Pennsylvania No Duty Rule stops lawsuit by underage rider.

A minor with 12 years of riding and competing on dirt bikes could not sue the commercial operation after crashing on the course.

Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

State: Pennsylvania; United States District Court for the Western District of Pennsylvania

Plaintiff: Kameron Hawkins and Amber Lynn Durbin

Defendant: Switchback MX, LLC d/b/a Switchback Raceway

Plaintiff Claims: negligence and negligence per se

Defendant Defenses: Pennsylvania No Duty Rule (Assumption of the Risk)

Holding: For the Defendant

Year: 2019

Summary

The Pennsylvania Comparative Negligence Act specifically identifies downhill skiing and off-road riding as exempt from the comparative negligence act. In both those sports, the participant assumes the risk of their injuries due from the inherent risks of the sports.

Facts

Hawkins [plaintiff] began riding a dirt bike at the age of five or six.. He learned the ins and outs of dirt bike [motorized] riding from his father, who raced dirt bikes and often brought Hawkins to spectate at off-road races Hawkins began participating in races himself at “a young age” and even secured sponsorships. He testified that he was aware of the dangers of riding dirt bikes from early on in his experience, that his father instructed him to avoid jumps that “you don’t think you can handle,” and that he wore protective gear to guard against the risk of injury. He acknowledges that dirt bike riding is “a dangerous sport,” that “you could get hurt” on a dirt bike, and that a fall could cause “injury . . . or even death.” Despite his protective measures, Hawkins has suffered injuries in the past riding a dirt bike. Hawkins had been to Switchback on three prior occasions: once as a spectator, once as pit crew member for his friend Jonathan Franjko, and once as a rider.

The events preceding Hawkins’ accident on January 9, 2016 are disputed by the parties and not fully explored in the Rule 56 record. According to Hawkins, he arrived at Switchback with several friends and met with Brader, who asked them whether they had been to Switchback before. Hawkins relayed that, after the group responded affirmatively, Brader told them to sign in, accepted their payment, and provided them with wristbands to attach to their helmets to indicate they had been authorized to ride. He denied ever being asked to present identification and did not recall being asked his age.

Switchback’s account diverges considerably. According to Brader, Hawkins entered the indoor facility on January 9, 2016 with Franjko, who had a Switchback membership card. Brader did not recognize Hawkins and thought he appeared to be under the age of 18. Brader reported that he told Hawkins he needed to “take home a waiver and fill it out” and that he had to “bring [the waiver] out next time and join us another day.” Brader does not recall Hawkins signing in on Switchback’s sign-in sheet for January 9, 2016, but testified that he told Hawkins he “could not ride” without waiver and consent forms on file. Brader also testified that he does not know how Hawkins ultimately came to access the track on January 9, 2016. It is undisputed that Durbin did not execute a parental consent form allowing Hawkins to participate in dirt bike riding at Switchback.

On January 9, 2016, Hawkins somehow gained access Switchback’s indoor dirt bike racing track. Hawkins “attempted a jump, without enough speed,” on one of the track’s “table top jumps,” which caused the frame of his dirt bike to hit the ground and “flip [the] bike and Hawkins over.” According to Brader, it was only after this wreck that he became aware that Hawkins had accessed the track. Brader testified that Hawkins “didn’t look right” and that he offered to call an ambulance. Franjko confirmed that Brader asked “a couple times” whether Hawkins wanted medical attention. Hawkins left Switchback’s facility with his friends without receiving medical attention. Hawkins was subsequently treated for injuries including a lacerated kidney and pancreas, trauma to his spleen, a broken hip, a concussion, and post-concussion syndrome. The accident occurred four months before Hawkins’ 18th birthday.

Analysis: making sense of the law based on these facts.

The court first reviewed the requirements to prove a negligence claim in Pennsylvania.

Under Pennsylvania law, a plaintiff must prove the “four basic elements of duty, breach, causation, and damages. That is, plaintiffs must prove: (1) the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by the defendant; (3) a causal connection between defendant’s breach and plaintiffs’ injury; and (4) actual loss or damages.

The court then reviewed the claims of the plaintiff as whether the defendant owed a duty to the minor plaintiff because the plaintiff assumed the risk of his injuries.

The defendant’s position was it had no duty to protect the plaintiff because of the inherent risk set out in the “no duty” rule in the Pennsylvania Comparative Negligence Act.

The plaintiff’s response to that argument was the negligence of the defendant was in allowing the plaintiff to access the track.

The court looked at the conflicting arguments by next reviewing assumption of the risk as applied in Pennsylvania. The Pennsylvania Comparative Negligence Act eliminated the defense of assumption of the risk in all areas except two when it enacted the statute. The two exemptions were downhill skiing and off-road vehicle riding. Meaning in those two situations, the no-duty rule retained the defense of assumption of the risk. The defendant has no duty to protect the plaintiff from the inherent risks of the sport of downhill skiing or off-road riding.

The court then reviewed whether assumption of the risk applied to minors. That is “the court must ask what the “particular minor plaintiff knows, sees, hears, comprehends, and appreciates” with respect to the risk involved.”

Under Pennsylvania law, to prove assumption:

…the court must find that the plaintiff (1) “consciously appreciated the risk” attending the activity, (2) assumed the risk of injury by nonetheless engaging in the activity, and (3) sustained an injury that was “the same risk of injury that was appreciated and assumed.”

A factor in determining whether or not a minor assumed the risk is the minor’s age and experience. In this case that worked for the defendant because the minor was only four months from turning eighteen at the time of the accident and had been riding for twelve years.

The court then defined inherent risk as a risk “which “cannot be removed without altering the fundamental nature” of the activity.”

The court broke down the inherent risks of off-road riding as identified in the statute, to see if the plaintiff’s injury landing on a table-top jump was inherent to the sport.

Common sense dictates that the risk of a fall or collision that does not involve another rider or object is equally inherent in the activity. Indeed, Hawkins’ own experience bears this out—he testified that his accident on January 9, 2016, was not his first; that he knew from personal experience that attempting jumps carried a certain risk; and that he wore protective gear in an attempt to mitigate that risk. We find that the risk of suffering serious injury when attempting a dirt bike jump is one which “cannot be removed without altering the fundamental nature” of dirt bike riding and is thus inherent in the activity.

We further conclude that reasonable persons could not debate whether Hawkins appreciated and knowingly assumed that risk. Hawkins was nearly 18 years old at the time of the accident and had been riding dirt bikes for more than 12 years. He was a vastly experienced rider. He was well aware that dirt bike riding carried the risk of serious injury and even death. Indeed, Hawkins acknowledged that a dirt bike presents a certain danger “even when the bike’s on the ground.” Given this unequivocal record testimony, we have little difficulty finding that this particular rider—plaintiff Kameron Hawkins—knew, appreciated, and assumed the risks attending off-road dirt bike riding.

For these reasons, the court found the minor, because of his age and experience assumed the risk of his injuries, and the defendant was not liable for those injuries because of the Pennsylvania Comparative Negligence Act.

So Now What?

Assumption of the risk in most states is the only defense you have to injuries a minor receives. Unless your state has a specific statute that identifies your activity as one with inherent risk a person assumes, you need to prove the minor in your case assumed those risks.

To do that you must maximize all the avenues to educate and document that education of a minor, in fact, all participants in your activity or business.

Post videos of your activity showing crashes, flips and falls on your website and social media. Point out possible risks on your site and social media. Then confirm in some way that the minor observed that information.

You can go so far as to ask the minor and/or the minor’s parents of their experience in the sport. Have they participated in the sport before, seen it on TV, participated for how many years, etc.

A release is your best defense to a lawsuit, but for minors, in those states where releases are not valid and or minors, assumption of the risk is your best and sometimes only defense.

For more information see:

States that allow a parent to sign away a minor’s right to sue

States that do not Support the Use of a Release

What do you think? Leave a comment.

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Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

Hawkins v. Switchback MX, LLC, 339 F. Supp. 3d 543, 2018 U.S. Dist. LEXIS 155249

United States District Court for the Western District of Pennsylvania

September 12, 2018, Decided; September 12, 2018, Filed

CIVIL ACTION NO. 2:16-CV-1719

Reporter

KAMERON HAWKINS and AMBER LYNN DURBIN, Plaintiffs v. SWITCHBACK MX, LLC d/b/a SWITCHBACK RACEWAY, Defendant

Counsel:  [**1] For KAMERON HAWKINS, &, AMBER LYNN DURBIN, Plaintiffs: George R. Farneth , II, LEAD ATTORNEY, The Farneth Law Group, LLC, Wellsburg, WV.

For SWITCHBACK MX, LLC, doing business as, SWITCHBACK RACEWAY, Defendant: Michael John Pawk, Lutz & Pawk, Butler, PA.

Judges: Christopher C. Conner, Chief United States District Judge.

Opinion by: Christopher C. Conner

Opinion

[*545]  MEMORANDUM

Plaintiff Kameron Hawkins (“Hawkins”) suffered injuries after he unsuccessfully attempted a jump while riding a dirt bike on an indoor course at defendant Switchback Raceway (“Switchback”). Hawkins and his mother, plaintiff Amber Lynn Durbin (“Durbin”), commenced this diversity action advancing three negligence claims against Switchback under Pennsylvania law. Before the court are the parties’ cross-motions for summary judgment.

I. Factual Background and Procedural History1

This personal injury lawsuit arises from physical injuries suffered by Hawkins following a dirt bike accident at Switchback’s off-road riding and racing facility in Butler, Pennsylvania. Switchback promotes and stages dirt bike races for participants of all skill levels. (Doc. 28 ¶ 1; Doc. 32 ¶ 2). Switchback’s website articulates [**2]  its waiver and consent policy as follows:

Dirtbike/ATV riding is dangerous. Accidents, injuries, and even death can occur. Ride at your own risk! All riders must sign a waiver before they will [be] permitted to ride. Minors will be required to have parental consent. During practice, there are limited to no flaggers. Please, ride safely.

There is no trespassing on Switchback property. Anyone caught trespassing will be prosecuted to the full extent of the law.

All minors that come without their legal parents they must have a NOTARIZED waiver to be able to ride. NO EXCEPTIONS.

(Doc. 30-9 at 1). Switchback’s track manager, Mark Brader (“Brader”), testified that,  [*546]  pursuant to this policy, a minor is not be permitted to ride without a signed parental consent form and waiver. (Brader Dep. 29:5-18, 42:13-21).2 He also testified that it was his responsibility to ensure that minors did not misrepresent their age or otherwise engage in efforts to improperly gain access to the track. (Id. at 56:4-8; see also Doc. 28 ¶ 10).

Hawkins began riding a dirt bike at the age of five or six. (Doc. 32 ¶ 4). He learned the ins and outs of dirt bike riding [**3]  from his father, who raced dirt bikes and often brought Hawkins to spectate at off-road races. (See id. ¶¶ 7-9; Hawkins Dep. 20:5-22:4 (“Hawkins Dep.”)). Hawkins began participating in races himself at “a young age” and even secured sponsorships. (Doc. 32 ¶ 6). He testified that he was aware of the dangers of riding dirt bikes from early on in his experience, that his father instructed him to avoid jumps that “you don’t think you can handle,” and that he wore protective gear to guard against the risk of injury. (Id. ¶¶ 7-8; Hawkins Dep. 21:20-22:21, 38:22-39:25, 133:3-12, 147:18-148:6). He acknowledges that dirt bike riding is “a dangerous sport,” that “you could get hurt” on a dirt bike, and that a fall could cause “injury . . . or even death.” (Hawkins Dep. 25:17-26:4, 38:13-21, 39:14-25, 147:18-148:6). Despite his protective measures, Hawkins has suffered injuries in the past riding a dirt bike. (Doc. 32 ¶ 14; see also Hawkins Dep. 38:22-39:25, 133:3-12). Hawkins had been to Switchback on three prior occasions: once as a spectator, once as pit crew member for his friend Jonathan Franjko (“Franjko”), and once as a rider. (Doc. 32 ¶ 28).

The events preceding Hawkins’ accident on January [**4]  9, 2016 are disputed by the parties and not fully explored in the Rule 56 record. According to Hawkins, he arrived at Switchback with several friends and met with Brader, who asked them whether they had been to Switchback before. (Hawkins Dep. 49:5-12). Hawkins relayed that, after the group responded affirmatively, Brader told them to sign in, accepted their payment, and provided them with wristbands to attach to their helmets to indicate they had been authorized to ride. (See id.) He denied ever being asked to present identification and did not recall being asked his age. (Id. at 133:13-23).

Switchback’s account diverges considerably. According to Brader, Hawkins entered the indoor facility on January 9, 2016 with Franjko, who had a Switchback membership card. (See Brader Dep. 56:9-18). Brader did not recognize Hawkins and thought he appeared to be under the age of 18. (See id. at 56:19-57:2). Brader reported that he told Hawkins he needed to “take home a waiver and fill it out” and that he had to “bring [the waiver] out next time and join us another day.” (Id. at 56:23-57:6). Brader does not recall Hawkins signing in on Switchback’s sign-in sheet for January 9, 2016, but testified that he [**5]  told Hawkins he “could not ride” without waiver and consent forms on file. (Id. at 76:12-77:1). Brader also testified that he does not know how Hawkins ultimately came to access the track on January 9, 2016. (Id. at 91:12-16). It is undisputed that Durbin did not execute a parental consent form allowing Hawkins to participate in dirt bike riding at Switchback. (Doc. 28 ¶ 12).

On January 9, 2016, Hawkins somehow gained access Switchback’s indoor dirt bike racing track. (See Doc. 28 ¶ 13; Doc.  [*547]  32 ¶¶ 1, 13, 31). Hawkins “attempted a jump, without enough speed,” on one of the track’s “table top jumps,” which caused the frame of his dirt bike to hit the ground and “flip [the] bike and Hawkins over.” (Doc. 32 11 13, 31). According to Brader, it was only after this wreck that he became aware that Hawkins had accessed the track. (See Brader Dep. 57:4-11). Brader testified that Hawkins “didn’t look right” and that he offered to call an ambulance. (Id. at 82:10-83:12). Franjko confirmed that Brader asked “a couple times” whether Hawkins wanted medical attention. (See Franjko Dep. 58:12-59:1). Hawkins left Switchback’s facility with his friends without receiving medical attention. (See Doc. 28 [**6]  ¶ 17; Doc. 39 ¶ 17). Hawkins was subsequently treated for injuries including a lacerated kidney and pancreas, trauma to his spleen, a broken hip, a concussion, and post-concussion syndrome. (Doc. 28 ¶ 18). The accident occurred four months before Hawkins’ 18th birthday. (See Doc. 32 ¶ 3).

Hawkins and Durbin commenced this lawsuit on November 15, 2016, asserting one claim of negligence each and one claim of negligence per se together. Plaintiffs contend that Switchback violated its internal policies and its legal duty of care by failing to ensure that Hawkins, a minor, did not access its facility without parental consent. The parties have filed cross-motions for summary judgment on each of the plaintiffs’ claims. The motions are fully briefed and ripe for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that do not present a “genuine dispute as to any material fact” and for which a jury trial would be an empty and unnecessary formality. Fed. R. Civ. P. 56(a). The burden of proof tasks the non-moving party to come forth with “affirmative evidence, beyond the allegations of the pleadings,” in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The court is to view [**7]  the evidence “in the light most favorable to the non-moving party and draw all reasonable inferences in that party’s favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Only if this threshold is met may the cause of action proceed. See Pappas, 331 F. Supp. 2d at 315.

Courts are permitted to resolve cross-motions for summary judgment concurrently. See Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008); see also Johnson v. Fed. Express Corp., 996 F. Supp. 2d 302, 312 (M.D. Pa. 2014); 10A Charles Alan Wright et al., Federal Practice and Procedure § 2720 (3d ed. 2015). When doing so, the court is bound to view the evidence in the light most favorable to the non-moving party with respect to each motion. Fed. R. Civ. P. 56; Lawrence, 527 F.3d at 310 (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)).

III. Discussion

Pennsylvania substantive law governs the negligence claims raised by the plaintiffs in this diversity action. See Maghakian v. Cabot Oil & Gas Corp., 171 F. Supp. 3d 353, 358 (M.D. Pa. 2016) (citing Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000)); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Under Pennsylvania law, a plaintiff must prove the “four basic  [*548]  elements of duty, breach, causation, and damages.” Perez v. Great Wolf Lodge of the Poconos LLC, 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (quoting Loughran v. Phillies, 2005 PA Super 396, 888 A.2d 872, 874 (Pa. Super. Ct. 2005)). That is, plaintiffs must prove: (1) the existence of a legal duty requiring a certain standard of conduct; (2) breach of that duty by the defendant; (3) a causal connection between defendant’s breach and plaintiffs’ injury; and (4) actual loss or damages. Id. (quoting Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 61 (3d Cir. 2009)).

The parties’ [**8]  cross-motions for summary judgment concenter on two disputes: first, whether Switchback owed a legal duty of care to Hawkins in view of the no-duty rule set forth in Pennsylvania’s Comparative Negligence Act, 42 Pa. Cons. Stat. § 7102, and second, whether Hawkins assumed the risk of injury, negating any duty of care, by engaging in an activity which he understood to be dangerous.3

A. Duty of Care

The parties offer competing perspectives of the applicable duty of care. Switchback maintains that it had no duty to protect Hawkins from risks inherent in off-road dirt bike riding. Switchback invokes the no-duty rule set forth in Pennsylvania’s Comparative Negligence Act, which provides that an operator of an off-road vehicle riding area—such as Switchback—”shall have no duty to protect riders from common, frequent, expected and nonnegligent risks inherent to the activity, including collisions with riders or objects.” 42 Pa. Cons. Stat. § 7102(b.3)(1). Switchback avers that the possibility of falling and suffering injury while engaged in off-road riding is an inherent, expected risk of the activity, and that the no-duty rule forecloses liability in this case.

Plaintiffs rejoin that the no-duty rule has no application here. They assert that [**9]  this case does not concern a duty to protect patrons from the risks of off-road riding once they have accessed the track, but instead concerns Switchback’s alleged negligence in allowing minors to access its facility in the first instance. Plaintiffs rely on the Armstrong County Court of Common Pleas’ decision in Emerick v. Fox Raceway, 68 Pa. D. & C. 4th 299 (Pa. Ct. Com. Pl. 2004), wherein the state court found that off-road riding area operators have a legal duty to develop and follow internal procedures to check a prospective rider’s age and to ensure minor riders do not access their facility without parental consent. Id. at 318. To hold otherwise, the court found, would be “contrary to good public policy.” Id.

Plaintiffs insist that the Emerick decision is on all fours with their claims. The trouble with Emerick is that it fails to engage with or even acknowledge the no-duty rule, which became law on July 15, 2004—a mere six days before the Emerick decision issued. Plaintiffs posit that the lack of discussion of the new rule suggests that the court deemed it inapplicable, given that the case before the court involved policies which allowed a plaintiff to sneak onto the track rather than the conditions of the track itself. Switchback, for its part, insists [**10]  that the court was either unaware of the new enactment or deemed it inapplicable because the accident at issue occurred before the statute’s effective date.

We cannot ascribe weight to the Emerick decision when it failed to engage with this transformative legislative enactment.  [*549]  The court’s opinion expressly states that it is grounded largely in public policy—but the state legislature six days prior explicitly and substantially transformed the Commonwealth’s negligence policy as concerns tort liability for operators of off-road riding areas. In our view, the failure of the Emerick court to account for the no-duty rule severely diminishes its value as precedent. Nonetheless, because we determine infra that the assumption of the risk doctrine negates any duty that Switchback may have had to protect Hawkins, we need not determine, as a matter of law, what duty of care remains for operators of off-road riding areas with respect to minors attempting to access their facilities.

B. Assumption of the Risk

Most tort claims in Pennsylvania are governed by the comparative negligence doctrine. See 42 Pa. Cons. Stat. § 7102(a). But the legislature expressly preserved assumption of the risk as a defense in two categories of activities: [**11]  off-road vehicle riding, see id. § 7102(b.3)(2), and downhill skiing, see id. § 7102(c)(2). Specifically, as pertains off-road vehicle riding areas, the Comparative Negligence Act states: “The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.” Id. § 7102(b.3)(2). The assumption of the risk doctrine operates to negate any legal duty ascribed to those plaintiffs seek to hold liable: “to the extent the injured plaintiff proceeded in the face of a known danger, he relieved those who may have otherwise had a duty, implicitly agreeing to take care of himself.” Montagazzi v. Crisci, 2010 PA Super 78, 994 A.2d 626, 635 (Pa. Super. Ct. 2010) (citing Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 124 (Pa. 1983)). The doctrine operates as a “no-duty” rule; that is, for those facilities for which the legislature preserved the assumption of the risk defense, the owner or operator “has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1185-86 (Pa. 2010) (citations omitted).

Pennsylvania courts apply a subjective standard when determining whether a minor assumed the risk of a given activity. That is, the court must ask what the “particular minor plaintiff knows, sees, hears, comprehends, and appreciates” [**12]  with respect to the risk involved. Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 269 (3d Cir. 2008) (quoting Berman v. Phila. Bd. of Educ., 310 Pa. Super. 153, 456 A.2d 545, 550 (Pa. 1983)). To grant summary judgment based on an assumption of the risk defense, the court must find that the plaintiff (1) “consciously appreciated the risk” attending the activity, (2) assumed the risk of injury by nonetheless engaging in the activity, and (3) sustained an injury that was “the same risk of injury that was appreciated and assumed.” Zeidman v. Fisher, 2009 PA Super 161, 980 A.2d 637, 641 (Pa. Super. Ct. 2009) (quoting Hadar v. Avco Corp., 2005 PA Super 326, 886 A.2d 225, 229 (Pa. Super. Ct. 2005)). When reasonable minds could not disagree, the question of assumption of the risk is for the court. See Carrender, 469 A.2d at 124; see also M.D. v. Ski Shawnee, Inc., No. 14-CV-1576, 2015 U.S. Dist. LEXIS 81392, 2015 WL 3866050, at *4 (M.D. Pa. 2015) (citing Restatement (Second) of Torts § 469 cmt. e (Am. Law Inst. 1965)).

No court has explored the assumption of the risk doctrine in the context of off-road riding areas following the 2004 amendment to the Comparative Negligence Act. But several courts have interpreted the doctrine as pertains to downhill skiing. The Pennsylvania Supreme Court has held that retention of the assumption of the risk doctrine in that context reflects the legislature’s intent that a ski resort  [*550]  owner owes no duty of care to patrons for any risk “‘inherent’ in downhill skiing.” Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (Pa. 2000); see also Bjorgung, 550 F.3d at 268. Knowledge of the inherent risk has been deemed the sine qua non of an assumption of the risk defense. See M.D., 2015 U.S. Dist. LEXIS 81392, 2015 WL 3866050, at *3. The plaintiff’s age and relative degree of experience [**13]  with the activity are relevant in determining whether that particular plaintiff was aware of a given risk. See id. (citing Bjorgung, 550 F.3d 263; Chepkevich, 607 Pa. 1, 2 A.3d 1174; Hughes, 563 Pa. 501, 762 A.2d 339). We can conceive of no reason why these principles, developed in the analogous context of downhill skiing, should not apply with equal force to negligence claims involving off-road riding areas. Compare 42 Pa. Cons. Stat. § 7102(b.3)(1)-(2) with id. § 7102(c)(1)-(2).

We must first query whether the risk of falling during a jump and suffering serious injury is inherent in the activity of off-road riding. An “inherent risk” is one which “cannot be removed without altering the fundamental nature” of the activity. Bjorgung, 550 F.3d at 268-69 (quoting Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100, 105 (Pa. Super. Ct. 2005)). The Comparative Negligence Act identifies “collisions with riders or objects” as risks inherent in off-road riding. 42 Pa. Cons. Stat. § 7102(b.3)(1). Common sense dictates that the risk of a fall or collision that does not involve another rider or object is equally inherent in the activity. Indeed, Hawkins’ own experience bears this out—he testified that his accident on January 9, 2016, was not his first; that he knew from personal experience that attempting jumps carried a certain risk; and that he wore protective gear in an attempt to mitigate that risk. (Hawkins Dep. 38:22-39:25, 133:3-12, 147:24-148:6). We find that the [**14]  risk of suffering serious injury when attempting a dirt bike jump is one which “cannot be removed without altering the fundamental nature” of dirt bike riding and is thus inherent in the activity. See Bjorgung, 550 F.3d at 268-69 (quoting Crews, 874 A.2d at 105).

We further conclude that reasonable persons could not debate whether Hawkins appreciated and knowingly assumed that risk. Hawkins was nearly 18 years old at the time of the accident and had been riding dirt bikes for more than 12 years. He was a vastly experienced rider. He was well aware that dirt bike riding carried the risk of serious injury and even death. Indeed, Hawkins acknowledged that a dirt bike presents a certain danger “even when the bike’s on the ground.” (Hawkins Dep. 92:4-93:2). Given this unequivocal record testimony, we have little difficulty finding that this particular rider—plaintiff Kameron Hawkins—knew, appreciated, and assumed the risks attending off-road dirt bike riding.

Anticipating the defense’s strategy sub judice, plaintiffs contend that a minor cannot ever assume the risk of a particular activity, again invoking Emerick, in which the Armstrong County Court of Common Pleas held that, because a minor plaintiff is incapable of entering into a contract [**15]  and cannot expressly waive liability for a given activity, a minor cannot impliedly assume that same risk by his or her actions. Emerick, 68 Pa. D. & C. 4th at 319. The state court provided no precedent in support of this sweeping conclusion. In this respect, Emerick
runs counter to the great weight of authority in the state courts and in the Third Circuit Court of Appeals which have held consistently that a minor is capable of assuming the risk of a dangerous activity. See, e.g., Bjorgung, 550 F.3d at 268-69 (quoting Berman, 456 A.2d at 550); Montagazzi, 994 A.2d at 635-36; Berman, 456 A.2d at 550; see also Johnson v. Walker, 376 Pa. Super. 302, 545 A.2d 947, 949-50 (Pa. Super. Ct. 1988).

 [*551]  The undisputed Rule 56 record establishes beyond debate that Hawkins knew, appreciated, and assumed the risk of injury attending off-road dirt bike riding. He was an experienced dirt bike rider who was fully aware that attempting a jump on a dirt bike carried with it an inexorable risk of injury. And he proceeded to attempt a jump on Switchback’s indoor track notwithstanding that understood risk. Switchback accordingly had no duty to protect Hawkins on January 9, 2016. We will grant summary judgment to Switchback on Hawkins’ negligence claim. Because Durbin’s claim for economic damages is derivative of Hawkins’ individual claim, we will likewise grant summary judgment to Switchback on Durbin’s claim.

IV. Conclusion

We are [**16]  not unsympathetic to the serious injuries suffered by Hawkins. But the unequivocal fact remains that Hawkins—having more than a decade of experience riding on similar off-road tracks—voluntarily engaged in the dangerous sport of dirt bike riding knowing full well the risks of the activity. Switchback is not legally responsible for the injuries that Hawkins suffered at its facility. Accordingly, the court will grant summary judgment to Switchback on plaintiffs’ negligence claims. An appropriate order shall issue.

/s/ Christopher C. Conner

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: September 12, 2018

ORDER & JUDGMENT

AND NOW, this 12th day of September, 2018, upon consideration of the parties’ cross-motions (Docs. 27, 31) for summary judgment, and the parties’ briefs in support of and opposition to said motions, (Docs. 29, 33, 36, 38, 41), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:

1. Plaintiffs’ motion (Doc. 27) for summary judgment is DENIED.

2. Defendant’s motion (Doc. 31) for summary judgment is GRANTED as follows:

a. Judgment is ENTERED in favor of defendant and against plaintiffs on [**17]  the negligence claims set forth in Counts I and II of plaintiffs’ complaint.

b. The negligence per se claim set forth in Count III of plaintiffs’ complaint is DISMISSED.

3. The Clerk of Court is directed to CLOSE this case.

/s/ Christopher C. Conner

Christopher C. Conner, Chief Judge

United States District Court

Middle District of Pennsylvania

Dated: September 12, 2018


Pennsylvania Comparative Negligence Statute

Pennsylvania Statutes

42 Pa.C.S. JUDICIARY AND JUDICIAL PROCEDURE

Part VII CIVIL ACTIONS AND PROCEEDINGS

Chapter 71 GENERAL PROVISIONS

§ 7102 Comparative negligence

(a)    General rule.–In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

(a.1)    Recovery against joint defendant; contribution.

(1)    Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

(2)    Except as set forth in paragraph (3), a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.

(3)    A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:

(i)    Intentional misrepresentation.

(ii)    An intentional tort.

(iii)    Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.

(iv)    A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108) , known as the Hazardous Sites Cleanup Act.

(v)    A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.

(4)    Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant’s proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.

(a.2)    Apportionment of responsibility among certain nonparties and effect. –For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.

(b)    Deleted by 2011, June 28, P.L. 78, No. 17, § 1, imd. effective.

(b.3) Off-road vehicle riding./para>

(1)    Off-road vehicle riding area operators shall have no duty to protect riders from common, frequent, expected and nonnegligent risks inherent to the activity, including collisions with riders or objects.

(2)    The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.

(3)    Nothing in this subsection shall be construed in any way to abolish or modify a cause of action against a potentially responsible party other than an off-road vehicle riding area operator.

(c)    Downhill skiing

(1)    The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.

(2)    The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).

(c.2) Savings provisions.–Nothing in this section shall be construed in any way to create, abolish or modify a cause of action or to limit a party’s right to join another potentially responsible party.

(d)    Definitions.–As used in this section the following words and phrases shall have the meanings given to them in this subsection:

“Defendant or defendants.” Includes impleaded defendants.

“Off-road vehicle.” A motorized vehicle that is used off-road for sport or recreation. The term includes snowmobiles, all-terrain vehicles, motorcycles and four-wheel drive vehicles.

“Off-road vehicle riding area.” Any area or facility providing recreational activities for off-road vehicles.

“Off-road vehicle riding area operator.” A person or organization owning or having operational responsibility for any off-road vehicle riding area. The term includes:

(1)    Agencies and political subdivisions of this Commonwealth.

(2)    Authorities created by political subdivisions.

(3)    Private companies.

“Plaintiff.” Includes counter claimants and cross-claimants.

Cite as 42 Pa.C.S. § 7102

History. 1978, April 28, P.L. 202, No. 53, § 10(89), effective June 27, 1978. Amended 1980, Oct. 5, P.L. 693, No. 142, § 222(a), effective in 60 days; 1982, Dec. 20, P.L. 1409, No. 326, art. II, § 201, effective in 60 days; 2002, June 19, P.L. 394, No. 57, § 2, effective in 60 days; 2004, July 15, P.L. 736, No. 87, § 5, imd. effective; 2011, June 28, P.L. 78, No. 17, § 1, imd. effective.


PA Supreme Court determines colleges owe a duty to provide medical care to student-athletes and releases are valid for stopping claims by student athletes.

Court also sets forth requirements for a release to be valid under Pennsylvania law.

Feleccia v. Lackawanna Coll., 215 A.3d 3, 2019 Pa. LEXIS 4615

State: Pennsylvania, Supreme Court of Pennsylvania

Plaintiffs: , Augustus Feleccia and Justin T. Resch

Defendant: Lackawanna College a/k/a Lackawanna Junior College, AD Mecca, Coach Duda, Coach Reiss, Coach Lamagna and Coyne and Bonisese

Plaintiff Claims: negligence, including negligence per se. The complaint also sought punitive damages, alleging appellants acted “willfully, wantonly and/or recklessly

Defendant Defenses: Release

Holding: For the Plaintiff’s

Year: 2017

Summary

In this decision, the Pennsylvania Supreme Court reviews requirements for how a release must be written in Pennsylvania law to be valid. Pennsylvania has no definition of gross negligence, but a release is still not valid to stop a gross negligence claim.

Finally, if you create a duty or make a promise that people rely on to their detriment or injury you are liable. Here a college is liable to its student-athletes who were injured during practice for not having certified athlete trainers on the field.

Facts

Lackawanna had customarily employed two athletic trainers to support the football program.1 However, both athletic trainers resigned in the summer of 2009 and AD Mecca advertised two job openings for the position of athletic trainer. AD Mecca received applications from Coyne and Bonisese, recent graduates of Marywood University who had obtained Bachelor of Science degrees in Athletic Training. AD Mecca conducted telephone interviews with Coyne and Bonisese for the open athletic trainer positions at Lackawanna.

At the time she applied and interviewed for the Lackawanna position, Coyne had not yet passed the athletic trainer certification exam, which she took for the first time on July 25, 2009, and was therefore not licensed by the Board. Bonisese was also not licensed, having failed the exam on her first attempt, and still awaiting the results of her second attempt when she applied and interviewed for the Lackawanna position. Nevertheless, Lackawanna hired both Coyne and Bonisese in August 2009 with the expectation they would serve as athletic trainers, pending receipt of their exam results, and both women signed “athletic trainer” job descriptions. Id. After starting their employment at Lackawanna, Coyne and Bonisese both learned they did not pass the athletic trainer certification exam. Coyne informed AD Mecca of her test results, and AD Mecca also learned Bonisese had failed her second attempt at certification.

AD Mecca retitled the positions held by Coyne and Bonisese from “athletic trainers” to “first responders.” Id. at 1204. AD Mecca notified Coyne and Bonisese via email and written correspondence that due to their failure to pass the certification exam, they would function as “first responders” instead of “athletic trainers.” However, neither Coyne nor Bonisese executed [*7] new job descriptions, despite never achieving the credentials included in the athletic trainer job descriptions they did sign. Appellants were also aware the qualifications of their new hires was called into question by their college professors and clinic supervisors. See Id. More specifically, Shelby Yeager, a professor for Coyne and Bonisese during their undergraduate studies, communicated to AD Mecca her opinion that Coyne and Bonisese were impermissibly providing athletic training services in September 2009. Professor Yeager was aware Lackawanna did not have any full-time athletic trainers on staff2 and noted Coyne and Bonisese, as recent graduates, were inexperienced and did not have the required Board license. Professor Yeager stated that Coyne in particular was “ill-equipped to handle the rigors of a contact sport (like football) as an athletic trainer on her own regardless of whether she managed to pass [the certification] exam and obtain her state license.” Id., quoting Affidavit of Shelby Yeager. With regard to Bonisese, Bryan Laurie, who supervised her as a student, rated her performance as “below average/poor” and provided his assessment that she was not qualified to act as an athletic trainer in March of 2010. Id., citing Affidavit of Bryan Laurie.

Appellee Resch started playing football at the age of six, and continued playing through high school. Id. at 1204-05. Upon graduating from high school in 2008, Resch was accepted at Lackawanna and, hoping to continue playing football, met with Coach Duda prior to arriving for classes. Resch tried out for the Lackawanna football team in the fall of 2008. Resch not only failed to make the roster, but was also placed on academic probation, so he was ineligible to play football in the spring of 2009.

Appellee Feleccia also began playing football as a child at the age of ten, and played through high school. Feleccia was recruited by Coach Duda to play football at Lackawanna. See id. Feleccia did not make the team in the fall of 2008, but practiced with them during that time. During a scrimmage in the fall of 2008, Feleccia tore the labrum in his left shoulder, which was surgically repaired. Feleccia was also placed on academic probation after the fall 2008 semester and temporarily withdrew from Lackawanna. See id.

In mid-January 2010, Resch and Feleccia returned to Lackawanna for the spring semester with the aspiration to make the football team. Id. Lackawanna required appellees to fill out and sign various documents in a “participation packet” before playing with the team, including a “Waiver of Liability and Hold Harmless Agreement” (the Waiver) and a form including an “Information/Emergency Release Consent” (the Consent).

On March 29, 2010, appellees participated in the first day of spring contact football practice. The team engaged in a variation of the tackling drill known as the “Oklahoma Drill.” Appellees had previously participated in the Oklahoma Drill, or a variation of it, either in high school or at Lackawanna football practices, and were aware the drill would take place during practices. While participating in the drill, both Resch and Feleccia suffered injuries. Resch attempted to make a tackle and suffered a T-7 vertebral fracture. Resch was unable to get up off the ground and Coyne attended to him before he was transported to the hospital in an ambulance. See Feleccia, 156 A.3d at 1207. Notwithstanding Resch’s injury, the Lackawanna football team continued practicing and running the Oklahoma Drill. Later that same day, Feleccia was injured while attempting to make his first tackle, experiencing a “stinger” in his right shoulder, i.e., experiencing numbness, tingling and a loss of mobility in his right shoulder. Id. Bonisese attended Feleccia and cleared him to continue practice “if he was feeling better.” Id. Feleccia returned to practice and then suffered a traumatic brachial plexus avulsion while making a tackle with his right shoulder. Id.

The plaintiff’s claims were dismissed based by the trial court on a motion for summary judgment filed by the defendants. The Plaintiff’s then appealed that dismissal of their complaint to the Pennsylvania Superior Court (intermediate appellate court). The Pennsylvania Superior Court reversed the trial court on several issues. The defendants then filed this appeal with the Pennsylvania Supreme Court.

The appeal to the Pennsylvania Supreme Court was based on two issues.

a. Is a Pennsylvania college required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the college’s student-athletes?

b. Is an exculpatory clause releasing “any and all liability” signed in connection with participation in intercollegiate football enforceable as to negligence?

That means the decision of the Pennsylvania Supreme Court will only look at the two issues it has decided that need to be reviewed by the Supreme Court and nothing else.

Analysis: making sense of the law based on these facts.

What is interesting are two things.

First, the court allowed a release to be used by a college to prevent lawsuits when a student is injured during practice for an NCAA sport. The analysis did not center around the relationship between the student athlete and the university; it centered around the fact the University had told student athletes they would have trainers and did not.

Sort of a detrimental reliance claim: I relied upon your statements that then injured me. Or as stated in the Restatement (Second) of Torts §323

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

The court found the College had created an expectation, relied upon by the students, that there would be athletic trainers available on the field during practice. Because the two trainers on the field were not certified, and possibly, to some extent, the actions of the school in changing the requirements or the people on the field to help the athletes from trainers to medical responders, the court found a legal theory where the college could be liable.

The second issue is the Pennsylvania Supreme Court’s interpretation of Pennsylvania release law. Under Pennsylvania law “Accordingly, exculpatory contracts are valid and enforceable only when “certain criteria are met.” To meet that criteria the court restated four requirements under Pennsylvania law for a release to be valid.

(1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause).

The first issue the court reviewed in determining if the release was valid was the lack of the word negligence in the release. If the release failed to specifically state the release stopped claims for the defendants negligence was it enforceable. The court said the release was valid even if it did not include the word negligence in its wording. To be valid the release must spell “…out the intention of the parties with particularity” and show “the intent to release [appellants] from liability by express stipulation.”

That means the court must review the party’s intentions in creating the agreement between them. Furthermore, the injuries suffered by the plaintiff must be encompassed within the terms of the release. That does not mean a specific list of injuries, just a general idea that the injury suffered was within the contemplation of the release.

The court then looked at ordinary negligence and gross negligence under Pennsylvania law. The court first stated there is a difference between ordinary, gross and reckless conduct or negligence.

However, the court avoided the issue of defining gross negligence or the issue of whether gross negligence was valid in this claim. The court stated, “([A]s gross negligence is not implicated in the instant matter, we leave for another day the question of whether a release for gross negligence can withstand a public policy challenge.”

The court then looked at how both parties in their briefs defined the actions of the defendant college. The court then reviewed public policy requirements to void a release under Pennsylvania law.

A determination that a contract is unenforceable because it contravenes public policy “requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. “It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. . . .”

However, the court then stated that pre-injury contracts, releases, are unenforceable when the liability of the defendant arises from recklessness. So the court refused to define gross negligence and used an old definition of recklessness. The Court then held that recklessness, not necessarily defined in a definition of negligence, could void a release.

Again, the Court repeated that Pennsylvania had not defined gross negligence in a civil liability setting.

Thus, although we have not previously settled on a definitive meaning of the term “gross negligence” as compared to “ordinary negligence” in the civil context, we have recognized there is a difference between the two concepts, and they are distinguished by the degree of deviation from the standard of care.

The court did then define gross negligence but did so in a way that did not set the definition in stone under Pennsylvania law. It just pulled definitions of gross negligence from lower courts and did not adopt any of them as the definition.

…in essence, gross negligence is merely negligence with a vituperative epithet. It constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts. It may also be deemed to be a lack of slight diligence or care comprising a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party. The term has also been found to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.

Gross negligence has thus been consistently recognized as involving something more than ordinary negligence, and is generally described as “want of even scant care” and an “extreme departure” from ordinary care.

As we have seen, gross negligence does not rise to the level of the intentional indifference or “conscious disregard” of risks that defines recklessness, but it is defined as an “extreme departure” from the standard of care, beyond that required to establish ordinary negligence, and is the failure to exercise even “scant care.

The court then repeated that the release would not stop a claim for gross negligence.

Moreover, although the Waiver bars’ recovery for appellees’ damages arising from ordinary negligence, we hold the Waiver does not bar recovery for damages arising from gross negligence or recklessness, and there remain factual questions regarding whether appellants’ conduct constituted gross negligence or recklessness.

Pennsylvania joins the list of states that a release will not stop a claim for gross negligence. A gross negligence claim must be decided by the trier of fact, the jury, in these cases.

So Now What?

First, we have definitive guidelines from the Pennsylvania Supreme Court on how the court wants a release to be written. Second, we know that Pennsylvania joins the majority of states where a release cannot stop a claim for gross negligence.

We also know that recklessness is enough to void a release as well as gross negligence. However, terms we will result in battles by both sides to use the definitions they want applied to the facts of each particular case.

Finally, as in most states, if you make a promise to someone, and they rely on that promise to their detriment, you are going to write a check!

It is an interesting opinion purely from the allowance of the student-athletes to sue their college. However, the reasoning behind how a release must be written in Pennsylvania has great value.

What do you think? Leave a comment.

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Feleccia v. Lackawanna Coll., 215 A.3d 3, 2019 Pa. LEXIS 4615

Feleccia v. Lackawanna Coll., 215 A.3d 3, 2019 Pa. LEXIS 4615

Supreme Court of Pennsylvania

December 5, 2018, Argued; August 20, 2019, Decided

No. 75 MAP 2017

Reporter

215 A.3d 3 *; 2019 Pa. LEXIS 4615 **

AUGUSTUS FELECCIA AND JUSTIN T. RESCH, Appellees v. LACKAWANNA COLLEGE A/K/A LACKAWANNA JUNIOR COLLEGE, KIM A. MECCA, MARK D. DUDA, WILLIAM E. REISS, DANIEL A. LAMAGNA, KAITLIN M. COYNE AND ALEXIS D. BONISESE, Appellants

Subsequent History: As corrected August 26, 2019.

Prior History:  [**1] Appeal from the Order of the Superior Court at No. 385 MDA 2016 dated February 24, 2017, reconsideration denied April 26, 2017, Reversing the Judgment of the Lackawanna County Court of Common Pleas, Civil Division, at No. 12-CV-1960 entered February 2, 2016 and Remanding for trial.

Feleccia v. Lackawanna Coll., 2017 PA Super 44, 156 A.3d 1200, 2017 Pa. Super. LEXIS 117 (Pa. Super. Ct., Feb. 24, 2017)

Counsel: For Pennsylvania Association for Justice, Amicus Curiae: Barbara Axelrod, Esq., Beasley Firm, L.L.C. (The).

For Association of Independent Colleges and Universities of Pennsylvania, Amicus Curiae: Christopher D. Carusone, Esq., Cohen Seglias Pallas Greenhall & Furman PC.

For National Athletic Trainers’ Association & PA Athletic Trainers’ Society, Inc., Amicus Curiae: Mitchell Y. Mirviss, Esq.

For Lackawanna College a/k/a Lackawanna Junior College, Kim A. Mecca, Mark D. Duda, William E.Reiss, Daniel A.Lamagna, Kaitlin M.Coyne & Alexis D.Bonisese, Appellants: Steven Jay Engelmyer, Esq., Kleinbard LLC.

For Lackawanna College a/k/a Lackawanna Junior College, Kim A. Mecca, Mark D. Duda, William E.Reiss, Daniel A.Lamagna, Kaitlin M.Coyne & Alexis D.Bonisese, Appellants: Eric Joseph Schreiner, Esq., Kleinbard LLC.

For Lackawanna College a/k/a Lackawanna Junior College, Kim A. Mecca, Mark D. Duda, William E.Reiss, Daniel [**2]  A.Lamagna, Kaitlin M.Coyne & Alexis D.Bonisese, Appellants: Joshua John Voss, Esq., Kleinbard LLC.

For Augustus Feleccia and Justin T. Resch, Appellee: Andrew P. Motel, Esq., Law Offices of Andrew P. Motel, L.L.C. (The).

For Augustus Feleccia and Justin T. Resch, Appellee: Robert A. Saraceni Jr., Esq.

For Augustus Feleccia and Justin T. Resch, Appellee: Daniel Joel Siegel, Esq., Law Offices of Daniel J. Siegel, L.L.C.

Judges: SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ. Justices Baer, Todd, Donohue and Mundy join the opinion. Chief Justice Saylor and Justice Wecht file concurring and dissenting opinions.

Opinion by: DOUGHERTY

Opinion

 [*5]  JUSTICE DOUGHERTY

In this discretionary appeal arising from the dismissal of personal injury claims on summary judgment, we consider whether the Superior Court erred in 1) finding a duty of care and 2) holding a pre-injury waiver signed by student athletes injured while playing football was not enforceable against claims of negligence, gross negligence, and recklessness. After careful review, we affirm the Superior Court’s order only to the extent it reversed the trial court’s entry of summary judgment on the  [*6]  claims of gross negligence and recklessness, and we remand [**3]  to the trial court for further proceedings consistent with this opinion.

I.

Appellees, Augustus Feleccia and Justin T. Resch, (collectively, appellees) were student athletes who played football at Lackawanna Junior College (Lackawanna), a non-profit junior college. See Complaint at ¶¶ 29, 30. At all times relevant to this matter, the following individuals were employed by Lackawanna and involved in its football program: (1) Kim A. Mecca, the Athletic Director for Lackawanna College who oversaw all of Lackawanna’s athletic programs, including the football program (AD Mecca); (2) Mark D. Duda, the head coach (Coach Duda); (3) William E. Reiss, an assistant and linebacker coach (Coach Reiss); (4) Daniel A. Lamagna, an assistant and quarterback coach (Coach Lamagna); (5) Kaitlin M. Coyne, hired to be an athletic trainer (Coyne); and (6) Alexis D. Bonisese, hired to be an athletic trainer (Bonisese) (collectively with Lackawanna referred to as appellants). Id. at ¶¶31-34, 40, 41, 43, 44.

Lackawanna had customarily employed two athletic trainers to support the football program.1 However, both athletic trainers resigned in the summer of 2009 and AD Mecca advertised two job openings for the position [**4]  of athletic trainer. AD Mecca received applications from Coyne and Bonisese, recent graduates of Marywood University who had obtained Bachelor of Science degrees in Athletic Training. AD Mecca conducted telephone interviews with Coyne and Bonisese for the open athletic trainer positions at Lackawanna. See Feleccia v. Lackawanna College, 2017 PA Super 44, 156 A.3d 1200, 1203 (Pa. Super. 2017).

At the time she applied and interviewed for the Lackawanna position, Coyne had not yet passed the athletic trainer certification exam, which she took for the first time on July 25, 2009, and was therefore not licensed by the Board. Bonisese was also not licensed, having failed the exam on her first attempt, and still awaiting the results of her second attempt when she applied and interviewed for the Lackawanna position. Nevertheless, Lackawanna hired both Coyne and Bonisese in August 2009 with the expectation they would serve as athletic trainers, pending receipt of their exam results, and both women signed “athletic trainer” job descriptions. Id. After starting their employment at Lackawanna, Coyne and Bonisese both learned they did not pass the athletic trainer certification exam. Coyne informed AD Mecca of her test results, and AD Mecca also learned Bonisese had failed her second [**5]  attempt at certification. Id. at 1203-04.

AD Mecca retitled the positions held by Coyne and Bonisese from “athletic trainers” to “first responders.” Id. at 1204. AD Mecca notified Coyne and Bonisese via email and written correspondence that due to their failure to pass the certification exam, they would function as “first responders” instead of “athletic trainers.” However, neither Coyne nor Bonisese executed  [*7]  new job descriptions, despite never achieving the credentials included in the athletic trainer job descriptions they did sign. Appellants were also aware the qualifications of their new hires was called into question by their college professors and clinic supervisors. See Id. More specifically, Shelby Yeager, a professor for Coyne and Bonisese during their undergraduate studies, communicated to AD Mecca her opinion that Coyne and Bonisese were impermissibly providing athletic training services in September 2009. Professor Yeager was aware Lackawanna did not have any full-time athletic trainers on staff2 and noted Coyne and Bonisese, as recent graduates, were inexperienced and did not have the required Board license. Professor Yeager stated that Coyne in particular was “ill-equipped to handle the rigors [**6]  of a contact sport (like football) as an athletic trainer on her own regardless of whether she managed to pass [the certification] exam and obtain her state license.” Id., quoting Affidavit of Shelby Yeager. With regard to Bonisese, Bryan Laurie, who supervised her as a student, rated her performance as “below average/poor” and provided his assessment that she was not qualified to act as an athletic trainer in March of 2010. Id., citing Affidavit of Bryan Laurie.

Appellee Resch started playing football at the age of six, and continued playing through high school. Id. at 1204-05. Upon graduating from high school in 2008, Resch was accepted at Lackawanna and, hoping to continue playing football, met with Coach Duda prior to arriving for classes. Resch tried out for the Lackawanna football team in the fall of 2008. Resch not only failed to make the roster, but was also placed on academic probation, so he was ineligible to play football in the spring of 2009.

Appellee Feleccia also began playing football as a child at the age of ten, and played through high school. Feleccia was recruited by Coach Duda to play football at Lackawanna. See id. Feleccia did not make the team in the fall of 2008, but practiced [**7]  with them during that time. During a scrimmage in the fall of 2008, Feleccia tore the labrum in his left shoulder, which was surgically repaired. Feleccia was also placed on academic probation after the fall 2008 semester and temporarily withdrew from Lackawanna. See id.

In mid-January 2010, Resch and Feleccia returned to Lackawanna for the spring semester with the aspiration to make the football team. Id. Lackawanna required appellees to fill out and sign various documents in a “participation packet” before playing with the team, including a “Waiver of Liability and Hold Harmless Agreement” (the Waiver) and a form including an “Information/Emergency Release Consent” (the Consent). See Appellees’ Brief in Opposition to MSJ at Exhibit 18(b). Appellee Resch “skimmed” and signed the Waiver on March 22, 2010. Feleccia, 156 A.3d at 1205. Feleccia also executed the Waiver on March 22, 2010. The Waiver provided as follows:

1. In consideration for my participation in [Football] (sport), I hereby release, waive, discharge and covenant not to sue Lackawanna College, its trustees, officers, agents, and employees from any and all liability, claims, demands, actions, and causes of action whatsoever arising out of or related [**8]  to any loss, damage, or injury, including death, that may be sustained by me, or to any property belonging to me,  [*8]  while participating in such athletic activity.

2. To the best of my knowledge, I am not aware of any physical disability or health-related reasons or problems which would preclude or restrict my participation in this activity. I am fully aware of the risks and hazards connected with [Football] (sport), and I hereby elect to voluntarily participate in said activity, knowing that the activity may be hazardous to me and my property. I voluntarily assume full responsibility for any risks of loss, property damage, or personal injury, including death, that may be sustained by me, or any loss or damage to property owned by me, as a result of being engaged in such activity.

3. I have adequate health insurance necessary to provide for and pay any medical costs that may directly or indirectly result from my participation in this activity. I agree to indemnify and hold harmless Lackawanna College, its trustees, officers, agents, and employees, from any loss, liability, damage or costs, including court costs and attorneys’ fees that may be incurred, due to my participation in said activity. [**9]

4. It is my express intent that this Release and Hold Harmless Agreement shall bind my family, if I am alive, and my heirs, assigns and personal representative, if I am deceased, and shall be deemed as a release, waiver, discharge and covenant not to sue Lackawanna College, its trustees, officers, agents and employees. I hereby further agree that this Waiver of Liability and Hold Harmless Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania.

In signing this release, I acknowledge and represent that I have read the foregoing Waiver of Liability and Hold Harmless Agreement, understand it and sign it voluntarily; no oral representations, statements, or inducements, apart from the foregoing written agreement, have been made; I am at least eighteen (18) years of age and fully competent; and I execute this Release for full, adequate and complete consideration fully intending to be bound by the same. Parent/Guardians’ signature required for individuals under eighteen (18) years of age.

Waiver attached as Exhibit A to Appellants’ Answer with New Matter.

Appellees also signed the Consent that provided, in pertinent part, as follows:

(1) I do hereby off[er] [**10]  my voluntary consent to receive emergency medical services in the event of an injury during an athletic event provided by the athletic trainer, team physician or hospital staff.

Consent attached as part of Exhibit 18(b) to Appellees’ Brief in Opposition to MSJ.

On March 29, 2010, appellees participated in the first day of spring contact football practice. The team engaged in a variation of the tackling drill known as the “Oklahoma Drill.” Appellees had previously participated in the Oklahoma Drill, or a variation of it, either in high school or at Lackawanna football practices, and were aware the drill would take place during practices. While participating in the drill, both Resch and Feleccia suffered injuries. Resch attempted to make a tackle and suffered a T-7 vertebral fracture. Resch was unable to get up off the ground and Coyne attended to him before he was transported to the hospital in an ambulance. See Feleccia, 156 A.3d at 1207. Notwithstanding Resch’s injury, the Lackawanna football team continued practicing and running the Oklahoma Drill. Later that same day, Feleccia was injured while attempting to make his first tackle, experiencing a “stinger” in his right shoulder,  [*9]  i.e., experiencing numbness, [**11]  tingling and a loss of mobility in his right shoulder. Id. Bonisese attended Feleccia and cleared him to continue practice “if he was feeling better.” Id. Feleccia returned to practice and then suffered a traumatic brachial plexus avulsion while making a tackle with his right shoulder. Id.

Appellees filed suit against appellants, Lackawanna, AD Mecca, Coach Duda, Coach Reiss, Coach Lamagna and Coyne and Bonisese, asserting claims for damages caused by negligence, including negligence per se. The complaint also sought punitive damages, alleging appellants acted “willfully, wantonly and/or recklessly.” Complaint at ¶¶82, 97, 98, 102 & 103. Appellants filed preliminary objections which were overruled, and filed an answer with new matter raising defenses, including that the Waiver precluded liability on all of appellees’ claims.

At the close of discovery, appellants filed a motion for summary judgment, relying primarily on the Waiver; appellants argued they were entitled to judgment as a matter of law due to appellees’ voluntary release of appellants from any and all liability for damages resulting from participation in the Lackawanna football program. See Appellants’ Brief in Support of [**12]  MSJ at 13. In response, appellees argued Lackawanna “ran its Athletic Training Department in a manner demonstrating a total disregard for the safety of its student-athletes or the laws of the Commonwealth of Pennsylvania.” Appellees’ Brief in Opposition to MSJ at 1. Appellees argued appellants had required appellees to sign the Consent for treatment by an “athletic trainer,” thus taking on a duty to provide an athletic trainer, but then failed to provide an athletic trainer for its football team. See id. at 18-20.

The trial court granted summary judgment in favor of appellants. The court ruled the Waiver: (1) did not violate public policy; (2) was a contract between Lackawanna and college students relating to their own private affairs, and (3) was not a contract of adhesion. See Feleccia v. Lackawanna College, 2016 WL 409711, at *5-*10 (Pa..Com.Pl. Civil Div. Feb. 2, 2016), citing Chepkevich. v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (Pa. 2010) (setting forth elements of valid exculpatory agreements).

The court then considered whether the Waiver was enforceable, i.e., whether it “spells out the intention of the parties with particularity and shows the intent to release [Lackawanna] from liability by express stipulation.” Id. at *10, quoting Chepkevich, 2 A.3d at 1191 (additional citations omitted). The court noted the Waiver did not specifically use the word “negligence” or mention the [**13]  Oklahoma Drill, but it was executed freely by appellees, and stated they were fully aware of the risks and hazards in the activity and “voluntarily assume[d] full responsibility for any . . . personal injury” resulting from it. Id. at *11, quoting the Waiver. The court found the Waiver immunized appellants from liability because it addressed the “risks and hazards” ordinarily inherent in the sport of football. Id. at *12.3 Finding the negligence claims barred, the court ruled the claim for punitive damages also failed, and discussion of the Waiver’s applicability to those allegations was unnecessary. Id. at *14 n.13.  [*10]  The court concluded there was no genuine issue of material fact and appellants were entitled to judgment as a matter of law on the basis of the Waiver.

Appellees filed an appeal and the Superior Court reversed.4 Although the panel agreed with the trial court’s holding the Waiver was valid under Chepkevich, the panel disagreed that the Waiver barred all of appellees’ claims as a matter of law. The panel first observed the Waiver was “not sufficiently particular and without ambiguity” to relieve appellants of liability for their own acts of negligence. Feleccia, 156 A.3d at 1212-13, quoting Chepkevich, 2 A.3d at 1189 (exculpatory [**14]  clause is unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”).

The panel also held the trial court erred in failing to address appellees’ allegations underlying their claim for punitive damages, and whether the Waiver applied to preclude liability based on those allegations. Id. at 1213. The panel recognized this Court’s jurisprudence holding exculpatory clauses are not enforceable to preclude liability for reckless conduct. Id. at 1214, citing Tayar v. Camelback Ski Corp., 47 A.3d 1190, 616 Pa. 385 (Pa. 2012).

Finally, the panel’s “most important” reason for reversing the trial court’s grant of summary judgment was that, after reviewing the record in the light most favorable to appellees as the non-moving parties, there were genuine issues of material fact as to “whether the College’s failure to have qualified medical personnel at the March 29, 2010 practice constitute[d] gross negligence or recklessness,” and whether that failure caused appellees’ injuries or increased their risk of harm. Id. at 1214, 1219. The panel’s determination in this regard was based on its view that Lackawanna had a “duty of care to its intercollegiate student athletes . . . to have qualified medical personnel available at the [**15]  football tryout on March 29, 2010, and to provide adequate treatment in the event that an intercollegiate student athlete suffered a medical emergency.” Id. at 1215. The panel relied in part on Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Circ. 1993), where the Third Circuit predicted this Court “would hold that a special relationship existed between the [c]ollege and [student-athlete] that was sufficient to impose a duty of reasonable care on the [c]ollege.” Id. at 1367. The panel further held it was for a jury to decide whether appellees signed the Waiver “unaware that [Lackawanna’s] athletic department did not include qualified athletic trainers.” Feleccia, 156 A.3d at 1219. Accordingly, the panel remanded the matter for trial.

Upon petition by appellants we granted allowance of appeal to address following issues:

a. Is a Pennsylvania college required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the college’s student-athletes?

b. Is an exculpatory clause releasing “any and all liability” signed in connection with participation in intercollegiate football enforceable as to negligence?

Feleccia v. Lackawanna College, 644 Pa. 186, 175 A.3d 221 (Pa. 2017) (per curiam).

HN1[] This matter presents pure questions of law, over which our standard of review is de novo and our scope of review is plenary. See [**16]  In re Vencil, 638 Pa. 1, 11-12, 152 A.3d 235 (Pa. 2017). “[A]n appellate court may reverse the entry of summary judgment only where it finds that the trial  [*11]  court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to [a] judgment as a matter of law.” Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1004 (Pa. 2003), citing Pappas v. Asbel, 564 Pa. 407, 768 A.2d 1089 (Pa. 2001). We consider the parties’ arguments with these standards in mind.

II.

A. Is a Pennsylvania college required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the college’s student-athletes?

Appellants argue the Superior Court created a brand new common law duty of care requiring colleges to have qualified medical personnel available to render treatment at every practice and every game. Appellants aver the Superior Court did so without attempting to analyze the factors set forth in Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (Pa. 2000) (before recognizing new duty of care courts must analyze the relationship between the parties; the social utility of the actor’s conduct; the nature of the risk imposed and foreseeability of the harm incurred; the consequences of imposing a duty upon the actor; and the overall public interest in the proposed solution). Appellants’ Brief at 18-20, citing Feleccia, 156 A.3d at 1215. Appellants [**17]  assert that, in creating this new duty of care, the Superior Court relied only on a decades-old, non-binding federal decision. Id., citing Kleinknecht, 989 F.2d at 1371. Appellants argue that, had the Superior Court applied the Althaus factors instead, it would not have created such a duty. Appellants’ Brief at 20-22. Appellants argue a proper analysis of these factors either weighs against the creation of a new duty or is neutral. Accordingly, appellants request we reverse the Superior Court’s decision to the extent it created a new duty.5

Appellees respond that the panel did not create a new, onerous duty, and that appellants actually failed to comply with existing common law and statutory duties to have qualified medical personnel available at intercollegiate athletic events. Appellees refer to MPA provisions that set forth the qualifications for an “athletic trainer” and the manner in which they must perform their duties. Specifically, appellees note the regulations implementing the MPA establish restrictions and protocols for licensed athletic trainers, and they also prohibit the use of the title “athletic trainer” by any person without a Board-issued license. [**18]  See Appellees’ Brief at 29-30, quoting 63 P.S. §422.51a (“An athletic trainer who meets the requirements of this section shall be licensed, may use the title ‘athletic trainer’ . . . and may perform athletic training services. A person who is not licensed under this section may not use the designation of licensed athletic trainer, athletic trainer or any of the listed abbreviations for that title, including ‘L.A.T.’ or ‘A.T.L.,’ or any similar designation.”). Appellees thus argue the Superior Court’s holding recognizes appellants have a duty to provide athletic trainers at practices,  [*12]  who, by statute, should be qualified medical personnel. Appellees’ Brief at 31.

Appellees also submit appellants’ claim the Superior Court ignored the Althaus factors is disingenuous. Appellees note the panel explicitly relied on Kleinknecht and, although the federal decision predated Althaus, the Third Circuit considered the same factors ultimately set forth in Althaus. Appellees’ Brief at 39-40, citing Feleccia, 156 A.3d at 1215 (Kleinknecht court recognized: special relationship between college and student-athlete requiring college to act with reasonable care towards athletes; risk of severe injuries during athletic activities was foreseeable; [**19]  and college acted unreasonably in failing to protect against risk). In any event, appellees reiterate, the Superior Court did not create a new common law duty, but rather recognized the “duty of care is necessarily rooted in often amorphous public policy considerations[.]” Appellees’ Brief at 38, quoting Althaus, 756 A.2d at 1169.

Finally, appellees observe appellants themselves undertook the duty to protect their student-athletes by customarily hiring licensed athletic trainers prior to 2009, and holding out Coyne and Bonisese as “athletic trainers” in the documentation regarding their employment, including executed job descriptions, where Coyne and Bonisese acknowledged they were required to have passed the national certification exam, which is a pre-requisite to use of the title “athletic trainer.” See Appellees’ Brief at 41-43, quoting Rstmt (2d) of Torts, §323 (“One who undertakes . . . to render services to another . . . is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking[.]”). Appellees argue the evidence presented was sufficient to raise factual jury questions regarding whether appellants breached this duty and whether [**20]  that breach led to appellees’ injuries.6

Having considered the parties’ arguments and the opinion below, we acknowledge the Superior Court articulated a duty not previously recognized by Pennsylvania Courts: a college has a “duty of care to its intercollegiate student athletes requir[ing] it to have qualified medical personnel available at [athletic events, including] the football tryout, . . . and to provide adequate treatment in the event that an intercollegiate student athlete suffer[s] a medical emergency.” Feleccia, 156 A.3d at 1215, citing Kleinknecht, 989 F.2d at 1369-70. We further recognize the Superior Court did not analyze the Althaus factors, as  [*13]  required when imposing a previously unarticulated common law duty. Althaus, 756 A.2d at 1169. Instead, the panel relied on non-binding federal case law to impose what it viewed as a new common law duty. In this specific regard, the panel erred.

HN2[] Courts should not enter into the creation of new common law duties lightly because “the adjudicatory process does not translate readily into the field of broad-scale policymaking.” Lance v. Wyeth, 624 Pa. 231, 85 A.3d 434, 454 (Pa. 2014), citing Seebold, 57 A.3d at 1245; see also Official Comm. of Unsecured Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers, LLP, 605 Pa. 269, 989 A.2d 313, 333 (Pa. 2010) (“Unlike the legislative process, the adjudicatory process is structured to cast a narrow focus on matters framed by litigants before the Court in [**21]  a highly directed fashion”). We also acknowledge it “is the Legislature’s chief function to set public policy and the courts’ role to enforce that policy, subject to constitutional limitations.” Seebold, 57 A.3d at 1245 & n.19 (additional citations omitted). “[T]he Court has previously adopted the default position that, unless the justifications for and consequences of judicial policymaking are reasonably clear with the balance of factors favorably predominating, we will not impose new affirmative duties.” Id. at 1245 (citations omitted).

Applying the Althaus factors is not a mere formality, but is necessary when courts announce a new common law duty. Althaus requires consideration of the justifications for and the relevant consequences and policy concerns of the new duty of care. See Althaus, 756 A.2d at 1169 (setting forth factors for determination of new common law duty). Further, “determining whether to impose a duty often requires us to weigh ‘amorphous public policy considerations, which may include our perception of history, morals, justice and society.'” Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 223 (Pa. 2018), quoting Althaus, 756 A.2d at 1169 (additional citations omitted). The Superior Court did not engage these factors, nor did the summary judgment record include relevant data regarding, for example, injury rates [**22]  at practices, the consequences of having (or not having) available qualified medical professionals, the budgetary or other collegiate resource impact, or the relative public policy concerns involved.7

Importantly, however, an Althaus analysis was not necessary here because our review reveals the present circumstances involve application of existing statutory  [*14]  and common law duties of care. See, e.g., Dittman v. UPMC, 196 A.3d 1036, 1038 (Pa. 2018) (analysis of Althaus factors not required where case is one involving “application of an existing duty to a novel factual scenario”). In Dittman, for example, we recognized the legal duty of an employer (UPMC) “to exercise reasonable care to safeguard its employees’ sensitive personal information stored by the employer on an internet-accessible computer system.” Id. at 1038. We did so because UPMC had required its employees to provide sensitive personal information, and then collected and stored that information on its computer system without implementing adequate security measures, such as encryption, firewalls, or authentication protocols. Id. at 1047. We reasoned that this “affirmative conduct” by UPMC created the risk of a data breach, which in [**23]  fact occurred. Id. We further determined that, in collecting and storing its employees’ data on its computers, UPMC owed those employees a duty to “exercise reasonable care to protect them against an unreasonable risk of harm arising out of that act.” Id. Dittman may have been our first opportunity to recognize this duty in the context of computer systems security, but there is longstanding jurisprudence holding that “[i]n scenarios involving an actor’s affirmative conduct, he is generally ‘under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.'” Id. at 1046, quoting Seebold, 57 A.3d at 1246. This existing duty “appropriately undergirds the vast expanse of tort claims in which a defendant’s affirmative, risk-causing conduct is in issue.” Id. at 1047, quoting Seebold, 57 A.3d at 1246, see also Dittman, 796 A.3d at 1056-57 (Saylor, CJ, concurring and dissenting) (requirement to provide confidential information as condition of employment created “special relationship” between employer and employees giving rise to duty of reasonable care to protect information against foreseeable harm).

Additionally, HN3[] we have adopted as an accurate statement of Pennsylvania law the Restatement (Second) of Torts §323 (1965). Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674, 677-78 (Pa. 1980) (“Section 323(a) of the Restatement of Torts has been part [**24]  of the law of Pennsylvania for many years.”). Section 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement. (Second) of Torts, §323 (1965). See also Feld v Merriam, 506 Pa. 383, 485 A.2d 742, 746 (Pa. 1984) (landlord that undertook duty to provide secured parking for tenants may be liable for damages arising from failure to exercise reasonable care in doing so).

In Feld, the plaintiffs were injured during a carjacking that began inside the garage of their apartment building. They filed a negligence lawsuit against their landlord, who had charged tenants additional rental fees to provide a gate and security guard for its parking garages. In discussing the viability of the plaintiffs’ negligence action, the Feld Court first noted landlords do not generally owe a duty as insurer to protect the safety of their tenants. However, the Court noted such a duty might [**25]  arise if the landlord undertook  [*15]  to provide secured parking and failed to exercise reasonable care in doing so, and the tenants, who had relied on those services, were injured as a result. Id. at 746, citing Restatement (Second) of Torts, §323 (1965) (identifying discrete duty where a “landlord [who] by agreement or voluntarily offers a program to protect the premises, . . . must perform the task in a reasonable manner and where a harm follows a reasonable expectation of that harm, he is liable.”).

Application of these legal principles to the present factual scenario supports a determination that “affirmative conduct” by appellants created a “special relationship” with and increased risk of harm to its student athletes such that appellants had a duty to “exercise reasonable care to protect them against an unreasonable risk of harm arising” from that affirmative conduct. Dittman, supra. In addition, the record supports a finding appellants undertook a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events, including the football practice on March 29, 2010,8 although it remains to be determined whether the steps actually taken by appellants satisfied that duty. [**26]  See Wilson v. PECO Energy Co., 2012 PA Super 279, 61 A.3d 229, 233 (Pa. Super. 2012) (sufficient facts alleged to overcome summary judgment and reach jury on question of scope of duty undertaken and its breach).

Specifically, when we consider the record in the light most favorable to appellees as the non-moving parties, we observe the following: before hiring Coyne and Bonisese, Lackawanna customarily employed athletic trainers, who were licensed as required by applicable statutes and regulations; Lackawanna required its student athletes including appellees to execute the Consent to treatment by “athletic trainer, team physician or hospital staff” in the event of an emergency during participation in the football program; Lackawanna held out Coyne and Bonisese as athletic trainers to appellees and their teammates, despite its knowledge they lacked the statutorily required licenses; Lackawanna demonstrated its awareness that Coyne and Bonisese did not have the qualifications of athletic trainers by renaming them “first responders,” but did not alter their job descriptions, which encompassed the duties of “athletic trainers”; Coyne and Bonisese were the only individuals present at the March 29, 2010 football tryout to provide treatment [**27]  to injured student athletes; the coaching staff propagated the misrepresentation of Coyne and Bonisese as athletic trainers; and Coyne and Bonisese  [*16]  performed the role of athletic trainers by attending appellees when they were injured, and directing appellee Feleccia to return to practice when he was “feeling better.”

Under these circumstances, appellants clearly created an expectation on which the student athletes might reasonably rely — i.e. in the case of injury during an athletic event, they receive treatment from a certified athletic trainer, as clearly outlined in the Consent they were required to sign. We thus easily conclude appellants undertook a duty to provide treatment by a certified athletic trainer at the March 29, 2010 practice. We further conclude the record, taken in the light most favorable to appellees, demonstrates the existence of a genuine issue of material fact sufficient to overcome summary judgment regarding whether appellants breached this duty and caused appellees’ injuries. Thus, we hold the trial court erred in entering summary judgment in favor of appellants.

B. Is the Waiver enforceable as to the negligence claims?

Notwithstanding the existence of a duty [**28]  on the part of appellants, and factual allegations of a breach of that duty which would support a negligence claim, we must now consider whether the Waiver completely precludes any liability on such a claim, or on appellees’ additional claims of gross negligence and recklessness. Appellants observe that by signing the Waiver appellees released “any and all liability, claims, demands, actions and causes of action whatsoever arising out of or related to any loss, damage, or injury, including death, that may be sustained” while playing football at Lackawanna. Appellants’ Brief at 38. Appellants submit Topp Copy Prods. v. Singletary, 626 A.2d 98, 100, 533 Pa. 468 (Pa. 1993) held a Waiver of “any and all” liability was sufficiently clear to bar claims of all negligence, and the Superior Court erred in holding the Waiver is unenforceable because “it does not indicate that Lackawanna was being relieved of liability for its own acts of negligence.” Appellants’ Brief at 39, quoting Topp Copy, 626 A.2d at 100 (“[T]he word ‘all’ needs no definition; it includes everything and excludes nothing. There is no more comprehensive word in the language, and as used here it is obviously broad enough to cover liability for negligence.”) (additional citations omitted). Appellants emphasize “Pennsylvania [**29]  courts have consistently held that exculpatory clauses may bar suits based on negligence even where the language of the clause does not specifically mention negligence at all.” Appellants’ Brief at 43, quoting Chepkevich, 2 A.3d at 1193 (emphasis added).

Appellees submit the only issue preserved by appellants with respect to the validity of the Waiver is whether it is enforceable as to negligence, and that in this regard, the Superior Court correctly determined the Waiver is not sufficiently explicit regarding appellants’ own negligence to be enforceable. Appellees further assert the law is clear the Waiver is not enforceable to protect appellants from liability arising from gross negligence or recklessness, and the Superior Court properly remanded for further proceedings to determine whether appellants’ conduct constituted gross negligence or recklessness. Appellees’ Brief at 45-46, citing Tayar, supra, and Chepkevich, supra.

At the outset, we note appellants concede, as they must, that appellees’ claims of liability arising from recklessness are not precluded by the Waiver. See, e.g. Tayar, 47 A.3d at 1203 (finding public policy prohibits pre-injury waivers from releasing reckless behavior). The issue before us is thus narrowed to whether the Waiver, which purports [**30]  to release “any  [*17]  and all liability,” precludes liability on appellees’ claims of negligence and, relatedly, gross negligence.9 We bear in mind that exculpatory contracts are generally disfavored, and subject to close scrutiny. See Employers Liability Assur. Corp. v. Greenville Bus. Men’s Ass’n, 423 Pa. 288, 224 A.2d 620, 623 (Pa. 1966) (“contracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law”); see also Tayar, 47 A.3d at 1199. Accordingly, exculpatory contracts are valid and enforceable only when “certain criteria are met.” Tayar, 47 A.3d at 1200 & n.8, citing Chepkevich and Topp Copy. Our case law provides “guiding standards” for assessing the enforceability of exculpatory contracts. See, e.g., Topp Copy, 626 A.2d at 99 (1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause).

i. Ordinary Negligence

The Superior Court considered the Waiver to be unenforceable as to appellees’ claims of negligence because its “language does not indicate that Lackawanna was being relieved of liability for its own acts of negligence.” Feleccia, 156 A.3d at 1213. The court further found fault with the Waiver because it did not specifically include the word “negligence.” Id. at 1212-13. Although our cases have directed that exculpatory clauses must clearly provide “a person is being relieved of liability for his own acts of negligence[,]” we have not prescribed specific language. Chepkevich, 2 A.3d at 1189, quoting Topp Copy, 626 A.2d at 99. In this case, the Waiver purported to protect appellants from “any and all liability” arising out of “any injury” sustained by student athletes while playing football at Lackawanna. We have determined such language is sufficient to express the parties’ intention to bar ordinary negligence claims. See Topp Copy, 626 A.2d at 99, 101 (lease agreement releasing lessor from ‘”any and all liability” clearly and unambiguously covered negligence claims’); see also Cannon v. Bresch, 307 Pa. 31, 160 A. 595, 596 (Pa. 1932) (lease releasing landlord from “all liability” was sufficient to cover liability for negligence).

 [*18]  The Superior Court, in reaching the opposite result, failed to acknowledge the trial court did not find [**32]  the mere existence of the Waiver automatically extinguished all potential claims of liability. Rather, the trial court applied the Topp Copy guiding standards to determine “whether the [exculpatory] clause ‘spells out the intention of the parties with particularity and shows the intent to release [appellants] from liability by express stipulation.'” Trial Court op. at 19, quoting McDonald v. Whitewater Challengers, Inc., 2015 PA Super 104, 116 A.3d 99, 121 (Pa. Super. 2015), quoting Chepkevich, 2 A.3d at 1191. The trial court examined the facts of record, including the parties’ intentions related to the execution of the Waiver as well as whether the risks undertaken by appellees and injuries suffered were encompassed within its terms. Trial Court op. at 18-22. The trial court determined it could not “say that the risks associated with Lackawanna’s Oklahoma Drill are so far beyond those risks ordinarily inherent to the sport of football and addressed in the Waiver as ‘risks and hazards’ typical of the sport that we must, as a matter of law, invalidate the Waiver.” Id. at 21-22. The trial court thus found the Waiver was enforceable and entered summary judgment in favor of appellants. We conclude that the Superior Court’s reversal of this holding with respect to appellees’ claims of ordinary negligence was error.10  [**33] See, e.g., Chepkevich, 2 A.3d at 1194-95 (release enforceable to preclude liability for general claims of negligence); see also, Topp Copy, 626 A.2d at 101 (release of “any and all” liability sufficient to preclude liability resulting from landlord’s negligence); see also Cannon, 160 A. at 597 (“The covenant in this lease against liability for acts of negligence does not contravene any policy of the law.”).

ii. Gross Negligence

As we have seen, appellees’ claims of ordinary negligence are barred by the Waiver, their claims of recklessness are not, and the allegations of recklessness will be tested at trial on remand. We have yet to rule on whether appellees may also proceed to trial on their allegations of gross negligence, or whether such claims are precluded by the Waiver. See Tayar, 47 A.3d at 1199 n.7 (“[A]s gross negligence is not implicated in the instant matter, we leave for another day the question of whether a release for gross negligence can withstand a public policy challenge.”).

Appellants consider gross negligence to be more closely aligned with negligence than recklessness, describing it as a form of negligence where there is a more significant departure from the standard of care, but without the “conscious action or inaction” that characterizes recklessness. [**34]  See Appellants’ Brief at 52. Appellants view gross negligence as a type of negligence that is covered by the Waiver and precludes appellees’ action for damages. Id. at 53-54.

Appellees respond that gross negligence is “more egregiously deviant conduct than ordinary carelessness, inadvertence, laxity, or indifference. . . . The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.”  [*19]  Appellees’ Brief at 50, quoting Bloom v. Dubois Reg’l Med. Ctr., 597 A.2d 671, 679, 409 Pa. Super. 83 (Pa. Super. 1991); accord Albright v. Abington Mem’l Hosp., 548 Pa. 268, 696 A.2d 1159, 1164 (Pa. 1997) (“We believe that this definition is a clear, reasonable, and workable definition of gross negligence[.]”). Here, appellees assert, there were sufficient facts presented for the jury to conclude appellants’ conduct was grossly negligent, and public policy compels the conclusion such conduct should not be immunized by the Waiver. Appellees’ Brief at 52-53.

HN4[] A determination that a contract is unenforceable because it contravenes public policy “requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards.” See Tayar, 47 A.3d at 1199, citing Williams v. GEICO Gov’t Employees Ins. Co., 613 Pa. 113, 32 A.3d 1195, 1200 (Pa. 2011). “It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion [**35]  in regard to it, that a court may constitute itself the voice of the community in so declaring. . . .” Id., quoting Williams, 32 A.3d at 1200. Our law is clear that pre-injury exculpatory contracts purporting to protect a party from liability arising from recklessness are unenforceable on this public policy basis.

Although we have equated “gross negligence” with “recklessness” in the criminal law context, we have not expressly applied that equation in the civil context. See Com. v. Huggins, 575 Pa. 395, 836 A.2d 862, 867 (Pa. 2003) (gross negligence equates with recklessness for purpose of establishing mens rea for manslaughter). In the civil context, there is some difficulty in ascertaining the term’s precise meaning. See In re Scheidmantel, 2005 PA Super 6, 868 A.2d 464, 484-85 (Pa. Super. 2005) (recognizing “gross negligence” is frequently invoked but is not well defined in the civil context and “Pennsylvania Courts have struggled to provide a workable definition for ‘gross negligence’ when faced with the need to apply the concept.”). In Albright, 696 A.2d at 1164, we defined gross negligence in the context of the Mental Health Procedures Act11 as a “form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard [**36]  of care.” Id. at 1164, quoting Bloom, 597 A.2d at 679.

HN5[] Thus, although we have not previously settled on a definitive meaning of the term “gross negligence” as compared to “ordinary negligence” in the civil context, we have recognized there is a difference between the two concepts, and they are distinguished by the degree of deviation from the standard of care. See, e.g., Albright, supra; Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695, 703 (Pa. Super. 2000), appeal denied, 567 Pa. 715, 785 A.2d 90 (Pa. 2001). See also Pa. Suggested Standard Civil Jury Instructions 13.50 (“Gross negligence is significantly worse than ordinary negligence” requiring proof actor “significantly departed from how a reasonably careful person would act under the circumstances”). To the extent our courts have used the term, the “general consensus finds gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” Id. Other Pennsylvania sources have observed:

 [*20]  In essence, gross negligence is merely negligence with a vituperative epithet. It constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts. It may also be deemed to be a lack of slight diligence or care [**37]  comprising a conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party. The term has also been found to mean a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.

2 Summ. Pa. Jur. 2d Torts §20:5 (internal citations omitted).

HN6[] Gross negligence has thus been consistently recognized as involving something more than ordinary negligence, and is generally described as “want of even scant care” and an “extreme departure” from ordinary care. Royal Indem. Co. v. Sec. Guards, Inc., 255 F.Supp.2d 497, 505 (E.D. Pa. 2003), quoting Williams v. State Civil Serv. Comm’n, 9 Pa. Commw. 437, 306 A.2d 419, 422 (Pa. Cmwlth. 1973), aff’d 457 Pa. 470, 327 A.2d 70 (Pa. 1974); see also Scheidmantel, 868 A.2d at 485 (gross negligence is “a lack of slight diligence or care comprising a conscious, voluntary act or omission in ‘reckless disregard’ of a legal duty and the consequences to another party”). See also Black’s Law Dictionary 1057 (7th ed. 1999) (gross negligence is a “lack of slight diligence or care” and a “conscious, voluntary act or omission in reckless disregard of a legal duty and the consequences to another party”). With these principles in mind, we now proceed to consider whether a pre-injury exculpatory [**38]  waiver is valid to preclude claims of gross negligence.12

In Tayar, we held an exculpatory clause was not valid to preclude liability arising from reckless conduct because allowing such waivers would permit parties to “escape liability for consciously disregarding substantial risks of harm to others[.]” Tayar, 47 A.3d at 1203. We recognized such pre-injury releases are unenforceable in circumstances where they “would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.” Id.

As we have seen, HN7[] gross negligence does not rise to the level of the intentional indifference or “conscious disregard” of risks that defines recklessness, but it is defined as an “extreme departure” from the standard of care, beyond that required to establish ordinary negligence, and is the failure to exercise even “scant care.” Royal Indem. Co., 255 F.Supp.2d at 505. See also 2 Dan B. Dobbs, The Law of  [*21]  Torts § 140 (gross negligence is “a high, though unspecified degree of negligence, or as courts sometimes say, the failure to use even slight care.”) Thus, gross negligence involves more than a simple breach of the standard of care (which would establish ordinary negligence), and instead [**39]  describes a “flagrant” or “gross deviation” from that standard. Bloom, 597 A.2d at 679 (gross negligence involves behavior that is “flagrant, grossly deviating from the ordinary standard of care”). As such, the same policy concerns that prohibit the application of a waiver in cases of recklessness — i.e., allowing it would incentivize conduct that jeopardizes the signer’s health, safety and welfare to an unacceptable degree requires a similar holding with regard to gross negligence.13 Accordingly, we hold the Waiver is not enforceable to preclude liability arising from appellees’ claims of gross negligence, and the allegations supporting such claims should be tested at trial on remand.

III. Conclusion

For all the foregoing reasons, we hold appellants had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events, including the football practice of March 29, 2010, and there is a genuine issue of material fact regarding whether appellants breached this duty. Moreover, although the Waiver bars recovery for appellees’ damages arising from ordinary negligence, we hold the Waiver does not bar recovery for damages arising [**40]  from gross negligence or recklessness, and there remain factual questions regarding whether appellants’ conduct constituted gross negligence or recklessness. Accordingly, we affirm the Superior Court’s order only to the extent it vacated the trial court’s entry of summary judgment on these claims specifically, and we remand this matter to the trial court for further proceedings consistent with this opinion.

Jurisdiction relinquished.

Justices Baer, Todd, Donohue and Mundy join the opinion.

Chief Justice Saylor and Justice Wecht file concurring and dissenting opinions.

Concur by: SAYLOR; WECHT

Dissent by: SAYLOR; WECHT

Dissent

CONCURRING AND DISSENTING OPINION

CHIEF JUSTICE SAYLOR

I join the majority opinion to the extent it reverses the Superior Court’s creation of a generalized duty of care owed by Pennsylvania colleges to student athletes to have medical personnel available at all football practices. See Majority Opinion, slip op. at 14. I respectfully differ, however, with the majority’s follow-on holding that, under an assumption-of-duty theory as reflected in Section 323 of the Second Restatement of Torts, Lackawanna College definitively owed a duty of care to Plaintiffs on the date in question.

As a general matter, whether a defendant owed a duty of care to another person at [**41]  the relevant time is a legal issue to be decided on the underlying facts. See, e.g., Dittman v. UPMC,     Pa.    ,    , 196 A.3d 1036, 1046 (2018); accord Kukis v.  [*22]  Newman, 123 S.W.3d 636, 639 (Tex. Ct. App. 2003) (“The existence of a duty is a question of law for the court to decide based on the specific facts of the case.”). Because the complaint was dismissed on a defense motion for summary judgment, the majority appropriately “consider[s] the record in the light most favorable to [Plaintiffs] as the non-moving parties[.]” Majority Opinion, slip op. at 19. In doing so the majority recites certain facts which remain in dispute. This alone is not problematic given that, again, the record is being viewed favorably to Plaintiffs. The difficulty arises when the majority holds, in definitive terms, that a duty existed in light of such circumstances.

For example, the majority states, “Lackawanna held out Coyne and Bonisese as athletic trainers to [Plaintiffs] and their teammates,” and that these same two individuals “performed the role of athletic trainers by attending [Plaintiffs] when they were injured[.]” Id. Notably, Appellees expressly denied that Coyne and Bonisese held themselves out as athletic trainers or Lackawanna College held them out as such. See Defendants’ Answer and New Matter at ¶¶40, 42, 43, 44 (averring [**42]  that, at all relevant times, Coyne and Bonisese were held out by themselves and the college as first responders). Thus, I would frame the holding in more abstract terms and allow the common pleas court to determine, after resolution of any necessary factual disputes, whether Appellees’ affirmative conduct created a duty under the circumstances — and if so, the scope that duty.1

In terms of the second question accepted for review — whether the exculpatory clause is valid as to negligence — I also respectfully differ with the majority’s conclusion that the clause is unenforceable as contrary to public policy relative to a claim based on gross negligence.2

It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in  [*23]  regard to it, that a court may constitute itself the voice of the community in so declaring. There must be a positive, well-defined, universal public sentiment, deeply integrated in the customs and beliefs of the people and in their conviction of what is just and right and in the interests of the public weal.

Shick v. Shirey, 552 Pa. 590, 600, 716 A.2d 1231, 1235-36 (1998) (quoting Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941)); see also Tayar v. Camelback Ski Corp., 616 Pa. 385, 399, 47 A.3d 1190, 1199 (2012) (recognizing that “avoidance of contract [**43]  terms on public policy grounds requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards”). Tayar cited Williams v. GEICO Government Employees Insurance Co., 613 Pa. 113, 32 A.3d 1195 (2011), for this position, and continued as follows:

Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action.

Tayar, 616 Pa. at 399-400, 47 A.3d at 1199 (quoting Williams, 613 Pa. at 120-21, 32 A.3d at 1200) (alterations made by Tayar).

In this vein, it seems to me that, to invalidate the waiver relative to gross negligence claims as contrary to public policy, the concept of gross negligence would, at a minimum, have to be well understood and defined. [**44]  Apart from a clear notion of what constitutes gross negligence as distinguished from ordinary negligence, it seems difficult to contend that laws, legal precedents, long governmental practice, or other recognized indicators of longstanding, dominant public policy are so firmly entrenched in this Commonwealth against such waivers as to permit this Court to declare, as the majority presently does, that they are judicially prohibited.

Yet, as the majority explains, it is difficult even to ascertain the precise meaning of gross negligence, as that term represents an “amorphous concept,” that is, at its essence, “merely negligence with a vituperative epithet.” The majority proceeds to describe gross negligence as “appear[ing] to lie somewhere between” negligence and recklessness. Majority Opinion, slip op. at 21 n.9, 27.

This type of uncertainty in discerning just what gross negligence consists of, in my view (and for reasons more fully explained below) undermines the concept that liability waivers should be deemed unenforceable as against claims of gross negligence although they can be valid and enforceable in relation to claims of ordinary negligence.

In terms of the competing interests involved, it should go [**45]  without saying that athletic and other recreational pursuits by Pennsylvania residents are in the public interest and should be encouraged. See, e.g., Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 30, 2 A.3d 1174, 1191 (2010) (reviewing cases). On the other hand, it is plainly contrary to public policy to enforce releases which would allow individuals intentionally to harm others with impunity. Accord Tayar, 616 Pa. at 401, 47 A.3d at 1200. In Tayar, this Court extended that understanding to harm stemming  [*24]  from recklessness, that is, conduct in which the actor knowingly disregards an unreasonable risk of harm. Tayar reasoned that the conscious act of ignoring such a risk “aligns . . . closely with intentional conduct.” Id. at 403, 47 A.3d at 1201. Still, this Court should not overlook the competing policy grounds underlying the enforceability of liability waivers relative to inherently risky athletic activities.

Generally speaking, an exculpatory clause is a renunciation of a right and, as such, it constitutes a means of allocating risk as between contracting parties. See generally Anita Cava & Don Wiesner, Rationalizing a Decade of Judicial Responses to Exculpatory Clauses, 28 Santa Clara L. Rev. 611, 648 (1988). Because incurring risks is costly, shifting risks from the organizer of the athletic endeavor (the “supplier”) to the participant (the “consumer”) allows the supplier to lower the price of the activity, [**46]  particularly where there is market competition and/or where, as here, the provider is a non-profit organization. Cf. Carnival Cruise Lines v. Shute, 499 U.S. 585, 594, 111 S. Ct. 1522, 1527, 113 L. Ed. 2d 622 (1991) (applying similar reasoning to a contractual forum-selection clause). See generally Brief for Amicus Ass’n of Indep. Colls. & Univs. of Pa. at 12-14 (detailing that complying with the generalized duty imposed by the Superior Court would be likely to impose significant costs on the Association’s member institutions). A lower price, in turn, serves the public interest because, on the margin at least, recreational opportunities become available to lower-income residents who would otherwise be excluded from such events.

It may be assumed that another factor favoring enforcement is the recognition that, subject to limiting principles, parties are generally at liberty to enter into contracts of their choosing. See Cent. Dauphin Sch. Dist. v. American Cas. Co., 493 Pa. 254, 258, 426 A.2d 94, 96 (1981). This is reflected in the test for enforceability, one element of which asks whether each party is a “free bargaining agent.” Tayar, 616 Pa. at 399, 47 A.3d at 1199 (citing Emp’rs Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966)).

Conversely, enforcing waivers of liability based on any kind of fault — including ordinary negligence — diminishes incentives for the supplier to manage risks which it is in a better position than the consumer to control.

None of the above is to suggest that negligent or grossly negligent [**47]  conduct is in any sense socially beneficial. Rather, it is offered solely for the purpose of illustrating that multiple competing interests are at stake when a litigant requests that we judicially invalidate an otherwise binding contractual provision on public policy grounds. Presumably, this Court’s line of decisions enforcing waivers as to ordinary negligence reflects a balancing of these considerations.

Certainly, and as noted, a weighing of such policies favors unenforceability where intentional or reckless conduct is concerned. In such instances, not only are there obvious reasons based on enduring societal mores which support such a result, but — and perhaps less obvious — any competing interest in cost reduction is not unduly compromised. This is because, absent some proof of intentional conduct or conscious disregard, the common pleas court can, in a given case, be expected to act as a gatekeeper so that the supplier need not incur the cost of litigating the case to the conclusion of a jury trial and, perhaps, post-trial motions.

The same cannot be said for gross negligence precisely because of its “amorphous” nature. After today it will be difficult for common pleas courts to [**48]  decide — when the  [*25]  defendant is in possession of a validly-executed waiver covering the activity in question — whether the complaint should be dismissed on the grounds that it only alleges ordinary negligence and not gross negligence. As a consequence, litigants can be expected to argue, with regard to any supportable allegation of negligence, that they are entitled to have a jury decide whether the defendant’s negligence was, in fact, “gross.” Absent thorough and detailed appellate guidance as to the types of facts that must be pled to allege gross negligence, such an argument is likely to prevail in many if not most cases.

In all events, the type of policy making this Court presently undertakes is best suited to the General Assembly. We have observed on multiple occasions that the legislative branch is the appropriate forum for the balancing of social policy considerations and interests and the making of social policy judgments, and that it has the tools to perform these tasks — tools which the courts lack. See, e.g., Seebold v. Prison Health Servs., Inc., 618 Pa. 632, 653, 57 A.3d 1232, 1245 & n.19 (2012).

Accordingly, I respectfully dissent from the holding reached in Part II(b) of the majority opinion. I note, however, that I do not foreclose reconsidering my [**49]  position if, in the future, the concept of gross negligence in Pennsylvania is made subject to a more precise definition which allows for some measure of consistency and predictability in litigation.

CONCURRING AND DISSENTING OPINION

JUSTICE WECHT

I. Introduction

Like the Majority, I believe that Lackawanna College had a duty to ensure that certified athletic trainers were available to treat student-athletes injured during the March 29, 2010 football tryouts. Considering the record in the light most favorable to Feleccia and Resch, as we must, it is clear that Lackawanna College assumed this duty through its own actions and representations.1 As a general matter, I agree as well with the Majority’s analysis regarding the enforceability of the liability waiver that Feleccia and Resch signed. Specifically, I join in the conclusion that the waiver was enforceable as to ordinary negligence, and not enforceable as to gross negligence.2

 [*26]  I write separately because, while the Majority limits Lackawanna College’s duty to the obligation it undertook through its own actions and representations, see Maj. Op. at 18-19, principles of Pennsylvania tort law require us to go further. Based upon [**50]  the factors that this Court articulated in Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166 (Pa. 2000), as well as the persuasive opinion of the United States Court of Appeals for the Third Circuit in Kleinknecht v. Gettysburg Coll., 989 F.2d 1360 (3d Cir. 1993), colleges owe a duty to their student-athletes to ensure that qualified medical personnel3 are available to render needed assistance during school-sponsored and supervised intercollegiate contact sport activities.

II. Legal Backdrop

A. Kleinknecht

While this Court previously has rejected the doctrine of in loco parentis as a basis for finding that colleges owe a duty of care to their students,4 we have not addressed whether colleges owe any duty to their student-athletes. In a case with similar facts, the Third Circuit predicted that this Court would indeed conclude that a college’s relationship with its student-athletes created a duty of care to these athletes during their participation in intercollegiate contact sports. Kleinknecht, 989 F.2d at 1367-69. In Kleinknecht, a college lacrosse player suffered cardiac arrest during practice and ultimately died. No medical personnel were present at the practice, and the coaches lacked any immediate means to contact emergency services.

Distinguishing prior cases in which courts held that colleges owed no duty to their students, [**51]  the Kleinknecht court explained that, unlike in those cases, the lacrosse player was not acting as a private student engaged in his own affairs when he collapsed.5 Instead, the student was  [*27]  participating in a scheduled practice for an intercollegiate, school-sponsored team under the supervision of coaches employed by the college. The court also found the college’s recruitment of the lacrosse player significant, noting that it could not “help but think that the College recruited [the athlete] for its own benefit, probably thinking that his [athletic skill] would bring favorable attention and so aid the College in attracting other students.” Id. at 1368.

Additionally observing that the imposition of a duty is justified when the foreseeable risk of harm is unreasonable, the Kleinknecht court considered the foreseeability and magnitude of the risk at the lacrosse practice. The court found that it is “clearly foreseeable that a person participating [in an intercollegiate contact sport] will sustain serious injury requiring immediate medical attention.” Id. at 1371. The court also opined that the “magnitude of foreseeable harm—irreparable injury or death to [a student-athlete] as a result of inadequate [**52]  preventative emergency measures—is indisputable.” Id. at 1370. Accordingly, in light of the relationship between a college and its student-athletes and the foreseeability of grave injury during athletes’ participation in contact sports, the court opined that the college owed a duty “to provide prompt and adequate emergency medical services” to its intercollegiate athletes when they are “engaged in a school-sponsored athletic activity for which [they] ha[ve] been recruited.” Id. at 1371.

B. Althaus

Seven years after the Third Circuit decided Kleinknecht, this Court compiled earlier approaches to the duty inquiry and distilled them into a five-factor framework.6 Observing that the concept of duty is “necessarily rooted in often amorphous public policy considerations,” Althaus, 756 A.2d at 1169, we acknowledged that discerning a “previously unrecognized duty” is an inherently difficult task. See Walters v. UPMC Presbyterian Shadyside, 187 A.3d 214, 222 (Pa. 2018). To assist in this undertaking, we identified the following five factors for courts to consider: “(1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public [**53]  interest in the proposed solution.” Althaus, 756 A.2d at 1169. We also have noted that “[n]o one of these five factors is dispositive. Rather, a duty will be found to exist where the balance of these factors weighs in favor of placing such a burden on a defendant.” Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008-09 (Pa. 2003).

III. Analysis

Although some twenty-six years have passed since the Third Circuit’s prediction in Kleinknecht, this Court has yet to resolve whether colleges owe any duty to their student-athletes. Allowing for argument’s  [*28]  sake that this is a new duty, a principled weighing of the Althaus factors leads to the conclusion that colleges owe a duty to ensure that qualified medical personnel are available to student-athletes participating in school-sponsored and supervised intercollegiate contact sports.7

A. Althaus (1): The relationship between the parties8

A party’s duty of care to another can arise from the parties’ relationship. See Morena v. S. Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 (Pa. 1983). In light of the increased autonomy afforded to college students in modern times, courts have rejected the notion that colleges act in loco parentis or as [**54]  “insurer[s] of the safety of [their] students.” See Sullivan, 572 A.2d at 1213 (quoting Bradshaw, 612 F.2d at 138). However, despite widespread agreement among courts on this general principle, courts differ as to whether colleges owe any duty to their student-athletes.9 In recent  [*29]  decades, scholars have opined that the unique relationship between colleges and their student-athletes justifies the imposition of a duty upon the college when the athletes participate in intercollegiate contact sports. These commentators observe that, unlike the relationship between a college and its average student, the relationship between colleges and their student-athletes is characterized by mutual benefits and by the college’s assertion and exercise of significant control over the athletes’ lives, thereby justifying the recognition of a duty of care.10

In the case before us today, the relationship between [**55]  Lackawanna College and its intercollegiate football players weighs in favor of recognizing a duty similar to the one that the Third Circuit articulated in Kleinknecht. Like the student-athlete in Kleinknecht, at the time of their injuries, Feleccia and Resch both were engaged in something other than their own private affairs. Rather, Feleccia and Resch were participating in tryouts for the intercollegiate, school-sponsored football team under the supervision of coaches employed by the college. Like the Third Circuit in Kleinknecht, I would find that the college expected its relationship with the student-athletes to benefit the college. Before Feleccia and Resch enrolled at Lackawanna College, its head football coach contacted both of them about playing football for the school’s intercollegiate team, presumably because the college expected to gain favorable attention or other benefits from their participation in the program. Moreover, as the Majority aptly observes, Feleccia’s and Resch’s relationship with Lackawanna College rested in part upon their reasonable expectation, based upon the college’s actions and representations, that a certified athletic trainer would treat them if they [**56]  were injured during athletic activities. See Maj. Op. at 19.

Accordingly, like the school-athlete relationship at issue in Kleinknecht, the relationship between Lackawanna College and its intercollegiate football players weighs in favor of recognizing a duty.

B. Althaus (2): The social utility of the actor’s conduct

The conduct at issue in any negligence case is the “act or omission upon which liability is asserted.” Walters, 187 A.3d at  [*30]  234. In cases in which an actor’s omission is at issue, courts must consider not only the social utility of the actor’s conduct, but also the utility of the individual’s failure to act. For example, in Walters, this Court weighed the social utility of UPMC providing health care services to the community against the utility of UPMC’s failure to report a former employee’s theft of fentanyl to the appropriate authorities. Although we concluded that UPMC’s provision of health care was beneficial to society, we found that its failure to take “steps to enhance public safety” by ensuring that its former employee did not “repeat his dangerous and criminal conduct” lacked any social utility. Id. at 235.

Similarly, in Phillips, 576 Pa. 644, 841 A.2d 1000, this Court weighed the social utility of a company manufacturing butane lighters [**57]  against the utility of the company’s failure to manufacture these lighters with child safety features. After opining that the lighters had obvious social utility, we observed:

[T]he evidence does not show that the utility of the lighter is increased when a child safety device is lacking. Conversely, it is readily apparent that a device which would prevent small children, who lack the discretion and caution of the average adult, from creating a flame would have great utility in our society.

Id. at 659-60. Therefore, we concluded that this factor weighed in favor of imposing a duty.11

Here, we must weigh the social utility of Lackawanna College maintaining an intercollegiate athletic program against the utility of the college’s failure to ensure that qualified medical personnel were available to its student-athletes during football tryouts. Unquestionably, intercollegiate athletics furnish many benefits. As the Supreme Court of California observed in Avila, “[i]ntercollegiate competition allows a school to, on the smallest scale, offer its students the benefits of athletic participation and, on the largest scale, reap the economic and marketing benefits that derive from maintenance of [**58]  a major sports program.” Avila, 131 P.3d at 392. Intercollegiate athletic programs provide numerous revenue sources for colleges. In addition to the money colleges earn from ticket sales at intercollegiate athletic events, successful athletic programs serve as magnets for corporate sponsorships and substantial donations from alumni and fans.12 These programs also exponentially increase the sales of merchandise bearing the school’s name, mascot, and logo, generating significant profits for schools.13

Intercollegiate athletic programs also may increase the school’s marketability and enrollment.14 These programs inevitably  [*31]  facilitate the recruitment of other athletes, who desire to play for a reputable team. Intercollegiate athletics attract media attention, expanding the school’s visibility to prospective students. Further, the culture surrounding intercollegiate athletic programs improves the quality of students’ college experience by fostering and enhancing school spirit, and by offering students the opportunity to participate in a variety of social activities that attend these sports. Thus, by improving the quality of campus life, such programs enhance the school’s appeal to athletes and non-athletes [**59]  alike. Additionally, cheering for or participating in intercollegiate sports often creates a lasting connection between students and their universities, increasing the likelihood that they will donate to the school as alumni, recommend the school to potential students, or otherwise volunteer their services in order to help the school succeed.

In contrast, Lackawanna’s failure to ensure that certified athletic trainers were available during football tryouts lacks any social utility. Undoubtedly, the availability of qualified medical personnel such as certified athletic trainers increases the social utility of intercollegiate programs by providing athletes with proper medical care, and by preventing injuries like Feleccia’s and Resch’s. Moreover, as discussed more fully infra, the college’s failure to ensure that qualified medical personnel were available severely undermined the benefits that intercollegiate athletics generate.

Thus, because the social utility of maintaining intercollegiate athletic programs is great, and because the failure to ensure that qualified medical personnel are available to student-athletes during intercollegiate contact sports lacks any social utility, [**60]  this factor weighs in favor of imposing a duty.

C. Althaus (3): The nature of the risk imposed and foreseeability of the harm incurred

In addition to identifying the nature of a college’s relationship with its student-athletes as a basis for imposing a duty of care upon the college, the Kleinknecht court also found that the college owed its athletes a duty of care based upon the foreseeability of severe injury at a practice for a contact sport. Here, the risk of injury exceeded the risk at issue in Kleinknecht. As observed by amicus curiae, the National Athletic Trainers’ Association (“NATA”), collegiate football has one of the highest injury rates of all collegiate sports, and the preseason practice injury rate is over twice the rate during in-season practices. See Amicus Brief for NATA at 8. Moreover, college football players routinely suffer severe injuries. The drill that led to Feleccia’s and Resch’s injuries was a variation of the once-prevalent Oklahoma Drill, a tackling drill that has been the subject of extensive criticism during recent concussion litigation.15 Two experts, including the former head football coach at Texas A&M University and a certified athletic trainer at Stevenson [**61]  University, also opined that Lackawanna College ran a particularly dangerous variant of the drill.16

 [*32]  The foreseeability of the risk of the exacerbation of practice injuries was only enhanced when Lackawanna College employed Alexis Bonisese and Kaitlin Coyne to fulfill the roles of athletic trainers, despite the school’s awareness that these two individuals possessed neither the athletic training certifications nor the skills necessary to perform the duties of athletic trainers. See Maj. Op. at 3-4, 19. By employing Bonisese and Coyne, Lackawanna College not only failed to ensure that qualified medical personnel were available to care for injured football players, but also created an additional risk for the College’s athletes by allowing them to receive care and advice from unqualified individuals whom the athletes believed to be certified trainers. The athletes thus were unable to make an informed decision as to whether to consult or follow the recommendations of (uncertified) staff, exposing those athletes to the hidden risk of greater injury arising from bad advice.17

Given the magnitude and frequency with which players [**62]  sustain serious injury in contact sports, and football in particular, and given the likelihood that uncertified individuals undertaking the responsibilities of athletic trainers will render bad advice that further endangers athletes, the harm that Feleccia and Resch suffered was entirely foreseeable. In light of these considerations, Lackawanna College’s failure to protect against these risks was unreasonable, and this factor weighs in favor of imposing a duty on colleges in favor of student-athletes.

D. Althaus (4): The consequences of imposing a duty upon the actor

Requiring colleges to ensure that qualified medical personnel are available to student-athletes participating in intercollegiate contact sports undoubtedly imposes a financial burden upon colleges and universities, particularly small colleges lacking the resources of larger institutions. Some schools may be hard-pressed to find the money to fulfill this obligation, and could face a difficult decision between cutting spending in other areas of their budgets and reducing the number of intercollegiate sports that they offer. Additionally, it may be difficult for some colleges to find qualified medical personnel who are willing [**63]  to work for their schools, depending upon the individual’s salary requirements and the location of the college. However, for several mitigating reasons, these burdens weigh only modestly, if at all, against imposing a duty upon colleges.

First, this duty is limited. Like Lackawanna College, the college in Kleinknecht contended that imposing a duty of care would create a slippery slope, requiring colleges to provide medical personnel for all sports, irrespective of whether the sport posed a substantial risk of injury or whether the college sponsored or supervised the athletic event. The Third Circuit rejected this argument as an “unwarranted extension” of its holding, explaining that the duty it imposed was limited to the particular facts of the case in which an athlete suffered a medical emergency  [*33]  while participating in an intercollegiate contact sport for which the college had recruited him. Kleinknecht, 989 F.2d at 1370-71. I agree generally with the Kleinknecht court’s suggested limitation,18 such that the duty in question should extend only to intercollegiate contact sports. At least for present purposes, other athletic activities, such as intramurals, necessarily fall outside the scope of this duty.19

Second, Lackawanna College and colleges like it are tuition-dependent for the bulk of their revenue. See Deposition of Suellen Musewicz, 11/11/14, at 15. For all the reasons discussed above, maintaining an intercollegiate athletic program attracts more students, increasing tuition revenue. Indeed, Feleccia and Resch both averred that they attended Lackawanna College because they wanted to participate in its football program.20 Furthermore, although hiring qualified medical personnel such as certified athletic trainers increases the cost of colleges’ athletic programs, it also can increase the appeal of these programs to prospective student-athletes, in additional service of the above-stated benefits. By contrast, developing a reputation for employing unqualified individuals to treat injured players has the potential to decrease the number of students willing to participate on a college’s sports teams. Failing to ensure that injured athletes have access to proper medical care during athletic events increases injury rates, decreasing the college’s ability to capitalize on the benefits that successful programs generate. Additionally, such failures can result in litigation [**65]  (as evidenced by the present case), which presents its own financial and reputational challenges for colleges.

Third, hiring qualified medical personnel is hardly cost-prohibitive. This is particularly true because the number of medical personnel a college must employ to cover its intercollegiate contact sports is dependent upon a variety of factors unique to each college. As one example, NATA has promulgated worksheets to assist colleges in calculating an appropriate amount of medical coverage for their athletic programs. These worksheets incorporate many factors, including the intercollegiate sports that the college offers, the injury rates of those sports, the length of each sport’s season, and the number of participating athletes.

Using Lackawanna College as an example, to be staffed adequately in-season for all sports during the 2009-10 academic year according to NATA’s recommendations, one expert opined that the college needed to hire approximately 2.27 full-time athletic trainers. See Expert Report of M.  [*34]  Scott Zema, 9/28/15, at 4 (unnumbered). This number is roughly consistent with the two full-time certified athletic trainers that Lackawanna College had on staff prior to employing [**66]  Bonisese and Coyne, an expense that evidently was deemed cost-effective at the time. Thus, requiring Lackawanna College to meet NATA’s suggestion would require it to do little more than restore the staffing it had prior to creating the dubious “first responder” positions for the uncertified Bonisese and Coyne.

In short, the consequences of recognizing this duty are not de minimis, but this impact is offset by the aforementioned considerations, particularly when considering the facts of this case. Thus, in my view, the fourth Althaus factor weighs only slightly, if at all, against imposing a duty.

E. Althaus (5): The overall public interest in the proposed solution

In cases in which we have considered whether one party owed a duty to another, this Court time and again has observed that the concept of duty amounts to “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection.” See Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (Pa. 1979) (quoting Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (Haw. 1974)). Accordingly, like Dean Prosser, we have recognized:

These are shifting sands, and no fit foundation . . . . The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the [**67]  causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, “always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.”

Gardner ex rel. Gardner v. CONRAIL, 573 A.2d 1016, 1020, 524 Pa. 445 (Pa. 1990) (quoting William L. Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1, 14-15 (1953)). Thus, a duty arises, in part, from society’s interest in protecting the plaintiff from a certain harm.

In Kleinknecht and in the present case, the public has a substantial interest in protecting the health and well-being of intercollegiate athletes. As the Superior Court observed, “[c]olleges are expected to put a priority on the health and safety of their students, especially student[-]athletes engaged in dangerous sports.” Feleccia, 156 A.3d at 1219. As discussed supra, student-athletes participating in intercollegiate contact sports face a significant and foreseeable risk of acute injury, and colleges benefit considerably [**68]  from students’ participation in their athletic programs. The receipt of such benefits at the expense of these athletes’ health and well-being is, as one scholar opined, “grossly unfair.”21

Colleges are best positioned to ensure that their athletes receive timely, competent medical attention when they participate in contact sports. In theory, one might suggest that student-athletes could  [*35]  seek out their own treatment when they are injured and decide for themselves when they feel well enough to return to play. The wisdom of imposing such a responsibility on student-athletes is questionable, at best. Scholars have observed that, when allowed to make their own decisions regarding injuries and returning to play, collegiate athletes often are willing to sacrifice their bodies in pursuit of their athletic goals, and to take great risks because they believe themselves to be impervious to injury.22 Further, in addition to the pressure that they place upon themselves, student-athletes also experience pressure from coaches, teammates, parents, sponsors, and the media to perform despite their injuries.23 This pressure can cause athletes to return to play before recovering fully from an illness [**69]  or injury or to play through pain rather than receiving necessary medical attention.24 These considerations are only amplified in the context of a competitive tryout, when an athlete may fear losing the chance to play entirely. Moreover, the extensive training and certification required of an athletic trainer demonstrates just how unqualified student-athletes are to make their own decisions regarding whether they need medical attention and when they can return to play.25

Our Commonwealth’s imposition of rigorous requirements on those wishing to claim the title “athletic trainer” also demonstrates the interest of our citizens, expressed through their General Assembly, in ensuring that athletes who seek athletic training services receive a certain standard of care. The Medical Practice Act of 1985 and its implementing regulations prohibit unlicensed individuals from using the title “athletic trainer” or providing athletic training services, and allow the imposition of injunctions and penalties on those who [**70]  violate the Act.26 As these laws indicate,  [*36]  the interest of Pennsylvania and its citizens in the health and safety of student-athletes is particularly great when a college affirmatively purports to provide its athletes with care from certified athletic trainers while in fact allowing uncertified individuals to masquerade in performing athletic training duties. In such circumstances, an athlete’s decision-making ability regarding his medical care and return to play not only is compromised by the aforementioned pressures, but also is impaired by his ignorance of the caregiver’s lack of qualification to deliver advice.

Lackawanna College’s conduct makes clear that the public’s interest in protecting the health and safety of intercollegiate athletes cannot be entrusted categorically to colleges based upon the assumption that they will in all instances ensure that their athletic departments are staffed adequately to provide treatment to injured student-athletes. Judicial recognition of this duty is necessary to ensure that colleges take the necessary precautions to protect their athletes from injury by holding them accountable for failing to fulfill this obligation.

Because the public [**71]  has a strong interest in protecting collegiate athletes from injury, and from receiving athletic training services from uncertified individuals, this factor also weighs in favor of imposing a duty.

IV. Conclusion

Based upon this analysis of the Althaus factors, the better view of Pennsylvania law is that colleges and universities bear a duty to ensure that qualified medical personnel are available to student-athletes when the athletes participate in intercollegiate contact sports. Whether Lackawanna College breached this duty, and whether this breach caused Feleccia’s and Resch’s injuries, remain questions for the jury.27 Thus, while I agree with the Majority to the extent that it concludes that Lackawanna College owed a duty to Feleccia and Resch in this case, I disagree with the Majority’s choice to limit its holding to this case-specific evaluation of this school’s particular representations and these parties’ course of conduct. Unintentionally, but in practical effect, such limitation may create a perverse incentive for institutions like Lackawanna College to do less rather than more to protect their athletes by encouraging the institutions to make no representations at all.

End of Document


Ruts left in slope by snowmaking ATV did not rise to the level of recklessness or gross negligence in the Pennsylvania skiing lawsuit.

Great review of gross negligence and recklessness law under Pennsylvania law in this decision.

Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89 (Pa.Super. 2018)

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Patrick Kibler and Kathryn Kibler, Husband and Wife

Defendant: Blue Knob Recreation, Inc., /d/b/a Blue Knob All Seasons Resort, and Blue Knob Resort, Inc.

Plaintiff Claims: Negligence and Gross Negligence

Defendant Defenses: Release

Holding: For Defendant

Year: 2017

Summary

Ruts left on the slope are an inherent risk of skiing and do not rise to gross negligence in Pennsylvania. Plaintiff assumed the risk of his injuries both under the Pennsylvania Skier Safety Act and the release he signed for his pass.

Facts

On March 21, 2014, [appellant] applied for a season ski pass for the 2014-2015 ski season at Blue Knob Ski Resort. [Appellant] signed and dated the season pass/application agreement, which contained [184 A.3d 977] information and guidelines about the Blue Knob season pass.

On December 21, 2014 at 9:00 a.m., [appellant] arrived at Blue Knob to ski with friends. Prior to arriving at the resort, [appellant] learned that five slopes were open to ski. [Appellant] eventually would ski on two of these five open slopes. After skiing down a slope identified as “Lower Mambo,” [appellant] stopped to look for his skiing companions, who were snowboarding on another slope. In an attempt to rejoin them without walking back up the slope, [appellant] intended to ski toward the middle of “Lower Mambo Valley” in order to reach a ski lift. While traversing this area, [appellant] ran over “trenches” he avers were four-to-six inches deep and six-to-eight inches wide, which extended halfway across the ski slope. Defendants’ employees identified the trenches as being caused by an all-terrain-vehicle operated by a resort employee. [Appellant] fell when encountering these trenches, causing him to fracture his left tibia and fibula.

Plaintiff sued for his injuries, and the trial court dismissed his claim on a motion for summary judgment. This was the plaintiff’s appeal.

Analysis: making sense of the law based on these facts.

The court first looked at the issues in this appeal from the standpoint of the Pennsylvania Skier Safety Act. The act states that skiers voluntarily assume the risk of the sport. Unlike most other skier safety acts, the Pennsylvania Skier Safety Act does not list the risks the skier assumes. That is left up to the court in each case. This leads to more litigation as each plaintiff is free to argue that the risk that caused his accident is not an inherent risk of skiing and not covered under the Pennsylvania Skier Safety Act.

When reviewing whether a risk is inherent and part of the sport of skiing the Pennsylvania Supreme Court created standards to assist courts in making that decision.

First, this Court must determine whether [appellant] was engaged in the sport of downhill skiing at the time of [his] injury. If that answer is affirmative, we must then determine whether the risk [encountered] is one of the “inherent risks” of downhill skiing, which [appellant] must be deemed to have assumed under the Act. If so, then summary judgment was appropriate because, as a matter of law, [appellant] cannot recover for [his] injuries.

Inherent risks of skiing in Pennsylvania are those “that are ‘common, frequent, or expected’ when one is engaged in a dangerous activity, and against which the defendant owes no duty to protect.”

The court found the plaintiff was engaged in downhill skiing. Downhill skiing has a broad definition under Pennsylvania law.

Obviously, the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.

To determine if wheel ruts in the slope were a risk in skiing the court turned to a New York decision.

Appellate Division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants’ motion for summary judgment.

However, the court never found or determined if the Pennsylvania Skier Safety Act prevented the claim. The court then turned to the release the plaintiff signed when he paid for his season pass.

The plaintiff argued the release should be void.

Specifically, appellant avers that the release in question is “not a valid exculpatory release” due to the fact that the release is ambiguous, the release is “without print of a size and boldness that draws the attention of an ordinary person,” and there is no evidence that appellants actually read the release.

The court then looked for the requirements under Pennsylvania law for a release to be valid.

It is generally accepted that an exculpatory clause is 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. [[O]ur supreme court] noted that once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence. In interpreting such clauses we listed as guiding standards that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Since the release was between the ski area and a skier, it was a private contract and did not contravene public policy. The court then looked at whether the release was enforceable. That standard required the court to:

…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.”

To be valid in Pennsylvania a release must spell out with particularity the intentions of the parties.

…construe the release strictly against [defendants] to determine whether it spells out the intention of the parties with particularity and shows to the intent to release [defendants] from liability by express stipulation, recognizing that is [defendants’] burden to establish immunity.

The plaintiff argued the release should be void because:

Appellants first aver that the language of the release was ambiguous. Specifically, appellants allege that the release failed to “clearly and unequivocally intend for the defendant[s] to be relieved from liability, using language understandable to an ordinary and knowledgeable person so participants know what they have contracted away.” Appellants then allege that the release failed include any reference to the risk encountered by appellant. Appellants specifically argue that “the risk [appellant] encountered, i.e. , deep and wide frozen trenches in the middle of a beginner’s slope, are not stated because it is nonsensical to contend such a serious hazard is inherent to the sport.

The plaintiff then argued the release lacked conspicuity and “was without print of a size and boldness that draws the attention of an ordinary person.” The court referred to Pennsylvania Uniform Code, which set froth requirements for contracts and defines what a conspicuous term is:

(i) A heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font or color to the surrounding text of the same or lesser size.

(ii) Language in the body of a record or display in larger type than the surrounding text, in contrasting type, font or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

The court found the release valid because exculpatory language was preceded by a heading that was written in all caps equal to the size of the text in the exculpatory paragraph. The heading also contained two exclamation points to draw attention to it.

The plaintiff then argued he did not read the release. (That’s his problem no one else’s!) “Our cases provide that “failure to read an agreement before signing it does not render the agreement either invalid or unenforceable.”

The court then reviewed the gross negligence, and reckless conduct claims the plaintiff made. A claim that the actions of the defendant were reckless would not be barred by a release. The court then reviewed the definition of gross negligence.

The general consensus finds [that] gross negligence constitutes conduct more egregious than ordinary negligence but does not rise to the level of intentional indifference to the consequences of one’s acts.” (relying in part on bailment cases and in part on the definition of “gross negligence” as applied to the [Mental Health Procedures Act[9] ] ). Gross negligence may be deemed to be a lack of slight diligence or care compromising a conscious, voluntary act or omission in “reckless disregard” of a legal duty and the consequences to another party. While it is generally true that the issue of whether a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence.

The court then identified the definition of recklessness.

Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.

Then the court reviewed recklessness as defined by the Restatement (Second) of Torts:

The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that “[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent.” cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:

Reckless misconduct differs from negligence in several important particulars. If differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man…. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of risk, but this difference of degree is so marked as to amount substantially to a difference in kind.

Finally, the court summed up the definitions as:

Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, and indifference whether or not wrong is done, and an indifference to the rights of others

Since the plaintiff could not prove any intentional conduct on the part of the defendant, the actions of the defendant were not reckless or gross negligence.

[Appellants] aver that Defendants’ snow-making crew created the “trenches” by operating an all-terrain-vehicle across part of the ski-slope, rather than entirely along the sides of the slopes.[Footnote 7] While apparently against normal maintenance policy and procedures and arguably negligent, we do not believe these actions amount to gross negligence or recklessness. Defendants’ employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that— although possibly dangerous— was not inherently unexpected upon a ski slope. We view such conduct to be a matter of “… mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” rather than recklessness.

The summary judgement of the trial court dismissing the plaintiff’s claims was upheld.

So Now What?

Anytime you do anything outside of the scope of operations of your competitors you set yourself up for a claim. Using ATV’s on the ski slope rather than a snow machine created that opportunity here for the plaintiff.

The ATV was a vehicle that could be used by the defendant year round and probably saved them money. However, the amount of time their employees spent defendant this claim and responding to the allegations I would guess wiped out that savings.

If you insist and being different, which is necessary for any industry to grow and change, justify the why with thought and reasons that are more than money. In this case, simply grooming after the ATV had passed would have solved the problem.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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Pennsylvania Supreme Court upholds use of an express assumption of the risk agreement to bar a claim for wrongful death during a triathlon

The court defined the written agreement, signed electronically, as an assumption of the risk agreement, even though a lower court had called it a liability waiver.

Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)

State: Pennsylvania, Supreme Court of Pennsylvania

Plaintiff: Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in Her Own Right

Defendant: Philadelphia Triathlon, LLC

Plaintiff Claims: Pennsylvania Wrongful Death Statute

Defendant Defenses: Express Assumption of the Risk Agreement

Holding: For the Defendant

Year: 2019

Summary

Pennsylvania Supreme Court upholds release to stop claims under PA’s wrongful-death statute. Since the deceased assumed the inherent risks of the sport, that removed the duty of the defendant triathlon therefore, the triathlon could not be negligent. No negligence, no violation of the wrongful-death statute.

Facts

In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.

The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon.

The trial court and the appellate court dismissed the plaintiff’s claims based on the express assumption of the risk agreement signed by the deceased. The Supreme Court of Pennsylvania granted the plaintiff’s appeal which resulted in this decision.

Analysis: making sense of the law based on these facts.

The release or wavier used in this agreement is not included in the decision. One small section is quoted, which speaks to the risks the participants in the triathlon must assume. Which makes sense since the court refers to the agreement as an express assumption of the risk agreement rather than a release or waiver.

Pennsylvania follows the Restatement Second of Torts in defining assumption of the risk.

The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.”

Under Pennsylvania law, “when a plaintiff assumes the risk of an activity it elminates the defendants duty of care”. When the deceased signed the valid agreement and expressly assumed the risks inherent in the triathlon, the decedent extinguished the defendant triathlon’s duty of care.

If there is no duty to the deceased there cannot be any negligence. Existence of a duty and a breach of that duty is the first of four steps to prove negligence.

A negligent act is required to be successful under Pennsylvania’s wrongful-death statute.

Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive.

There were three dissents in the decision. The dissents argued the Pennsylvania wrongful death statute voided the waiver. Since the right of the plaintiff under the wrongful-death statute was a right of a survivor, and the decedent could not sign away a survivor’s rights, the release, waiver or assumption of the risk agreement was void.

So Now What?

You can breathe a little easier in Pennsylvania when using releases signed electronically. It is important to make sure you include assumption of the risk language in your release to make sure the possible plaintiff assumes those risks if the court throws out the release or finds another way to sue the document to defend you.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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