The defendants have the burden of proving the existence of contributory negligence. Defendants must prove that plaintiff acted unreasonably under the circumstances and that her conduct was a substantial factor in causing her injuries. Hanlon v. Sorenson, 289 Pa. Super. 268, 433 A.2d 60 (1981). It is not plaintiff's burden to prove her freedom from any such negligence.
Contributory negligence can be found as a matter of law only in clear cases. Arco v. Goodstein, 265 A.2d 783 (1970); Dolin v. J.J. 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 the Restatement (Second) of Torts § 343A in concluding that plaintiff was contributorily negligent for an accident. Section 343A protects possessors of land from liability from "known" or "obvious" dangers, "unless the possessor should anticipate the harm despite such knowledge or obviousness."
To be "known", the danger must "not only be known to exist, but ... also be recognized that it is dangerous and the probability and gravity of the threat and harm must be appreciated." Berman v. Radnor Rolls, Inc. 542 A.2d. 525, 531 (Pa. Super. 1988), citing, Carrender v. Fitterer, 469 A.2d. 120, 124 (Pa. 1983).
What constitutes an "obvious" danger is an issue of fact for the jury's determination, requiring denial of a Motion for Summary Judgment. Brown v. Sears Robuck and Company, E.D. Pa; Hutton, J.; July 18, 1990; no. 89-3556; slip op.
"A danger is deemed to be 'obvious' when 'both the condition and the risk are apparent to 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.) It is, therefore, crucial to consider the perception, intelligence and judgment of a plaintiff at the time of this accident in order to determine 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 charge the jury on the issues of "known" or "obvious" dangers was proper. In Berman, the plaintiff was roller skating. After he was bumped by another skater, this plaintiff lost his balance, skating through an opening in a railing onto a carpet area and down a six-inch drop off in the floor level. Ultimately he struck his head against a cabinet or shelf which protruded beyond vending machines.
The condition of the rink, the wide entrance, the six-inch drop off and the placement of the vending machines were all apparent. None of the conditions were concealed in any way. Nevertheless, the Court could not say that these conditions would be "known" or "obvious" to a reasonable person in the position of the plaintiff. The court carefully considered that this skater lost and regained his balance while traveling at a good rate of speed. He did not have an adequate opportunity under the circumstances to recognize the danger the six-inch step posed to him.
The Court in Berman 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 by the physical lay out of the building. Id. at 536.
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