A Butler County PA personal injury victim was awarded a new trial limited to damages by a 2010 Superior Court of Pennsylvania decision. The plaintiff had fallen 20 to 25 feet after a tree stand broke while he was “setting the stand.” His personal injury lawyer filed a lawsuit against the manufacturer and seller of the product seeking a damage award after suffering a crushed vertebrae.
The Butler County Trial Judge made a ruling which permitted the jury to return a defense verdict. The PA Superior Court stated that to establish voluntary assumption of the risk, the defendant must show that the buyer knew of a defect and yet voluntarily and unreasonably proceeded to use the product in conscious disregard for the attendant risks.
The Appeals Court confirmed that the assumption of the risk claim is an affirmative defense for which the defendant has the burden of proof. This risk must be voluntarily undertaken in addition to being known. Since the defense did not meet its burden to prove assumption of the risk, a directed verdict should have been granted in the plaintiffs’ favor on the issue of liability. Reott v. Asia Trend, Inc., 7 A.3d 830 (Pa. Super. 2010)
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