Wednesday, May 9, 2018

Assumption of Risk Found to Bar Trip and Fall Plaintiff's Recovery

In the case of Sycalik v. Hoover, No. 2016-1227-CD (C.P. Clearfield Co. April 16, 2018 Ammerman, P.J.), the court granted summary judgments filed by the Defendants in a trip and fall case after finding that the Plaintiff had voluntarily assumed the risk of her own injuries.  

According to the Opinion, the Plaintiff tripped and fell near the bottom of the steps to the outside portion of the property.   There was no dispute in the record that the bottom portion of the steps to the property, along with the berm at the bottom and adjacent to the road, were damaged.  

However, the record also established that the Plaintiff was very familiar with the premises having lived there for many years in the past and given that her father currently resided in the home for the past ten (10) years such that the Plaintiff visited the home “thousands” of times since her childhood. The court noted that this meant that she had ascended and descended the front steps thousands of times as well as the steps were the only entrance/exit from the home.  

As such, the record confirmed that the Plaintiff knew that the bottom step was damaged and problematic and that the Plaintiff had discussed the damaged step with the persons who lived on the premises.  It was also noted that the Plaintiff confirmed at her deposition that she had a habit of stepping to the left of the last damaged step, onto a grassy slope, in order to avoid the step.  

According to the Opinion, on the date of the Plaintiff’s injury, the Plaintiff had stepped to the left as usual, but missed the spot where she would usually step and instead caught her left foot on the corner of the last step, as a result of which she was caused to fall.  

Turning to the law, the court referred to the §342 of the Restatement (Second) of Torts which covers the liability of a possessor of land towards a licensee and confirms that liability applies if the possessor of land knew of the condition and realized that it involved an unreasonable risk of harm that is likely to be undiscoverable and fails to make the condition safe or provide adequate warning. 

The Restatement also indicates that, in order for liability to apply, it must be established that the licensee did not know or have reason to know of the condition and the risk involved.  

Relying on the case of Carrender v. Fitterer, 469 A.2d 120, 126 (Pa. 1983), the court in Sycalik applied the assumption of risk doctrine to bar the Plaintiff’s recovery.  

The court also rejected the Plaintiff’s assertion that the assumption of risk cases were distinguishable because the Plaintiff had no alternative route.  

The Sycalik court additionally noted that Pennsylvania law also establishes that, when a Plaintiff voluntarily chooses to walk upon an area not intended to be traversed, such as a grassy slope, the Plaintiff has not stated a valid cause of action.   By way of an example, the court cited to the case of Gilligan v. Villanova University, 584 A.2d 1005, 1008 (Pa. Super. 1991), in which judgment was entered against a Plaintiff who fell when the Plaintiff chose to walk over a grassy area instead of the nearby sidewalk..   

Given that there were no genuine issues of material fact and given that the court found that the Plaintiff had assumed the risk of her injury, summary judgment was granted. in this Sycalik case. 

Anyone wishing to read this decision, may click this LINK.

I send thanks to Attorney Thomas McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch for bringing this case to my attention.

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