Malinder v. Jenkins Elevator & MacHine Co.

538 A.2d 509, 371 Pa. Super. 414, 1988 Pa. Super. LEXIS 53

• Court: Supreme Court of Pennsylvania
• Decided: January 27, 1988
• Docket: 182
• Status: Published

Opinions

ROWLEY, Judge:

This is an appeal from a judgment entered in fayor of appellees, Roosevelt and Harriet Malinder, and against Utica Insurance Company, (Utica) and Allied Enterprises (Allied); and in favor of Utica and against Allied on Utica’s cross-claim. We reverse the judgment in favor of the Malinders and remand for the entry of judgment n.o.v. in favor of Utica.

On September 9, 1982, appellee Roosevelt Malinder was struck in the head by a freight elevator at his place of employment. There is no factual dispute as to the condition of the premises when the incident occurred or as to the events which transpired. A typical and safe method of summoning the freight elevator in this case was to use the building’s intercom system. On the day of his injury, despite the fact that the intercom system was working, Malinder called for the elevator from the landing door by tilting his head through the space created by a missing glass panel in the landing door and yelling to the elevator operator. When Malinder tilted his head through the opening, he was struck by the elevator.

Malinder filed suit against various defendants, including Utica Insurance Company and Allied Enterprises. Utica was the insurer of Malinder’s employer, and under Pennsylvania law it was required to inspect the elevator twice a year. Utica retained Allied to conduct these inspections. Both Utica and Allied filed cross-claims against each other seeking indemnity. Prior to trial, it was agreed that the issue of indemnity would not be submitted to the jury but would be resolved by the judge after trial.

At trial, Malinder testified that he did not believe it was dangerous for him to tilt his head through the opening because he assumed there was a three to four inch clearance from the elevator floor. However, he also testified that he knew he would be struck if the elevator was coming. Evidence was also introduced at trial that several months prior to the accident involved here, when the elevator had last been inspected, the glass pane had been missing but had not been reported on the elevator inspection report.

The trial court refused to charge the jury on the defense of assumption of risk but instead charged it on comparative negligence. The jury returned a verdict against Allied and Utica for $55,000, but also found that Malinder was 30% contributorily negligent. Accordingly, the award was reduced to $38,500. Post-trial motions were denied and the court granted Utica indemnity from Allied as a matter of law. Both Utica and Allied appealed from the judgment entered against them, and their appeals were consolidated.

By an unpublished decision, a panel of this court affirmed the trial court’s decision. Utica filed a petition for reargument before the court en banc, but Allied failed to do so. Therefore, the Court made an Order granting the petition for reargument as to Utica only and directing that it would not entertain reargument on the indemnification issue raised by Allied. In the present procedural posture, only the appeal of Utica is before us.

Utica argues that the trial court erred when it refused to grant Utica a directed verdict on the basis that Malinder assumed the risk as a matter of law because the risk was both obvious and understood by Malinder, and because Utica breached no duty to Malinder. Alternatively, Utica argues that the trial court erred in refusing to instruct the jury on assumption of the risk doctrine. We hold that Malinder assumed the risk of his injuries as a matter of law, and therefore reverse the judgment and remand for entry of a judgment n.o.v.

At issue in this case are the questions of whether the doctrine of assumption of the risk is a viable defense under the unique factual circumstances presented in this case especially in light of the Comparative Negligence Act, 42 Pa.C.S. § 7102, and, if it is still a viable defense, whether the doctrine of assumption of the risk must be applied to these facts as a matter of law because there is no factual dispute for a jury to resolve. Although the facts of this case are unique, they are substantially similar to those in a case decided by the Pennsylvania Supreme Court, Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). In that case, the Supreme Court addressed these same concerns, and therefore we will follow its decision here.

The basic premise of the doctrine of assumption of the risk is that a party who voluntarily and knowingly assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover damages for such harm. Restatement (Second) of Torts, § 496 A (1965). However, as stated by at least one commentator, “[assumption of the risk] has been a subject of much controversy, a,nd has been surrounded by much confusion, because ‘assumption of the risk’ has been used by the courts in several different senses, which traditionally have been lumped together under the one name, often without realizing that any differences exist.” Prosser and Keeton on Torts, 5th Edition, § 68 (Footnotes omitted).

The authors of the Restatement (Second) of Torts § 496 A, comment c (1965) divide assumption of the risk into four categories. Comment c to § 496 A provides as follows:

c. Meanings of assumption of risk.

“Assumption of risk” is a term which has been surrounded by much confusion, because it has been used by the courts in at least four different senses, and the distinctions seldom have been made clear. These meanings are as follows:

1. In'its simplest form, assumption of risk means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk. The result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff____

2. A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff____

3. In a third type of situation the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it. For example, an independent contractor who finds that he has been furnished by his employer with a machine which is in a dangerous condition, and that the employer, after notice, has failed to repair it or to substitute another, may continue to work with the machine. He may not be negligent in doing so, since his decision may be an entirely reasonable one, because the risk is relatively slight in comparison with the utility of his own conduct; and he may even act with unusual caution because he is aware of the danger. The same policy of the common law which denies recovery to one who expressly consents to accept a risk will, however, prevent his recovery in such a case____

4. To be distinguished from these three situations is the fourth, in which the plaintiffs conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by his implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible. (See § 467.)

In the first three of these categories, as a result of the plaintiffs conduct, there is no duty owed by the defendant, to the plaintiff. Consequently, the application of the defense in those cases constitutes a complete bar to the plaintiffs recovery. In the fourth category, however, there are two negligent acts: the defendant’s and the plaintiff’s, and the defendant’s “duty” to the plaintiff is not dissolved. Thus, the Restatement’s four categories could be reclassified into only two categories of assumption of the risk: 1) those in which the plaintiff’s conduct relieves the defendant of any duty; and 2) those in which both the plaintiff and the defendant have a duty and each breaches his or her respective obligation.

The Restatement’s four categories are not the only ones often used to distinguish different types of assumption of the risk. Assumption of the risk has also been divided into different categories by other authorities. For example, in Assumption of Risk in Products Liability Cases, Keeton, 1961, 22 La.L.Rev. 122, assumption of the risk is divided into six different types: express, subjectively consensual, objectively consensual, by consent to conduct or condition, associational, and imposed. In' Prosser and Keeton on Torts, 5th Edition, § 68, assumption of the risk is divided into only three categories: express consent perspective, duty perspective, and misconduct defense perspective. Assumption of the risk has also been analyzed by some courts as consisting of only two types: primary and secondary. See, e.g. Springrose v. Willmore, 292 Minn. 23, 192 N.W.2d 826 (1971); Wilson v. Gordon, 354 A.2d 398 (Me., 1976). See also: Smollett v. Skayting Development Corp., 793 F.2d 547 (3rd Cir.1986). “Primary” assumption of the risk involves those situations in which there is no duty owed by the defendant to the plaintiff to protect from a risk of harm. The Restatement’s first three categories, in which the defendant owes no duty to the plaintiff because of the plaintiff’s conduct, would constitute “primary” assumption of the risk. “Secondary” assumption of the risk is similar to the fourth Restatement category in which the defendant owes a duty to the plaintiff, but the plaintiffs voluntary encountering of the risk is unreasonable and therefore the plaintiff too has been contributorily negligent. These different approaches to explaining assumption of the risk demonstrate that there are many different concepts which have been utilized by courts and scholars to analyze the doctrine of assumption of the risk.

Although the doctrine of assumption of the risk is available as a defense in Pennsylvania, a majority of the Pennsylvania Supreme Court has not yet adopted the Restatement’s four-part analysis, the Keeton six-part analysis, the Prosser and Keeton three-part analysis or the two-part analysis utilized by some courts to analyze those cases in which the doctrine is applicable. In Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981), three justices of the Supreme Court discussed the Restatement’s analysis and applied it to the particular facts of the case. However, the opinion in Rutter was not joined in by a majority of the justices and therefore is not binding precedent. See Rutter, Id., 496 Pa. at 617, n. 2, 437 A.2d 1211, n. 2.

In this case it is not necessary for us to decide which of the analyses of the doctrine of assumption of the risk is the one to be followed in Pennsylvania. Furthermore, it is not necessary for us to explore the extent and impact of a particular analysis. Such determinations are the prerogative of the Supreme Court of Pennsylvania. Rather, we are compelled to follow the Supreme Court’s decision in Car-render in factual situations of the same class, which we find the present case to be. Where the Supreme Court has spoken on a particular subject, it is our obligation, as an intermediate appellate court, to follow and apply that decision so as to establish some measure of predictability and stability in our case law. In the absence of a legally relevant distinction between the facts of a previous case and the case before us, we are obliged to follow the dictates of the Supreme Court’s decision in the prior case. Resolving cases by attempting to create irrelevant, factual distinctions impedes application of the doctrine of stare decisis, the principal function of which is to imbue the judicial system with some measure of predictability and stability, and places the development of the law in a constant, uncertain state of flux such that neither practioners nor trial judges can, with any degree of predictability, determine the proper application of the law to each new case involving similar facts that comes before them. It also is not our prerogative to apply different methods of analysis where our Supreme Court has made clear which particular analysis it believes should be applied to a particular situation. With the foregoing precepts in mind, we have reviewed the record in this case and find that there are no legally relevant factual distinctions between this case and Carrender. Therefore, although we would be free to apply a different analysis and obtain a different resolution of the case immediately before us if there were no precedent for us to follow, we are compelled to follow the analytical framework established by the Supreme Court in Carrender and reach a similar conclusion.

In Carrender, the plaintiff brought an action against the owners of a parking lot and chiropractic clinic for injuries which she sustained after falling on the ice in the parking lot. The space in which the plaintiff, a patient at the chiropractic clinic, chose to park her car was on an incline and was covered with ice; other areas of the parking lot were free of ice and snow. Before getting out of her car, appellant became aware of the ice on the parking lot, and despite the fact that she wore a prosthesis consisting of an artificial lower leg and knew that because of the prosthesis, maneuvering on ice was particularly dangerous for her, she nevertheless kept her car parked on the ice, necessitating her walking across the ice. The plaintiff successfully negotiated the ice when walking from her car to the door of the clinic, but after she had returned to her car and was holding onto her car while attempting to get back into it, she slipped and fell.

A jury found the property owners to be sixty-five percent negligent and the plaintiff to be thirty-five percent negligent. The defendants filed a motion for judgment n.o.v. and a motion for new trial, but both were denied. On appeal, the Superior Court affirmed the judgment entered on the jury’s verdict, and rejected the defendants’ argument that the trial court erred in refusing to charge the jury on the defense of assumption of the risk. The Supreme Court granted allowance of appeal.

The Supreme Court began its analysis of the case by stating that the controlling issue was whether the case should have proceeded to the jury on the theory that the defendants owed the plaintiff a duty. Because of the plaintiffs own testimony, the Court held that the defendants owed the plaintiff no duty to warn of the ice on the parking lot. The Court then discussed the duty owed by a possessor of land to an invitee, and concluded that because there was uncontradicted evidence that the ice was both obvious and known, the defendants could have reasonably expected that the ice would have been avoided, and therefore they owed no duty to the plaintiff.

After resolving the ultimate question of whether any duty was owed to the plaintiff, the Court discussed the issue raised by appellee concerning the appropriate theoretical analysis to be applied where issues of assumption of the risk and duty of a possessor of land to invitees are involved in the same case. The Court stated that

“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____ 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.” Carrender, Id., 503 Pa. at 188, 469 A.2d at 125. (Emphasis added.)

The Court also discussed comparative negligence and concluded that there must be two negligent acts for comparative negligence to apply. Because on the facts of this case the “legal consequence of [the plaintiff’s] assumption of a known and avoidable risk is that the possessor of land is relieved of a duty of care to [her],” the Court held that contributory negligence has no effect here. Id., 503 Pa. at 188-189, 469 A.2d at 125.

Comparing the facts of Carrender with the undisputed facts in the present case, it is apparent that the cases are factually indistinguishable. Therefore, just as the Supreme Court in Carrender determined that the doctrine of assumption of the risk operated as a matter of law to preclude Mrs. Carrender from recovering from the defendants for her injuries despite the jury’s verdict in her favor, so too in the case before us must the doctrine of assumption of the •risk apply as a matter of law necessitating the entry of a judgment n.o.v. As in Carrender, there are no relevant disputed issues of fact which need to be submitted to a jury.

First, the cases are in the identical procedural posture. In both cases, a trial was held and the trial court refused to charge the jury on the defense of assumption of the risk. In both cases the juries returned verdicts in favor of the injured plaintiffs, but also in both cases, the juries determined that the injured plaintiffs themselves acted negligently although to a lesser extent than the defendants. Finally, in both cases, the defendants appealed claiming that the doctrine of assumption of the risk should have been applied.

The cases are also similar inasmuch as the situations which were dangerous existed prior to the plaintiffs perceiving the risk of danger, during the plaintiffs’ intentional encounter with it, and after the plaintiffs’ encounter with it. In Carrender, the icy condition existed when the plaintiff pulled into the parking lot, and it continued to exist even after she fell. In the instant case, there is no dispute that the glass was missing from the elevator before the plaintiff stuck his head into the elevator shaft as well as after he was struck. Therefore, in both cases, the danger was not only perceptible, but did not change and could not have changed during the relevant time period. This fact is important inasmuch as the unchanging nature of the danger is a relevant factor in assessing the duty owed by the defendants to the plaintiff.

Equally important is the fact that in both cases, not only were the dangers unchanging, obvious, and known by the plaintiffs, but the plaintiffs’ decisions to nevertheless accept the risk of the potential dangers were unreasonable and unnecessary. In Carrender, the entire parking lot was not covered with ice; rather only the small portion in which the plaintiff chose to park was covered with ice. Therefore, the plaintiff was not forced into the position of encountering the danger by walking across the ice, but rather deliberately chose that course.¹ Similarly, in the case before us, there was nothing requiring the plaintiff to poke his head into the elevator shaft to call the freight elevator. An intercom system had been installed and was operational for the purpose of calling the elevator, and the plaintiff was aware that he could have used this ordinary, non-dangerous, and reasonable method of calling the elevator. Moreover, to the extent that the plaintiff claimed that his boss instructed him in this particular instance not to use the intercom system, it nevertheless was the plaintiff’s own idea physically to place his head into the elevator shaft rather than simply hollering into the shaft with his head outside the shaft. The plaintiff intentionally decided to place himself in the path of the potential danger by putting his head into the elevator shaft. Because the danger in both cases was obvious, and because there was an available alternative course of action which avoided the danger, not only was it unreasonable for the plaintiffs in both cases to accept the risk of the danger, but it was reasonable for the defendants in both cases to expect that anyone encountering the danger would have perceived the danger and would have used the means available to avoid the danger.

In both cases, the risk was accepted by the plaintiff without regard to the actions of any other person or to any other event. In Carrender, the plaintiff assumed the risk that she might slip and fall on the ice when she took the first step on the ice rather than move her car to an ice-free parking space. In the case before us, the plaintiff assumed the risk that he might be struck by an elevator when he placed his head into the elevator shaft. The fact that in the present case appellant was injured only after an elevator, which was undeniably beyond his control, moved within the elevator shaft, whereas in Carrender, the plaintiff was injured when she slipped and fell, which physical act was within her control, is not a distinguishing factor because in both cases, the risk was assumed prior to the occurrence of the physical act immediately resulting in the injury. At the time the risk was assumed, the defendants in each case were relieved of any duty to the plaintiffs. Thus, in Car-render, the plaintiff relieved the defendants of any duty to her when she initially decided to test the ice and began to walk across it. Similarly, in the instant case, the plaintiff relieved the defendants of any duty at the time he placed his head into the elevator shaft, and not only after the elevator began to move within the shaft. Therefore, the timing of the plaintiffs’ assumption of the risks and the concomitant releases of the defendants’ duty to the plaintiffs in both Carrender and the case before us now, are the same.

A final similarity between the two cases is that the duty owed by the defendants in each case was essentially the same. Although Carrender involves the duty of a landowner to an invitee, the duty, in the case before us, the duty owed to the plaintiff by the employer’s insurance company and the company hired by the insurance company to inspect the elevator, is not substantially different. In Carrender, the defendants owed plaintiff a duty to warn of a condition whose danger was not known or obvious. In the instant case, which involved the condition of the premises where the accident occurred, the duty of the entities hired to inspect the elevator which was owed to appellee, who was in essence an invitee upon the premises, was to warn of a danger which was not known or obvious. Thus although technically the defendants in the case before us are not possessors of land who owe specific duties to people on the land depending on the status of the person on the property, a similar duty of care to appellee in this case is involved.

Because Carrender and the instant case are factually indistinguishable, we must follow the Supreme Court’s approach in Carrender to decide the instant case. In the case before us, as in Carrender, therefore, to say that the plaintiff assumed the risk of injury from putting his head through the elevator door into the elevator shaft, the danger of which was both known and avoidable, is simply another way of saying that the insurance company and elevator inspection company did not owe the plaintiff the duty of warning him that it would be dangerous to stick his head into the elevator shaft. In the instant case, as in Carrender, the legal consequences of the plaintiff’s assumption of the risk was to relieve the defendants of any duty towards the plaintiff, and for this reason, the comparative negligence act has no effect. Likewise, as in Carrender, because the record fails to establish a duty owed by the defendants to the plaintiff, the motion for judgment n.o.v. should have been granted.

We emphasize that our decision today in no manner changes the state of the law in Pennsylvania with regard to the viability of the defense of assumption of the risk or the impact of the Comparative Negligence Act on that defense. As the Supreme Court stated in Carrender,

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.

Carrender, Id., 503 Pa. at 188-189, 469 A.2d at 125 (1983). Because we have concluded that the legal consequence of Malinder’s actions are the same as those of Mrs. Carrender, here too the Comparative Negligence Act has no effect on the application of the doctrine of assumption of the risk, and assumption of the risk is still a viable defense. We are simply applying the precedent established by our Supreme Court in Carrender, which held that at least in circumstances similar to these, assumption of the risk is still a viable defense.

Judgment reversed, and case remanded for entry of a judgment n.o.v. in favor of Utica and against the Malinders. Jurisdiction is relinquished.

OLSZEWSKI, J., files a dissenting statement. BECK, J., files a dissenting opinion in which WIEAND and OLSZEWSKI, JJ., join.

1 . The Supreme Court’s recent decision in Ferencz v. Milie, 517 Pa. —, 535 A.2d 59 (1987) is not applicable here because it is factually distinguishable. Although in Ferencz the Court did not hold that the plaintiff who had slipped and fallen on an icy parking lot had assumed the risk as a matter of law, the icy patch was not seen by the plaintiff and it was not unmistakably clear that the icy patch was obvious and should have been perceived. Thus, unlike the facts in Carrender and the present case, the dangerous condition in Ferencz was not, as a matter of law, obvious, known by the plaintiff, and deliberately encountered despite the danger. Moreover, the icy patch in Ferencz, unlike the dangerous condition in Carrender or the present case, was not avoidable: walking across the icy area was the only means of getting from the parking lot to the hospital.