# Peneschi v. National Steel Corp.

> West Virginia Supreme Court · July 7, 1982 · 170 W. Va. 511

URL: https://www.frixlaw.com/law-library/cases/9589338

## Case

- **Full name:** Joseph PENESCHI, Et Al. v. NATIONAL STEEL CORP., Et Al. v. KOPPERS CO., INC.
- **Court:** West Virginia Supreme Court
- **Decided:** July 7, 1982
- **Citations:** 170 W. Va. 511; 295 S.E.2d 1
- **Precedential status:** Published
- **Opinion:** Dissent by McGRAW
- **Judges:** Neely, McGraw, Miller
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9589338

## How later opinions describe it (automated extraction)

- holding that the controlling factor in applying strict liability is the relationship of the activity to its surroundings
- noting the common carrier exception “does not grant total immunity, but, rather, liability still arises if negligence is proven.”

## Opinion text

McGRAW, Justice,
dissenting:
I do not quarrel with the majority’s holding which adopts Rylands v. Fletcher strict liability as articulated in the Restatement (Second) of Torts into the common law of this jurisdiction. I also agree that assumption of the risk may be a valid defense in a strict liability situation. However, I dissent from that portion of the majority opinion which holds that the plaintiff herein assumed the risk of injury, as a matter of law, by virtue of his employer’s contract with National Steel.
The defense of assumption of risk is narrowly confined and restricted by two requirements: “[FJirst, ... the plaintiff must know and understand the risk he is incurring, and second, ... his choice to incur it must be entirely free and voluntary.” W. Prosser, The Law of Torts § 68 at 447 (4th ed. 1971). Thus, “before participation in the work will bar plaintiff’s recovery, such participation must have been with the full realization ... of the risks ... and [the plaintiff] must have voluntarily incurred *526 them.” McLane v. Northwest Natural Gas Co., 255 Or. 324, 338 , 467 P.2d 635, 641 (1970). These issues are questions for the jury. See, e.g., Lancaster v. Potomac Edison Co. of West Virginia, 156 W.Va. 218 , 192 S.E.2d 234 (1972); W. Prosser, supra § 79 at 524. They are not to be decided on appeal as a matter of law.
If, as a matter of policy, the majority wishes to relieve employers of independent contractors from strict liability for injuries to employees of the contractor caused by an abnormally dangerous instrumentality, they should simply say so, rather than attempting to justify their position by the misapplication of common law principles.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9589338. Public record. Not legal advice.