Stephen K. Ernst; Debra S. Rosenberg v. Shirley Barr

* Hon. Dickinson R. Debevoise, United States District Judge for the District of New
Jersey, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4518
STEPHEN K. ERNST;
DEBRA S. ROSENBERG,
Appellants
v.
SHIRLEY BARR; FIREMAN'S FUND
INSURANCE COMPANY, A WHOLLY OW NED
SUBSIDIARY OF ALLIANZ A.G. OF
MUNICH GERMANY
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(Dist. Court No. 01-cv-01115)
Magistrate Judge: Jacob P. Hart
Submitted Under Third Circuit LAR 34.1(a)
January 22, 2004
Before: ALITO and CHERTOFF, Circuit Judges, and DEBEVOISE, District Judge*
(Opinion Filed: March 10, 2004 )

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1 Fireman’s Fund Insurance Company was dismissed by stipulation and is not a part of
this appeal.
2
OPINION OF THE COURT
PER CURIAM:
I.
Stephen Ernst and his wife, Debra S. Rosenberg, (collectively “Ernst”) brought
suit against Ernst’s stepmother, Shirley Barr (“Barr”), and her insurance carrier,
Fireman’s Fund Insurance Company,1 for physical injuries sustained by Ernst in a fall
down the staircase at Barr’s home. The parties consented to have all proceedings handled
by a Magistrate Judge and submitted the liability portion of the case on cross-motions for
summary judgment. The Magistrate held that Ernst was a business invitee, rather than a
social licensee, but he nevertheless granted summary judgment in favor of Barr,
concluding that even under the duty owed a business invitee, Barr had no duty to protect
Ernst from the hazard in question. Because we believe that the Magistrate Judge did not
err in granting summary judgment to Barr, we affirm.
II.
Ernst argues that the Magistrate Judge improperly placed the burden of proof of
the assumption of risk upon Ernst. Furthermore, he contends that nothing in the record
supports the Magistrate Judge’s conclusion that Ernst had a reasonable alternative to
using the staircase as he did, i.e., with both hands occupied by the food tray.

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The Pennsylvania Supreme Court has stated that a “‘possessor of land is not liable
to his invitees for physical harm caused to them by any activity or condition on the land
whose danger is known or obvious to them, unless the possessor should anticipate the
harm despite such knowledge or obviousness.’” Carrender v. Fitterer, 469 A.2d 120, 123
(Pa. 1983) (quoting Restatement (Second) of Torts § 343A). 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. This Court, applying Pennsylvania law, has stated that
a possessor owes no duty to a business invitee where the invitee “‘discovered dangerous
conditions which [were] both obvious and avoidable, and nevertheless proceeded
voluntarily to encounter them.’” Kaplan v. Exxon Corp., 126 F.3d 221, 226 (3d Cir.
1997) (citing Carrender, 469 A.2d at 125) (brackets in Kaplan). A plaintiff “voluntarily
confronts a danger only where there is a real ‘choice’ involved,” that is, where “a safe
alternative” exists “to encountering the risk.” Id. (internal citations omitted).
In reviewing the decision of the Magistrate Judge, we proceed on the assumption
that Barr had the burden of producing evidence that Ernst was aware of the hazard and
that there was a safe alternative to his course of action. Viewing the evidence in the
summary judgment record in the light most favorable to Ernst, we conclude that a trier of
fact could not reasonably find that Barr did not prove those elements. Ernst had been to
his stepmother’s home on half a dozen occasions and, on at least one occasion, had used

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the stairs to the second floor. App. at 53. There was a handrail on the left side of the
stairway and it is obvious that Ernst could have carried the dishes down in several trips.
Given all this, it is clear that Ernst assumed the risk of the open stairway and that Barr
owed him no duty.
III.
We have reviewed all of Ernst’s arguments and see no grounds for reversal.
Therefore, we affirm the order of the District Court.

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