Staub v. Toy Factory, Inc.

• Decision Date: 23 March 2000
• Citation: Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa. Super. Ct. 2000)
• Parties: Paul F. STAUB and Nancy J. Staub, his wife, Appellants, v. TOY FACTORY, INC. Paul F. Staub and Nancy J. Staub, his wife, Appellants, v. Karl Kenyon. Paul F. Staub and Nancy J. Staub, his wife, Appellants, v. Grimm Industries Inc., Amthor Steel Inc., Carrara Steel Erectors Inc., and Carrara Steel Inc.
• Court: Pennsylvania Superior Court

749 A.2d 522

Paul F. STAUB and Nancy J. Staub, his wife, Appellants, v. TOY FACTORY, INC.

Paul F. Staub and Nancy J. Staub, his wife, Appellants, v. Karl Kenyon.

Paul F. Staub and Nancy J. Staub, his wife, Appellants, v. Grimm Industries Inc., Amthor Steel Inc., Carrara Steel Erectors Inc., and Carrara Steel Inc.

Superior Court of Pennsylvania.

Argued September 8, 1999.

Filed March 23, 2000.

James R. Fryling, Erie, for appellants.

Louis C. Long, Pittsburgh, for Toy Factory, Kenyon & Grimm, appellees.

James T. Marnen, Erie, for Amthor Steel, Carrara Steel Erectors and Carrara Steel, appellees.

Before McEWEN, President Judge, and DEL SOLE, KELLY, POPOVICH, JOHNSON, FORD ELLIOTT, EAKIN, JOYCE and STEVENS, JJ.

FORD ELLIOTT, J.:

¶ 1 In this negligence/personal injury action, plaintiffs/appellants Paul and Nancy Staub appeal from the order dated November 5, 1997, granting summary judgment to defendants Grimm Industries, Inc., Toy Factory Inc., and Karl Kenyon ("collectively," the "Grimm defendants" or "Grimm"); and Carrara Steel Erectors, Inc., Carrara Steel, Inc., and Amthor Steel, Inc. ("collectively," the "Carrara defendants" or "Carrara"). We affirm in part, reverse in part, and remand.

¶ 2 The facts of the case are as follows. Appellant Paul Staub ("appellant") was employed by Barnhart Builders, Inc. ("Barnhart"), as a roofer.¹ Grimm Industries hired Barnhart to install insulation and other materials on the roof of a building being constructed for Toy Factory, Inc.² A Grimm Industries employee, Karl Kenyon, designed the building and coordinated the construction process. Grimm Industries hired Carrara to manufacture and erect the structural steel for the building. At Kenyon's request, a Carrara employee carved ten openings in the roof to accommodate skylights and ventilation devices, after which a Grimm Industries employee installed wooden "curbing" around the perimeter of the openings. The curbing was not, however, designed to safeguard the openings. Grimm and Carrara dispute when the openings were cut and which of the defendants, if any, was in charge of safeguarding the roof openings. No one covered the holes or otherwise safeguarded the openings in the roof.

¶ 3 Appellant was injured on December 3, 1993 while installing foam insulation sheets on the roof when he stepped backward, caught his ankle on the curbing around one of the holes, and fell through the hole. The procedure employed by appellant and his co-worker required appellant to walk backward so that he could catch the sheets of insulation his co-worker passed to him and then move them into place with his foot. The workers had to work quickly so that other workers could perform the next phase of the roofing process. Appellant knew the holes existed but could not see their exact location because he was walking backward; therefore, he would occasionally glance around to watch for the openings. He was, however, focused on catching the insulation sheets his co-worker passed to him when he encountered the first hole, tripped, and fell through. Although other Barnhart employees were on the roof at the time, no one, including appellant's co-worker, warned that he was approaching a hole. Appellant had worked on other roofs which had holes in them; however, this was the first time that appellant had installed insulation near the holes in this particular roof.

¶ 4 Appellants Paul and Nancy Staub³ filed three separate complaints, which were consolidated for discovery and trial. The Grimm defendants then filed a motion for summary judgment, and the Carrara defendants filed an amended motion for summary judgment. By order dated July 14, 1997, the court entered summary judgment with respect to the Carrara defendants but denied summary judgment with respect to the Grimm defendants. The Grimm defendants then filed a motion for reconsideration. On November 5, 1997, the trial court vacated its July 14 th order and granted summary judgment to all defendants, finding that material issues of fact remained as to whether appellees owed appellant a duty of care, but nevertheless finding that appellant had knowingly and voluntarily assumed the risk of his injuries.⁴ This timely appeal followed.

¶ 5 On appeal, appellant ostensibly raises four issues, which properly constitute one issue with several sub-issues. We have re-phrased appellant's issues as follows:

Whether the trial court abused its discretion and committed an error of law in granting summary judgment in favor of the defendants on the doctrine of assumption of the risk by:

reviewing the evidence in the light most favorable to the moving parties and resolving material issues of fact against the nonmoving parties;

ruling that an employee is required to quit his employment when his safety is imperiled; and

finding that appellant's assumption of the risk was voluntary under the circumstances.

Appellant's brief at 4 (paraphrased). Because we find that reasonable minds could differ as to whether appellant voluntarily assumed the risk of his injuries, and that the trial court erred when it concluded that an employee is required to quit his employment when his safety is imperiled, we reverse in part. We note first our standard and scope of review of an order granting summary judgment:

When presented with a challenge to an order granting summary judgment, we view the record in the light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996). Concerning questions of law, our scope of review is plenary. Id. We are not bound by a trial court's conclusions of law; instead, we may draw our own inferences and reach our own conclusions. Butterfield v. Giuntoli, 448 Pa.Super. 1, 670 A.2d 646 (1995),appeal denied, 546 Pa. 635, 683 A.2d 875 (1996).

Borden, Inc. v. Advent Ink Co., 701 A.2d 255, 258 (Pa.Super.1997), appeal denied, 555 Pa. 725, 725 A.2d 178 (1998). "The moving party has the burden of proving the nonexistence of any genuine issue of material fact." Salazar v. Allstate Ins. Co., 549 Pa. 658, 661-62, 702 A.2d 1038, 1040 (1997). Our review of the record is plenary. Keselyak v. Reach All, 443 Pa.Super. 71, 74-76, 660 A.2d 1350, 1352 (1995).

¶ 6 Our supreme court appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court's duty analysis, and not a matter for jury determination.⁵ Howell v. Clyde, 533 Pa. 151, 160-64, 620 A.2d 1107, 1112-13 (1993) (plurality). See also Struble v. Valley Forge Military Academy, 445 Pa.Super. 224, 232, 665 A.2d 4, 8 (1995). In Hardy v. Southland Corp., 435 Pa.Super. 237, 243-45, 645 A.2d 839, 842 (1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (1994), this court concluded that until the supreme court adopts clearer standards, assumption of risk should be analyzed according to the lead (plurality) opinion in Howell. Under this "modified" form of the doctrine, assumption of risk is no longer an affirmative defense in most cases;⁶ rather, it is incorporated into an analysis of whether the defendant owes a duty to the plaintiff. Id.; Zinn v. Gichner Sys. Group, 880 F.Supp. 311, 318 (M.D.Pa. 1995). "Howell states that the trial court is obligated to review the factual scenario and determine whether `[u]nder those facts, ... the defendant, as a matter of law, owed the plaintiff no duty of care.'" Hardy, 645 A.2d at 842, citing Howell, supra at 162-64, 620 A.2d at 1113.

¶ 7 This court has also held that "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." Struble, 665 A.2d at 6, citing Long v. Norriton Hydraulics, Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995), appeal denied, 544 Pa. 611, 674 A.2d 1074 (1996) (emphasis in Struble).⁷ ¶ 8 As the plurality observed in Howell, supra, "the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury." Howell, supra at 162, 620 A.2d at 1113 (plurality). As the Howell court continued, "If, on the other hand, the court is not able to make this determination and a nonsuit is denied, then the case would proceed and would be submitted to the jury on a comparative negligence theory." Id. The Howell court noted that "[u]nder this approach ... assumption of the risk would no longer be part of the jury's deliberations or instructions." Id.

¶ 9 The case before us involves defendants' motions for summary judgment, however, not a motion for compulsory nonsuit as in Howell. Where assumption of risk is asserted as an affirmative defense, a defendant is required to establish that there is no genuine issue of material fact that plaintiff assumed the risk.⁸ Under Howell, supra, however, if appellant assumed the risk as a matter of law, then Carrara and Grimm owed no duty to appellant, and appellant's negligence action should not proceed to a jury because he failed to establish his prima facie case of negligence. In this case, the trial court indicated that summary judgment would be appropriate whether assumption of the risk were treated as part of a "no-duty" analysis or as an affirmative defense. (Trial court opinion, 11/5/97 at 15 n. 9.) Like the trial court, we will focus on the merits of the doctrine itself.

`Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the beginning of this period [the industrial revolution] to insulate the employer as much as possible from bearing the "human overhead" which is an inevitable part of the cost—to

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