emphasizing that when evaluating assumption of the risk courts should be "concerned with what appellant actually knew, and not what the reasonable man should have known"
How later courts described this case
- emphasizing that when evaluating assumption of the risk courts should be "concerned with what appellant actually knew, and not what the reasonable man should have known"
- a bike rider on a busy street does not assume the risk of being hit by a car
- clarifying assumption of risk doctrine available in products liability cases
- “except where specifically preserved by statute[,] or in cases of express assumption of risk, or cases brought under [Section] 402A, (a strict liability theory), the doctrine of assumption of risk is abolished.”
Written by the judges who cited it.
The opinion
ROBERTS, Justice,
dissenting.
I dissent.
A review of the record demonstrates that appellant has failed to sustain his burden on the issue of proximate cause. Even assuming that appellees breached some duty, appellant has presented no evidence from which a jury could reasonably conclude that any alleged breach of duty by appellee was responsible for appellant’s injury. As this Court has stated,
“[I]t remains a principle so fundamental as to require no authority that the mere existence of negligence and the occurrence of injury are insufficient to impose liability upon anyone. There remains to be proved the vitally important link of causation. And plaintiff has the burden of proving this link, that the defendant’s negligence was the proximate cause of her injury; or of proving evidence from which a reasonable inference arises that the defendant’s negligence was the proximate cause of the injury.”
*617 Cuthbert v. Philadelphia, 417 Pa. 610, 614 , 209 A.2d 261, 263 (1965) (citations omitted). 1
It is equally well settled that “where the evidence in a case affords no greater basis for a jury’s verdict than a guess or conjecture, the evidence is legally insufficient to support a verdict, and the case must be withdrawn.” 6 Std. Pa. Practice Ch. 25 § 21, p. 272. Here, on the evidence presented, the jury could do no more than guess at whether protective equipment, increased supervision, or improved lighting would have prevented the particular injury received by appellant.
Because appellant has not carried his burden of proof on the issue of proximate cause, it is unnecessary to address the applicability of the affirmative defense of assumption of risk to this case, let alone attempt to decide the continuing viability of a doctrine which has not previously been questioned by this Court. See, e. g., Jones v. Three Rivers Management Corp., 483 Pa. 75 , 394 A.2d 546 (1978). 2
The trial court’s granting of a compulsory nonsuit was correct and, thus, the order of the Superior Court upholding the nonsuit should be affirmed.
WILKINSON, J., joins in this dissenting opinion.
. While the testimony of appellant’s expert witness might have been relevant to the issue of appellees’ duty, his testimony would not have shed any light on the issue of proximate cause.
. Because only three of the seven members of this Court participating in this decision would abrogate assumption of risk, assumption of risk remains the law of this Commonwealth, see Mt. Lebanon v. County Board of Elections, 470 Pa. 317, 322-323 , 368 A.2d 648, 650-651 (1977), and thus is available to the defendants on remand.