| The defendants have the burden of proving the | | | | v. Sears Robuck and Company, E.D. Pa; Hutton, J.; |
| existence of contributory negligence. Defendants | | | | July 18, 1990; no. 89-3556; slip op. |
| must prove that plaintiff acted unreasonably | | | | "A danger is deemed to be 'obvious' when 'both |
| under the circumstances and that her conduct | | | | the condition and the risk are apparent to and |
| was a substantial factor in causing her injuries. | | | | would be recognized by a reasonable man, in the |
| Hanlon v. Sorenson, 289 Pa. Super. 268, 433 A.2d | | | | position of the visitor, exercising normal |
| 60 (1981). It is not plaintiff's burden to prove her | | | | perception, intelligence and judgment." Id., citing |
| freedom from any such negligence. | | | | Carrender, at 123 (emphasis added.) It is, |
| Contributory negligence can be found as a matter | | | | therefore, crucial to consider the perception, |
| of law only in clear cases. Arco v. Goodstein, 265 | | | | intelligence and judgment of a plaintiff at the time |
| A.2d 783 (1970); Dolin v. J.J. Newberry Company, | | | | of this accident in order to determine whether the |
| 466 A.2d 174 (Pa. Super. 1983). There can be "no | | | | danger presented by the sign frame was |
| room for fair and reasonable disagreement as to | | | | "obvious" to her. |
| its existence." Skalos v. Higgins, 449 A. 2d 601, | | | | In Berman, supra, the Superior Court ruled that |
| 604 (Pa. Super. 1982.) Plaintiff is required to use | | | | the trial court's refusal to charge the jury on the |
| only the ordinary care that a prudent person | | | | issues of "known" or "obvious" dangers was |
| would use under the circumstances. Peair v. Home | | | | proper. In Berman, the plaintiff was roller skating. |
| Associations of Enola Legion #751, 430 A.2d 655 | | | | After he was bumped by another skater, this |
| (Pa. Super. 1981). | | | | plaintiff lost his balance, skating through an opening |
| Defendants often cite the Restatement (Second) | | | | in a railing onto a carpet area and down a six-inch |
| of Torts § 343A in concluding that plaintiff | | | | drop off in the floor level. Ultimately he struck his |
| was contributorily negligent for an accident. | | | | head against a cabinet or shelf which protruded |
| Section 343A protects possessors of land from | | | | beyond vending machines. |
| liability from "known" or "obvious" dangers, "unless | | | | The condition of the rink, the wide entrance, the |
| the possessor should anticipate the harm despite | | | | six-inch drop off and the placement of the |
| such knowledge or obviousness." | | | | vending machines were all apparent. None of the |
| To be "known", the danger must "not only be | | | | conditions were concealed in any way. |
| known to exist, but ... also be recognized that it is | | | | Nevertheless, the Court could not say that these |
| dangerous and the probability and gravity of the | | | | conditions would be "known" or "obvious" to a |
| threat and harm must be appreciated." Berman v. | | | | reasonable person in the position of the plaintiff. |
| Radnor Rolls, Inc. 542 A.2d. 525, 531 (Pa. Super. | | | | The court carefully considered that this skater |
| 1988), citing, Carrender v. Fitterer, 469 A.2d. 120, | | | | lost and regained his balance while traveling at a |
| 124 (Pa. 1983). | | | | good rate of speed. He did not have an adequate |
| What constitutes an "obvious" danger is an issue | | | | opportunity under the circumstances to recognize |
| of fact for the jury's determination, requiring | | | | the danger the six-inch step posed to him. |
| denial of a Motion for Summary Judgment. Brown | | | | |