I. ASSUMPTION OF RISK
A. Current Status
The Restatement (Second) of Torts §343 provides that a possessor of land is subject to liability for physician harm caused to his invitees by a condition on the land, if but only if, he:
a. knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
b. should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
c. fails to exercise reasonable care to protect them against the danger.
Section 343A of the Restatement provides: a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
Sections 343 and 343A of the Restatement (Second) of Torts preclude liability for a possessor of land where an invitee is injured as a result of a condition whose danger is known or obvious to the invitee, unless the possessor anticipated the injury despite the invitee’s knowledge or the obviousness of the condition. Restatement (Second) of Torts §343A(1). As the cases below illustrate, where a danger is “open or obvious,” the possessor of land does not owe the invitee a duty to take precautions against or warn of open or obvious dangers.
Under Pennsylvania law the assumption of the risk doctrine applies to absolve the landowner from liability for injuries sustained if the plaintiff: (1) knows of the risk or hazard, and (2) voluntarily proceeds in that activity.
There is substantial uncertainty as to the status of the assumption of the risk doctrine in Pennsylvania. Which party bears the burden to establish these elements is currently the subject of debate in Pennsylvania courts. Uncertainty arises as to whether assumption of the risk is part of the duty analysis, therefore making it a question of law and placing the burden of proof on the plaintiff or a question of fact for the jury. Traditionally, assumption of the risk was viewed as an affirmative defense placing the burden of proof on the defendant.
B. Duty Analysis vs. Affirmative Defense
Most recently the Pennsylvania Superior Court examined the doctrine of assumption of the risk in Zachardy v. Geneva College, 733 A.2d 648 (Pa.Super. 1999) appeal denied 751 A.2d 193 (Pa. 2000). In Zachardy, plaintiff, a baseball player for Point Park College, stepped in a divot/hole/imperfection in the outfield while in pursuit of a fly ball and suffered an injury to his knee. Plaintiff asserted defendant, Geneva College, failed to maintain the ball field in a reasonably safe condition. The court acknowledged that assumption of the risk involved two components; the first, plaintiff’s knowledge or awareness of the risk, and the second, plaintiff’s voluntarily facing the risk. Id. at 651. “Where a [plaintiff] voluntarily and with the awareness of specific risks inherent in the activity proceeds in the face of a known risk, he absolves the [property owner] from a duty to protect him from injuries thus sustained.” Id.
The court observed that the Pennsylvania Supreme Court has held that implied assumption of the risk, where plaintiff’s encountering of the risk is unreasonable, has become part of the duty analysis for the trial court and not part of the case to be determined by the jury. Id. at 650 citing Howell v. Cyde, 620 A.2d 1107, 1112-1113 (Pa. 1993) (for discussion of Howell see infra). The court held that defendant was absolved of the duty to protect plaintiff from injury, as he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Id. at 651.
The Superior Court has also recently examined assumption of the risk in product liability actions. In Frey v. Harley Davidson Motor Company, Inc., 734 A.2d 1 (Pa.Super. 1999) appeal denied 751 A.2d 191 (Pa. 2000), plaintiff attempted to persuade the court that “the question whether a plaintiff assumed the risk of injury is for the jury, because it involves a factual finding as to the plaintiff’s subjective knowledge of the specific defect that caused the injury.” Id. at 6. The court rejected this argument and held that assumption of the risk is a question of law and not a matter for jury determination. Id. For a plaintiff to be precluded from recovery based on assumption of the risk, he must know of a specific defect in the product and voluntarily proceed to use the product with knowledge of the danger caused by the defect. Id. However, the plaintiff’s knowledge and understanding of the risk can be shown by circumstantial evidence and inferred from the surrounding circumstances; actual proof that the plaintiff knew, understood or appreciated the risk is not needed. Id.
The United States Court of Appeals for the Third Circuit in Kaplan v. Exxon Corp., 126 F.3d 221 (3d. Cir. 1997), attempted to predict how the Pennsylvania Supreme Court will rule on the doctrine of assumption of the risk. Following the plurality opinions in Carrender v. Fritterer, 469 A.2d 120 (Pa. 1983) and Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) (see infra for a discussion of Carrender and Howell), the Third Circuit held that under Pennsylvania law, assumption of the risk is incorporated into the duty analysis. A defendant owes no duty to a plaintiff who discovered a dangerous condition which was obvious and avoidable and who nevertheless proceeded voluntarily to encounter it. Id.
In Howell v. Clyde, 620 A.2d 1107 (Pa. 1993), plaintiff was injured while attending a party at his neighbor’s home when a fireworks cannon, owned by the host-neighbors, exploded. The trial court entered an involuntary non-suit, holding that the plaintiff had assumed the risk of the injury, and the Superior Court reversed and remanded. Reversing the Superior Court and reinstating the judgment of the trial court, the Supreme Court held that since the plaintiff voluntarily assumed the risk of injury, the defendant owed him no duty. Id. at 1113. Thus, where a plaintiff voluntarily and intelligently undertakes an activity which he knows to be hazardous and likely to cause him injury, no duty exists on the part of the property owner as a matter of law. Id. at 1112-13. The court noted that this modified form of assumption of the risk deals with situations not covered by comparative negligence because plaintiff’s negligence or fault is not relevant to an assumption of the risk analysis; rather, the relevant inquiry is whether the plaintiff voluntary chose to encounter the risk. Id. at 1112. In other words, a court should incorporate assumption of the risk into its duty analysis. In this way, the Howell court’s modified assumption of the risk doctrine is consistent with the “open or obvious danger” doctrine.
In Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983), plaintiff slipped and fell on a patch of ice in the parking lot of her chiropractor’s clinic. A sheet of smooth ice covered the area between plaintiff’s car and another parked car, but the remainder of the parking lot was free of snow and ice. The trial court entered judgment in favor of plaintiff, and the Superior Court affirmed. Reversing and remanding, the Supreme Court held that plaintiff failed to establish the requisite element of duty to establish a prima facie case of negligence. Id. at 124. That is, the defendant was under no duty to either take precautions against or to warn of the dangerous condition presented by the isolated patch of ice on the parking lot as plaintiff recognized the danger and could have avoided it. Id. at 123.
The Pennsylvania Supreme Court first recognized the applicability of §§343 and 343A with respect to the duty owed by a possessor of land to an invitee in Carrender. 469 A.2d at 123 (quoting Restatement (Second) of Torts §§343 and 343A). The court noted that a danger is “obvious” when both the condition and the risk are apparent to, and would be recognized by, a reasonable person in the position of the invitee while exercising normal perception, judgment and intelligence. Id. (quoting Restatement (Second) of Torts §343A, cmt. b). The court concluded that the danger posed by the isolated patch of ice was both obvious and known. The court reasoned that plaintiff’s own testimony showed that the existence of the ice was obvious to a reasonably attentive invitee, and also that plaintiff herself was aware of the ice and appreciated the risk of walking on it. Id. at 124. The court concluded further that the defendant could reasonably have expected that, in light of the number of clear parking spaces available, invitees would recognize the danger posed by the patch of ice and choose to park elsewhere to avoid it. Id. Thus, there was no duty on the part of defendant. Id.
The Pennsylvania Superior Court reinforced the proposition that assumption of the risk involves a duty analysis in Staub v. Toy Factory, Inc., 749 A.2d 522 (Pa.Super. 2000). Plaintiff Staub was a roofer who fell through an opening in the roof that had been cut for the installation of skylights. In a motion for summary judgment, defendants contractor and subcontractor asserted that they owed plaintiff no duty and posited plaintiff had assumed the risk. The trial court denied defendants’ motion as to the duty issue, but determined that plaintiff had indeed voluntarily and knowingly assumed the risk of possible injuries. Id., at 532. In arriving at its determination, the Superior Court cited recent precedent, namely Howell v. Clyde, 620 A.2d 1107, 1112-13 (Pa. 1993), and its progeny, in support of the duty analysis approach to assumption of the risk. Staub, 749 A.2d at 526. The Superior Court reversed in part, holding that because “the [trial] court was unable to resolve the duty issue in favor of [defendants], it is for the jury to decide whether [plaintiff’s] conduct in performing his job despite his awareness of the roof openings was reasonable or unreasonable.” Id., at 532.
In Hardy v. Southland Corp., 645 A.2d 839 (Pa. Super. 1994), plaintiff slipped and fell when she entered a 7-Eleven store on a day when it had been raining. The linoleum floor on which she stepped was wet. Just prior to stepping onto the floor, plaintiff glanced down and noticed that it was wet. However, plaintiff did not interrupt her normal walking gait, notice the condition of the floor and think about it for a moment and then proceed to walk on it anyway, appreciating that it might be slippery. The court concluded that, under these circumstances, the assumption of the risk doctrine should not operate as a complete bar to plaintiff’s recovery. Id. at 841. Rather, these circumstances invited comparison of negligence. Id.
The Hardy court noted that the exact status of the assumption of risk doctrine as valid law in Pennsylvania was less than clear. As a result, the court purported to clarify the status of the doctrine. The court canvassed prior case law dealing with assumption of the risk and concluded that the doctrine had not been formally abolished in Pennsylvania. Id. at 842. Rather, the court determined that it was obligated to apply the modified assumption of risk doctrine as set forth in Howell v. Clyde, 620 A.2d 1107 (Pa. 1993) (see infra for a discussion of Howell). That is, the doctrine is incorporated in a duty analysis such that the trial court must review the factual circumstances and determine whether defendant, as a matter of law, owed plaintiff no duty. Id. Applying this analysis, the court concluded that a store owner has a duty to keep its floors dry and otherwise safe for its patrons. Id. at 843.
A recent Common Pleas case which followed Howell, was Sidmonds v. Vill, PICS No. 98-2115-22-00 (C.P. Philadelphia, September 28, 1998). In Sidmonds, plaintiff was walking from work to her car via defendant’s sidewalk, when she slipped on an alleged depression in the sidewalk. Plaintiff had been using the sidewalk for approximately two years prior to the incident in issue. Plaintiffs filed a post-trial motion after a unanimous verdict for defendants, claiming the court erroneously charged the jury on landowner liability for an unsafe sidewalk, improperly excluded the testimony of the city inspector and improperly charged on assumption of the risk.
The jury was instructed almost verbatim from § 342 of the Restatement (Second) of Torts with the addition of the following sentence: “If the person knows of it [the risk] or has reason to know of it, but nevertheless knowingly and voluntarily proceeds in the face of it, then the landowner has no liability.” Appellants argued the jury was erroneously charged on assumption of the risk instead of on comparative negligence. The court cited Howell, stating that although it severely abrogated the doctrine of assumption of the risk as an affirmative defense, it did not abrogate assumption of the risk insofar as it lessened or eliminated the duty of the defendant toward the plaintiff. The court noted that plaintiff’s argument ignored the: distinction between assumption of the risk as an affirmative defense and assumption of the risk as part of the duty analysis in a prima facie negligence case. One need not reach the issue of an affirmative defense where a prima facie case has not been made out. In this case, plaintiff failed to make out a prima facie case for negligence by failing to prove that defendant owed her a duty. The reason that the defendant did not owe the plaintiff a duty is that the jury found that plaintiff voluntarily and knowingly encountered this risk, the trial court was constrained to find that defendant owed no duty to the plaintiff and to enter a judgment against the plaintiff on that basis. . . . The affirmative defenses of assumption of the risk and comparative negligence are not even reached where a plaintiff’s conduct relieves the defendant of its duty. Without a duty, there can be no negligence, and without a prima facie case for negligence, there is no need for an affirmative defense.
Id.
In Chang v. Camelback Ski Corp., PICS No. 99-2129-23-00 (C.P. Monroe August 30, 1999), plaintiff alleged the ski resort was negligent for not maintaining a perfectly groomed ski slope. Plaintiff argued that the slope was icy and caused plaintiff to loose control and become injured. Plaintiff, an inexperienced skier, proceeded down an expert/black diamond trial, and lost control on a patch of ice. Plaintiff claimed that he could not have known of the dangerous conditions, even though he admitted they were caused by a severe weather anomaly. Plaintiff claimed the ski resort should have prevented him from using the slope. The court held that a ski resort owes no duty to protect skiers from the inherent risks of skiing.

Skiing is a dangerous sport. If we were to find that Plaintiff pled a viable cause of action in this case under a theory that Defendant was negligent in not maintaining a perfectly groomed downhill ski slope with no ice or other conditions usually found on ski slopes, particularly here where Plaintiff tells us that the ice was caused by a weather anomaly, what could happen to one of the most popular winter sports in America?
Id. at 7.
C. Knowledge of the Risk
The traditional application of assumption of risk in cases involving injury to skiers remains unscathed by the evolution of the doctrine in other areas tort law. The idiosyncratic application of assumption of risk in ski injury cases was explained by the Pennsylvania Supreme Court in Hughes v. Seven Springs Farm, Inc., 762 A.2d 339 (Pa. 2000). The Hughes Court noted that a significant factor in the diminution of assumption of risk has been the Pennsylvania General Assembly’s adoption of comparative fault scheme with the passage of the Comparative Negligence Act (CNA) in 1978. Id., at 341 (citing 42 Pa.C.S. §7102 (a)-(b)). The Generally Assembly, however, passed the Skier’s Responsibility Act (SRA) only two years later, amending the CNA and expressly removing assumption of risk as it applies to downhill skiing from the purview of the original statute. Id. (citing 42 Pa.C.S. §7102(c)).
The Hughes case itself arose when the plaintiff skier was struck by an unidentified skier as she made her way to the lift at the end of her run. Id., at 340. Despite signing a release agreement upon purchasing her lift ticket, plaintiff sued the ski resort. Id. The trial court granted defendant ski resort’s motion for summary judgement based on assumption of risk and supported by the SRA. The Superior Court reversed, holding in part, that a question of fact remained as to whether skiing toward the lift constituted “downhill skiing” as it appears in the SRA. Id. The Supreme Court found the Superior Court’s application of the SRA too narrow and reversed the lower appellate court’s decision, reinstating the trial court order granting summary judgment for defendant ski resort. Id., at 345-46. Specifically, the Hughes Court held that the SRA’s preservation of the assumption of risk doctrine in downhill skiing cases ‘bars a suit brought against a ski resort by a skier who, while skiing towards the ski lift through a common area at the base of the mountain, is struck and injured by another skier coming down that mountain.” Id., at 240.
In another sports case, Kevan v. Manesiotis and North Allegheny School District, 728 A.2d 1006 (Pa. Commw. 1999), the Commonwealth Court held that knowledge of the particular risk is essential to a defense of assumption of the risk. In Kevan, plaintiff, a high school baseball player was hit in the face with a baseball during indoor practice in the school gymnasium. Due to inclement weather, practice was held inside. During the practice the coach was taking full swings at the ball instead of the usual half swings taken during indoor practice. Defendants argued that plaintiff assumed the risk, as he had testified that he was aware that there was a chance he could be hit by a baseball. The Commonwealth Court held that while a baseball player generally assumes the risk of being hit by a batted ball, this was an unusual situation in which balls were being hit at an abnormally high velocity in an allegedly poorly lit gymnasium. While plaintiff knew of the risk of being hit, he did not know of the risk of being hit by a baseball which was batted with a full swing, as it was not the coach’s usual practice. Id. at 1009.
The Superior Court has also evaluated the assumption of risk defense in the case of Barrett v. Fredavid Builders, Inc., 685 A.2d 129 (Pa. Super.1996). In Barrett, plaintiff was injured in a falldown incident while installing insulation at a construction site. When plaintiff arrived at his work site on the day of the incident, he saw that it was cluttered with vinyl siding and other insulation materials. He tried to clean up the area by moving the materials out of his way. In order to install the insulation, plaintiff worked on stilts which were two feet high. Unfortunately, he stepped on some of the siding while on his stilts and fell to the ground suffering his injuries. Judge Albert Sheppard, Philadelphia Court of Common Pleas, upon review of plaintiff’s deposition transcript, entered summary judgment in favor of defendant. Judge Sheppard concluded that plaintiff was aware of the risk incident to walking on stilts in an area where there were work materials on the floor. Judge Sheppard ruled as a matter of law that plaintiff had voluntarily undertaken a known dangerous risk, thereby obviating liability on the part of defendant. On October 9, 1996, the Superior Court reversed Judge Sheppard’s entry of summary judgment against plaintiffs and remanded the case to the trial court. Senior Judge John P. Hester wrote “before the doctrine of the assumption of risk will be applied to prevent recovery, the evidence must establish conclusively that the plaintiff was subjectively aware of the risk. [The plaintiff] did not have subjective knowledge that he was going to slip on a piece of insulation because he subjectively thought that by clearing a path, he had eliminated that risk.” Id. at 131. Judge Hester further ruled that “the determination that the plaintiff has assumed the risk of his injuries such that recovery is prevented should occur only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Id.
In Beizer v. Graduate Hospital, Inc., PICS No. 96-7512 (C.P. Philadelphia, October 10, 1996;), aff’d 711 A.2d 1036 (Pa. Super. 1998), plaintiff, an 83 year old physician, tripped over a box in his path as he approached the doorway at Graduate Hospital. The box had been placed there by employees of an independent contractor. The independent contractor’s employees wrote the words “do not enter” on the side of the box facing away from plaintiff. Plaintiff attempted to step over the box and apparently either tripped or lost his balance. After a verdict for plaintiff in a non-jury trial, Judge Hill rejected defendant’s argument on post-trial motions that plaintiff assumed the risk. Judge Hill wrote that “instantly the facts establish that [plaintiff] lacked any subjective awareness of a potential injury; plaintiff testified that he did not anticipate any danger in his attempt to step over the box nor did he believe the box to be dangerous.” Again, the requirement that plaintiff subjectively appreciate and recognize that he was encountering a risk of injury was the standard applied by the court.
In Bullman v. Giuntoli, 761 A.2d 566 (Pa.Super. 2000), the Superior Court articulated that in order for assumption of risk to apply, the resulting injury has to be the same injury that was assumed by the plaintiff. Giuntoli involved a plaintiff injured when she fell through an unfinished porch at the construction site of her parent’s new home. Plaintiff had walked a narrow plank across an excavation ditch leading to the interior of the homesite. Plaintiff was injured when she stepped off the plank and on to the porch, which appeared solid, but was merely covered by insulation material. The trial court granted defendants’, parents and builders, motion for summary judgment based on assumption of risk doctrine. Id., at 569. In reversing the trial court, the Superior Court reasoned that plaintiff had assumed the risk of falling from the plank into the ditch, but had not assumed the risk of falling through the unfinished porch. Id., at 573-74.
Prior to arriving at its holding, the Superior Court analyzed and explained all relevant, recent cases involving assumption of the risk. Id., at 570-73. The material included therein represents the most comprehensive and helpful discussion of assumption of risk, and will remain a valuable reference until the Pennsylvania Supreme Court finds occasion to firmly settle the doctrine. With regard to its research of precedent, the Superior Court wrote, “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.” Id., at 570 (emphasis in original). The Court characterized the complete bar as a form of estoppel in a tort context. Id.
In Chiricos v. Forest Lakes Council Boy Scouts of America, 571 A.2d 474 (Pa. Super. 1990), a non-slip and fall case which is instructive on the known or obvious danger doctrine, plaintiff, after being injured when he placed himself in the path of an oncoming all-terrain vehicle (ATV), sued the property owner where the accident occurred. The court noted that plaintiff’s testimony showed he was aware of the obvious danger posed by the activity that caused his injury — placing himself in front of an oncoming ATV. Id. at 479. Cognizant of the danger attendant to the ATV, plaintiff made a conscious choice to place himself in a position of danger from which he could not escape until it was too late. Id. The court characterized plaintiff’s activity as an “obvious” risk apparent to and recognizable by a reasonable man in like circumstances. Id. at 479-80. The court also noted that plaintiff took no steps to protect himself. Id. at 480. Thus, the court held that defendant owed no duty of care to plaintiff because plaintiff “discovered” the dangerous condition, which was both obvious and avoidable. Id. The court held further that the injury incurred by plaintiff was not something that could or should have been anticipated or foreseen by property owner. Id.
In Long v. Norriton Hydraulics, Inc., 662 A.2d 1089 (Pa. Super. 1995), plaintiff, instituted a products liability action to recover for damages he sustained when a hydraulic automobile lift suddenly shifted downward while he was working under the lift. Summary judgment for defendants was granted by the trial court on defendants’ argument that because plaintiff was aware that the lift shifted downward, he had assumed the risk of injury. Plaintiff appealed. The Superior Court held that the question of whether plaintiff has assumed the risk of his injuries should not be decided as a matter of law except where it is beyond question that plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving defendant of responsibility for his injuries. Id. at 1091. In the present case, there was a question as to whether the risk was faced voluntarily and whether the risk was a known or obvious risk; therefore, summary judgment was inappropriate. Id.
D. Voluntary Undertaking
In Struble v. Valley Forge Military Academy, 665 A.2d 4 (Pa. Super. 1995), plaintiff, was severely injured when he attempted to untangle the lanyard on a toy cannon. The trial court entered judgment in favor of plaintiff and defendant appealed. The issue on appeal was whether defendant was entitled to judgment notwithstanding the verdict because the plaintiff had voluntarily assumed the risk of his injuries. Id. The court held that a plaintiff will not be precluded from recovering except where it is beyond question that the plaintiff 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. Id.
In Wallis v. SEPTA, 723 A.2d 267 (Pa.Commonw.Ct. 1999) appeal denied 759 A.2d 390 (Pa. 2000). plaintiff sued SEPTA for injuries he suffered while boarding a train. He alleged when he attempted to board, the train began to move without warning, and that the train conductor was absent from the platform while passengers were boarding (in violation of SEPTA’s procedures). On cross, Wallis acknowledged that he understood it is dangerous to board a moving train and that signs at the train station warn of that danger. He also acknowledged that although he did not see a conductor, he did not specifically look for one on the platform. The jury found in favor of Wallis after finding SEPTA 80% negligent and Wallis 20% negligent in causing his injuries. In post trial motions, SEPTA alleged that the trial judge erred in refusing to charge the jury on the defense of Wallis’ assumption of the risk. In assessing whether an instruction on assumption of the risk applied, Judge Colins reviewed testimony that the train was not in motion when Wallis attempted to board. Thus, she ruled, the facts did not establish express or implied assumption of the risk pursuant to Howell and Struble.