Philadelphia Child Injury Lawyer Talks about Child Injuries and Choice of Paths by

The choice of paths doctrine is cited by defendants in personal injury claims involving fall down indidents. Pennsylvania courts have generally been loath to apply the choice of paths doctrine. O'Brien v. Martin, 432 Pa. Super. 323, 638 A.2d 247 (1994). This doctrine was defined in Garvin v. Pittsburgh, 161 Pa. Super. 140, 53 A.2d 906 (1947). It states that where there is a choice of two alternate paths to the same destination, one of which is perfectly safe and the other subject to obvious risks, and the person voluntarily chooses the latter and is injured, that person is guilty of contributory negligence and cannot recover as a matter of law. Strother v. Binkele, 256 Pa. Super. 404, 416, 389 A.2d 1186, 1192 (1978), citing, Garvin, supra (emphasis added). In Strother, supra, the court reversed the granting of a non-suit in a sidewalk slip and fall case. The Court rejected the lower court’s conclusion that the plaintiff was contributorily negligent because he chose the more dangerous route over a comparatively safe one. In so doing, the Court stated:

Although with hindsight it might appear that a route…might have been somewhat safer, it is certainly not apparant that had he used that route, appellant would not have fallen while walking the three to four feet from the front of his car to the railing. In any case, it may not be concluded as a matter of law, that appellant rejected a ‘perfectly safe’ route in favor of one with obvious risk.

Id. at 1192.

In Caleodis v. Monessen, 105 A.2d 150 (Pa. 1954) the Supreme Court stated:

The appellate courts have frequently held that where a pedestrian is confronted with alternate routes, none of which is absolutely safe, he cannot be charged, as a matter of law, with contributory negligence because the route he finally selected had in it some elements of danger.”

105 A.2d at 152. (Emphasis supplied).

Restatement of Torts 2d, § 473, states: “If the defendant’s negligence has made the plaintiff’s exercise of a right or privilege impossible unless he exposes himself to a risk of bodily harm, the plaintiff is not guilty of contributory negligence in so doing unless he acts unreasonably.”

Comment b to Section 473 states: Among other considerations to be taken into account is the existence of an alternative method by which the right or privilege could be exercised and the inconvenience and risk involved in its use…. As the alternative route becomes less convenient and more circuitous, and particularly when it itself is dangerous, the plaintiff may without negligence [use the original route].

In Bacsick v. Barnes, 311 A.2d 157,162 (Pa. Super. 1975), appellees’ negligence in failing to maintain a clear sidewalk made Mrs. Bacsick’s exercise of her right to walk along that sidewalk impossible without exposing herself to a risk of harm. The court concluded that it could not say that her conduct amounted to contributory negligence as a matter of law. The Pennsylvania Superior Court has stated, "[p]eople have freedom of movement, and a tortfeaser may not escape responsibility for his negligence by maintaining that the person injured through the tortfeaser's negligence could have escaped injury by taking an alternate route.” Parnell v. Taylor, 266 Pa. Super. 74, 403 A.2d 100, 104 (1979).

Finally, in Tonik v. Apex Garages, Inc, 275 A.2d 296 (Pa. Super. 1971), the Pennsylvania Supreme Court stated: As noted earlier, Miss Tonik was confronted with the choice of attempting to navigate here way on the sidewalk around the parked vehicles as best she could to travel beyond the Apex premises, or to step out into the dangerous roadway of Broad Street. While her view of the sidewalk was obstructed in part by the parked automobiles, we cannot say that her choice of routes was one which a reasonably prudent person would not follow.

275 A.2d at 298.

Tags: contributory negligence, pedestrian, personal injury claims, plaintiff, plaintiffs, sidewalk, slip and fall