                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-1997

Kaplan v. Exxon Corp
Precedential or Non-Precedential:

Docket
96-1495,96-1519




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Recommended Citation
"Kaplan v. Exxon Corp" (1997). 1997 Decisions. Paper 230.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/230


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Filed September 25, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-1495 and 96-1519

AARON KAPLAN; JUDITH KAPLAN

v.

EXXON CORPORATION

v.

JAMES J. ANDERSON CONSTRUCTION CO., INC.;
JAMES D. MORRISSEY, INC.,
       Third Party Defendants

       Judith Kaplan and Aaron Kaplan,
       Appellants at No. 96-1495

       Exxon Corporation,
       Appellant at No. 96-1519

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 95-cv-01942)

Submitted Pursuant to Third Circuit LAR 34.1(a)
June 2, 1997

Before: BECKER and SCIRICA, Circuit Judges
and SCHWARZER, District Judge*

(Filed September 25, 1997)



_________________________________________________________________

*The Honorable William W Schwarzer, United States District Judge for
the Northern District of California, sitting by designation.




       RICHARD J. HELENIAK, ESQUIRE
       Cutler, Clemm & Morris
       527 Plymouth Road, Suite 416
       Plymouth Meeting, Pennsylvania
        19462
       Attorney for Appellants/Cross-
       Appellees,
       Aaron Kaplan and Judith Kaplan

       RICHARD E. STABINSKI, ESQUIRE
       Phillips & Phelan
       121 South Broad Street, Suite 1600
       Philadelphia, Pennsylvania 19107

       Attorney for Appellee/Cross-
       Appellant,
       Exxon Corporation

       JOSEPH E. MAYK, ESQUIRE
       Duane, Morris & Heckscher
       735 Chesterbrook Boulevard, Suite
        300
       Wayne, Pennsylvania 19087

       Attorney for Appellee,
       James J. Anderson Construction
       Co., Inc.

       MARY K. SCHWEMMER, ESQUIRE
       White & Williams
       One Liberty Place, Suite 1800
       Philadelphia, Pennsylvania 19103

       Attorney for Appellee,
       James D. Morrissey, Inc.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this slip and fall case alleging negligence for failing to
clear snow and ice from a sidewalk, the district court

                                  2




granted summary judgment to defendants, holding plaintiff
assumed the risk of injury. Plaintiff appeals. We will reverse
and remand.

I.

On March 13, 1993, Philadelphia was hit with a major
snow storm. Levick Street in Northeast Philadelphia was
plowed, creating mounds of snow along the border of the
street and sidewalk that remained for days. On the morning
of March 22, 1993, plaintiff Judith Kaplan (age 30) and
three others were waiting at a bus stop on the Levick Street
sidewalk, near the intersection with Oxford Avenue, in
order to catch SEPTA's route 26 bus. As the bus pulled up
to its designated stop, a snow mound approximately three
to four feet high stood between the passengers and the bus.
It appears the snow mound began on the sidewalk and
extended two or three feet into the street.

The passengers decided to climb the mound to board the
bus. A 63 year old woman boarded with obvious difficulty,
being helped by two men to traverse the slope. After the
older woman successfully negotiated the snow mound, one
of the men turned to warn Kaplan that the mound was
"icy." Kaplan tried to climb the mound, but when she
reached the top of the slope she slipped and fell and broke
her tibia and fibula.

There was another route to the bus, although it was
longer and involved walking in the street. The snow mound
extended along the street, but there was a gap next to a fire
hydrant located less than a block away. Much of the
sidewalk was clear of snow and ice. Therefore, the snow
mound could have been avoided by walking a distance
along the sidewalk to the fire hydrant, entering Levick
street at that point, and then walking back up the street to
the bus.

Kaplan filed this personal injury suit in the Court of
Common Pleas for Philadelphia County against defendant
Exxon Corporation, which owns the property adjacent to
the sidewalk where she fell. She alleges her injuries were
caused by Exxon's negligent failure to keep the sidewalk
free of ice and snow. Kaplan's husband also sued for loss

                                3




of consortium. Exxon removed the case to federal court and
joined as third party defendants James J. Anderson
Construction Co., Inc. and James D. Morrissey, Inc.,
allegedly the owners and operators of the snow plows that
plowed Levick Street.

Exxon filed for summary judgment on two grounds: (i)
that Kaplan assumed the risk of walking across the snow
mound; and (ii) that Kaplan slipped on the street, not the
sidewalk. The district court granted Exxon's motion on the
first ground, finding Kaplan voluntarily confronted a known
and obvious danger when she climbed the mound of ice
and snow. The court denied Exxon's motion on the second
ground, finding an issue of fact on the location of the snow
mound. The district court then granted summary judgment
in favor of the third-party defendants "upon consideration
of the[ir] Motion[s] for Summary Judgment . . . and, in light
of this Court's Grant of Summary Judgment in favor of
Exxon Corp."

II.

The district court had removal jurisdiction under 28
U.S.C. S 1441(a) based on diversity of the parties. We have
jurisdiction under 28 U.S.C. S 1291. We review the district
court's grant of summary judgment under a plenary
standard. City of Erie, PA v. Guaranty Nat'l Ins. Co., 109
F.3d 156, 159 (3d Cir. 1997). We must apply the same test
as the district court and affirm only if there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); City of
Erie, PA, 109 F.3d at 159.

III.

A. Assumption of Risk

The district court held Kaplan assumed the risk of injury
as a matter of law, because she voluntarily confronted a
known and obvious danger when she climbed the snow
mound. The district court held that under Pennsylvania
law, "when `an invitee enters business premises, discovers

                                4




dangerous conditions which are both obvious and
avoidable, and nevertheless proceeds voluntarily to
encounter them' the landowner is under no duty to protect
against those risks." Kaplan v. Exxon Corp., 926 F. Supp.
59, 61 (E.D. Pa. 1996) (quoting Carrender v. Fitterer, 469
A.2d 120, 125 (Pa. 1983)). Noting it was uncontroverted
that Kaplan was told the mound was "icy" and that she had
observed the older woman cross the mound with difficulty,
the district court found the danger was "known and
obvious." Kaplan, 926 F. Supp. at 62.

The district court also held Kaplan voluntarily confronted
the danger because there was clear and level access to
Levick Street by a fire hydrant halfway down the block
where the snow mound had been cleared. Finding that
Kaplan could have avoided climbing the snow mound, the
court also found that her fear that she might miss the bus
if she took the longer route did not justify her conduct.
Kaplan contends that under Pennsylvania law the issue
of assumption of risk is normally for the jury. She
maintains there are genuine issues of fact whether she
knew the snow mound was dangerous and whether her
actions were voluntary. Specifically, Kaplan contends she
did not know the mound was slippery. Despite the difficulty
the other woman encountered in climbing the snow mound,
Kaplan contends this does not necessarily demonstrate that
the mound was dangerous because the woman was elderly
and may have needed assistance because of her age.
Kaplan also notes that none of the other persons crossing
the mound had difficulty. Finally, Kaplan contends she did
not voluntarily confront the danger because she had no
safe alternative to crossing the snow mound -- even if she
had walked down the sidewalk to the gap by the fire
hydrant, she would have had to walk back to the bus on a
busy and icy street, in the traffic lane.

In response, Exxon argues that under Pennsylvania law,
the question of assumption of risk may be decided by the
court when reasonable minds could not differ on the
outcome. Exxon maintains the district court did not err
when it decided the assumption of risk issue because
Kaplan knew the mound was icy, knew that the older
woman had trouble crossing the mound, and knew she had

                                5




a safe alternative path to the bus via the gap by the fire
hydrant.

Because we are sitting in diversity, we must predict how
the Pennsylvania Supreme Court would rule. Surace v.
Caterpillar, Inc., 111 F.3d 1039, 1044 (3d Cir. 1997).
Although it has addressed this issue on different occasions
in recent years, the Pennsylvania Supreme Court has not
provided a definitive statement on the assumption of risk
doctrine. In 1981, a plurality of the court sought to abolish
the doctrine of assumption of risk "except where specifically
preserved by statute; or in cases of express assumption of
risk, or in cases brought under . . . a strict liability theory."
Rutter v. Northeastern Beaver County Sch. Dist., 437 A.2d
1198, 1209 (Pa. 1981). It adopted this position because it
believed juries were confused by the doctrine and because
it was bad public policy. The plurality also noted that, as a
complete bar to recovery, the affirmative defense of
assumption of risk frustrated the purpose of the state's
comparative negligence statute, which was to allow
plaintiffs to recover some damages despite some
unreasonable or negligent conduct.1 The Rutter court
observed that in most cases where assumption of risk is
invoked to deny recovery, the court could reach the same
result by holding the defendant owed the plaintiff no duty.

Two years later a majority of the court breathed new life
into the assumption of risk doctrine. In Carrender v.
Fitterer, 469 A.2d 120 (Pa. 1983), the plaintiff parked her
car on a sheet of ice on a parking lot even though the
remainder of the parking lot was ice-free. The court held
that because the danger was both obvious and known to
the plaintiff, the defendant owed no duty to the plaintiff.
The court stated it would reach the same result whether
_________________________________________________________________

1. The comparative negligence statute, 42 Pa. Cons. Stat. Ann. S 7102(a),
provides: "In all actions brought to recover damages for negligence
resulting in death or injury to person or property, the fact that the
plaintiff may have been guilty of contributory negligence shall not bar a
recovery by the plaintiff or his legal representative where such
negligence
was not greater than the causal negligence of the defendant or
defendants against whom recovery is sought, but any damages sustained
by the plaintiff shall be diminished in proportion to the amount of
negligence attributed to the plaintiff."

                                6




through analysis of the defendant's duty or application of
the affirmative defense of assumption of risk. "When an
invitee enters business premises, discovers dangerous
conditions which are both obvious and avoidable, and
nevertheless proceeds voluntarily to encounter them, the
doctrine of assumption of risk operates merely as a
counterpart to the possessor's lack of duty to protect the
invitee from . . . risks." Id. at 125. 2 Furthermore, the court
held that, although "the question of whether a danger was
known or obvious is usually a question for the jury, the
question may be decided by the court where reasonable
minds could not differ as to the conclusion." Id. at 124.

In 1993, the court once again considered the doctrine of
assumption of risk, but this time was able to rule only as
a plurality. In Howell v. Clyde, 620 A.2d 1107 (Pa. 1993),
a three judge plurality noted that the status of the
affirmative defense was unclear after Rutter and Carrender.3
The plurality found the reasoning of the plurality in Rutter
persuasive, holding that assumption of risk should be
abolished "in essence" as an affirmative defense, except in
cases where the defense is preserved by statute, is assumed
_________________________________________________________________

2. This analysis fails to recognize two differences between the
assumption of risk doctrine and a duty analysis: (1) the burden of proof
to establish duty lies with the plaintiff, Morena v. South Hills Health
Sys.,
462 A.2d 680, 684 (Pa. 1983), while the burden of proof for the
affirmative defense of assumption of risk lies with the defendant, Watson
v. Zanotti Motor Co., 280 A.2d 670, 672 (Pa. Super. Ct. 1971); (2)
assumption of risk is traditionally a jury question, while determination
whether a defendant owed a plaintiff a duty is for the court to decide as
a matter of law, Howell v. Clyde, 620 A.2d 1107, 1108 n.1 (Pa. 1993)
("Whereas the questions of negligence and assumption of risk have
traditionally been for the jury, the question of duty . . . is for the
court.").
On this second point, the Carrender court noted only that, though "the
question of whether a danger was known or obvious is usually a
question for the jury, the question may be decided by the court where
reasonable minds could not differ as to the conclusion." 469 A.2d at 124.

3. In fact, one justice dissented in Howell for this reason, stating
only, "I
dissent. Until such time as this Court arrives at a clear-cut majority, we
will continually muddy the waters in the sensitive areas of both
comparative negligence and the assumption of risk, both of which are
cornerstones of the negligence law in this Commonwealth." Howell, 620
A.2d at 1115 (Zappala, J., dissenting).

                                7




expressly, or in strict liability cases. Id. at 1113 n.10. The
Howell plurality decided, however, that because "it is
desirable to preserve the public policy behind assumption
of risk . . . but to the extent possible, remove the difficulties
of application of the doctrine and the conflicts which exist
with our comparative negligence statute, to the extent that
an assumption of risk analysis is appropriate in any given
case, it shall be applied by the court as part of the duty
analysis, and not as part of the case to be determined by
the jury." Id. at 1112-13. The court went on to hold that a
"court may determine that no duty exists only if reasonable
minds could not disagree that the plaintiff deliberately and
with the awareness of specific risks inherent in the activity
nonetheless engaged in the activity that produced his
injury." Id. at 1113.

Under both Carrender and Howell, the assumption of risk
analysis is incorporated into the duty analysis. Even
though the Howell court was unable to get majority support
for this principle, this approach found in Carrender and
Howell is our best prediction of how the Pennsylvania
Supreme Court would analyze this case. Carrender is the
most recent Supreme Court decision commanding a
majority of justices. Therefore, it is Kaplan's burden to
establish that Exxon had a duty here, and not Exxon's
burden to prove Kaplan assumed the risk of her injury.
Under Carrender, this issue goes to the jury unless
reasonable minds could not disagree. Carrender, 469 A.2d
at 124.4
_________________________________________________________________

4. The approaches in Howell and Carrender are similar, except that
Howell held the duty/assumption of risk issue is a question of law for
the court:

       [Our] approach preserves the public policy behind the [assumption
       of risk] doctrine while at the same time alleviating the difficulty
of
       instructing a jury on voluntariness, knowledge, and scope of the
       risk.

       Under this approach the court may determine that no duty exists
       only if reasonable minds could not disagree that the plaintiff
       deliberately and with the awareness of specific risks inherent in
the
       activity nonetheless engaged in the activity that produced his
injury.
       Under those facts, the court would determine that the defendant, as
       a matter of law, owed plaintiff no duty of care.

                                8




Exxon had no duty to Kaplan if she "discover[ed]
dangerous conditions which [were] both obvious and
_________________________________________________________________

       If, on the other hand, the court is not able to make this
       determination and a nonsuit is denied, then the case would proceed
       and would be submitted to the jury on a comparative negligence
       theory. Under this approach, . . . assumption of the risk would no
       longer be part of the jury's deliberations or instructions.

Howell, 620 A.2d at 1113. This approach has much to commend it. But
Howell was only a plurality ruling and therefore does not displace the
prior majority ruling in Carrender that the duty/assumption of risk issue
goes to the jury. Williams v. Workmen's Compensation Appeal Board, 687
A.2d 428, 483 (Pa. Commw. Ct. 1997) (plurality opinion of state supreme
court not binding precedent).

Nonetheless, when a jury applies the law as stated in Carrender and
decides defendant owed a duty to plaintiff, we assume it must thereafter
(as explained in Howell) apply the comparative negligence statute, 42 Pa.
Cons. Stat. Ann. S 7102(a). See Carrender, 469 A.2d at 125 (recognizing
the overlap between the doctrines of assumption of risk and comparative
negligence, and stating, "For fault to be apportioned under the
comparative negligence statute, there must be . . . a breach of duty by
the defendant to the plaintiff . . . . Whatever the effect of the adoption
of a system of comparative fault on the defense of assumption of risk
where that defense overlaps and coincides with contributory negligence,
the adoption of such a system has no effect where, as here, the legal
consequence of the invitee's assumption of a known and avoidable risk
is that the possessor of land is relieved of a duty of care to the
invitee.").
As the Civil Instructions Subcommittee of the Pennsylvania Supreme
Court Committee for Proposed Standard Jury Instructions noted,
Pennsylvania courts have held the "Comparative Negligence Act would
still apply where the underlying conduct of a plaintiff amounted to
negligence," even though it may not have amounted to the "more
culpable" conduct of actual assumption of risk. Pennsylvania Suggested
Standard Civil Jury Instructions S 3.03A (Subcommittee Note on
Assumption of Risk) (1991) (citing Berman v. Radnor Rolls, Inc., 542 A.2d
525 (1988)). See also Victor E. Schwartz, Comparative Negligence S9-4(b),
at n.100 (3d ed. Supp. 1996).

We note this case would appear to be a good example of the type of
assumption of risk which is better viewed as contributory negligence.
The plaintiff has exposed herself to risk of future harm but has not
consented to relieve the defendant of a future duty to act with
reasonable care. Prosser and Keeton on Torts at 485 (W. Page Keeton ed.,
5th ed. 1984). In cases like this one, it would appear that the
comparative negligence approach is the better one.

                                9




avoidable, and nevertheless proceed[ed] voluntarily to
encounter them." Carrender, 469 A.2d at 125. We agree
with the district court that the snow mound was a known
and obvious risk. But we do not agree that Kaplan acted
voluntarily as a matter of law when she crossed over the
snow mound. A plaintiff voluntarily confronts a danger only
where there is a real "choice" involved, Howell, 620 A.2d at
1112, i.e. a safe alternative to encountering the risk.
Prosser and Keeton on Torts S 68, at 490-91 (W. Page
Keeton ed., 5th ed. 1984) (no assumption of risk where
plaintiff has "no reasonable alternative."). The district court
held there was such a safe alternative here, relying on its
view that "[i]t was [Kaplan's] own idea to cross there as
opposed to at a nearby, safe location." Kaplan, 926 F.
Supp. at 62. But a jury could find there was no safe
alternative route to the bus, because entering the street by
the fire hydrant would have required Kaplan to walk a
distance back towards the bus stop in an icy street with
traffic. Moreover, to avoid having to stand in the street (its
roadway narrowed by ice and snow), she would have had to
visualize the arriving bus and time her round-about
traverse to the bus stop with some precision. Indeed,
Kaplan testified at her deposition that she thought the bus
would leave without her if she walked away from the bus
stop towards the hydrant. If Kaplan had no reasonable
alternative to climbing the snow mound, then a jury could
find she did not act voluntarily and therefore did not
assume the risk of injury.

Because reasonable minds could disagree whether
Kaplan's actions were truly voluntary, we will vacate the
grant of summary judgment on this ground.

B. Proximate Causation

Defendants contend we should affirm nonetheless
because Kaplan failed to prove Exxon's alleged negligence
proximately caused her injures. We may consider this
argument as an alternative ground to affirm. United States
v. Taylor, 98 F.3d 768, 774 (3d Cir. 1996) (appellee may
assert any ground in support of the judgment below) (citing
Colautti v. Franklin, 439 U.S. 379, 397 n.16 (1979)), cert.
denied, 117 S. Ct. 1016 (1997).

                                10




The district court recognized that all eyewitnesses
(including Kaplan) testified the snow mound "was between
the bus stop sign and the bus" and that some eyewitnesses
testified "the mound was in the street." Kaplan, 926 F.
Supp. at 61. But the court denied summary judgment for
Exxon, holding there is an issue of fact as to "where the
mound of snow began or where its top was." Id.

Defendants contend it is irrelevant "where the mound of
snow began or where its top was," because deposition
testimony established that Kaplan slipped in the street.
Kaplan testified at her deposition that she had climbed to
the top of the mound of ice and snow when she fell. She
ended up in the street, inches away from the bus. A
witness, Lindsay Henderson, testified that Kaplan had
reached the top of the mound, which was in the street,
when she slipped. Another witness, Ronald Woodward,
testified that Kaplan was at the top of the snowbank when
she started to fall and that she fell in the street.
Defendants contend this proves as a matter of law that
Exxon's alleged negligence did not cause her injuries.5 But
Kaplan maintains there is an issue of fact "whether the
snow mound existed on the sidewalk as well as the street
and whether the top of the mound was on the sidewalk or
in the street." Id. She points out there is testimony the
snow mound "actually began at the bus stop sign, which
_________________________________________________________________

5. Defendants point to Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d
69 (3d Cir. 1996). In Fedorczyk, plaintiff slipped and injured herself in
a bathtub on a cruise ship. She sued the cruise line for negligently
placing non-slip abrasive strips too far apart in the bathtub. We affirmed
the district court's grant of summary judgment for defendants because
plaintiff could not prove "she was standing between the strips at the time
of the accident." Id. at 75. Defendants contend that, under Fedorczyk,
judgement must be entered against Kaplan because she failed to meet
her burden to prove she was standing on the sidewalk, and not the
street, at the time of her fall.

We disagree. In Fedorczyk, which applied New Jersey law, id. at 73,
the exact location of plaintiff's feet at the time of her fall was
determinative on the issue of causation; had she been standing on the
abrasive strips, her fall could not have been caused by negligent
overspacing. But the exact location of Kaplan's fall does not answer the
causation question here.

                                11




was on the sidewalk, and then continued into the street."
Id.

Although the issue is close, like the district court we
believe there remains an issue of fact whether Exxon's
negligence was a substantial factor in causing Kaplan's
injuries. See Trude v. Martin, 660 A.2d 626, 633 (Pa. Super.
1995) (upholding jury verdict of liability against one who
maintains premises, where invitee was sitting on a brick
wall and was pushed, which dislodged a loose capstone on
the wall causing the invitee to fall to the ground. Court held
defendant's negligent maintenance of the capstone was a
"substantial factor" in causing invitee's injuries.), appeal
granted in part on unrelated grounds, 672 A.2d 279 (Pa.
1996).

C. Third-Party Defendants

The district court granted summary judgment to the
third-party defendants "upon consideration of the[ir]
Motion[s] for Summary Judgment . . . and, in light of this
Court's Grant of Summary Judgment in favor of Exxon
Corp." The third-party defendants contend we should affirm
summary judgment in their favor even if we reverse the
grant of summary judgment to Exxon.

The third-party defendants maintain summary judgment
in their favor is warranted because Exxon failed to present
any evidence that Anderson or Morrissey plowed the area of
Levick Street and Oxford Avenue, created the snow mound
in question, or that the snow mound was negligently
created. But we will not reach the merits of the third-party
defendants' motions where the district court did not.6 We
will reverse and remand the grant of summary judgment to
the third party defendants and direct the district court to
consider their motion on the merits.
_________________________________________________________________

6. The third-party defendants contend the district court did reach the
merits, as evidenced by its order stating, "upon consideration of the
[third-party defendants'] Motion[s] for Summary Judgment." But this
statement does not indicate the district court considered the merits of
their motions. The only reason the district court gave for granting
summary judgment was that it did so in light of its grant of summary
judgment to Exxon.

                                12




IV. Conclusion

For the foregoing reasons, we will reverse and remand for
proceedings consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                13
