Kaplan v. Exxon Corp

Opinions of the United
1997 Decisions States Court of Appeals
for the Third Circuit
10-27-1997
Kaplan v. Exxon Corp
Precedential or Non-Precedential:
Docket
96-1495,96-1519
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Recommended Citation
"Kaplan v. Exxon Corp" (1997). 1997 Decisions. Paper 254.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/254
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Filed October 27, 1997
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 96-1495 and 96-1519
AARON KAPLAN; JUDITH KAPLAN
v.
EXXON CORPORATION
v.
JAMES J. ANDERSON CONSTRUCTION CO., INC.;
JAMES D. MORRISSEY, INC.,
Third Party Defendants
Judith Kaplan and Aaron Kaplan,
Appellants at No. 96-1495
Exxon Corporation,
Appellant at No. 96-1519
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 95-cv-01942)
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 2, 1997
Before: BECKER and SCIRICA, Circuit Judges
and SCHWARZER, District Judge*
_________________________________________________________________
*The Honorable William W Schwarzer, United States District Judge for
the Northern District of California, sitting by designation.
ORDER AMENDING SLIP OPINION
IT IS HEREBY ORDERED that the slip opinion in the
above case, filed September 25, 1997, be amended as
follows:
1. Page 10: Delete lines 6-11 and substitute the
following in lieu thereof:
"snow mound. We believe that reasonable minds could
disagree whether Kaplan acted "under circumstances
that manifest[ed] a willingness to accept" the risk,
Berman, 542 A.2d at 5333, which means the issue
should go to the jury. Among the circumstances to
consider in evaluating the voluntariness of the
plaintiff's action is whether the plaintiff had a real
"choice." See Howell, 620 A.2d at 1112 ("The operative
fact is [the plaintiff's] voluntary choice to undertake
the risk."). The plaintiff does not make a real choice
when there is no safe alternative to encountering the
risk. Prosser and Keeton on Torts S 68 at 490-91 (W.
Page Keeton ed., 5th ed. 1984) (no assumption of risk
where plaintiff has "no reasonable alternative.").5 The
district court"
5Of course, we can imagine situations where the
danger is known to the plaintiff and so obvious that a
court could say as a matter of law that the defendant
is not liable. See, e.g., Chiricos v. Forest Lakes Council
Boy Scouts, 391 Pa. Super. 491, 571 A.2d 474 (1990)
(plaintiff voluntarily stood in front of a moving,
trespassing vehicle to try to stop it); Kabo v. UAL, Inc.,
762 F. Supp. 1190 (E.D.Pa. 1991) (sixty five year old
plaintiff/President of travel agency suffered heart
attack while lifting heavy baggage for tour group at
airport).
2. Renumber all subsequent footnotes.
BY THE COURT,
/s/ Anthony J. Scirica
Circuit Judge
2
DATED: October 27, 1997
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
3