*2 SOLE, BECK, Before DEL JOYCE and JJ.
JOYCE, J.: ¶ 1 the final order appeal This is an from the motion granted of the trial court which summary judgment by Appellee, for filed For the reasons set forth College. Geneva below, addressing the we affirm. Before briefly re- appeal, merits this we will count the facts. relevant Jason April Appellant, 2 On fielder for Zachardy, starting center his teammates College, Point Park game a baseball were scheduled against game played The was Appellee. During the Appellee’s baseball field. fly of a pursuit while in game, Appellant, ball, stepped divot/hole/imperfection in a grass-covered outfield. he sustained se- right knee buckled and injury vere to his knee. incident, foregoing of the 3 As result complaint alleging filed a and maintain keep had a
Appellee reasonably safe condi- in a the ball-field neg- Appellee asserts tion. this condition. maintain failing ligent a motion filed Appellee April On considerations trial court with these summary judgment grounds for on the of the that no of care was owed because mind.
Appellant had assumed the risks associat- of the fact that makes note Furthermore, playing ed with baseball. uncertainty with re- there is substantial believes these risks were obvious status of spect to the current and apparent. Following argument, *3 Pennsyl- Pennsylvania. The of the risk in granted summary judgment trial court implied that vania Court has held Supreme Appellee. Appellant timely ap- favor of of part has become assumption of the risk pealed. and analysis for the trial court duty the by part 4 not as of the case to be determined Appellant presents the fol (1) 151, review; Clyde, Pa. lowing jury. issue for our whether the Howell v. 533 (1993) 1107, 161, the trial in granting summary (plu- court erred 620 A.2d 1112-1113 Furthermore, judgment finding rality that owed no the court opinion). duty of Appellant. care to observed: In reviewing grant summary judg- a of risk 2 and 3 assumption types In of the
ment,
appellate
may
an
court
disturb the
voluntarily
intelligent-
a
has
and
plaintiff
only
order of the trial court
where there
activity which he
ly undertaken an
has been an error of law or a manifest
ways
knows to be hazardous in
which
Nevertheless,
abuse of discretion.
the
injury.
cause him
His
subsequently
scope
plenary
appel-
of review is
and the
activity may or
choice to undertake this
late court shall
the
apply
same standard
may
His
regarded
negligent.
not be
as
judgment
for
as the trial court....
The
negligence
negligence,
or lack of
howev-
is
the light
record
to be viewed in
most
er,
fact; rather, the
operative
is not the
nonmoving party,
favorable to the
and
operative
voluntary
fact is his
choice
presence
genu-
all doubts as to the
of a
encounter the risk. The theoretical un-
ine issue of material fact must be re-
of these
of
derpinning
types
against the moving party.
solved
public
of risk is that as a matter of
policy one who chooses to take risks will
Albright Abington
5
v.
Memo
268, 278,
complain
not then be heard later to
that
rial
Pa.
696 A.2d
Hospital, 548
(1997) (citations omitted).
1159,
injured by the
he chose to
“An
he was
risks
1165
entry
summary judgment may
grant
permitted
of
be
take and will not be
to seek
only
money damages
might
the
is
from those
ed
cases where
clear
who
moving party
and free from doubt. The
otherwise have been liable.
proving
has the burden of
the nonexistence
161,
Id. at
Kilgore City Philadelphia,
v.
553
of
may
Under this
the
approach
court
de-
(1998).
514,
717 A.2d
515-516
order
termine that no
if
only
exists
rea-
summary judg
to withstand a motion for
disagree
sonable minds could not
that
ment,
non-moving party
must adduce
deliberately
the
plaintiff
the
and with
on an issue essential to
sufficient evidence
specific
awareness of
risks inherent
he bears the burden
his case and which
activity
engaged
nonetheless
in the
jury
of
such that a
could return a
proof
activity
produced
injury.
that
his
Un-
in his favor. Failure to adduce this
verdict
facts,
those
court
der
would deter-
genu
evidence establishes that there is no
defendant,
mine
as a matter of
moving
ine issue of material fact and the
law,
plaintiff
owed
no
of care.
party
judgment
is entitled
as a matter
162-163,
Id. at
A. Was I aware that it could happen? Furthermore, Appellant never
testified
Q. Yes.
that
coach told him his starting position
his
scholarship
or
in
if he
not
jeopardy
was
did
A. Sure. I was aware that that could
Indeed,
day.
that
Appellant never
possibly happen.
testified he felt his
or
position
scholarship
Q.
you
you
Were
that
get
aware
could
danger
play.
was in
were he not to
There
injured?
fore,
justification
sufficient
exists to sup
A. Yes.
port
Appel
the trial court’s conclusion that
Q.
you
And
knew that before the game
voluntarily
presented.
lant
faced the risk
started?
know,
¶
A.
yes.
Yes. You
Before
10
an appellant
Where
volun
that —
starts,
any game
you
you
are aware
tarily and
the
of specific
with
awareness
injured.
could be
activity
risks inherent
in the
proceeds
risk,
the face of a known
he absolves the
Id. at 98-99. From the facts discussed
from a
to
him from
appellee
protect
above, we find no error in the trial court’s'
injuries
Clyde,
thus sustained. Howell v.
determination that Appellant knowingly
(Pa.
1107,
533 Pa.
620 A.2d
1113
proceeded in the face of an obvious dan-
1993) (plurality opinion). From the facts
ger.
above,
discussed
the trial court determined
¶ 8 The
component
second
is that
the
voluntarily
knowingly
that
and
risk
voluntarily.
must be faced
Citing
in the face of an obvious and
proceeded
Rutter
County
v. Northeastern Beaver
dangerous
agree.
condition. We
Accord
District,
School
496 Pa.
652 or in order size, right privilege the exercise of a appearance location or regarding caused this to avoid a risk. may of the hole that have Thus, claim to be injury. we find this ¶ held: the court in Rutter 5 As relief, cause for Finding without merit. no jury for the question There is at least a we affirm. compelled was appellant as to whether playing “jungle ¶ accept risk 12 Order affirmed. his or protect football” in order to (§ 496 privilege play (varsity) football SOLE, Dissenting DEL J. files “c”). E, com- comment If he was so Opinion. not acceptance of risk was pelled, thus, voluntary, subject not SOLE, J., DEL dissents: to the bar the rule. Majority 1 Because I believe the incor- A.2d at 1205. Id. at rectly concludes that the issue of voluntari- analysis present this to the Applying ness in the of the Risk defense Assumption voluntari- requires case that the issue of established, has been I must dissent. least, ness, to a at the must be submitted
¶2 Further, Majority Initially, jury. plaintiff I note the holds where the be- testify lieves, *5 incorrectly, that because the did not even if that he must him his apply. that his baseball “coach told start- the defense would not participate, ing position scholarship jeopardy or reasons, 7 For these I dissent and day if he ... [or that] did not entry summary judg- of would reverse the position scholarship felt his or was in dan- ment. establish the involun- ger,” he has failed to Majority Op. of his at
tariness actions. analysis for two reasons.
651. This fails
¶ First, since of risk is defense, has appellee
an affirmative appellant’s
the burden of establishing
voluntary act. Since the case reaches us summary
following entry judgment, of MEALY, Mellany Appellant, S. only an admission of would be basis for such a provide sufficient to
ruling. Having deposition reviewed the ARNOLD, Appellee. Fred admission. The Appellant, there is no Ma- has, believe, unper- in an jority engaged Pennsylvania. I Court of Superior shifting proof missive of the burden 6, 1999. Argued April the issue. June Filed Second, I contend that Rutter v. County Beaver School Dis- Northeastern (1981)
trict,
496 Pa.
controlling requires the issue be sub- opin-
mitted to a fact finder. In the lead
ion, Flaherty now Chief Justice cited with (Second) of the Restatement
approval, § involving
Torts 496 E and its comments
voluntariness, particularly comment “c” defendant, by its tortu- prohibits a
which act, give forcing person up from
ous