Thompson v. Ginkel, 95 A.3d 900

On June 26, 2008, Ginkel acted as lead technician for a public fireworks display (main event then grand finale); Thompson volunteered to observe and count launched shells from about 50 feet away and wore provided protective gear.
During the show Thompson suffered severe injuries from a “low break” — a mortar shell that failed to ascend and exploded near him, causing burns, digit amputations, and partial blindness.
Thompson sued Ginkel for negligence; after discovery Ginkel moved for summary judgment arguing Thompson assumed the risk because of prior training, experience with >20 displays, attendance at safety seminars, and prior low breaks observed that night.
Thompson submitted an expert report (Sokalski) asserting the injuring shell was a 2.5" shell fired from a 3" tube (oversized tube), causing ‘‘blow-by’’ and an increased risk of low breaks; Sokalski opined this was a significant contributing cause of the injury.
The trial court granted summary judgment, finding the record established the injuring shell was a 3" in a 3" tube, rejected Sokalski’s report as based on an unreasonable assumption, and held Thompson assumed the risk of a low break.
The Superior Court reversed and remanded, holding genuine issues of material fact exist as to shell size/ timing and as to assumption of risk; the court also held the trial court improperly discounted the expert report at summary judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Thompson made a prima facie negligence case (unreasonable risk)	Thompson: Ginkel’s use of 2.5" shells in 3" tubes negligently increased low‑break risk	Ginkel: No negligent act; shell was 3" in 3" tube and risks were known to Thompson	Reversed trial court — disputed facts remain as to shell size and causation; jury must decide
Whether there are factual issues on breach of duty by volunteer helper	Thompson: He did not assume heightened risk from Ginkel’s alleged negligent equipment choice	Ginkel: Thompson’s training and conduct show he knowingly assumed the risk of low breaks	Reversed — whether Thompson assumed the greater, negligent risk is a jury question
Whether trial court erred in rejecting Sokalski’s expert opinion at summary judgment	Thompson: Sokalski’s report is supported by purchase orders, depositions, medical records and ties timing to grand finale	Ginkel: Expert rests on unreasonable assumption about shell size; report may be outside record	Rejected trial court’s exclusion — expert’s conclusions sufficiently supported; credibility is for the jury
Whether assumption of the risk justified summary judgment	Thompson: He knew general risks but not of amplified risk from alleged negligence; prior low breaks were different	Ginkel: Thompson’s experience and inaction demonstrate he assumed the risk	Reversed — assumption of risk is fact dependent and ordinarily for the jury; summary judgment inappropriate

Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010) (expert testimony at summary judgment must be credited and weight left to jury)
Carrender v. Fitterer, 469 A.2d 120 (Pa. 1983) (assumption of risk as counterpart to lack of duty for known, obvious, avoidable dangers)
Montagazzi v. Crisci, 994 A.2d 626 (Pa.Super. 2010) (assumption of risk typically a jury question; only clear scenarios allow summary judgment)
Hughes v. Seven Springs Farm, Inc., 762 A.2d 339 (Pa. 2000) (noting limited preservation of assumption of risk doctrine post‑Comparative Negligence Act)
JP Morgan Chase Bank, N.A. v. Murray, 63 A.3d 1258 (Pa.Super. 2013) (summary judgment standard and appellate review principles)