Defendants have the burden of proving contributory negligence. Defendants must prove that the plaintiff acted unreasonably under the circumstances and that her conduct was a substantial factor in causing her injuries. Hanlon v. Sorenson, 289 Pennsylvania Super. 268, 433 A.2d 60 (1981). It is not the plaintiff’s responsibility to prove that she is free from such negligence.
Contributory negligence can be found as a matter of law only in clear cases. arc v Goodstein, 265 A.2d 783 (1970); Dolin v. JJ Newberry Company, 466 A.2d 174 (Pa. Super. 1983). There can be “no room for fair and reasonable disagreement as to its existence.” Skalos v. Higgins, 449 A. 2d 601, 604 (Pa. Super. 1982.) Plaintiff is required to use only the ordinary care that a prudent person would use under the circumstances. Peair v. Home Associations of Enola Legion #751, 430 A.2d 655 (Pa. Super. 1981).
Defendants often cite Torts § 343A Restatement (Second) in concluding that the plaintiff was contributory negligent in an accident. Section 343A protects possessors of land from liability for “known” or “obvious” dangers, “unless the possessor foresees the damage despite such knowledge or evidence.”
To be “known,” the hazard must “not only be known to exist, but … also be recognized as dangerous and the likelihood and severity of the threat and harm must be appreciated.” Berman v. Radnor Rolls, Inc. 542 A.2d. 525, 531 (Pa. Super. 1988), citing Carrender v. Mounter, 469 A.2d. 120, 124 (Pa. 1983).
What constitutes an “obvious” danger is a matter of fact for the jury to determine, requiring the denial of a Motion for Summary Judgment. brown vs. Sears Robuck and Company, ED Pennsylvania; Hutton, J.; July 18, 1990; No. 89-3556; slide op.
“A hazard is considered to be ‘obvious’ when ‘both the condition and the hazard are obvious and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence and judgment’.” Id., citing Carrender, at 123 (emphasis added). Therefore, it is crucial to consider a plaintiff’s perception, intelligence, and judgment at the time of this accident in determining whether the danger presented by the sign frame was “obvious” to her.
In Berman, supra, the Superior Court ruled that the trial court’s refusal to indict the jury on the issues of “known” or “obvious” dangers was proper. In Berman, the plaintiff was roller skating. After being pushed by another skater, this plaintiff lost his balance, skidded through an opening in a railing onto a carpeted area, and descended a six-inch drop in floor level. Finally, he hit his head on a cabinet or shelf that jutted out past the vending machines.
The condition of the track, the wide entrance, the six-inch drop, and the location of the vending machines were obvious. None of the conditions were hidden in any way. However, the Court could not say that these conditions would be “known” or “obvious” to a reasonable person in the applicant’s position. The court carefully considered that this skater lost and regained his balance while traveling at a good speed. Under the circumstances, he did not have adequate opportunity to recognize the danger that the six-inch step posed to him.
The Berman Court concluded that while the skater was charged with the general risks of skating, he was not charged with knowledge of how the risk to him was increased above that caused by normal skating due to the physical layout of the building. ID in 536.