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


10-27-1997

Kaplan v. Exxon Corp
Precedential or Non-Precedential:

Docket
96-1495,96-1519




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"Kaplan v. Exxon Corp" (1997). 1997 Decisions. Paper 254.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/254


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Filed October 27, 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*



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



ORDER AMENDING SLIP OPINION

IT IS HEREBY ORDERED that the slip opinion in the
above case, filed September 25, 1997, be amended as
follows:

1. Page 10: Delete lines 6-11 and substitute the
following in lieu thereof:

       "snow mound. We believe that reasonable minds could
       disagree whether Kaplan acted "under circumstances
       that manifest[ed] a willingness to accept" the risk,
       Berman, 542 A.2d at 5333, which means the issue
       should go to the jury. Among the circumstances to
       consider in evaluating the voluntariness of the
       plaintiff's action is whether the plaintiff had a real
       "choice." See Howell, 620 A.2d at 1112 ("The operative
       fact is [the plaintiff's] voluntary choice to undertake
       the risk."). The plaintiff does not make a real choice
       when there is no 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.").5 The
       district court"


        5Of course, we can imagine situations where the
       danger is known to the plaintiff and so obvious that a
       court could say as a matter of law that the defendant
       is not liable. See, e.g., Chiricos v. Forest Lakes Council
       Boy Scouts, 391 Pa. Super. 491, 571 A.2d 474 (1990)
       (plaintiff voluntarily stood in front of a moving,
       trespassing vehicle to try to stop it); Kabo v. UAL, Inc.,
       762 F. Supp. 1190 (E.D.Pa. 1991) (sixty five year old
       plaintiff/President of travel agency suffered heart
       attack while lifting heavy baggage for tour group at
       airport).

2. Renumber all subsequent footnotes.

       BY THE COURT,

       /s/ Anthony J. Scirica

         Circuit Judge

                                2



DATED: October 27, 1997

A True Copy:
Teste:

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

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