The defendants have the burden of proving the existence of contributory negligence. Defendant must prove that the plaintiff had acted unreasonably under the circumstances, and that their conduct was a substantial factor in causing her injuries. Hanlon v. Sorenson, 289 Pa. Super. 268, 433 A.2d 60 (1981). There is no burden on plaintiff to prove their freedom from such negligence.
Contributory negligence can be found as a matter of law, except in obvious cases. Arco v. Goodstein, 265 A.2d 783(1970); Dolin v. JJ Newberry Company, 466 A.2d 174 (Pa. Super. 1983). It can be "no place for a fair and reasonable disagreement as to their existence." Skalos v. Higgins, 449 A. 2d 601, 604 (Pa. Super. 1982.) Plaintiff is required to use only the usual care that a reasonable person would use, under the circumstances. Peair v. Home Associations of Enola Legion # 751, 430 A.2d 655 (Pa. Super. 1981).
Defendants often cite the Restatement (Second) of Torts § 343A to the conclusion thatPlaintiff was contributorily negligent for an accident. § 343A protects an owner of land from the liability of "known" or "obvious" dangers ", unless the owner of the damage, even though such knowledge or obviousness to anticipate."
To "know, the danger must be" not only known to exist, but are also recognized ... that it is dangerous, and the likelihood and magnitude of the risk and damage must be honored. " Berman v. Radnor Rolls, Inc., 542 A.2d. 525, 531(Pa. Super. 1988), quoting, Carrender v. Fitterer, 469 A.2d. 120, 124 (Pa. 1983).
What does an "obvious" danger is a question of fact requiring the determination of the jury, a Denial of Motion for Summary Judgment. Brown v. Sears, Robuck and Company, ED Pa., Hutton, J.; 18th July 1990, no. 89-3556, Slip Op.
"One risk is considered to be" obvious "when" both the state and the risks are obvious and are recognized by a reasonable person in the position of theVisitors, the exercise of ordinary perception, intelligence and discernment. "Id Appeals Carrender at 123 (Emphasis added.) It is therefore crucial for the perception, intelligence, and examine a ruling by the applicant at the time of the accident to determine whether the danger presented by the sign framework" was on hand "to her.
In Berman, supra, the Supreme Court ruled that the trial court's refusal to charge the jury on "known" or "obvious" risks isproper. In Berman, the plaintiff was roller skating. After he was pushed by another skater, the plaintiff lost his balance, skating through an opening in a railing on a carpet area and down a six-inch drop-off in the ground level. Finally, he banged his head against a cabinet or shelf that protruded through vending machines.
The condition of the pitch, the wide driveway, the six-inch drop-off and placement of vending machines on your profile. None of the conditions wereconcealed in any way. Nevertheless, the court could not say that these conditions would be "known" or "obvious" to a reasonable person in the position of the plaintiff. The court should carefully consider that these skaters and lost his balance on the road at a good speed. He had seen no reasonable opportunity under the circumstances, the danger of the six-inch step forward for him.
The Court in Berman concluded that the skater with the chargedgeneral risks of skating, he was not charged with the knowledge of how the risk to him that increased due to normal skating from the physical layout of buildings. Id at 536th
More information about Evan Aidman, a Pennsylvania Personal Injury Lawyer and his work with clients with serious injuries click here: Philadelphia Personal Injury Attorneys
Evan Aidman is the founder and rector of the law firm of Evan K. Aidman. Mr. Aidman receivea bachelor's degree in psychology from the University of Florida, where he was the one who elected Phi Beta Kappa Honor Society after compiling a scholastic entity nearly perfect record. He graduated from the University of Pennsylvania Law School, an Ivy League institution in 1983.
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