Defendants may contend that plaintiff assumed the risk of any sort of accident. The burden of showing voluntary assumption of risk and contributory negligence is on the defendants. Whitley v. Philadelphia Transportation Company, 234 A. 2d 922, 925 (Pa. Super. 1967).
The doctrine of assumption of risk “has been very problematic and has fallen from the favor of a few of the judiciary and legal commentators. In fact , the doctrine as a separate affirmative defense has only narrowly survived abolishment by our Supreme Court. ” Bullman v. Giuntoli, PICS No . 00-1904.
The assumption of risk defense is made out only by showing that a person “with appreciation and knowledge of an evident danger, purposely elects to abandon a position of relative safety and chooses to reposition himself in a spot of obvious danger and by reason of that repositioning is injured. ” McIntyre v. Cusick, 372 A. 2d 864, 866 (Pa. Super. 1977). ”
The defense of assumption of the risk will not prevent recovery unless the evidence conclusively establishes that the plaintiff was subjectively aware of the risk and voluntarily assumed it. Barrett v. Fredavid Builders, Inc., 685 A. 2d 129 (Pa. Super. 1996). Voluntariness is established only when the circumstances manifest a willingness to just accept the risk. Staub v. Toy Factory, Inc., 749 A. 2d 522 (Pa. Super. 2000). Mere contributory negligence does not establish assumption of the risk. Id.
Rather, a plaintiff has assumed the danger where he has gone in terms of to abandon his directly to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. Id. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong. Id.
The defense is not available unless it is beyond question, so that no two reasonable minds could differ, that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Hardy v. Southland Corp., 645 A. 2d 839 (Pa. Super. 1994), citing, Howell v. Clyde, 620 A. 2d 1107 (Pa. 1993). Assumption of the risk cannot be used as a defense unless it is shown that plaintiff “must have appreciated the risk itself and the nature, character and extent which caused it to be unreasonable. ” Crance v. Sohanic, 496 A. 2d 1230, 1232 (Pa. Super. 1985).
The Pennsylvania Supreme Court in Hughes v. Seven Springs Farm, Inc., 762 A. 2d 399 (Pa. 2000), discussed the status of the doctrine of assumption of
risk in light of the passage of the comparative negligence statute and
stated that as a general rule, the doctrine of assumption of the risk, having its
attendant “complexities” and “difficulties, ” has been supplanted by the
Pennsylvania General Assembly’s adoption of a method of recovery based on
comparative fault in the Comparative Negligence Act. 42 Pa. C. S. A. §7102(a)-(b). Where plaintiff tried to attenuate her risk of falling, but fell nevertheless, she failed to voluntarily assume the risk of falling. Barrett v. Fredavid Builders, Inc., 685 A. 2d 129 (Pa. Super. 1996).