Barrett v. Fredavid Builders, Inc.

685 A.2d 129, 454 Pa. Super. 162, 1996 Pa. Super. LEXIS 3408
CourtSuperior Court of Pennsylvania
DecidedOctober 9, 1996
Docket3975
StatusPublished
Cited by32 cases

This text of 685 A.2d 129 (Barrett v. Fredavid Builders, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrett v. Fredavid Builders, Inc., 685 A.2d 129, 454 Pa. Super. 162, 1996 Pa. Super. LEXIS 3408 (Pa. Ct. App. 1996).

Opinions

HESTER, Judge:

Edward and Janet Barrett appeal the October 31, 1995 order wherein the trial court granted summary judgment to appellees, Fredavid Builders, Inc. (“Fredavid”) and Safeguard Roofing Systems, Inc. (“Safeguard”). The trial court granted summary judgment based upon its conclusion that Mr. Barrett voluntarily assumed the risk of his injuries. We reverse.

Appellants instituted this action to recover for injuries which they sustained as a result of a fall which Mr. Barrett suffered on October 25, 1990. Mr. Barrett fell while working as an insulator for Premier Insulation Company at a construction site for single family dwellings located at Bentley and Philmont Avenues in Philadelphia. Fredavid was the general contractor in charge of the site, and Safeguard was the subcontractor which installed siding on the housing units.

Only one subcontractor was permitted to work on the site at any time. Prior to Mr. Barrett’s fall, Safeguard employees had been installing siding and had stacked the siding in the garage of lot number sixteen, where Mr. Barrett was scheduled to work. Safeguard failed to remove the materials, and Fredavid had failed to inspect the garage before Mr. Barrett arrived.

On the day of the incident, Mr. Barrett proceeded to lot number sixteen to install insulation. When he went into the garage, he observed the vinyl siding, exterior foam board insulation, sheet rock, and plywood. Mr. Barrett cleared a path around the perimeter of the garage so that he could install the insulating materials. He put on his stilts, which are two feet high, and when he almost had completed insulating the garage, he slipped and fell on a small piece of exterior foam board insulation and vinyl siding.

Based on Mr. Barrett’s deposition, the trial court granted summary judgment to appellees. That deposition indicates [165]*165the following. When Mr. Barrett arrived at the job site, he saw debris covering most of the garage floor. The debris consisted of boxes of vinyl siding and pieces left over from cutting the siding. In addition, there was exterior insulation, which is a foam substance. Finally, sheet rock and plywood were in the garage.

Mr. Barrett was asked the following questions:
Q. When you saw all these items in there and things laying around, what were you thinking?
A. At the time, I took the time to clean it up.
Q. How did you do that? Did you take the stilts off?
A. Yes, I did. I took most of the stuff, stood it up against the wall, gave myself a walking path almost like a horseshoe walking path around where I had room. Then I got back on the stilts to do my job.
Q. How much of a walking path did you leave yourself in this horseshoe; how wide was it?
A. Wide enough for me to get through.
Q. What do you mean by that? Do you mean three feet?
A. I’d say at least three feet, yes.
(Indicates width with hands.)
Q. You said to clean up you had taken your stilts off?
A. Yes.

Edward Barrett deposition, 10/26/93, at 39-40. Mr. Barrett was asked why he did not inform a supervisor of the situation, and he responded that there was no supervisor present at the job site eighty to ninety percent of the time and that he did not want to take the time to locate the supervisor since he was working piecemeal rather than being paid hourly. It took Mr. Barrett fifteen to twenty minutes to clean up, which he did to “prevent an accident.” Id. at 41. When Mr. Barrett fell he was looking up at his insulation work and was not looking down at the floor. After he fell, he lay on the ground approximately ten minutes and then looked around for what had caused him to fall. He discovered that pieces of exterior vinyl siding insulation had caused the stilts to slip.

[166]*166Under the doctrine of assumption of the risk, a defendant is relieved of its duty to protect a plaintiff where the plaintiff has voluntarily and deliberately proceeded to face a known and obvious risk and therefore is considered to have assumed liability for his own injuries. Our Supreme Court on occasion has affirmed a trial court’s decision that as a matter of law, a plaintiff voluntarily proceeded in the face of a known risk and absolved the defendant from responsibility for the injuries sustained. Howell v. Clyde, 538 Pa. 151, 620 A.2d 1107 (1993) (four justices concurring in this portion of holding); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983).

However, 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. Struble v. Valley Forge Military Academy, 445 Pa.Super. 224, 665 A.2d 4 (1995); Long v. Norriton Hydraulics Inc., 443 Pa.Super. 532, 662 A.2d 1089 (1995).

In Carrender v. Fitterer, supra, an invitee parked on the landowner’s parking lot on a sheet of ice even though the rest of the parking lot had been cleared of snow and ice. The invitee wore a prosthesis, became aware of the ice before exiting her car, and also was aware that maneuvering on ice was especially difficult for her. She slipped and fell on the ice when re-entering her car and instituted the action against the landowner. The Court indicated that a landowner owes no duty to an invitee who proceeds to face an obvious and avoidable dangerous condition of the land since, by his conduct, the invitee has agreed to accept the risk and to undertake to look out for himself. See Restatement (Second) of Torts § 343 A. In Howell v. Clyde, supra, a licensee of the landowner was socializing with the landowner and asked to ignite a homemade fireworks cannon. He injured himself in the process.

Thus, there are two components to the doctrine. The risk must be perceived, and the risk must be faced voluntarily. [167]*167In both Supreme Court cases, the risks at issue were dangerous, known, and obvious. Ice always is slippery, and a person walking on ice always runs the risk of slipping and falling. The plaintiff in Carrender admittedly saw the ice prior to stepping on it. Similarly, fireworks always explode, and a person always encounters a risk of injury from that explosion when he uses fireworks. Thus, the plaintiff in Howell knew the risk.

Furthermore, the plaintiffs in those cases proceeded to face the risks voluntarily. The plaintiff in Carrender could have parked in a non-icy area since the rest of the parking lot was free of ice. The plaintiff in Howell did not have to engage in the recreational activity of firing the cannon. See also Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546

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Bluebook (online)
685 A.2d 129, 454 Pa. Super. 162, 1996 Pa. Super. LEXIS 3408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-fredavid-builders-inc-pasuperct-1996.