Malinder v. Jenkins Elevator & MacHine Co.

¶1Dissenting opinion by

¶2This case squarely presents the question of whether all categories of assumption of the risk survive after the enactment of the comparative negligence act.

¶3Appellee Malinder was injured when he put his head through an open panel in an elevator door to call to the operator to bring the elevator down. Malinder could have used an intercom system to summon the elevator. The elevator was apparently approaching at the time and struck Malinder in the head. Malinder sued several defendants, among them Utica Insurance Company and Allied Enterprises. Utica insured Malinder’s employer and its building and was required by Pennsylvania law to inspect the insured’s elevators. Utica hired Allied to inspect the elevators. Malinder alleged that these inspections were negligently performed.

¶4Allied and Utica requested a directed verdict on the ground that Malinder assumed the risk of his injuries. In the alternative, they requested a jury instruction that if plaintiff did assume the risk, he was barred from recovery. The trial court refused both requests. The record reveals that at trial, Malinder gave somewhat conflicting testimony regarding his appreciation of the risks inherent in putting his head through the panel to call the elevator. Although he testified that he had called the elevator in that manner before and did not believe it was dangerous to do so, he also testified that he knew he would be struck if the elevator was coming when he put his head through the panel. In place of the assumption of the risk charge, the trial court charged the jury on contributory negligence. The jury returned a verdict for Malinder and against Utica and Allied. The jury allocated thirty percent (30%) responsibili*430ty for Malinder’s injuries to Malinder’s contributory negligence.

¶5On appeal, appellant Utica contends that the evidence concerning Malinder’s conduct in tilting his head through the open panel, coupled with Malinder’s own testimony suggesting his appreciation of the danger inherent in that conduct, warranted at minimum a jury charge on assumption of the risk, if not a decision that Malinder had assumed the risk as a matter of law.

¶6I dissent from the majority’s decision regarding the continuing viability of the doctrine of assumption of the risk in a case such as this where the plaintiff’s conduct can be characterized as negligent and, therefore, fully evaluated by the jury in the context of comparative negligence. I find clear support for this view in the policies underlying the enactment of our Comparative Negligence Act, 42 Pa.Cons. Stat-Ann. § 7102 (1982).

¶7Assumption of the risk as a general doctrine has come under increasing attack in recent years. Dissatisfaction with the doctrine was expressed as early as 1943 by United States Supreme Court Justice Felix Frankfurter. He recommended the elimination of the phrase “assumption of risk” from our legal lexicons and characterized the phrase as follows:

¶8The phrase “assumption of risk” is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to lazy repetition; and repetition soon establishes it as a legal formula, indiscriminatingly used to express different and sometimes contradictory meanings.

¶9Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 68, 63 S.Ct. 444, 452, 87 L.Ed. 610 (1943) (Frankfurter, J., concurring).

¶10One of the major difficulties inhering in the use of the phrase and in its application to particular cases is that the phrase has been construed to have a variety of meanings. As our Supreme Court has aptly stated, the outcome of a particular case may well depend upon the sense in which *431“assumption of risk” is used in measuring the rights and liabilities of the parties. Rutter v. Northeastern Beaver City School District et al., 496 Pa. 590, 437 A.2d 1198 (1981) (plurality).1

¶11A complete understanding of these various definitions of assumption of risk is a predicate to comprehending why the doctrine in the form that appears in this case should not survive the enactment of a system of comparative negligence.

¶12The authors of the Restatement (Second) of Torts and the lead opinion of our Supreme Court in Rutterhave analyzed *432the doctrine of assumption of the risk as comprising four basic categories, as follows:

¶131. Type 1 —Express assumption of the risk — where the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for the plaintiffs protection.

¶142. Type 2 — Implied assumption of the risk — where the plaintiff has entered into some relation with the defendant which the plaintiff knows to involve the risk and is, thus, regarded as having impliedly relieved the defendant of a duty to protect plaintiff against the risk.

¶153. Type 3 — Implied assumption of the risk — where the plaintiff is aware of a risk created by the defendant and proceeds or continues voluntarily to encounter it and the plaintiffs conduct in so doing is entirely reasonable in that the risk is small and/or the plaintiff proceeds with all due caution.

¶164. Type 4 —Implied assumption of the risk — where the plaintiff voluntarily encounters a known risk created by the defendant’s conduct but the plaintiff acts unreasonably in doing so and, therefore, is contributorily negligent.

¶17Rutter, 496 Pa. at 607-08, 437 A.2d at 1206-072.

¶18The above categorization of assumption of the risk can best be understood by reference to classic negligence principles, i.e. did the defendant have a duty to the plaintiff, did *433defendant breach that duty, and was the defendant’s breach the legal cause of the plaintiff’s injuries?

¶19In types 1 and 2, classic negligence analysis yields the result that defendant did not owe a duty to the plaintiff. In type 1, the plaintiff by express action relieves the defendant of his or her duty by agreeing that the defendant is not obligated to act with due care for the benefit of the plaintiff and will not be liable for the consequences to plaintiff of any negligence by defendant. Keeton, W.P., Prosser and Keeton on Torts, 68, at 482 (5th ed. 1984). This aspect of assumption of risk serves the useful purpose of allowing parties the freedom to bargain as to their duties vis-a-vis each other as long as no overriding public policy concerns preventing such a bargain are implicated. Such express “exculpatory” agreements have long been regarded as enforceable under Pennsylvania law, although they are strictly construed against the drafter. See Cannon v. Bresch, 307 Pa. 31, 160 A. 595 (1932); Galligan v. Arovitch, 421 Pa. 301, 219 A.2d 463 (1966). Even the staunchest opponents of assumption of risk would retain this form of the doctrine, which obviously does not implicate any comparative negligence considerations. Rutter, 496 Pa. at 612-13, 437 A.2d at 1209.

¶20In type 2, the plaintiff by implied action relieves the defendant of his or her duty. The plaintiff tacitly or impliedly consents that by the terms of the relationship between him or her and the defendant, the defendant will not protect the plaintiff against certain risks. Prosser and Keeton on Torts, at 481. Some of the most common examples of this application of assumption of risk are the “baseball game” cases. As one author has stated, the theory underlying these cases is that:

... those who participate or sit as spectators at sports and amusements may be taken to assume the known risks of being hurt by roller coasters, flying baseballs [etc.]---- Cardozo once summarized all this quite neatly: “The timorous may stay at home.”

¶21*434Id. at 485-86. This Court has recently recognized that although such cases had previously been analyzed as involving the defense of assumption of risk, now courts reason that persons who expose themselves to the obvious risks of sports (like baseball) cannot recover because the defendant has no duty to protect against such risks. Bowser v. Hershey Baseball Ass’n, 357 Pa.Super. 435, 516 A.2d 61 (1986).

¶22Another variety of type 2 assumption of the risk was at issue in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), the only assumption of the risk case decided by the Supreme Court since Rutterand the case that the majority finds controlling here. Carrenderinvolved the duty of a possessor of land to an invitee. The plaintiff, who wore a prosthesis on one of her legs, was a patient at defendant’s clinic. Plaintiff fell while reentering her car in defendant’s parking lot after having visited defendant’s clinic. One small portion of the lot was covered with ice. Plaintiff chose to park in a space next to the ice although other ice-free spaces were available. Plaintiff testified that she knew she might slip if she attempted to walk across the ice. Id.,503 Pa. at 181-83, 469 A.2d at 121-22.

¶23The Court reiterated the long-standing proposition that the duty of a possessor of land to an invitee does not include taking precautions against or warning of those dangers which it is reasonable for the possessor to believe will be obvious to and known by the invitee. Id.,503 Pa. at 184-85, 469 A.2d at 123. As to the assumption of the risk doctrine, the Court clearly stated that in a case like Carrender, assumption of the risk is a counterpart to the lack of a duty on the part of the defendant. In other words, the relevance of assumption of the risk in such a case is to the duty analysis. Id.; accord Commonwealth v. Harris, 104 Pa.Commw. 580, 522 A.2d 184 (1987). Thus, the Court rejected the contention that in a case like Carrenderthe Comparative Negligence Statute had abrogated the assumption of the risk doctrine. Specifically, the Court said:

*435For fault to be apportioned under the comparative negligence statute, there must be two negligent acts: a breach of duty by the defendant to the plaintiff and a failure by the plaintiff to exercise care for his own protection. Whatever the effect of the adoption of a system of comparative fault on the defense of assumption of risk where that defense overlaps and coincides with contributory negligence, the adoption of such a system has no effect where, as here, the legal consequence of the invitee’s assumption of a known and avoidable risk is that the possessor of land is relieved of a duty of care to the invitee.

¶24Id.,503 Pa. at 188-89, 469 A.2d at 125.

¶25Thus, type 2 assumption of risk cases are cases where, “the plaintiff has entered into some relation with the defendant” and because of the special relationship between the parties, the plaintiff impliedly relieves the defendant of a duty to protect plaintiff against the risk. The Carrendercourt found that such a special relationship existed between the possessor of land and an invitee. In type 2 situations, because the defendant is impliedly relieved of a duty to protect the plaintiff against the risk, the enactment of a comparative negligence system has no effect.3See Rutter, supra;Carrender, supra.

¶26*436Type 3 poses somewhat more difficult analytical problems because it is not clear whether the plaintiff has impliedly relieved the defendant of his or her duty. Resolution of that issue is necessary as a predicate in order to determine whether to proceed with the negligence analysis. If it is concluded that the defendant owed no duty to the plaintiff, then continuing with the negligence analysis is inappropriate. If, on the other hand, it is concluded that the defendant owed plaintiff a duty, then the negligence analysis is appropriate. It then requires us to determine if defendant breached that duty and if the breach was the legal cause of plaintiffs injury. In any event, type 3 hypothesizes a non-negligent plaintiff; therefore, comparative negligence principles are not applicable. Since the case before us today does not involve type 3 assumption of risk, we need not decide whether it should be retained in our law. We note, however, that this peculiar and very uncommon form of assumption of risk has come under recent attack in other jurisdictions and an excellent case can be made for its elimination from our jurisprudence. See Blackburn v. Dorta, 348 So.2d 287 (Fla.1977).

¶27The facts of the instant case demonstrate that it squarely fits within type 4. Here, the plaintiff voluntarily encounters a known risk created by the defendant’s conduct, and the plaintiff acts unreasonably in doing so. It is not sufficient to invoke the doctrine of assumption of the risk and thereby preclude the plaintiff from recovery without further analysis. The instant fact pattern reveals a classic comparative negligence scenario. The defendant owed a duty to plaintiff to inspect the elevators. It breached that duty and was negligent. Plaintiff was also negligent in placing his head in the elevator shaft. Added to this calculus is the fact that plaintiff may have voluntarily encountered the known risk created by the defendant’s *437conduct. Under an assumption of the risk analysis, this last fact becomes controlling and plaintiff may be barred from recovery. I suggest the proper analysis is to factor the plaintiff’s conduct as an element of his own contributory negligence, and compare his negligence with that of the defendant’s. The result of injecting the assumption of the risk defense bars plaintiff’s recovery and harkens the return to the days of contributory negligence when a negligent act by the plaintiff barred his recovery.

¶28In my view the majority opinion is in error because it characterizes the instant factual scenario as type 2 assumption of the risk. By doing so it avoids addressing the question of whether type 4 assumption of the risk should survive after the passage of the Comparative Negligence Act. The majority attempts to squeeze the instant case into a type 2 Carrenderfact pattern and thereby conclude that the defendant owed no duty to the plaintiff. The majority finds a factual analogy between this case and Carrender. In my view the analogy is flawed and inappropriate because type 2 assumption of the risk cases require a special relationship between the plaintiff and the defendant.

¶29In Carrenderthat special relationship derived from the fact that plaintiff was an invitee and defendant a possessor of land. In fact, the only situation addressed by the Car-render Court is that of a possessor of land and an invitee. There is no suggestion in the Carrenderopinion that the Supreme Court intended its decision to extend to the scope of the duty of any other category of defendant. The Carrenderopinion is replete with the law of possessors of land. Possessors of land and invitees have a unique and special relationship and a body of law has developed around that relationship which makes the duty of possessors of land different from that of other defendants. Thus, to extend the holding of Carrenderto any other type of case is strained.

¶30The instant case, on the other hand, is a clear example of an ordinary plaintiff, an employee of a third party, and an ordinary defendant, an insurance carrier. Absent the spe*438cial relationship, the duty that the defendant owes to the plaintiff falls squarely within traditional tort concepts.

¶31Since this is in my view a case involving both a negligent plaintiff and a negligent defendant, which involves no special relationship between the parties that might affect the defendant’s duty, the Comparative Negligence Act is directly implicated. In such a case as this, I would hold that assumption of the risk should be abrogated because it prevents a comparison of plaintiff’s negligence to defendant’s and thus frustrates the intent of a comparative negligence system. The continued viability of assumption of the risk throws this kind of case back into the contributory negligence model, which the legislature expressly rejected in enacting the Comparative Negligence Act. The plaintiff is barred from recovery if his or her conduct reveals negligent conduct in the peculiar form that overlaps with assumption of the risk. This result is clearly not in accordance with the legislative policy determinations that underlay the enactment of the Comparative Negligence Act.

¶32Our Comparative Negligence Act established what has been called a “modified” system of comparative negligence. It is “modified” in the sense that it preserves the possibility of a complete bar to recovery based upon the negligence of the plaintiff in any case where the negligence of the plaintiff exceeds that of the defendant. 42 Pa.Cons.Stat.Ann. § 7102(a). From the face of the statute there can be no doubt that the legislature approved the elimination of the traditional notion that a slightly negligent plaintiff should be barred from recovery against a grossly negligent defendant. However, it is equally clear from the face of the statute that the legislature also approved the traditional contributory negligence concept in some cases where the plaintiff may have acted with such a lack of due care, with such a disregard for his/her own welfare, that recovery should be barred.

¶33Although the face of the statute is silent on the precise issue presented here, a review of the policy underpinnings of contributory negligence, comparative negligence and as*439sumption of risk reveals that such a statute also logically mandates the merger of type 4 assumption of risk into comparative negligence. Contributory negligence may be either “an intentional and unreasonable exposure of himself [the plaintiff] to danger created by the defendant’s negligence, of which danger the plaintiff knows or has reason to know, or ... conduct which in [other] respects falls short of the standard to which the reasonable man should conform in order to protect himself.” Restatement (Second) of Torts § 466 (1965). The complete bar previously resulting from proof of a plaintiff’s contributory negligence was based upon a policy determination that a plaintiff who was at all at fault for his or her injuries because of his or her own failure to exercise due care had no legal right to recover from another who had also contributed to those injuries. Adoption of a comparative negligence scheme reflects a change in this policy. Comparative negligence regards a reduction in the plaintiff’s recovery as a sufficient punishment for his or her own negligence. Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir.1979) (construing Virgin Islands law and concluding that the Virgin Islands comparative negligence statute, virtually identical to Pennsylvania’s, abrogates assumption of risk). However, under a modified system such as ours, where the plaintiff’s conduct is sufficiently egregious, i.e. more negligent than the defendant’s, the total bar of contributory negligence is preserved.

¶34On the other hand, assumption of risk in all of its forms except for type 4 and possibly for type 3 is a concept based on the consent or waiver, whether express or implied, by plaintiff of defendant’s duty to protect plaintiff. This is amply demonstrated by the discussion of the types of assumption of risk above. In type 4 assumption of risk, however, the defenses of contributory negligence and assumption of risk converge. The definition of contributory negligence I have set forth above neatly illustrates this convergence of the two defenses. In this scenario, that form of contributory negligence which is an intentional and unreasonable exposure to a known danger is identical to *440type 4 assumption of risk. Thus, one commentator has correctly opined:

¶35When a plaintiff’s implied assumption of risk is unreasonable, it looks most closely like contributory negligence. The defense is therefore most amenable to “merger” into a comparative negligence system when it appears in its “unreasonable form” [i.e. type 4]. The plaintiff by hypothesis has been negligent in choosing to encounter the risk, and so many courts have held that the contributory negligence form of assumption of risk — probably the most common form in which the doctrine appears — should be absorbed into the mainstream of comparative fault____

¶36Prosser and Keeton on Torts, § 68, at 497. See also Rutter, 496 Pa. at 613-14, 437 A.2d at 1210 n. 6 (citing, inter alia, Li v. Yellow Cab, 13 Cal.3d 804, 825, 119 Cal.Rptr. 858, 873, 532 P.2d 1226, 1241 (1975)).

¶37In sum, logically and analytically it is clear that comparative negligence and type 4 assumption of risk are inconsistent. The fact that the Comparative Negligence Act itself does not specifically state that the defense of assumption of risk is abrogated should not prevent us from concluding that it should be abolished in light of that Act. We note that the fact that a comparative negligence statute does not specifically mention the abrogation of assumption of risk has not prevented the courts of numerous other states from deciding that comparative negligence logically and impliedly mandates the abrogation of at least type 4 assumption of risk. See, e.g., Britain v. Booth, 601 P.2d 532 (Wyo.1979); Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir.1979).

¶38Moreover, an analysis of the context of Pennsylvania law in which the Comparative Negligence Act was enacted lends even further support for the conclusion that the Act sub silentio requires the abrogation of type 4 assumption of risk. As the Supreme Court of Wyoming has pertinently stated in the context of its decision to abrogate assumption of risk in light of that state’s comparative negligence system, “all statutes are presumed to be enacted with full knowledge of the existing state of the law with reference thereto.” Britain, 601 P.2d at 534.

¶39*441In Vargus v. Pitman Mfg. Co., 510 F.Supp. 116 (E.D.Pa. 1981), aff'd on reh’g, 675 F.2d 73 (3d Cir.1982), the District Court for the Eastern District Court of Pennsylvania assessed the impact of the Comparative Negligence Act on assumption of the risk in Pennsylvania in light of the state of the law of assumption of risk at the time of the Act’s adoption. See also Jones v. M.D. Products, Inc., 507 F.Supp. 8 (M.D.Pa.1980), aff'd mem., 649 F.2d 859 (3d Cir.1981) (Pennsylvania comparative negligence statute eliminates that form of assumption of risk that overlaps with contributory negligence). The Third Circuit Court of Appeals has indicated its implicit approval of the district court’s reasoning in Vargus. Seven Springs, 716 F.2d at 1008.

¶40In Vargus, the district court noted that prior to the enactment of the Comparative Negligence Act, Pennsylvania courts had often merged assumption of the risk into contributory negligence analysis in cases where the plaintiff’s actions could be construed as negligent and the two defenses, therefore, overlapped. Vargus, 510 F.Supp. at 118 (citing, inter alia, Joyce v. Quinn, 204 Pa.Super. 580, 205 A.2d 611 (1964)). More recently, this Court has noted the same blurring of the distinction between the defenses which was evident in Pennsylvania cases before the Comparative Negligence Act. Fish v. Gosnell, 316 Pa.Super. 565, 574-75, 463 A.2d 1042, 1047 (1983) (comparative negligence system requires a more careful application of the doctrine). In such cases, which would clearly be classified as involving type 4 assumption of risk, the courts relied on contributory negligence analysis, referring to assumption of the risk as merely a factor in that analysis and not as a separate defense. Id.,316 Pa.Superior Ct. at 576-77, 463 A.2d at 1048 (citing Kaplan v. Philadelphia Transportation Co., 404 Pa. 147, 171 A.2d 166 (1961); DeFonde v. Keystone Valley Coal Co., 386 Pa. 433, 126 A.2d 439 (1956)).

¶41On the other hand, the Vargusdistrict court noted that Pennsylvania courts had not merged assumption of the risk into contributory negligence analysis in those cases where the doctrine actually functioned to relieve the defendant of *442a duty to plaintiff. Vargus, 510 F.Supp. at 118. This, too, has been reconfirmed in Pennsylvania cases decided since Vargus. See Carrender, supra;Bowser, supra.

¶42It was against this backdrop of the development of the common law that the legislature enacted the Comparative Negligence Act. I would conclude that given this backdrop, when the legislature abolished contributory negligence by enacting a system of comparative fault, it also implicitly abolished assumption of risk in those cases where it overlaps with contributory negligence. See Seven Springs, 716 F.2d at 1008 (citing Vargus, 510 F.Supp. at 118). These legislative intentions should not be frustrated by this court’s insistence on preserving a doctrine the application of which in many cases will yield a result that would not be reached upon a pure application of the Comparative Negligence Act.

¶43In those cases like the instant one, where the plaintiff’s conduct is such as could reasonably lead a jury to conclude that the plaintiff was negligent, an instruction as to comparative negligence will suffice to present the issue of assessing plaintiff’s fault to the jury. If in such a case the plaintiff’s conduct was extremely careless, possibly because in fact he voluntarily acted with complete disregard for a known risk, the jury may reasonably find that plaintiff’s conduct was more negligent than defendant’s and may, within the requirements of our Comparative Negligence Act, bar plaintiff’s recovery completely.

¶44Indeed, as the Third Circuit Court of Appeals stated in its opinion finding that the Virgin Islands comparative negligence statute had impliedly abolished type 4 assumption of risk:

The practical effect of limiting the definition of what constitutes “assumption of risk” may be nil. The Virgin Islands has a modified comparative negligence statute which provides that a plaintiff may not recover if his comparative fault was more than 50%. It seems plausible that negligent conduct which would have amounted to assumption of risk prior to the enactment of the comparative negligence statute, will probably now be found to *443constitute negligence greater than 50%. Either way, recovery is completely barred.

¶45Keegan, 606 F.2d at 41.

¶46In this manner, our disposition of negligence cases that formerly might have involved type 4 of assumption of the risk will now comport with the legislature’s determination that fault should be apportioned between plaintiff and defendant and that plaintiff should only be barred where his or her conduct was more negligent than defendant’s.

¶47Applying this approach to the case before us, I would conclude that the trial court was correct in refusing to instruct the jury on assumption of the risk. The trial court correctly chose to submit the issue of plaintiff’s conduct in tilting his head through the open panel to the jury by means of a comparative negligence instruction. The jury’s allocation of thirty percent (30%) responsibility for the accident to Malinder indicates that the jury did fully consider Malinder’s conduct. Thus, I would affirm the judgment of the trial court.