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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BIJU JOHN AND MINI BIJU                        IN THE SUPERIOR COURT OF
INDIVIDUALLY AND TOGETHER AS H/W                     PENNSYLVANIA



                   v.

ST. THOMAS INDIAN ORTHODOX
CHURCH, INC. AND REV. FR. M.K.
KURIAKOSE

APPEAL OF: BIJU JOHN



                                                   No. 1223 EDA 2016


                    Appeal from the Order March 21, 2016
           In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): August Term, 2014 No. 1605


BEFORE: OTT, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY OTT, J.:                             FILED MARCH 20, 2017

     Biju John (“Appellant”), appeals from the order of the trial court

entered March 21, 2016, in the Court of Common Pleas of Philadelphia, that

granted summary judgment in favor of St. Thomas Indian Orthodox Church

and Rev. Fr. M.K. Kuriakose (“Appellees”) in this negligence action. The

action arose as a result of injuries Appellant sustained in a tug of war game

at a church picnic.     Appellant contends (1) the trial court erred in

determining that his claim was barred based on assumption of the risk and

that Appellees could not be found negligent, and (2) the trial court erred in
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determining that no duty existed on the part of Appellees. Based upon the

following, we affirm.

        The trial court ably summarized the facts underlying this appeal:

        [Appellant], a church parishioner, was injured when he
        voluntarily engaged in a game of tug of war at church.
        [Appellant] claims injuries as a result of the opposing tug of war
        team pulling [and letting go of1] the rope too early, which
        caused team members to collide. [Appellant] claims the players
        pulled the rope too early because of an act by Fr. Kuriakose,
        which caused his injury. [Appellant] alleges that he suffered
        serious and permanent injuries including a torn right ACL
        requiring surgical intervention, as well as injuries to his head,
        neck, back, as well as to the bones, tissues and ligaments
        attached thereto. [Appellant] cannot identify who told him about
        the signal that Fr. Kuriakose allegedly gave, which caused team
        members to pull the rope too early. This was the second game
        of tug of war that [Appellant] had participated in that day.

Trial Court Opinion, 6/1/2016, at 2.

        The principles that guide our review are well settled:

        Our standard of review of an order granting or denying a motion
        for summary judgment is well established:

           We view the record in the light most favorable to the non-
           moving party, and all doubts as to the existence of a
           genuine issue of material fact must be resolved against
           the moving party. Only where there is no genuine issue
           as to any material fact and it is clear that the moving
           party is entitled to a judgment as a matter of law will
           summary judgment be entered. Our scope of review of a
           trial court's order granting or denying summary judgment
           is plenary, and our standard of review is clear: the trial
           court’ s order will be reversed only where it is established

____________________________________________


1
    See Plaintiffs’ Fifth Amended Complaint, 3/26/2015, at ¶9.



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            that the court committed an error of law or abused its
            discretion.

Loughran v. Phillies, 888 A.2d 872, 874 (Pa. Super. 2005) (citation

omitted).

      [T]o grant summary judgment on the basis of assumption of the
      risk it must first be concluded, as a matter of law, that the party
      [1] consciously appreciated the risk that attended a certain
      endeavor, [2] assumed the risk of injury by engaging in the
      endeavor despite the appreciation of the risk involved, and [3]
      that the injury sustained was, in fact, the same risk of injury
      that was appreciated and assumed.

Bullman v. Giuntoli, 761 A.2d 566, 573 (Pa. Super. 2000).

      Appellant argues the trial court erred in determining he assumed a risk

of harm causing injury to him. He claims he had a reasonable expectation of

how the tug of war game was to be played, and he could not have

appreciated the risks associated with altering the rules of the game, as he

alleges was done in this matter. Appellant’s Brief at 11–12. He points to

the deposition testimony of his wife, Mini Biju, “who saw Defendant

Kuriakose specifically alter the game of tug of war by telling one team to pull

and let go causing the other team to fall to the ground.” Id. at 12.

      Appellant claims the trial court also erred in granting summary

judgment based on the assumption of the risk doctrine. He maintains “there

are clear issues of material fact as it relates to whether Appellant voluntarily

encountered a known or obvious danger,” and “there is a material issue of

fact as to the negligent conduct of Rev. Fr. Kuriakose.” Id. at 13.




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      Secondly, Appellant claims the trial court “erred in its decision that no

duty existed on the part of Appellee[s].”        Id. at 15.    Appellant asserts

Appellees were in control of the public park, and there is no dispute “that the

tug of war activity took place at a church-sponsored event at that park” and

“that [A]ppellee, Rev. Fr. Kuriakose was in charge of the tug of war game in

question.” Id. at 15.

      Appellant states “on the date of the church picnic, Appellees leased

and controlled the area of the park where their picnic was taking place.” Id.

He   further   states   that “Appellees invited church        members   such as

[A]ppellant[] to attend and participate in games such as the tug of war

game in question.”      Id.   Appellant argues “the facts of the instant case

support the assertion that as possessors of land, Appellees owed the highest

duty to Appellant as a business invitee on the day of the church picnic.” Id.

In this regard, Appellant asserts Appellees had a duty to warn Appellant “of

any potential dangers that might exist, specifically as it relates to the games

played on the date of the incident.” Id. at 15–16, see also id. at 16, citing

Restatement (Second) of Torts § 343 (“Dangerous Conditions Known to or

Discoverable by Possessor”).      He maintains “there is clearly an issue of

material fact as to whether Appellee[s] should have known altering the

game of tug of war would have created unnecessary dangerous condition

and situation resulting in injury.” Id. at 17.




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     The questions of whether Appellees owed Appellant a duty, and the

question of whether Appellant assumed the risk of his conduct, are

intertwined, and therefore we address them together.      As this Court has

explained:

     [A]ssumption of the risk operates merely as a corollary of the
     absence of a duty; to the extent the injured plaintiff proceeded
     in the face of a known danger, he relieved those who may have
     otherwise had a duty, implicitly agreeing to take care of himself.
     …. Carrender v. Fitterer, 469 A.2d 120, 124, 503 Pa. 178 (Pa.
     1983). In Carrender, which remains controlling precedent in
     Pennsylvania, our Supreme Court established that assumption of
     the risk is, as the trial court explained, a function of the duty
     analysis:

         Appellee misperceives the relationship between the
         assumption-of-risk doctrine and the rule that a possessor
         of land is not liable to his invitees for obvious dangers.
         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 those risks. By voluntarily
         proceeding to encounter a known or obvious
         danger, the invitee is deemed to have agreed to
         accept the risk and to undertake to look out for
         himself. It is precisely because the invitee assumes the
         risk of injury from obvious and avoidable dangers that the
         possessor owes the invitee no duty to take measures to
         alleviate those dangers. Thus, to say that the invitee
         assumed the risk of injury from a known and avoidable
         danger is simply another way of expressing the lack of
         any duty on the part of the possessor to protect the
         invitee against such dangers.

     Carrender, 469 A.2d at 125 (citations omitted).

     Under this formulation, … the question of assumption of the risk
     typically remains for the jury. Only where the evidence reveals a

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      scenario so clear as to void all questions of material fact
      concerning the plaintiff’s own conduct can the court enter
      summary judgment; in effect the court determines that the
      plaintiff relieved the defendant of the duty to guard him from a
      risk of harm regardless of the source from which the duty
      derived. See Lewis, 833 A.2d at 190; Carrender, 469 A.2d at
      125

Montagazzi v. Crisci, 994 A.2d 626, 635-36 (Pa. Super. 2010).

      The assumption of the risk defense, as applied to sports and places of

amusement, has also been described as a “no-duty” rule, i.e., as the

principle that an owner or operator of a place of amusement has no duty to

protect the user from any hazards inherent in the activity. Chepkevich v.

Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010). In the present

case, the trial court recognized that the assumption of the risk doctrine

arises in cases involving sporting events when the player or spectator

“knows that an accident or injury may occur … and that by playing or

watching he voluntarily assumes the risk of injury.”     Trial Court Opinion,

6/1/2016, at 3 (citations omitted).

      In granting summary judgment in favor of Appellees, the trial court

relied on Bowser v. Hershey Baseball Assoc., 516 A.2d 61 (Pa. Super.

1986), where this Court affirmed the compulsory nonsuit entered against the

plaintiff who was struck in eye by a batted baseball while conducting tryouts.

The trial court here reasoned:

      In [Bowser], the Plaintiff agreed to participate in baseball
      tryouts, he voluntarily exposed himself to the risks inherent in
      baseball. The court reasoned that having exposed himself to the
      risk associated with baseball such as being hit by a batted ball,

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      Plaintiff could not recover from the sponsor of the baseball event
      for injuries caused by this very risk. Id. Persons conducting
      activities have no duty to warn or protect participants against
      risks which are common, frequent, expected and inherent in the
      activity itself. Id. Thus, persons conducting the event are not
      negligent for failing to warn or protect a participant against risk
      which are inherent in the activity. Id.

      In the present case, [Appellant] voluntarily participated in the
      tug of war game at the church. [Appellant] knew the risks
      associated with the game of tug of war because he played the
      game twice. [A risk which is] common in tug of war is falling
      down amongst your team members. [Appellant] assumed the
      risk of the tug of war game. …

      … Later in discovery Mini Biju testified in her deposition that she
      saw Father Kuriakose hold his hand to his mouth and tell the
      other team to “pull it and drop.” This testimony does not change
      the fact that [Appellant] assumed the risks that are inherent in
      the game of tug of war; falling, and that to establish negligence
      there must exist a duty. Persons conducting activities have no
      duty to warn or protect participants against risks which are
      common, frequent, expected and inherent in the activity itself.
      No duty was owed to [Appellant] while he was participating in
      the game. The rules and risks of the game were not altered in a
      way where the duty to [Appellant] changed at any time.

Trial Court Opinion, 6/1/2016, at 4.

      We agree with the trial court that the present case aligns with

Bowser. To the trial court’s rationale, we add:

      [T]he rationale adopted by the courts for this rule [voluntary
      assumption of the risk] is that persons conducting the activity
      have no duty to warn or protect participants against risks which
      are common, frequent, expected and inherent in the activity
      itself. See: Jones v. Three Rivers Management Corp.,
      supra, 483 Pa. at 85, 394 A.2d at 551 [1978]. Thus, persons
      conducting an event are not negligent for failing to warn or
      protect a participant against risks which are inherent in the
      activity.

Bowser, supra, 516 A.2d at 64.


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      Tug of war is defined as “a contest in which two teams pull against

each other at opposite ends of a rope with the object of pulling the middle of

the   rope    over     a   mark   on   the   ground.”   https://www.merriam-

webster.com/dictionary/tug-of-war.      Like the plaintiff in Bowser who had

assumed the risk of being struck by a batted ball, Appellant knew of and

assumed the risks of playing tug of war. It cannot be disputed that falling

down and colliding with other teammates are obvious and inherent risks of

tug of war. The tug of war game at issue was the second game Appellant

played in that day.

      Further, the injuries suffered by Appellant occurred in playing the tug

of war game, after he fell to the ground with other team members — a risk

that was “common, frequent, expected and inherent in the activity itself.”

Bowser, supra.        Although Appellant relies on the deposition testimony of

Mini Biju concerning the alleged conduct of Fr. Kuriakose, his reliance is

misplaced. Her testimony would be relevant only to Appellees’ negligence,

which is not at issue as Appellant assumed the risk of playing tug of war and

had no further duty toward him.

      Therefore, on this record, we conclude the trial court properly granted

summary judgment in favor of Appellees.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2017




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