Defendants in Philadelphia County successfully asserted a choice of ways doctrine defense to earn a defense summary judgment in a recent slip and fall case.  The choice of ways doctrine bars recovery in a negligence context, when a plaintiff chooses to confront a patently obvious danger.   In Spady v. Acme Mkts., PICS Case No. 16-1530 (C.P. Philadelphia Sept. 8, 2016), Plaintiff brought suit against Acme Markets, FHG Companies, LLC, and DeMasi Landscaping seeking recovery for injuries he suffered as a result of a fall on a pile of snow and ice in an Acme parking lot.  The trial court granted summary judgment for defendants, which Plaintiff appealed on the grounds that, inter alia, there was a genuine issue of material fact as to his contributory negligence, and the court’s application of the choice of ways doctrine.

In February 2014, Plaintiff slipped and fell on a pile of snow and ice while walking in the parking lot of Acme supermarket.  Plaintiff brought a negligence claim against defendants alleging that they failed to remove the snow and warn of dangerous conditions.  However, video surveillance footage showed that the parking lot was clear of snow except for a mound of snow at the end of each row of parked cars.  The footage also showed that Plaintiff parked his car in an area completely clear of snow and that the most direct route from Plaintiff’s car to the entrance of the store was entirely clear of snow.  Despite the presence of a direct and clear route, Plaintiff chose a longer, indirect route in which he walked around another row of parked cars and then climbed over a mound of snow which he would not have encountered had he simply taken the shortest, most direct route from his car.   In his deposition, Plaintiff could not explain why he chose the longer, less direct route, other than that he saw a handicapped parking sign and thought that the route would be clear.  Plaintiff acknowledged that he did not really know why he chose the longer route, and also that, other than the mound at the end of each row of cars, the parking lot was clear of snow.

In its opinion recommending affirmation of the trial court’s decision, the court pointed out that the choice of ways doctrine is defined as:  “where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.”  The court may rule on the choice of ways doctrine as a matter of law and preclude Plaintiff’s recovery if no reasonable minds could disagree that there was:  (1) a safe course; (2) a dangerous course; and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger.

The court concluded that the choice of ways doctrine barred Plaintiff’s recovery because no reasonable minds could disagree that Plaintiff was aware of the safe and clear path that was the shortest and most direct from his car to the store, and he voluntarily assumed the risk of an obvious and known danger by deciding to take a longer, less direct path that encountered a mound of snow.  Thus, the court recommended the affirmation of the trial court’s granting of summary judgment for Defendants.  The court further noted that, although originally established within the framework of a contributory negligence system, the choice of ways doctrine still exists despite Pennsylvania’s shift to a comparative negligence system.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.