Thursday, November 29, 2012

Assumption of Risk Defense Still Viable in Pennsylvania

In its recent decision in the case of Longwell v. Giordano, 2012 Pa.Super 245 (Pa.Super. Nov. 8, 2012)(Bender, Donohue, and Strassburger, J.J.)(Opinion by Strassburger, J.), the Pennsylvania Superior Court refused a plaintiff's request to abolish the assumption of risk doctrine.  The court noted that the abolition of a recognized doctrine was not within the purview of the Superior Court's authority.

However, the Longwell court did go on to reverse a Lawrence County trial court's entry of summary judgment in favor of a defendant in a trip and fall case.  The defense asserted that the Plaintiff had assumed the risk of danger in walking along a driveway under pitch black night time conditions when the Plaintiff knew that the driveway had a slight drop off. 

The Superior Court reviewed the record and found that, while the Plaintiff was aware of the dangers presented, the Plaintiff proceeded cautiously and took measures to protect himself but still unfortunately fell.  Thus, the Court believed that there were issues of fact to be decided by a jury.  As such, the entry of summary judgment in favor of the defense was reversed.

In so ruling the court also noted that, under the different test of liability found under the Restatement (Second) of Torts, Section 360, applicable in a case of a lessee versus a landlord for personal injuries in a slip and fall matter, a landlord remains liable to injuries sustained by a tenant in a common area of the premises controlled by the landlord even if the tenant was aware of an allegedly defective condition.  As such, the assumption of risk defense is limited by Section 360 of the Restatement (Second) of Torts in this landlord-tenant context.

Anyone desiring a copy of this decision may click this LINK.

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