¶ 1 In this negligence/personal injury action, plaintiffs/appellants Paul and Nancy Staub appeal from the order dated November 5, 1997, granting summary judgment to defendants Grimm Industries, Inc., Toy Factory Inc., and Karl Kenyon (“collectively,” the “Grimm defendants” or “Grimm”); and Carrara Steel Erectors, Inc., Carrara Steel, Inc., and Amthor Steel, Inc. (“collectively,” the “Carrara defendants” or “Car-rara”). We affirm in part, reverse in part, and remand.
¶ 2 The facts of the case are as follows. Appellant Paul Staub (“appellant”) was employed by Barnhart Builders, Inc. (“Barnhart”), as a roofer.
1
Grimm Industries hired Barnhart to install insulation and other materials on the roof of a building being constructed for Toy Factory, Inc.
2
A Grimm Industries emplоyee, Karl Kenyon, designed the building and coordinated the construction process. Grimm Industries hired Carrara to manufacture and erect the structural steel for the building. At Kenyon’s request, a Carrara employee carved ten openings in the roof to accommodate skylights and ventilation devices, after which a Grimm Industries employee installed wooden “curbing” around the perimeter of the openings. The curbing was not, however, designed to safeguard the openings. Grimm and Carrara dispute when the openings were cut and which of the defendants, if any, was in charge of safeguarding the roof openings.
¶ 3 Appellant was injured on December 3, 1993 while installing foam insulation sheets on the roof when he stepped backward, caught his ankle on the curbing around one of the holes, and fell through the hole. The procedure employed by appellant and his co-worker required appellant to walk backward so that he could catch the sheets of insulation his co-worker passed to him and then move them into place with his foot. The workers had to work quickly so that other workers could perform the next phase of the roofing process. Appellant knew the holes existed but could not see their exact location because he was walking backward; therefore, hе would occasionally glance around to watch for the openings. He was, however, focused on catching the insulation sheets his co-worker passed to him when he encountered the first hole, tripped, and fell through. Although other Barnhart employees were on the roof at the time, no one, including appellant’s co-worker, warned that he was approaching a hole. Appellant had worked on other roofs which had holes in them; however, this was the first time that appellant had installed insulation near the holes in this particular roof.
¶ 4 Appellants Paul and Nancy Staub 3 filed three separate complaints, which were consolidated for discovery and trial. The Grimm defendants then filed a motion fоr summary judgment, and the Carrara defendants filed an amended motion for summary judgment. By order dated July 14, 1997, the court entered summary judgment with respect to the Carrara defendants but denied summary judgment with respect to the Grimm defendants. The Grimm defendants then filed a motion for reconsideration. On November 5, 1997, the trial court vacated its July 14th order and granted summary judgment to all defendants, finding that material issues of fact remained as to whether appellees owed appellant a duty of care, but nevertheless finding that appellant had knowingly and voluntarily assumed the risk of his injuries. 4 This timely appeal followed.
¶ 5 On appeal, appellant ostensibly raises four issues, which properly constitute one issue with several sub-issues. We have re-phrased аppellant’s issues as follows:
Whether the trial court abused its discretion and committed an error of law in granting summary judgment in favor of the defendants on the doctrine of assumption of the risk by:
reviewing the evidence in the light most favorable to the moving parties and resolving material issues of fact against the nonmoving parties;
ruling that an employee is required to quit his employment when his safety is imperiled; and
finding that appellant’s assumption of the risk was voluntary under the circumstances.
Appellant’s brief at 4 (paraphrased). Because we find that reasonable minds could differ as to whether appellant voluntarily assumed the risk of his injuries, and that the trial court erred when it concluded that an employee is required to quit his employment when his safety is imperiled, we reverse in part. We note first our standard and scope of review of an order granting summary judgment:
When presented with a challenge to an order granting summary judgment, we view the record in the light most favorable to the non-moving party, resolvingall doubts as to the existence of a genuine issue of material fact against the moving party. Ertel v. Patriot-News Company, 544 Pa. 93 ,674 A.2d 1038 (1996). Concerning questions of law, our scope of review is plenary. Id. We are not bound by a trial court’s conclusions of law; instead, we may draw our own inferences ahd reach our own conclusions. Butterfield v. Giuntoli,448 Pa.Super. 1 ,670 A.2d 646 (1995), appeal denied,546 Pa. 635 ,683 A.2d 875 (1996).
Borden, Inc. v. Advent Ink Co.,
¶ 6 Our suprеme court appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court’s duty analysis, and not a matter for jury determination.
5
Howell v. Clyde,
¶ 7 This court has 'also held that “a plaintiff will not be precluded from recovering except where it is
beyond question
that he voluntarily and knowingly proceeded in the face of an obvious and dangerous condition and thereby must be viewed as relieving the defendant of responsibility for his injuries.”
Struble,
¶ 9 The case before us involves defendants’ motions for summary judgment, however, not a motion for compulsory non-suit as in Howell. Where assumption of risk is asserted as an affirmative defense, a defendant is required to establish that there is no genuine issue of material fact that plaintiff assumed the risk. 8 Under Howell, supra, however, if appellant assumed the risk as a matter of law, then Carrara and Grimm owed no duty to appellant, and appellant’s negligence action should not proceed to a jury because he failed to establish his prima facie case of negligence. In this case, the trial court indicated that summary judgment would be appropriate whether assumption of the risk were treated as part of a “no-duty” analysis or as an affirmative defense. (Trial court opinion, 11/5/97 at 15 n. 9.) Like the trial court, we will focus on the merits of the doctrine itself.
‘Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts at the beginning of this period[the industrial revolution] to insulate the employer as much as possible from bearing the “human overhead” which is an inevitable part of the cost — to someone — of the doing of industrialized business.’
Rutter v. Northeastern Beaver County School District,
¶ 10 The doctrine has, however, fallen into disfavor, as evidenced by our supreme court’s two recent attempts to abolish or limit it.
See Howell, supra
and
Rutter, supra.
In fact, the prominent scholars drafting the Second Restatement of Torts hotly debated whether to include the doctrine in the Restatement at all. Jean W. Sexton,
Tort Law
— Assumption
of Risk and Pennsylvania’s Comparative Negligence Statute
— Howell
v. Clyde,
¶ 11 As Ms. Sexton notes, this debate occurrеd even before numerous jurisdictions including Pennsylvania adopted comparative negligence statutes, which apportion loss between a negligent plaintiff and a negligent defendant. Sexton,
supra
at 909; 919 n. 116. “Courts and scholars differ as to whether assumption of risk can exist in a comparative negligence jurisdiction.”
Id.
at 909.
See also, Howell, supra
at 162,
¶ 12 Additionally, both opponents and proponents of the doctrine have acknowledged the difficulty of its application, especially in a negligence context.
See Howell, supra
at 156-58,
¶ 13 The Restatement (Second) of Torts sets forth the doctrine of assumption of risk at §§ 496A-496G.
9
As previ
¶ 14 As the
Fish
court opined, in implied assumption of risk cases, “[a] particularly difficult element of the defense is in defining ‘circumstances that manifest a willingness to accept’ the risk.”
Fish,
¶ 15 As a result of this difficulty, “this Court announced, even before comparative negligence, that it would take a ‘restrictive attitude’ toward the circumstances from which the assumption of risk defense might be imрlied.”
Fish,
Preliminary and deliberate conduct done with an awareness of the specific risks inherent in the activity is a proper basis for implying assumption of risk. Conduct close in time and place to the accident, on the other hand, while it may contain an element of voluntary risk-taking, does not demonstrate a deliberate abandonment of the light to complain, but rather is better judged by its reasonableness, that is, by negligence principles.
Fish,
1116 Based on the foregoing analysis, we conclude that in a negligence context, where an employee is required to encounter a risk in order to perform his job, reasonable minds could disagree as to whether the employee “deliberаtely and with awareness of specific risks inherent in the activity nonetheless engaged in the
¶ 17 We find support for our conclusion in an opinion filed by a recent panel of this court, holding that in a products liability context, assumption of risk is no longer available as an affirmative defense in an employment situation because the employee cannot voluntarily assume the risk where in doing his job he is required to use equipment furnished by his employer.
Jara,
¶ 18 We also note that none of the recent cases decided by the supreme court addressing assumption of risk involved employees who encountered a risk during the course of their employment; rather, the eases all involved plaintiffs engaged in non-employment related activities. See Howell, supra (plurality) (plaintiff assumed the risk where he was injured while participating in lighting a cannon to set off fireworks); Carrender, supra (plaintiff assumed the risk where , she was injured when she slipped on a patch of ice next to her car in parking lot but where spaces free of ice were available in parking lot); Rutter, supra (plurality) (a jury question existed as to whether plaintiff voluntarily assumed the risk where he was injured during mandatory “jungle football” practice for high school football team).
¶ 19 Additionally, we find the cases cited by appellees distinguishable for various reasons. For example, neither
Hill v. Richards,
¶ 20 In
Malinder v. Jenkins Elevator Machine Co.,
¶ 21 It is true that
Zinn, supra,
a federal district court case applying Pennsylvania law, found that plaintiff assumed the risk of slipping on a slippery floor and falling into a six-foot-deep opening nearby when he continued to work after the landowner refused to remedy the dangerous situation.
Zinn,
¶ 22 Nevertheless, appellees argue that appellant failed to introduce evidence of coercion; therefore, no material issue of fact exists as to the voluntariness of appellant’s behavior. (Carrara’s brief at 9-14; Grimm’s brief at 40-44.) We do not agree, however, that a plaintiff/employee is required to introduce evidence of coercion to establish the involuntariness of his behavior. Under the Restatement:
§ 496E. Necessity of Voluntary Assumption
(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.
(2) The plaintiffs acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him no reasonable alternative course of conduct in order to
(b) exercise or protect a right or privilege of which the defendant has no right to deprive him.
Restatement (Second) of Torts § 496E (1965). According to the comment to this section, the assumption of risk is not voluntary where a defendant has an independent duty to the plaintiff and his breach of that duty compels the plaintiff to encounter the particular risk in order to protect a right or privilеge of which the defendant has no privilege to deprive him. Restatement (Second) of Torts § 496E cmt. c (1965). “The existence of an alternative course of conduct which would avert the harm, or protect the right or privilege, does not make the plaintiffs choice voluntary, if the alternative is one which he can not reasonably be required to accept.”
Id.,
cited with approval in
Rutter, supra
at 604-06,
¶23 In this case, the trial court found that material issues of fact remained to be resolved before it could determine whеther appellees owed appellant a duty of care under the Restatement. See discussion infra. Because the court was unable to resolve the duty issue in favor of appellees, it is for the jury to decide whether appellant’s conduct in performing his job despite his awareness of the roof openings was reasonable or unreasonable. In making its determination, a jury should consider all the facts and circumstances of the case, including appellant’s alternatives, if any. 11
¶ 24 As a result,' we reject outright the trial court’s conclusion that appellant was required to quit his job rather than to proceed in the face of an obvious danger. (Trial court opinion, 11/5/97 at 13, citing
Fitzgerald v. Pennsylvania R.R.,
¶ 25 We therefore conclude that in the employment context, reasonable minds could differ as to whether a plaintifi/em-ployee “deliberately and with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury.”
Howell, supra
at 162-64,
¶ 26 Carrara also argues, however, that even if assumption of risk does not entitle Carrara and Grimm to summary judgmеnt, we should affirm the trial court’s entry of summary judgment because neither Carrara nor Grimm owed appellant a duty of care. (Carrara’s brief at 40, citing
Fleetway Leasing Co. v. Wright,
¶ 27 We decline to address this argument as it pertains to Grimm because Grimm has not argued the issue on appeal to this court. Instead, on appeal, Grimm merely joined in and adopted any brief filed or to be filed оn behalf of Carrara. (Grimm’s brief on reargument at 12, citing Pa.R.App.P. 2137.) After this court granted reargument, Grimm joined in and adopted only pages 6-14 of Carrara’s supplemental brief, addressing assumption of risk. (Grimm’s supplemental brief on reargument at 7 n. 3, citing Pa.R.App.P. 2137.)
¶ 28 We are unable to determine from the state of this record, however, whether Grimm, like Carrara, is merely an independent contractor or whether Grimm’s relationship with Toy Factory requires a different analysis.
See Weiser v. Bethlehem Steel Corp.,
¶29 The trial court did not determine Grimm’s status, concluding only that if Grimm is found to be a possessor of land, then § 343A of the Restatement (Second) of Torts provides the relevant standard. (Trial court opinion, 11/5/97 at 9.) That section provides in pertinent part that “[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm, despite such knowledge or obviousness.” Restatement (Second) of Torts § 343A(1) (1965) (emрhasis added). Furthermore, according to the trial court, a material issue of fact existed as to whether Grimm should have anticipated the harm despite its obviousness. (Trial court opinion, 11/5/97 at 9.) Nevertheless, because Grimm has not adequately argued the duty issue to this court, and because Carrara’s status vis-a-vis appellant may differ from Grimm’s, we find that the duty issue as it pertains to Grimm is not ripe for our review.
¶ 30 We are likewise unable to resolve on appeal some of the factual issues necessary to determining the extent of Carrara’s duty to appellant under §§ 384 and 385 of the Restatement, applicable to one who on behalf of a possessor of land creates a dangerous condition on the land. We therefore find no error in the trial court’s refusal to grant Carrara’s motion for summary judgment on this basis. As both the trial court and Carrara correctly note, “A subcontractor on a construction job owes to employees of other subcontractors, on the same site, the care due a business visitor from a possessor [of] land.”
McKenzie v. Cost Bros.,
¶ 31 Section 384 and, through it, § 343A apply to Carrara, however, only if the work was still in its charge. Restatement (Second) of Torts § 384;
Weiser,
¶ 32 In contrast, if the work was no longer in Carrara’s control because “the possessor” accepted the work, then § 385 applies. That section provides that one who on behalf of a possessor of land erects a dangerous structure or creates any other dangerous сondition on the land is subject to liability to others for physical harm caused by the dangerous character of the structure or condition after the possessor accepts his work under the rules used to determine the liability of one who makes a chattel for the use of others. Restatement (Second) of Torts § 385;
Prost v. Caldwell Store, Inc.,
¶ 33 The rules applicable to makers of chattels, however, differ from the rules applicable to possessors of land. See Restatement (Second) of Torts §§ 394-398, 403-404, applicable to those to whom § 385 applies. Id. at § 385 cmt. (a). Thus, in order to determine the extent of Carrara’s duty, the jury must resolve the factual issue whether Carrara “was in control of the work” or whether the work had been accepted by the “possessor.”
¶ 34 We also agree with the trial court that a jury must resolve other issues of material fact relevant to Carrara. For example, while Carrara admitted responsibility for cutting the holes in the roof, Carrara employees testified during their depositions that Carrara only agreed to cut the holes after Karl Kenyon promised that Grimm would cover or otherwise protect the holes. (R.R. at 254a-256a, 258a, 264a~266a, 268a-269a.) Mr. Kenyon, on the other hand, testified that he did not discuss with anyone who would be responsible for covering the holes. (Id. at 168a, 175a-176a.) Thus, a material issue of fact exists as to whether Carrara knew or had reason to know that its work made thе roof dangerous, or whether Grimm created the dangerous condition when it did not cover the holes as it allegedly promised to do. Restatement (Second) of Torts, §§ 385, 403. A material issue of fact also exists as to whether Carrara negligently cut the holes for purposes of §§ 385 and 404, based on the same conflicting testimony. As a result, we find no error in the trial court’s determination that Carrara was not entitled to summary judgment on this basis.
¶ 35 For all of the foregoing reasons, we affirm trial court’s denial of summary judgment as to appellees’ duty, and reverse the trial court’s entry of summary judgment as to assumption of risk.
¶ 36 Affirmed in part, reversed in part, and remanded. Jurisdiction relinquished.
Notes
. Barnhart is not a party to this case.
. Grimm Industries and Toy Factory are closely relаted corporations which manufacture and assemble plastic toys.
. While both Paul and Nancy Staub are appellants, we refer to appellant Paul Staub throughout this opinion to simplify discussion.
. The court had originally granted summary judgment to Carrara on the ground that Car-rara "had vacated the entire premises by the day of the accident.” (Trial court opinion, 11/5/97 at 5.) In the course of deciding Grimm's motion for reconsideration, however, the court decided that it had erred in granting summary judgment on that basis. (Id.)
. On March 5, 1999, the supreme court granted allocatur in
Joseph v. Duquesne Light Co.,
.
In products liability cases, assumption of risk is still analyzed as an affirmative defense rather than as part of a ‘no duty’ analysis.
Hardy,
. In
Long, supra,
a panel of this court opined that
a majority
of the
Howell
court agreed .that the question whether a plaintiff has assumed the risk of his injuries should not be decided as a matter of law except where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition, thereby relieving the defendant of responsibility for his injuries.
Long,
In
Howell,
Justice, now Chief Justice, Flah-erty authored the Opinion Announcing the Judgment of the Court, in which one justice joined. Two justices concurred in the result, namely, reversal of this court’s order reversing the trial court's entry of an involuntary nonsuit, based on the theory of joint enterprise.
Howell, supra
at 162-64, 620 A.2d at
"[I]n cases which produce a majority of Justices in support of one result but only a plurality in support of the lead opinion, courts traditionally attach precedential value to the narrowest holding on which the majority necessarily agreed in order to reach the end result.”
In Interest of O.A.,
. For summary judgment purposes, affirmative defenses are generally decided under Pa. R.Civ.P. 1035.2(1), where it is the moving party’s burden to establish the defense as a matter of law. Under
Howell
and
Hardy,
however, assumption of risk is now considered part of a "no-duty" analysis. As such,
the
doctrine now falls under the second type of summary judgment motion, described in Pa.R.Civ.P. 1035.2(2). Under Rule 1035.2(2), a party may obtain summary judgment by pointing to the
adverse party’s lack of evidence
on an essential element of the claim. (Rule 1035.1, Explanatory Comment — 1996, citing
Godlewski v. Pars Mfg. Co.,
. The Restatement distinguishes between express and implied assumption of risk and further distinguishes among three separate types of implied assumption of risk. Restatement (Second) of Torts §§ 496A, 496B, 496C. A plurality of our supreme court in
Howell,
The
Howell
analysis thus retains assumption of risk as a defense in cases where plaintiff's behavior in encountering the risk is reasonable, but abolishes it in cases where plaintiff’s behavior is unreasonable.
Howell, supra
at 161-62,
. We recognize the distinctions between Jara and this case. First, this case involves the propriety of the trial court's granting a motion for summary judgment, not the propriety of the court’s granting plaintiff a j.n.o.v. as to liability and a new trial as to damages only. Second, comparative negligence is not available as a defense in strict liability cases as it is in negligence cases such as this one. Jara, 718 A.2d at 793. Thus, the court and the jury in a products liability case are faced with the Draconian choice between granting a plaintiff either full recovery or no recovery, regardless of the parties' comparative fault.
. We recognize that other jurisdictions have adopted a similar analysis, calling it "the modern employee’s dilemma.”
ADM Partnership v. Martin,
advances the view that an employee does not voluntarily or unreasonably assume the risk of a danger during the course of employment because ‘the competitiveness and pragmatism’ of the real world workplace compel employees to either perform risky tasks or suffer various adverse employment consequences, ranging from termination to more subtle sanctions. Varilek v. Mitchell Eng'g Co.,200 Ill.App.3d 649 ,146 Ill.Dec. 402 ,558 N.E.2d 365 (1990). Courts that have subscribed to this view have held 'that an injured worker does not have to put in evidence that he would have been fired if he had not done his job in order to show that his decision ... was not voluntary under the doctrine of assumption of risk.’ Varilek,146 Ill.Dec. at 413 ,558 N.E.2d at 376 .
Id.
(declining to address the validity of the theory).
See also Cremeans v. Willmar Henderson Mfg. Co.,
. We recognize the irony implicit in partially abrogating a doctrine for the very reason the courts initially created it.