Bullman v. Giuntoli
| Decision Date | 25 September 2000 |
| Citation | 761 A.2d 566 |
| Parties | Amy S. BULLMAN, Appellant, v. James M. GIUNTOLI and Barbara Giuntoli, His Wife and Heinz C. Augustine Individually and d/b/a H.C.A. Construction, Appellees. |
| Court | Pennsylvania Superior Court |
William R. Caroselli, Pittsburgh, for appellant.
Lisa H. Kahn, Pittsburgh, for James Giuntoli, appellee.
Joseph E. Kubit, Butler, for Heinz Augustine, appellee.
BEFORE: JOHNSON, HUDOCK and BROSKY, JJ.
¶ 1 This is an appeal from an order granting Appellees' motion for summary judgment. Appellant raises one question for our review:
Whether the trial court erred in granting summary judgment on the basis of assumption of the risk where there existed a material issue of fact as to whether [Bullman], a visitor to a residential construction site, subjectively knew that a plank providing access would move, causing her to lose her balance, step onto and fall through boards, which appeared to be weight-bearing and a covered porch, into the basement and become a paraplegic?
We vacate and remand.
¶ 2 On February 1, 1996, Appellant (hereafter Bullman), along with her parents, visited the construction site of a new home which was being built for Appellees, James and Barbara Giuntoli (Giuntolis), who were friends of Bullman's parents, with the intention of viewing the unfinished home. As of that date the basic structure was in place, the house had been framed and a roof was in place. Around the perimeter of the house was an open excavation "ditch" approximately six to eight feet wide and eight to nine feet deep. The only apparent access to the interior of the unfinished home was provided by a wooden board or plank approximately twenty feet long and one foot wide. This board crossed the excavation ditch onto an unfinished porch area and into the main portion of the home. Underneath the house was a basement, which extended out to the porch. The porch was covered with insulation boards which had been placed there to retain heat and allow for the pouring of the basement floor.
¶ 3 Since Bullman had desired to see the interior of the unfinished home, she stepped onto the board and began crossing the board toward the entrance of the house. According to her deposition testimony, Bullman safely traversed the excavation ditch and was over the unfinished porch area when the board moved causing her to lose her balance. As Bullman was losing her balance she stepped onto the flooring of the porch in an effort to regain stability, but, as the porch was covered only with insulation board, which could not sustain her weight, she fell through the insulation board into the basement. As a result of the fall, Bullman sustained severe injury and is now a quadriplegic.
¶ 4 On August 12, 1997, Bullman filed a complaint against both the Giuntolis and Heinz C. Augustine, individually, and H.C.A. Construction (Augustine), alleging causes in negligence and seeking damages for her personal injury. On September 11, 1998, Giuntolis filed a motion for summary judgment asserting that as Augustine Construction was an independent contractor the Giuntolis were not "in possession" of the property on the date the accident occurred and also asserting that Bullman had voluntarily assumed the risk of the injury sustained. The court granted the Giuntolis' motion on the basis of assumption of the risk and did not consider Giuntolis other basis for summary judgment relief. In order to facilitate an immediate appeal Bullman asked the court to amend its order to indicate that the ruling on assumption of the risk would preclude an action against Augustine. The court modified its order as requested and the present appeal followed.
¶ 5 When reviewing an appeal of a grant of summary judgment, we consider the following principles:
[We] will only reverse the trial court's entry of summary judgment where the [trial court committed] an abuse of discretion or an error of law. Summary judgment is proper when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.... In determining whether to grant summary judgment a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Summary judgment may only be granted in cases where it is clear and free from doubt the moving party is entitled to judgment as a matter of law.
Sebelin v. Yamaha Motor Corp., 705 A.2d 904, 906 (Pa.Super.1998) (citations omitted).
¶ 6 This appeal asks us to once again revisit the matter of assumption of the risk, that is, a situation where a party voluntarily proceeds in the face of a known risk.1 As can be readily seen from even a cursory research of this area of law, the doctrine of assumption of risk has been very problematic and has fallen from the favor of some of the judiciary and legal commentators.2 In fact, the doctrine as a separate affirmative defense has only narrowly survived abolishment by our Supreme Court.3 As this case attests, the doctrine is frequently misapplied. At times, trial courts, in reliance upon the doctrine, have incorrectly precluded cases from going to a jury, thus, precipitating reversals and remands. Moreover, in the day of comparative negligence, many believe the doctrine is outdated and serves little purpose.4 Nevertheless, as the doctrine has not been formally abolished by our Supreme Court, we are obligated to apply the doctrine despite its less than wholehearted support.
¶ 7 Before attempting to define what assumption of the risk is, perhaps more might be accomplished by clarifying what assumption of the risk is not. If one thing is clear from a thorough review of assumption of the risk law it is that a failure to apprehend a danger that then occasions injury is negligence, not assumption of the risk. An apprehension of a danger, followed by a conscious decision to tempt fate and accept what fate may bring, which then occasions injury, while indeed constituting contributory negligence, is additionally assumption of the risk, and a complete bar to recovery. Hopefully the discussion that follows will demonstrate the above with convincing clarity.
¶ 8 In Handschuh v. Albert Development, 393 Pa.Super. 444, 574 A.2d 693 (1990), we stated:
The essence of assumption of the risk defense is not an evaluation of fault or negligence in encountering a danger but an acknowledgement that the plaintiff changed his position. Before suffering injury "he intelligently acquiesced in a known danger and abandoned his right to complain, but afterwards, seeks to assert the claim he had waived." Id., 463 A.2d at 1049.
Quoting Fish v. Gosnell, 316 Pa. Super. 565, 463 A.2d 1042 (1983). (Emphasis added). This same sentiment was echoed in Struble v. Valley Forge Military Academy, 445 Pa.Super. 224, 665 A.2d 4 (1995), where we stated:
a plaintiff will not be precluded from recovering except where it is beyond question that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries.
(Emphasis added).
In Long v. Norriton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089, 1090 (1995), we termed the concept as one where the plaintiff, by his actions, "absolved the defendant from responsibility for the injuries sustained." (Emphasis added). The recent case of Staub v. Toy Factory, Inc., 749 A.2d 522, 529 (Pa.Super.2000)(en banc), incorporates both terms and states, "a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff's injuries."
¶ 9 To borrow from another well-known legal concept, "assumption of the risk" is essentially a form of "estoppel" in a tort context. It might be assumed, for purposes of an assumption of the risk analysis, that the defendant(s) was negligent, and at least partly responsible for the injury sustained, nevertheless, given the circumstances in which the injury was sustained, the plaintiff is essentially "estopped" from pursuing an action against the defendant because it is fundamentally unfair to allow the plaintiff to shift the responsibility for the injury to the defendant when the risk was known, appreciated and voluntarily assumed by the plaintiff.
¶ 10 The above principle, whether couched as abandoning a right to complain, or absolving/relieving a defendant of responsibility, or even estopping a plaintiff from recovering, cannot follow, however, unless the danger was known and fully appreciated. As related in the comments to the Restatement (Second) of Torts, § 496 D:
¶ 11 Given the above, it is not surprising then that the...
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