Howell v. Clyde

*164NIX, Chief Justice,

dissenting.

Today the majority decides to preserve assumption of the risk as an affirmative defense in negligence cases despite the fact that, for the purposes of this case, the doctrine lost its viability when the General Assembly passed the Comparative Negligence Act. Therefore, I dissent.1

The heart of this Commonwealth’s Comparative Negligence Act provides that

[i]n all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

42 Pa.C.S.A. § 7102(a). Assumption of the risk is not expressly mentioned as being affected by this provision. Indeed, nowhere does the Act make such an express statement. Nevertheless, it is clear that the General Assembly contemplated that assumption of the risk would be modified by the Act. This is readily apparent from the subsection addressing the sport of downhill skiing. The relevant portion of that provision states that “[t]he doctrine of voluntary assumption of the risk as it applies to downhill skiing injuries and damages is not modified by subsection[ ] (a)____” 42 Pa.C.S.A. § 7102(c)(2). The very existence of this provision and the unique way in which it is written indicate that the General Assembly recognized that Subsection 7102(a) would have an effect on the assumption of the risk doctrine, at least when the defense is raised in connection with the plaintiffs voluntary conduct. *165Otherwise, there would be no need to enact Subsection 7102(c).

This Court is obligated to give effect to all the provisions of a statute, 1 Pa.C.S.A. § 1921(a), and the only way to give effect to Subsection (c)(2) of the Comparative Negligence Act is to conclude that Subsection 7102(a) modifies the assumption of the risk defense in some way. The nature of the modification can be determined by analyzing the overall purpose that the Comparative Negligence Act seeks to achieve. In broad terms, the Act expresses three legislative judgments. First, it rejects the idea that a plaintiff who may be partially responsible for his injuries should be precluded from recovery notwithstanding the conduct of others whose negligence contributed to the event. Second, it embraces the idea that any recovery should be reduced in proportion to the plaintiffs share of responsibility for his injuries. Third, it denies recovery only when the plaintiff is more responsible than the defendant(s) for his injuries.

These three legislative judgments are frustrated by the doctrine of assumption of the risk. Assumption of the risk erects a threshold bar to recovery, regardless of how insignificant a role the plaintiffs conduct may have played in producing his injuries. Given the fundamental incompatibility between the Comparative Negligence Act and the doctrine of assumption of risk, there would be no way to achieve what the General Assembly sought to accomplish by passing the Comparative Negligence Act unless this Court concludes that, except in downhill skiing cases, assumption of the risk as an affirmative defense is no longer viable in this Commonwealth.

The majority acknowledges that the policy underlying the Comparative Negligence Act is “inimical” to the policy underlying assumption of the risk. However, instead of yielding to the policy judgment made by the General Assembly, the majority intentionally disregards it in order to embrace what it describes as “a better approach.” Specifically, the majority believes that assumption of the risk should be preserved because public policy should never permit courts to entertain suits by persons who are injured as a result of risks they *166chose to take and who later seek to recover damages from other parties who might otherwise be liable.

In order to achieve its policy objectives, the majority declares that the pivotal consideration is to be whether the plaintiffs decision to encounter a known risk is voluntary. However, when the General Assembly passed the Comparative Negligence Act, it embraced negligence, not voluntariness, as the touchstone of analysis. As the Act’s very name implies, courts and juries are statutorily required to evaluate the plaintiffs conduct in terms of negligence and to compare it with that of the defendant(s).2 This is an entirely legitimate policy judgment, and this Court is obligated to effectuate that decision. 1 Pa.C.S.A. § 1921(a). The majority’s arrogant refusal to do so constitutes a blatant attempt to usurp a legislative power.

Since I would conclude that assumption of the risk cannot be raised as an affirmative defense in this case, I would hold that the trial court’s decision to enter an involuntary nonsuit was improper. Accordingly, I would remand this case to the Court of Common Pleas of Clearfield County for a trial with instructions to apply the Commonwealth’s Comparative Negligence Act.

. In Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 617-619, 437 A.2d 1198, 1212-13 (1981) (Nix, C.J., dissenting), I expressed my personal view that assumption of the risk constitutes a viable component of tort law. However, today I am obliged to put aside that view in order to give effect to a legislative judgment expressed by a statute that was not at issue in Rutter.

. Of course the plaintiff's voluntariness may be weighed in considering his negligence. However, in that situation, voluntariness is one of several factors, while the majority treats it as the dispositive consideration.