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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BIJU JOHN AND MINI BIJU IN THE SUPERIOR COURT OF
INDIVIDUALLY AND TOGETHER AS H/W PENNSYLVANIA
v.
ST. THOMAS INDIAN ORTHODOX
CHURCH, INC. AND REV. FR. M.K.
KURIAKOSE
APPEAL OF: BIJU JOHN
No. 1223 EDA 2016
Appeal from the Order March 21, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): August Term, 2014 No. 1605
BEFORE: OTT, J., SOLANO, J., and RANSOM, J.
MEMORANDUM BY OTT, J.: FILED MARCH 20, 2017
Biju John (“Appellant”), appeals from the order of the trial court
entered March 21, 2016, in the Court of Common Pleas of Philadelphia, that
granted summary judgment in favor of St. Thomas Indian Orthodox Church
and Rev. Fr. M.K. Kuriakose (“Appellees”) in this negligence action. The
action arose as a result of injuries Appellant sustained in a tug of war game
at a church picnic. Appellant contends (1) the trial court erred in
determining that his claim was barred based on assumption of the risk and
that Appellees could not be found negligent, and (2) the trial court erred in
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determining that no duty existed on the part of Appellees. Based upon the
following, we affirm.
The trial court ably summarized the facts underlying this appeal:
[Appellant], a church parishioner, was injured when he
voluntarily engaged in a game of tug of war at church.
[Appellant] claims injuries as a result of the opposing tug of war
team pulling [and letting go of1] the rope too early, which
caused team members to collide. [Appellant] claims the players
pulled the rope too early because of an act by Fr. Kuriakose,
which caused his injury. [Appellant] alleges that he suffered
serious and permanent injuries including a torn right ACL
requiring surgical intervention, as well as injuries to his head,
neck, back, as well as to the bones, tissues and ligaments
attached thereto. [Appellant] cannot identify who told him about
the signal that Fr. Kuriakose allegedly gave, which caused team
members to pull the rope too early. This was the second game
of tug of war that [Appellant] had participated in that day.
Trial Court Opinion, 6/1/2016, at 2.
The principles that guide our review are well settled:
Our standard of review of an order granting or denying a motion
for summary judgment is well established:
We view the record in the light most favorable to the non-
moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against
the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving
party is entitled to a judgment as a matter of law will
summary judgment be entered. Our scope of review of a
trial court's order granting or denying summary judgment
is plenary, and our standard of review is clear: the trial
court’ s order will be reversed only where it is established
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1
See Plaintiffs’ Fifth Amended Complaint, 3/26/2015, at ¶9.
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that the court committed an error of law or abused its
discretion.
Loughran v. Phillies, 888 A.2d 872, 874 (Pa. Super. 2005) (citation
omitted).
[T]o grant summary judgment on the basis of assumption of the
risk it must first be concluded, as a matter of law, that the party
[1] consciously appreciated the risk that attended a certain
endeavor, [2] assumed the risk of injury by engaging in the
endeavor despite the appreciation of the risk involved, and [3]
that the injury sustained was, in fact, the same risk of injury
that was appreciated and assumed.
Bullman v. Giuntoli, 761 A.2d 566, 573 (Pa. Super. 2000).
Appellant argues the trial court erred in determining he assumed a risk
of harm causing injury to him. He claims he had a reasonable expectation of
how the tug of war game was to be played, and he could not have
appreciated the risks associated with altering the rules of the game, as he
alleges was done in this matter. Appellant’s Brief at 11–12. He points to
the deposition testimony of his wife, Mini Biju, “who saw Defendant
Kuriakose specifically alter the game of tug of war by telling one team to pull
and let go causing the other team to fall to the ground.” Id. at 12.
Appellant claims the trial court also erred in granting summary
judgment based on the assumption of the risk doctrine. He maintains “there
are clear issues of material fact as it relates to whether Appellant voluntarily
encountered a known or obvious danger,” and “there is a material issue of
fact as to the negligent conduct of Rev. Fr. Kuriakose.” Id. at 13.
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Secondly, Appellant claims the trial court “erred in its decision that no
duty existed on the part of Appellee[s].” Id. at 15. Appellant asserts
Appellees were in control of the public park, and there is no dispute “that the
tug of war activity took place at a church-sponsored event at that park” and
“that [A]ppellee, Rev. Fr. Kuriakose was in charge of the tug of war game in
question.” Id. at 15.
Appellant states “on the date of the church picnic, Appellees leased
and controlled the area of the park where their picnic was taking place.” Id.
He further states that “Appellees invited church members such as
[A]ppellant[] to attend and participate in games such as the tug of war
game in question.” Id. Appellant argues “the facts of the instant case
support the assertion that as possessors of land, Appellees owed the highest
duty to Appellant as a business invitee on the day of the church picnic.” Id.
In this regard, Appellant asserts Appellees had a duty to warn Appellant “of
any potential dangers that might exist, specifically as it relates to the games
played on the date of the incident.” Id. at 15–16, see also id. at 16, citing
Restatement (Second) of Torts § 343 (“Dangerous Conditions Known to or
Discoverable by Possessor”). He maintains “there is clearly an issue of
material fact as to whether Appellee[s] should have known altering the
game of tug of war would have created unnecessary dangerous condition
and situation resulting in injury.” Id. at 17.
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The questions of whether Appellees owed Appellant a duty, and the
question of whether Appellant assumed the risk of his conduct, are
intertwined, and therefore we address them together. As this Court has
explained:
[A]ssumption of the risk operates merely as a corollary of the
absence of a duty; to the extent the injured plaintiff proceeded
in the face of a known danger, he relieved those who may have
otherwise had a duty, implicitly agreeing to take care of himself.
…. Carrender v. Fitterer, 469 A.2d 120, 124, 503 Pa. 178 (Pa.
1983). In Carrender, which remains controlling precedent in
Pennsylvania, our Supreme Court established that assumption of
the risk is, as the trial court explained, a function of the duty
analysis:
Appellee misperceives the relationship between the
assumption-of-risk doctrine and the rule that a possessor
of land is not liable to his invitees for obvious dangers.
When an invitee enters business premises,
discovers dangerous conditions which are both
obvious and avoidable, and nevertheless proceeds
voluntarily to encounter them, the doctrine of
assumption of risk operates merely as a
counterpart to the possessor's lack of duty to
protect the invitee from those risks. By voluntarily
proceeding to encounter a known or obvious
danger, the invitee is deemed to have agreed to
accept the risk and to undertake to look out for
himself. It is precisely because the invitee assumes the
risk of injury from obvious and avoidable dangers that the
possessor owes the invitee no duty to take measures to
alleviate those dangers. Thus, to say that the invitee
assumed the risk of injury from a known and avoidable
danger is simply another way of expressing the lack of
any duty on the part of the possessor to protect the
invitee against such dangers.
Carrender, 469 A.2d at 125 (citations omitted).
Under this formulation, … the question of assumption of the risk
typically remains for the jury. Only where the evidence reveals a
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scenario so clear as to void all questions of material fact
concerning the plaintiff’s own conduct can the court enter
summary judgment; in effect the court determines that the
plaintiff relieved the defendant of the duty to guard him from a
risk of harm regardless of the source from which the duty
derived. See Lewis, 833 A.2d at 190; Carrender, 469 A.2d at
125
Montagazzi v. Crisci, 994 A.2d 626, 635-36 (Pa. Super. 2010).
The assumption of the risk defense, as applied to sports and places of
amusement, has also been described as a “no-duty” rule, i.e., as the
principle that an owner or operator of a place of amusement has no duty to
protect the user from any hazards inherent in the activity. Chepkevich v.
Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010). In the present
case, the trial court recognized that the assumption of the risk doctrine
arises in cases involving sporting events when the player or spectator
“knows that an accident or injury may occur … and that by playing or
watching he voluntarily assumes the risk of injury.” Trial Court Opinion,
6/1/2016, at 3 (citations omitted).
In granting summary judgment in favor of Appellees, the trial court
relied on Bowser v. Hershey Baseball Assoc., 516 A.2d 61 (Pa. Super.
1986), where this Court affirmed the compulsory nonsuit entered against the
plaintiff who was struck in eye by a batted baseball while conducting tryouts.
The trial court here reasoned:
In [Bowser], the Plaintiff agreed to participate in baseball
tryouts, he voluntarily exposed himself to the risks inherent in
baseball. The court reasoned that having exposed himself to the
risk associated with baseball such as being hit by a batted ball,
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Plaintiff could not recover from the sponsor of the baseball event
for injuries caused by this very risk. Id. Persons conducting
activities have no duty to warn or protect participants against
risks which are common, frequent, expected and inherent in the
activity itself. Id. Thus, persons conducting the event are not
negligent for failing to warn or protect a participant against risk
which are inherent in the activity. Id.
In the present case, [Appellant] voluntarily participated in the
tug of war game at the church. [Appellant] knew the risks
associated with the game of tug of war because he played the
game twice. [A risk which is] common in tug of war is falling
down amongst your team members. [Appellant] assumed the
risk of the tug of war game. …
… Later in discovery Mini Biju testified in her deposition that she
saw Father Kuriakose hold his hand to his mouth and tell the
other team to “pull it and drop.” This testimony does not change
the fact that [Appellant] assumed the risks that are inherent in
the game of tug of war; falling, and that to establish negligence
there must exist a duty. Persons conducting activities have no
duty to warn or protect participants against risks which are
common, frequent, expected and inherent in the activity itself.
No duty was owed to [Appellant] while he was participating in
the game. The rules and risks of the game were not altered in a
way where the duty to [Appellant] changed at any time.
Trial Court Opinion, 6/1/2016, at 4.
We agree with the trial court that the present case aligns with
Bowser. To the trial court’s rationale, we add:
[T]he rationale adopted by the courts for this rule [voluntary
assumption of the risk] is that persons conducting the activity
have no duty to warn or protect participants against risks which
are common, frequent, expected and inherent in the activity
itself. See: Jones v. Three Rivers Management Corp.,
supra, 483 Pa. at 85, 394 A.2d at 551 [1978]. Thus, persons
conducting an event are not negligent for failing to warn or
protect a participant against risks which are inherent in the
activity.
Bowser, supra, 516 A.2d at 64.
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Tug of war is defined as “a contest in which two teams pull against
each other at opposite ends of a rope with the object of pulling the middle of
the rope over a mark on the ground.” https://www.merriam-
webster.com/dictionary/tug-of-war. Like the plaintiff in Bowser who had
assumed the risk of being struck by a batted ball, Appellant knew of and
assumed the risks of playing tug of war. It cannot be disputed that falling
down and colliding with other teammates are obvious and inherent risks of
tug of war. The tug of war game at issue was the second game Appellant
played in that day.
Further, the injuries suffered by Appellant occurred in playing the tug
of war game, after he fell to the ground with other team members — a risk
that was “common, frequent, expected and inherent in the activity itself.”
Bowser, supra. Although Appellant relies on the deposition testimony of
Mini Biju concerning the alleged conduct of Fr. Kuriakose, his reliance is
misplaced. Her testimony would be relevant only to Appellees’ negligence,
which is not at issue as Appellant assumed the risk of playing tug of war and
had no further duty toward him.
Therefore, on this record, we conclude the trial court properly granted
summary judgment in favor of Appellees.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2017
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