1997 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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