Howell v. Clyde

Decision Date17 February 1993
Citation533 Pa. 151,620 A.2d 1107
PartiesDaniel P. HOWELL, Appellee, v. Theodore CLYDE and Pamela Clyde, his wife, Appellants.
CourtPennsylvania Supreme Court

James M. Horne, McQuaide, Blasko, Schwartz, Fleming & Faulkner, Inc., State College, for appellants.

Arthur Cutruzzula, Maurizi & Cutruzzula, Pittsburgh, for appellee.



FLAHERTY, Justice.

Daniel Howell was attending a party at his neighbors' house and was injured when a fireworks cannon owned by the host-neighbors exploded. Howell then sued the neighbors, Theodore and Pamela Clyde, for damages associated with his injuries. The Court of Common Pleas of Clearfield County entered an involuntary nonsuit at the close of plaintiff's evidence, holding that Howell had assumed the risk of injury and was, therefore, barred from recovery. On appeal, Superior Court reversed and remanded for a new trial, 383 Pa.Super. 611, 557 A.2d 419 holding that the trial court could have granted the nonsuit only if Howell's evidence failed to demonstrate that the Clydes breached a duty which they owed to Howell. Further, Superior Court stated that a nonsuit could not be granted on the basis of assumption of risk because the evidence did not show that Howell knew of the existence of the specific risk he was alleged to have taken.

The evidence established that there was conversation at the party concerning a fireworks cannon fabricated by Clyde's grandfather. The guests, including Howell, visually inspected the cannon and expressed an interest in firing it. Howell went to his residence next door to retrieve black powder for use in the cannon, and upon returning with two cans of black powder, Howell held a flashlight while Clyde filled the bore of the cannon half full of black powder. Howell stood back approximately 40 feet while Clyde ignited the cannon, which exploded, injuring Howell.

Clyde petitioned for allowance of appeal from Superior Court's order remanding for a new trial and we granted allocatur.

Ten years ago in Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), a plurality of this court sought to abolish the doctrine of assumption of risk, except where expressly preserved by statute, or cases of express assumption of risk, or cases brought under 402A (strict liability). A major concern was that the complexity of analysis in assumption of risk cases makes it extremely difficult to instruct juries, who must decide not only questions related to negligence, but also whether the affirmative defense of assumption of risk operates to bar recovery altogether. 1 Additionally, the plurality stated:

[T]he difficulties of using the term "assumption of risk" outweigh the benefits. The issues should be limited to negligence and contributory negligence. Those are the problems in the case at bar and in all cases brought on a negligence theory. There is no need to introduce further complications. The policy reasons which once existed to preserve the doctrine because of its use in the master-servant cases no longer exist. Furthermore, as is indicated in the Pennsylvania Suggested Standard Jury Instructions, "cases which have evoked the doctrine to deny plaintiff's recovery would have produced the same result either by (1) the court's determination that, as a matter of law, defendant owed plaintiff no duty, or, by (2) the jury's determination that plaintiff's own negligent conduct was a substantial factor in bringing about the harm he suffered."

496 Pa. at 613, 437 A.2d 1198. 2 Additionally, the plurality in Rutter stated:

As is indicated in § 496C, comment g, [of the Restatement Second of Torts] the implicit decision to assume the risk can be either reasonable or unreasonable. Since the Pennsylvania comparative negligence statute is designed to apportion liability on the basis of fault, not to bar plaintiff's recovery if it can be shown that he had any degree of fault at all, the absolute bar to plaintiff's recovery effected by the application of types 2 and 3 [of assumption of risk], without regard to the reasonableness of plaintiff's action, tends to frustrate the purpose of the comparative negligence statute.

496 Pa. at 616, n. 6, 437 A.2d at 1210, n. 6. 3 Finally, type 4 of assumption of the risk, 4 where both plaintiff and defendant are negligent to some degree, also frustrates the policies behind our comparative negligence statute, where plaintiff is not barred from recovery unless his own negligence is greater than 50%. 5

Two years after Rutter this court again had occasion to address the assumption of risk problem in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). In that case, a plaintiff visiting a medical clinic in order to receive treatment for a back ailment parked in the clinic lot next to a sheet of ice. When she returned to her car, she slipped on the ice and was injured. The evidence disclosed that there were areas in the lot which were not ice-covered and that plaintiff saw the ice next to her car and appreciated the danger that she might fall. 6 Mr. Chief Justice Roberts, writing for a unanimous court, held that where plaintiff's uncontradicted evidence was that the danger posed by the ice was both obvious and known, the defendant reasonably expected that the danger would be avoided. " '[T]he law of Pennsylvania does not impose liability if it is reasonable for the possessor to believe that the dangerous condition would be obvious to and discovered by his invitee'; Palenscar v. Michael J. Bobb, Inc., 439 Pa. 101, 106-07, 266 A.2d 478, 480, 483 (1970)," Carrender, 503 Pa. at 185, 469 A.2d at 123. Plaintiff, therefore, failed to establish a duty essential to a prima facie case of negligence and the defendant clinic was entitled to a judgment notwithstanding the verdict as a matter of law.

In explaining the relationship between assumption of risk and the duty owed an invitee by a possessor of land, Mr. Justice Roberts wrote:

When an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpart to the possessor's lack of duty to protect the invitee from those risks.... By voluntarily proceeding to encounter a known or obvious danger, the invitee is deemed to have agreed to accept the risk and to undertake to look out for himself.... It is precisely because the invitee assumes the risk of injury from obvious and avoidable dangers that the possessor owes the invitee no duty to take measures to alleviate those dangers. Thus, to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers. See Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978) (operator of baseball park owes no duty to guard against common, frequent, and expected risks of baseball; duty extends only to foreseeable risks not inherent in baseball activity).

503 Pa. at 187-88, 469 at 125.

It should be noted that in Carrender there was no question as to whether the injured party knew of the risk. This is significant because one of the problems in an assumption of risk analysis is determining what the plaintiff knew and whether the plaintiff's course of action was voluntarily and deliberately taken. 7 Because there was no question in Carrender as to whether the risk was intelligently and voluntarily taken, the court was able to decide that there was no duty as a matter of law. 8

As Mr. Justice Roberts pointed out in Carrender, an assumption of risk analysis may, in an appropriate case, be "merely a counterpart" to a duty analysis. In Mr. Justice Roberts' words: "to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers." Carrender, Id. In other words, cases like Carrender may be analyzed from the point of view of duty, or assumption of risk, or ordinary negligence law, each of which overlaps with the others (i.e., a duty analysis may entail a consideration of assumption of risk and ordinary negligence principles).

The present case may also be analyzed from different perspectives. One approach to the case is that of a duty analysis; a second is that it may be seen as a case involving comparative negligence; a third is that it may be seen as a type 2 or 3 assumption of risk case; a fourth is that it may be seen as a type 4 assumption of risk case.

If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that Howell voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by Clyde. 9 Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.

A second analysis is that Howell was negligent in participating in the cannon episode and that his negligence must be compared with Clyde's. 42 Pa.C.S. § 7102 provides:

(a) General rule.--

In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

Such a comparison is for the...

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