Weinrich v. Lehigh Valley Grand Prix Inc, 2015 Pa. Dist. & Cnty. Dec. LEXIS 79

Weinrich v. Lehigh Valley Grand Prix Inc, 2015 Pa. Dist. & Cnty. Dec. LEXIS 79

Nicholas Weinrich, Plaintiff -VS- Lehigh Valley Grand Prix Inc, incorrectly Identified As Lehigh Valley Grand Prix LLC, Defendant

File No. 2014-C-0226

COMMON PLEAS COURT OF LEHIGH COUNTY, PENNSYLVANIA, CIVIL DIVISION

2015 Pa. Dist. & Cnty. Dec. LEXIS 79

August 14, 2015, Decided

CORE TERMS: summary judgment, track, plastic, depositions, public policy, citations omitted, duration, genuine, issue of material fact, question of fact, reasonable amount, contravene, factfinder, covering, invitee, silent, rink, dangerous condition, constructive notice, protruding, inspection, customer, go-kart’s, execute, notice, repeat, snap, general rule, moving party’s, liability theory

COUNSEL: [*1] Robert G. Bauer, Esq. for Plaintiff.

Ian T. Baxter, Esq. for Defendant.

JUDGES: Douglas G. Reichley, J.

OPINION BY: Douglas G. Reichley

OPINION

ORDER

AND NOW, this 14 day of August, 2015, upon consideration of Defendant’s Motion for Summary Judgment, filed May 19, 2015, and after argument conducted August 12, 2015,

IT IS ORDERED Defendant’s Motion is DENIED for the reasons set forth in the accompanying Memorandum Opinion.

By the Court:

Douglas G. Reichley, J.

Memorandum Opinion

Lehigh Valley Grand Prix, Inc., Defendant, owns and operates a go-kart track located at 649 South 10th Street, Allentown, Lehigh County, Pennsylvania. Nicholas Weinrich, Plaintiff, filed the instant action alleging he was injured while patronizing the facility. On May 19, 2015, Defendant filed a Motion for Summary Judgment. For the reasons set forth herein, Defendant’s motion is denied.

Factual and Procedural History

According to the Complaint, on June 4, 2012 at approximately 8:15 p.m, Plaintiff was operating a go-kart on Defendant’s track during which time a piece of the plastic covering the guardrail broke and was sticking out toward the track. As Plaintiff drove around the track, the plastic caught his go-kart’s bumper causing it to snap into his [*2] left leg. Plaintiff sustained a laceration on his leg less than two inches wide.

During depositions, Plaintiff testified that six months prior to the incident, he patronized Defendant’s facility without issue. On the date in question, Plaintiff completed two laps and did not notice the plastic covering jutting out. On his third lap, Plaintiff came around the adjacent turn and maintained momentum. He was near the wall, and the piece of the plastic guard was hanging out, bent toward him. He heard a loud snap, and subsequently felt pain in his calf.

Deposition testimony from Defendant’s staff indicated that the protrusion onto the track was common enough that employees were trained on how to repair it. Defendant’s owner conceded that it was possible for the plastic piece on the wall to snap and protrude onto the track.

Six months before the incident in question, on December 4, 2011, Plaintiff patronized Defendant’s establishment. At that time he was required to execute a waiver in order to participate in the race. When he returned in June of 2012, he was not presented with his original waiver, nor was he asked to execute a second one. Testimony from Michael Achey, the manager of Defendant’s [*3] establishment, indicated that repeat customers are not asked to re-execute the waiver. (N.T. Deposition of Michael P. Achey, February 25, 2015, at 45.) Mr. Achey acknowledged that while he has indicated to some repeat customers that they did not need to execute another waiver because one was already on file, he did not say that to every repeat customer. (Id. at 45-46.)

Plaintiff filed his Complaint on April 4, 2014. Defendant filed its Answer on April 29, 2014. On May 19, 2015, Defendant filed the instant Motion for Summary Judgment. Plaintiff filed his response on June 19, 2015. Defendant filed a sur-reply brief on August 6, 2015. The Court heard oral argument on August 12, 2015, after which time the matter was taken under advisement.

This Opinion follows.

Discussion

The standard of review for a motion seeking summary judgment is as follows:

A trial court properly enters summary judgment if “there is no genuine issue of any material fact as to a necessary clement of the cause of action.” Pa.R.C.P. 1035.2(1). The moving party’s right to summary judgment has to be clear and free from doubt after examination of the record in a light most favorable to the non-moving party and resolution of all doubts as to the existence [*4] of a genuine issue of material fact against the moving party

Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (Pa. Super. 2009).

Defendant seeks summary judgment on two grounds. First, Defendant argues that Plaintiff executed a voluntary waiver which bars his recovery. Second, Defendant argues that even if the release were not binding and valid, as a landowner, Defendant cannot be held liable under these circumstances under a premises liability theory.

In Pennsylvania, exculpatory agreements must be strictly construed. Employers Liability Assurance Corp. v. Greenville Business Men’s Assoc., 423 Pa. 288, 224 A.2d 620, 623 (1966). Releases from liability are disfavored as a matter of public policy, but are nonetheless “valid where three conditions are met. First, the clause must not contravene public policy. Secondly, the contract must be between persons relating entirely to their own private affairs and thirdly, each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Products, Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)).

The courts of Pennsylvania have traditionally determined the effect of a release using the ordinary meaning of its language and interpreted the release as covering only such matters as can fairly be said to have been within the contemplation of the parties when the release was given. Moreover, releases [*5] are strictly construed so as not to bar the enforcement of a claim that had not accrued at the date of the execution of the release.

Fortney v. Callenberger, 2002 PA Super 182, 801 A.2d 594, 597 (Pa. Super. 2002) (citations and internal quotation marks omitted).

In the context of recreational activities, releases generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190, 1197 (Pa. 2012). Such releases do not contravene public policy. Id. However, where the injury was caused by recklessness or gross negligence, enforcement of the release would contravene public policy and the releases are thereby rendered void under those circumstances. Id.

The relevant language of the release in question provides:

IN CONSIDERATION of being permitted to compete, officiate, observe, work, or participate in the EVENT(s), use the equipment, premises, facilities and/or services of Lehigh Valley Grand Prix, LLC., [the undersigned agrees to the release terms] …

Plaintiff argues that the waiver was no longer valid on the date in question because he executed it six months prior to the date of the accident. In support of this argument, Plaintiff does not cite any case law from Pennsylvania or any federal [*6] authority interpreting Pennsylvania law on this matter. The sole case upon which Plaintiff relics is a Florida case, Cain v. Banka, 932 So.2d 575 (Fla. 5th DCA 2006), which held a release unenforceable because the release contained no express language advising the plaintiff that it covered every future visit to a motocross track.

There are not any Pennsylvania cases reflecting the Florida court’s holding. Federal cases interpreting Pennsylvania law merely look at the language of the release to gauge its degree of applicability. See Savarese v. Camelback Ski Corp., 417 F.Supp.2d 663, 667 (M.D. Pa. 2005) (applying Pennsylvania law, language on the back of a ski lift ticket constituted a valid exculpatory agreement once the plaintiff purchased the ticket).

The salient issue in evaluating the instant waiver is that the language on the form neither limits the time for its applicability nor specifies the event or occasion to which it applies. When asked about the release’s duration during oral argument, Defendant’s counsel maintained that the waiver would be effective forever without limitation.

“As a general rule, releases encompass only such matters as may fairly be said to have been within the contemplation of the parties when the release was given.” Farrell v. Lechmanik, Inc., 417 Pa. Super. 172, 611 A.2d 1322, 1323 (Pa. Super. 1992). “[I]t is axiomatic that releases are construed in accordance [*7] with traditional principles of contract law, fundamental to which is the directive that the effect of a release must be determined from the ordinary meaning of its language.” Maloney v. Valley Med. Facilities, Inc., 2008 PA Super 32, 946 A.2d 702, 706 (Pa. Super. 2008) (internal quotation marks and citations omitted). Under contract principles, where a contract is silent as to the time for performance, courts must infer that the parties intended that performance occur within a reasonable amount of time. Cashdollar v. Mercy Hosp. of Pittsburgh, 406 Pa. Super. 606, 595 A.2d 70, 76 (Pa. Super. 1991) (“When the exact period for which the parties intended to contract cannot be ascertained, the agreement is not vitiated; rather, an agreement for a ‘reasonable time’ will be inferred.”).

In construing a contract, courts must adopt “an interpretation which under all circumstances ascribes the most reasonable, probable, and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished.” Metzger v. Clifford Realty Corp., 327 Pa. Super. 377, 476 A.2d 1, 5 (Pa. Super. 1984) (citation omitted). “If an essential term is left out of the agreement, the law will not invalidate the contract but will include a reasonable term.” Stephan v. Waldron Elec. Heating & Cooling LLC, 2014 PA Super 205, 100 A.3d 660, 668 (Pa. Super. 2014) (quoting RegScan, Inc. v. Con-Way Transp. Services, Inc., 2005 PA Super 176, 875 A.2d 332 (Pa. Super. 2005)).

In this case, the release Plaintiff executed is silent as to duration. Based on the foregoing case law, the Court determines that this is an essential term which is left out of the agreement. Therefore, a reasonable [*8] term is to be imposed instead of invalidating the release as a whole. Id. Because contract principles further dictate that contractual duration is presumed to be for a reasonable amount of time in the absence of a specified time for performance, Metzger, 476 A.2d at 5, the parties’ release must therefore be deemed to apply for a reasonable period of time. What constitutes a reasonable time, however, is generally a question of fact to be resolved by the factfinder. See, e.g., Yates v. Clifford Motors, Inc., 283 Pa. Super. 293, 423 A.2d 1262, 1268 (Pa. Super. 1980) (in the Uniform Commercial Code context, whether goods were rejected within a reasonable amount of time where contract was silent as to time for rejection was question of fact for jury).

Consequently, Defendant’s argument in support of summary judgment based on the existence of a release must be denied. Summary judgment is only appropriate where there is no genuine issue of material fact. Whether six months following the execution of a release for a recreational activity constitutes a reasonable amount of time is a question more appropriately posed to a finder of fact. The reasonableness of the duration in question is therefore a genuine issue of material fact and summary judgment is inappropriate.

Defendant also argued in its motion [*9] that even if the release was not binding and valid, as a landowner, Defendant cannot be held liable under these circumstances under a premises liability theory. Plaintiff in this case was an invitee for premises liability purposes. An invitee is someone who is “invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.” Restatement (Second) of Torts §332 (1965).

As a general rule, possessors of land are not liable to invitees for physical harm caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. 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.” Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123-24 (Pa. 1983) (citation omitted). “For a danger to be ‘known,’ it must not only be known to exist, but … also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Id. at 124.

Nonetheless, the question of whether conditions on land were in fact open and obvious is generally [*10] a question of fact for a jury to decide. Id. It may be decided by a court where reasonable minds could not differ as to the conclusion. Id.; see also Long v. Manzo, 452 Pa. Super. 451, 682 A.2d 370, 373 (Pa. Super. 19%) (citation omitted) (issues of plaintiff’s knowledge of condition creating unreasonable risk of harm usually for jury to decide, but may be decided by court where reasonable minds could not differ).

In the context of amusement facilities, Pennsylvania courts have held that there is no duty to protect participants against the typical risks attendant to those activities. See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525 (Pa. Super. 1983) (roller rink has no obligation to protect patrons from falling down or being bumped by other skaters). A duty arises only where the risks at play are atypical. See id. (liability found where accident attributable to a condition unique to defendant skating rink, i.e. a 60-foot wide opening in the rink and a 6″ drop-off on its side).

With respect to the requirement for notice, Plaintiff argued that Defendant’s employees’ depositions demonstrate an acute awareness that the sort of dangerous condition at issue–the broken plastic piece protruding into the racetrack–was something for which they were trained. While the record is devoid of evidence supporting [*11] actual notice, Plaintiff argued Defendant had constructive notice.

Neither the witnesses who were deposed nor Plaintiff testified that the plastic was protruding into the track for an extended period of time. The testimony at the depositions indicated that there are three scheduled inspections of the racetrack per day: morning, noon, and night. None of those inspections revealed the dangerous condition. There is also a visual inspection of the track in between each race according to the testimony offered by Michael McCreary, Defendant’s owner. Defendant’s employees, Michael Achey (manager) and Corey Dewalt (track marshal) conceded that it was possible that the protruding plastic could have been missed.

Summary judgment would not be appropriate on these grounds because there are factual issues regarding constructive notice and whether there were appropriate steps undertaken by Defendant. Testimony before a factfinder is necessary to assess whether and to what extent the employees were aware in advance of the existence of the dangerous condition. These are all factual questions to be resolved by a factfinder.

Conclusion

Because there is an outstanding factual issue concerning whether six [*12] months after execution of the subject release is a reasonable period of time for the release to remain in effect, Defendant’s Motion for Summary Judgment on the ground of the release must fail. Further, there are outstanding factual questions concerning constructive notice which render summary judgment inappropriate on that basis. Accordingly, Defendant’s Motion for Summary Judgment is denied.

By the Court:

Douglas G. Reichley, J.

8/14/15