Tuesday, April 10, 2012

Assumption of Risk Defense Remains Valid in Pennsylvania

Judge Albert H. Masland of the Cumberland County Court of Common Pleas recently issued an Opinion in the case of Snoke v. Anderson, No. 03-03715 Civil Term (C.P. Cumb. Co. Feb. 10, 2012 Masland, J.), in which he addressed, in part, the continuing validity of the assumption of risk doctrine under Pennsylvania law.

The underlying facts as provided from defense counsel were, as follows.  The Plaintiff and his family rented a cabin in the Cumberland County mountains from the Defendants.

The Plaintiff was riding his dirt bike down a grassy area when he claims he struck an unidentified object that caused his vehicle to stop "like he hit a brick wall."  The Plaintiff put his left foot on the ground in an attempt to regain control, but the dirt bike fell on top of him, allegedly causing personal injuries.

Approximately two months after the accident, the Plaintiff and a friend returned to the scene of his accident and located a pipe, approximately three inches in diameter, that protruded from the grassy area about 1/4 inch to 1 1/4 inches at its maximum. The Plaintiff concluded that this pipe must have been the cause of the accident.

At trial, plaintiff testified that he had been riding dirt bikes on this property for over 30 years, and that he knew riding dirt bikes could be dangerous because you don't always know what types of things you might encounter while riding.

The Defendants' motorcycle accident reconstruction expert testified that not only could the accident not have happened in the manner described by the Plaintiff, but even if the dirt bike had encountered the pipe, it would have simply rolled right over it.

Information provided also reveals that the trial court listed the assumption of risk question as the first question on the verdict slip for the jury to consider.

The jury found that Plaintiff assumed the risk of his injury, and returned a defense verdict after approximately less than 30 minutes of deliberation.

The Plaintiff filed a motion for post-trial relief, arguing that because the court denied Defendants' motion for compulsory non-suit, it was thereafter barred from instructing the jury on assumption of the risk. The defense argued that the Plaintiff waived this issue by not specifically objecting to it during trial, and that the evidence presented during trial supported the assumption of the risk instruction.

The trial court agreed with the defense on both points and denied plaintiff's post-trial motion. Plaintiff did not appeal to the Superior Court.

Judge Masland's opinion is notable in that he held that there are cases allowing the assumption of the risk argument to go to the jury even after a non suit has been denied.

I send thanks to Christopher Reeser and Lauren Burnette of the Harrisburg, PA office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

Anyone desiring a copy of this opinion in the case of Snoke v. Anderson may contact me at dancummins@comcast.net.

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