Zachardy v. Geneva College

733 A.2d 648, 1999 Pa. Super. 155, 1999 Pa. Super. LEXIS 1860
CourtSuperior Court of Pennsylvania
DecidedJune 23, 1999
StatusPublished
Cited by5 cases

This text of 733 A.2d 648 (Zachardy v. Geneva College) 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
Zachardy v. Geneva College, 733 A.2d 648, 1999 Pa. Super. 155, 1999 Pa. Super. LEXIS 1860 (Pa. Ct. App. 1999).

Opinions

JOYCE, J.:

¶ 1 This is an appeal from the final order of the trial court which granted the motion for summary judgment filed by Appellee, Geneva College. For the reasons set forth below, we affirm. Before addressing the merits of this appeal, we will briefly recount the relevant facts.

¶ 2 On April 21, 1994, Appellant, Jason Zachardy, the starting center fielder for Point Park College, and his teammates were scheduled to play a baseball game against Appellee. The game was played on Appellee’s baseball field. During the game, Appellant, while in pursuit of a fly ball, stepped in a divot/hole/imperfection in the grass-covered outfield. Appellant’s right knee buckled and he sustained severe injury to his right knee.

¶ 3 As a result of the foregoing incident, Appellant filed a complaint alleging that Appellee had a duty to keep and maintain the ball-field in a reasonably safe condition. Appellant asserts Appellee was negligent in failing to maintain this condition. On April 29, 1998, Appellee filed a motion [650]*650for summary judgment on the grounds that no duty of care was owed because Appellant had assumed the risks associated with playing baseball. Furthermore, Appellee believes these risks were obvious and apparent. Following argument, the trial court granted summary judgment in favor of Appellee. Appellant timely appealed.

¶ 4 Appellant presents the following issue for our review; (1) whether the trial court erred in granting summary judgment finding that Appellee owed no duty of care to Appellant.

In reviewing a grant of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or a manifest abuse of discretion. Nevertheless, the scope of review is plenary and the appellate court shall apply the same standard for judgment as the trial court.... The record is to be viewed in the light most favorable to the nonmoving party, and all doubts as to the presence of a genuine issue of material fact must be resolved against the moving party.

¶ 5 Albright v. Abington Memorial Hospital, 548 Pa. 268, 278, 696 A.2d 1159, 1165 (1997) (citations omitted). “An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. The moving party has the burden of proving the nonexistence of any genuine issue of material fact.” Kilgore v. City of Philadelphia, 553 Pa. 22, 25, 717 A.2d 514, 515-516 (1998). In order to withstand a motion for summary judgment, a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737, (1998) (citation and quotation marks omitted). We will evaluate Appellant’s claim and the decision of the trial court with these considerations in mind.

¶ 6 Appellant makes note of the fact that there is substantial uncertainty with respect to the current status of assumption of the risk in Pennsylvania. The Pennsylvania Supreme Court has held that implied assumption of the risk has become part of the duty analysis for the trial court and not as part of the case to be determined by the jury. Howell v. Clyde, 533 Pa. 151, 161, 620 A.2d 1107, 1112-1113 (1993) (plurality opinion). Furthermore, the court observed:

In assumption of the risk types 2 and 3 a plaintiff has voluntarily and intelligently undertaken an activity which he knows to be hazardous in ways which subsequently cause him injury. His choice to undertake this activity may or may not be regarded as negligent. His negligence or lack of negligence, however, is not the operative fact; rather, the operative fact is his voluntary choice to encounter the risk. The theoretical underpinning of these types of assumption of risk is that as a matter of public policy one who chooses to take risks will not then be heard later to complain that he was injured by the risks he chose to take and will not be permitted to seek money damages from those who might otherwise have been liable.

Id. at 161, 620 A.2d at 1112. The court then goes on to explain that:

Under this approach the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with the awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury. Under those facts, the court would determine that the defendant, as a matter of law, owed plaintiff no duty of care.

Id. at 162-163, 620 A.2d at 1113.

¶ 7 The first component of assumption of the risk involves Appellant’s knowledge or awareness of the risk or [651]*651hazard. In the instant case, Appellant testified that prior to the game starting he observed frequent holes, ruts and depressions scattered throughout the outfield. N.T. Appellant Deposition, 8/18/97, at 21, 35. Appellant recalled that one of his teammates commented on the condition of the outfield by stating “someone’s going to break an ankle out here today.” Id. at 25. When questioned by Appellee’s attorney, the following dialogue took place:

Q. —depression? Well, you had seen some of the ruts and depressions prior to the game even starting; correct?
A. Correct.
Q. At that time in your life, at that time were you aware that running around the field with ruts or depressions could cause you to trip, fall, lose your balance?
A. Was I aware that it could happen? Q. Yes.
A. Sure. I was aware that that could possibly happen.
Q. Were you aware that you could get injured?
A. Yes.
Q. And you knew that before the game started?
A. Yes. You know, that — yes. Before any game starts, you are aware you could be injured.

Id. at 98-99. From the facts discussed above, we find no error in the trial court’s' determination that Appellant knowingly proceeded in the face of an obvious danger.

¶ 8 The second component is that the risk must be faced voluntarily. Citing Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 437 A.2d 1198 (1981) (plurality opinion), Appellant questions the voluntariness of his decision to play. In Rutter, the plaintiff, a person with limited experience was injured during preseason football practice. Prior to practices beginning, plaintiff’s coach had announced that it was unlikely that boys not participating in practice would make the team. The court concluded that given plaintiffs inexperience and the coach’s comments, there was at least a question as to the voluntariness of the plaintiff’s actions.

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Zachardy v. Geneva College
733 A.2d 648 (Superior Court of Pennsylvania, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
733 A.2d 648, 1999 Pa. Super. 155, 1999 Pa. Super. LEXIS 1860, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zachardy-v-geneva-college-pasuperct-1999.