of action has a continually valid place in the law.

In cases such as this, where a plaintiff knowingly and voluntarily places himself or herself at the risk of injury from a known danger (this guy walked INTO a bonfire, for crying out loud), a defendant should not have to undergo the risks associated with a lawsuit by defending it under comparative negligence principles in the hopes of a favorable result. Rather, such extreme cases of a plaintiff voluntarily assuming the dangers of a known risk should be summarily dismissed early on in the case under the assumption of risk doctrine in its primary and strict sense as that has been defined by Pennsylvania cases on the issue.

WHAT DO YOU THINK? Please feel free to comment.

For a more detailed review of some of the recent Pennsylvania cases on this issue, as noted above, please click on the Label in the right column of this blog for "Assumption of Risk" or review my articles on the topic at:

http://www.jdsupra.com/post/documentViewer.aspx?fid=8a0f9813-ab34-44f8-b016-8e58321faf82

AND

http://www.jdsupra.com/post/documentViewer.aspx?fid=fda3f4da-9ebf-4f6c-b37c-ab0b1f69f528


I thank Pete Hall, my editor at the Pennsylvania Law Weekly, for bringing this story to my attention.

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