Paperwork, the death of trees and in this case the only defense the defendant had at this stage of the trial because the paperwork was not taken care of properly.

Posted: March 11, 2019 | Author: Recreation Law | Filed under: Jurisdiction and Venue (Forum Selection), Minors, Youth, Children, Pennsylvania, Summer Camp | Tags: 1.I.L., applies, conspicuous, enforceability, factors, Forum selection clause, improper venue, Inc., Independent Lake Camp, invalid, legible, Motion to Dismiss, Notice, parties, print, terms, Venue | Leave a comment

The youth camp failed to keep a good copy of the registration paperwork. What was presented to the court as a forum selection clause was illegible so the court held it was not valid.

Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588

State: Pennsylvania, United States District Court, Eastern District of Pennsylvania

Plaintiff: Ben Epps, et al.

Defendant: 1.I.L., INC., d/b/a Independent Lake Camp

Plaintiff Claims: Negligence

Defendant Defenses: Motion to Dismiss because of improper venue

Holding: For the Plaintiff

Year: 2007

Summary

Lawsuits are not games; they are not invitations to parties, there is a lot of money riding on the outcome in most cases. Documents needed for the case must be given to the attorneys defending the case in the condition in which they are maintained. In this case, a document was faxed to the defense attorneys and in such a bad way the court could not read the document. Since the court could not read the document, the court assumed the original was the same, and therefore, the document was not valid.

At the same time, if you are collecting and keeping documents that may end up in court, you need to create a system that preserves these documents in perfect condition so if they do get to court the judge can read them.

Finally, you must get the documents from the people you need a signature from in a condition the court will accept.

Facts

Plaintiffs allege that on June 24, 2005, their son, Axel, fell from a bike and was seriously injured while attending Defendant’s Independent Lake Camp located in Orson, Wayne County, Pennsylvania. Plaintiffs allege that Axel’s accident was caused by Defendant’s negligence while Defendant was acting in loco parentis. Specifically, Plaintiffs allege that Defendant: 1) failed to provide proper supervision and safeguards; 2) gave Axel a bike, helmet, and other equipment without properly training him to use them; 3) allowed Axel to use a bike track, which was inappropriate for his age and experience; and 4) failed to obtain parental consent for its actions.

Plaintiffs further allege that Axel suffered serious and permanent physical injuries, including permanent cognitive and psychological damage, several fractures, lacerations resulting in scarring, cervical and lumbar sprain, and a shock to his nervous system. Plaintiffs also claim that Axel’s injuries include severe financial losses in the form of future costs of treatment and therapy, loss of earnings, and loss of earning capacity.

Defendant brought its motion to dismiss for improper venue alleging that the Registration Agreement, which Plaintiffs had to sign for Axel to attend camp, contained a forum selection clause. Defendant attached a blank, unsigned version of the Independent Lake Camp Registration 2005 (“Registration Agreement”) to its motion to dismiss. Defendant alleges that under the Registration Agreement, the proper forum would be a court in Wayne County, which is located in the Middle District of Pennsylvania.

In Plaintiffs’ response to Defendant’s motion to dismiss, Plaintiffs argued that the blank Registration Agreement was unsigned and thus that Defendant failed to show that Plaintiffs had agreed to the terms in the document, including the forum selection clause. Plaintiffs averred by affidavit that they did not agree and would not have agreed to such a forum selection clause.

Defendant then provided a signed copy of the Registration Agreement, in which the information requested had been filled in and which was signed by Plaintiff Ben Epps. Defendant submitted an affidavit by Daniel Gould, the president of Defendant and Director of Independent Lake Camp. Mr. Gould avers that, after an exhaustive and diligent search, Defendant could only locate a photocopy of the signed Registration Agreement and was unable to locate the original. He avers that the original agreement is presumed lost and/or destroyed through no bad faith or improper act on the part of Defendant. The photocopy of the agreement provided to the court also appears to be a faxed copy, as evident from a fax header across the top margin.

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

The defendants filed a motion to dismiss because the plaintiffs had filed the case in the wrong court according to the agreement, the registration form signed by the parents of the injured youth. The forum selection clause as defined by the courts or agreement to hold the trial at a specific court, allegedly stated the trial was to be held in Wayne County Court, Pennsylvania. The plaintiffs filed the case in the federal district our in Pennsylvania. The defendants filed a motion to dismiss from federal court and force the case to the state court.

The jurisdiction in the case was going to be Pennsylvania law no matter what; however, the trial would not be held in the back yard of the defendant, which is normally a good thing for the defendant.

When in the federal district court system, if a forum selection clause is upheld the case is simply transferred to the proper court. However, in this case because the selection clause stated a state court the case could not be transferred. The case would be dismissed at the federal court. The case could be refiled in the state court at that time if the statute of limitations had not run.

However, here, the document that was presented to the court that was the alleged agreement by the parents to only sue in state court was not legible.

The court agrees that the small print of the forum selection clause in the photocopied and faxed signed Registration Agreement is blurry and illegible, and does not provide reasonable notice of its terms. The court cannot assume that Mr. Epps signed a clear version of the agreement that became blurry and illegible upon subsequently being photocopied and faxed, because such evidence is not before the court. There is no evidence that Plaintiff Ben Epps signed any version of the Registration Agreement other than the document provided to the court.

Further, even if the forum selection clause were legible, it’s essential term, that any cause of action be brought in Wayne County, Pennsylvania, is cut off so as to be incomprehensible. Even if legible, the term “V– County Pennsylvania” in the forum selection clause gives no reasonable notice of the location of any agreed-upon forum.

The court concludes that the forum selection clause is inconspicuous and does not give notice of its terms to a reasonable person in violation of strong Pennsylvania public policy. The forum selection clause therefore is unreasonable, invalid, and unenforceable. Because the court finds that the forum selection clause is unreasonable and invalid, it does not address the private and public factors as transfer considerations under § 1404(a).

The agreement was a copy that had been faxed, was illegible and could not be read by the court.

Since the court could not read the document, the legal wording was incomplete and the entire document had sections missing the court could not find there was an agreement. The motion to change venue was dismissed.

So Now What?

I would guess the camp had received the faxed copy from the parents. There would be no need to fax the documents around the camp. The camp probably had sent the documents to the parents for their signature, and they had faxed them back. This was mistake one, because the camp accepted a badly faxed copy of the document.

When you receive an email, fax, or original where you cannot make out what is going on, signature seems off, the document is unreadable, you must get a good copy. Tell the signor to do it again and make the copy legible.
Set up a system to check documents when they come in.
Set the system up with enough time so that is time to correct problems. Don’t place yourself in a position where you are balancing the money coming in versus proper paperwork you need.

Second, the camp seemed to not locate the original fax, but only had a copy of the faxed document.

Develop a system to store and maintain the documents. Now day’s scanners are so efficient all the documents can be scanned and maintained in seconds. The original paper documents can be preserved and kept for the statue of limitations for the state, and a good electronic copy is also available.

Don’t allow a kid or adult to come to camp, attend the program, participate in the activity unless you have all the paperwork you need, signed and in a good legible condition. Then and only then cash the check and open the gates.

What do you think? Leave a comment.

James H. “Jim” Moss

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of eight books about legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management,

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forum selection clause, venue, parties, improper venue, enforceability, terms, legible, notice, motion to dismiss, conspicuous, applies, factors, invalid, print, 1.I.L., INC., Independent Lake Camp, forum selection clause,

Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588

Posted: March 10, 2019 | Author: Recreation Law | Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Minors, Youth, Children, Pennsylvania, Summer Camp | Tags: 1.I.L., applies, conspicuous, enforceability, factors, Forum selection clause, improper venue, Inc., Independent Lake Camp, invalid, legible, Motion to Dismiss, Notice, parties, print, terms, Venue | Leave a comment

To Read an Analysis of this decision see

Paperwork, the death of trees and in this case the only defense the defendant had at this stage of the trial because the paperwork was not taken care of properly.

Epps, et al., v. 1.I.L., INC., d/b/a Independent Lake Camp, 2007 U.S. Dist. LEXIS 93335, 2007 WL 4463588

Ben Epps, et al., Plaintiffs, v. 1.I.L., INC., d/b/a Independent Lake Camp, Defendant.

Civil Action No. 07-02314

United States District Court, Eastern District of Pennsylvania

December 19, 2007

ORDER

MEMORANDUM

James T. Giles J.

I. Introduction

Before the court is Defendant 1.I.L., Inc.’s Motion to Dismiss for Improper Venue pursuant to Federal Rule of Civil Procedure 12(b)(3). Plaintiffs, Bens Epps and Amy Monroe, as parents and natural guardians of Axel Epps and in their own right, bring suit based in diversity jurisdiction, 28 U.S.C. § 1332, against Defendant 1.I.L. Inc. for personal injuries allegedly sustained by their son, Axel, while attending Defendant’s camp.

The primary issue raised by Defendant’s motion and determined by the court is whether the forum selection clause in the Registration Agreement at issue is valid and enforceable. The court finds that the forum selection clause contained in the signed Registration Agreement is not enforceable because it does not provide reasonable notice of its terms. The court concludes that Plaintiffs have brought suit in a proper venue and denies Defendant’s motion to dismiss for the reasons that follow.

II. Factual Background

Plaintiffs allege that on June 24, 2005, their son, Axel, fell from a bike and was seriously injured while attending Defendant’s Independant Lake Camp located in Orson, Wayne County, Pennsylvania. (Pls.’ Compl. ¶ 6.) Plaintiffs allege that Axel’s accident was caused by Defendant’s negligence while Defendant was acting in loco parentis. (Pls.’ Compl. ¶ 7.) Specifically, Plaintiffs allege that Defendant: 1) failed to provide proper supervision and safeguards; 2) gave Axel a bike, helmet, and other equipment without properly training him to use them; 3) allowed Axel to use a bike track, which was inappropriate for his age and experience; and 4) failed to obtain parental consent for its actions. (Pls.’ Compl. ¶ 8.)

Plaintiffs further allege that Axel suffered serious and permanent physical injuries, including permanent cognitive and psychological damage, several fractures, lacerations resulting in scarring, cervical and lumbar sprain, and a shock to his nervous system. (Pls.’ Compl. ¶ 9.) Plaintiffs also claim that Axel’s injuries include severe financial losses in the form of future costs of treatment and therapy, loss of earnings, and loss of earning capacity.

Plaintiffs, citizens of New York, brought suit in the Eastern District of Pennsylvania because Defendant is a citizen of Pennsylvania with offices in both Montgomery County and Wayne County. (Pls.’ Compl. ¶ 1-4; Pls.’ Br. in Supp. of Ans. to Mot. of Def. to Dismiss for Improper Venue (“Pls.’ Supp. Ans.”) 1; Def.’s Br. in Supp. of Mot. to Dismiss for Improper Venue (“Def.’s Supp.”) 1, 5.) Plaintiffs demand damages in excess of $150,000 for each of the two counts in the complaint as well as interest and costs of the suit.

III. Procedural History

Plaintiffs filed their Complaint on June 7, 2007. Defendant brought its motion to dismiss for improper venue alleging that the Registration Agreement, which Plaintiffs had to sign for Axel to attend camp, contained a forum selection clause. (Def.’s Mot. to Dismiss 2.) Defendant attached a blank, unsigned version of the Independent Lake Camp Registration 2005 (“Registration Agreement”) to its motion to dismiss. (Def.’s Mot. to Dismiss, Ex. A.) Defendant alleges that under the Registration Agreement, the proper forum would be a court in Wayne County, which is located in the Middle District of Pennsylvania. (Def.’s Mot. to Dismiss, Ex. A.) The blank Registration Agreement, in which the print is small but clear and legible, provides in part:

It is agreed that any dispute or cause of action arising between the parties, whether out of this agreement or other wise [sic], can only be brought in a court of competent jurisdiction located in Wayne County Pennsylvania [sic] and shall be construed in accordance with the laws of Pennsylvania.

(Def.’s Mot. to Dismiss, Ex. A.)

Defendant then provided a signed copy of the Registration Agreement, in which the information requested had been filled in and which was signed by Plaintiff Ben Epps. Defendant submitted an affidavit by Daniel Gould, the president of Defendant and Director of Independent Lake Camp. Mr. Gould avers that, after an exhaustive and diligent search, Defendant could only locate a photocopy of the signed Registration Agreement and was unable to locate the original. (Gould Aff. ¶¶ 5, 7-10.) He avers that the original agreement is presumed lost and/or destroyed through no bad faith or improper act on the part of Defendant. (Gould Aff. ¶ 10.) The photocopy of the agreement provided to the court also appears to be a faxed copy, as evident from a fax header across the top margin. (Gould Aff. Ex. A (Signed Registration Agreement).)

In the copy of the signed Registration Agreement submitted by Defendant, the small print containing the terms of the agreement is blurry and barely legible. As Defendant concedes, the right-side margin, toward the bottom, is cut off, truncating the forum selection clause. (Gould Aff. ¶ 6, Ex. A.) Consequently, if the print were clearly legible, when compared with the clear, blank version of the agreement, the forum selection clause would read:

It is agree [sic] any dispute or cause of action arising between the parties, whether out of this agreement or other wise [sic], can only be brought in a court of competent jurisdiction located in V [or three-quarters of a W] County Pennsylvania [sic] and shall be construed in accordance with the laws of Pennsylvania.

(Gould Aff. Ex. A.) Thus, if legible, most or all of the letters in the word “Wayne,” as in “Wayne County Pennsylvania,” are missing. (Gould Aff. ¶ 6, Ex. A.)

In Plaintiffs’ reply to Defendant’s affidavit, Plaintiffs do not dispute that Plaintiff Ben Epps’ signature appears on the copy of the Registration Agreement. Nor do Plaintiffs argue that the entire agreement itself is invalid. (Compare Pls.’ Supp. Ans. 2-3 (arguing, before Defendant’s production of a signed agreement, that the Registration Agreement was not enforceable because there was no objective manifestation of the parties’ intention to be contractually bound), with Pls.’ Reply to Def.’s Aff. 1 (arguing, after Defendant’s production of a signed Registration Agreement, that there was no meeting of the minds as to the forum selection clause because the wording of the clause was truncated and indiscernible).) Thus, the issue determined by the court is the enforceability of the forum selection clause.

III. Discussion

Federal law applies in the determination of the effect given to a forum selection clause in diversity cases. Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995) (quoting Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir. 1990)). To evaluate the enforceability of the forum selection clause here, the court determines if the standard for dismissal or transfer is proper.[1] See id. at 877-78. If the standard for transfer applies, the court then determines if the forum selection clause is reasonable. See id. at 880 (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972)).

A. Dismissal or Transfer under 28 U.S.C. § 1404(a) or 1406.

Although dismissal is a “permissible means of enforcing a forum selection clause that allows suit to be filed in another federal forum,” the Third Circuit cautions that “as a general matter, it makes better sense, when venue is proper but the parties have agreed upon a not- unreasonable forum selection clause that points to another federal venue, to transfer rather than dismiss.” Salovaara v. Jackson Nat’l Life Ins. Co., 246 F.3d 289, 298-99 (3d Cir. 2001); see Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 28-29, 32 (1988) (holding that a federal court sitting in diversity jurisdiction should treat a request to enforce a forum selection clause in a contract as a motion to transfer venue under applicable federal law, 28 U.S.C. § 1404(a)); 15 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3803.1 (2d ed. 1986 & Supp. 2006).

Transfer, however, is not available when a forum selection clause specifies a non-federal forum. Salovaara, 246 F.3d at 298. The forum selection clause in the Registration Agreement, if valid and untruncated, would provide that “any dispute . . . can only be brought in a court of competent jurisdiction located in Wayne County Pennsylvania” and does not limit jurisdiction to state court. The provision’s plain language is construed to permit the action in any court of the county, including the federal court in the federal judicial district encompassing Wayne County, Pennsylvania, regardless of whether the federal court is physically located in the county. See Jumara, 55 F.3d at 881 (construing an arbitration provision requiring the action to transpire within a particular county to mean that the action would be permitted in any court, state or federal, with jurisdiction encompassing that county). Transfer is an available remedy because the forum selection clause, if valid and untruncated, includes a federal forum. See id. at 881-83 (applying the § 1404(a) analysis for transfer where a forum selection clause permitted any state or federal forum within a particular county).

Because transfer is the appropriate remedy, the court must then consider whether 28 U.S.C. § 1404(a) or § 1406 applies. “Section 1404(a) provides for the transfer of a case where both the original venue and the requested venue are proper. Section 1406, on the other hand, applies where the original venue is improper and provides for either transfer or dismissal of the case.” Id. at 878. Whether venue is proper in this district is governed by the federal venue statute, 28 U.S.C. § 1391. Id.

Without considering the forum selection clause, venue is proper in the Eastern District of Pennsylvania. Neither party disputes that Defendant is subject to personal jurisdiction in this district because Defendant transacts business here. See 28 U.S.C. § 1391(c); Jumara, 55 F.3d at 878-79; Stewart, 487 U.S. at 29 n.8 (“The parties do not dispute that the District Court properly denied the motion to dismiss the case for improper venue under 28 U.S.C. § 1406(a) because respondent apparently does business [there].”); see also (Pls.’ Supp. Ans. 1; Def.’s Supp. 3). This court therefore concludes that the appropriate analysis is whether the case should be transferred under § 1404(a). See Salovaara, 246 F.3d at 298-99.

B. Transfer under 1404(a) Is Improper Because the Forum Selection Clause Is Unreasonable and Unenforceable.

Section 1404(a) controls the inquiry of whether to give effect to a forum selection clause and to transfer a case.[2] Stewart, 487 U.S. at 29, 32. Before considering the factors under Section 1404(a), the court first examines the validity or reasonableness of the forum selection clause through application of the test in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972). “Where the forum selection clause is valid, which requires that there have been no ‘fraud, influence, or overweening bargaining power,’ the plaintiffs bear the burden of demonstrating why they should not be bound by their contractual choice of forum.” Jumara, 55 F.3d at 879-80 (quoting Bremen, 407 U.S. at 12-13).

A forum selection clause is unreasonable and invalid if the objecting party demonstrates that (1) the forum selection clause is the result of fraud or overreaching, (2) its enforcement would violate a strong public policy of the forum, or (3) its enforcement would result in litigation so seriously inconvenient and unreasonable that it would deprive a litigant of his or her day in court. Bremen, 407 U.S. at 15-17; In re Diaz Contracting, Inc., 817 F.2d 1047, 1051-52 (3d Cir. 1987).

To dispose of this issue, the court need only address whether the enforcement of the forum selection clause violates a strong public policy of the forum. Under Pennsylvania law, a clause in a contract must be conspicuous, so as to provide notice of its terms to a reasonable person. See, e.g., 13 Pa.C.S. § 2316 (requiring that limitation of warranties terms be conspicuous); 13 Pa.C.S. § 1201 (defining “conspicuous”); Beck-Hummel v. Ski Shawnee, Inc., 2006 Pa. Super 159, P23-24 & n.12-13 (Pa. Super. Ct. 2006) (relying on the requirement for conspicuous terms in the sale of goods context in a case involving the sale of services, and finding that disclaimer language on a ski ticket was not sufficiently conspicuous to put a purchaser on notice of its contents). Plaintiffs argue that the forum selection clause contained in the signed Registration Agreement is invalid because the wording of the clause is “truncated and indiscernible.” (Pls.’ Reply 1.)

Further, even if the forum selection clause were legible, its essential term, that any cause of action be brought in Wayne County, Pennsylvania, is cut off so as to be incomprehensible. Even if legible, the term “V– County Pennsylvania” in the forum selection clause gives no reasonable notice of the location of any agreed-upon forum.

V. Conclusion

For the foregoing reasons, Defendant’s Motion to Dismiss for Improper Venue is denied. An appropriate order follows.

ORDER

AND NOW, this 19th day of December, 2007, upon consideration of Defendant 1.I.L., Inc.’s Motion to Dismiss for Improper Venue (Doc. No. 4), Plaintiffs’ Response in opposition thereto, Defendant’s Affidavit of Daniel Gould and Exhibits (Doc. Nos. 8 & 9), and Plaintiffs’ Reply, it is hereby ORDERED that said motion is DENIED for the reasons set forth in the attached memorandum.

Notes:

[1] Prior to Defendant’s production of a signed Registration Agreement, Plaintiffs argued that the forum selection clause should not be enforced because it did not meet the standard of reasonable communicativeness, as set forth in Marek v. Marpan Two, Inc., 817 F.2d 242, 245 (3d Cir. 1987), due to the agreement’s small print. Marek applies primarily in cases involving maritime law. See, e.g., Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 130 (3d Cir. 2002); Hodes v. S. N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 906, 909-12 (3d Cir. 1988). As discussed below, the court follows more recent Third Circuit precedent on the enforceability of forum selection clauses.

[2] Section 1404(a) provides that “a district court may transfer any civil action to any other district or division where it might have been brought” for “the convenience of parties and witnesses” and “in the interest of justice.” 28 U.S.C. § 1404(a); see Stewart, 487 U.S. at 29. Courts must adjudicate motions to transfer based on an “individualized, case-by-case consideration of convenience and fairness,” weighing a number of factors. Id. (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). A court’s review is not limited to the three enumerated factors in § 1404(a) – convenience of the parties, convenience of witnesses, or interests of justice – and courts may consider various private and public interests. Jumara, 55 F.3d at 879-80.

The parties’ agreement as to the proper forum, although not dispositive, receives “substantial consideration” in the weighing of relevant factors. Id. at 880; see Stewart, 487 U.S. at 29-30 (“The presence of a forum selection clause . . . will be a significant factor that figures centrally in the district court’s calculus. . . . The flexible and individualized analysis Congress prescribed in § 1404(a) thus encompasses consideration of the parties’ private expression of their venue preferences.”). The deference generally given to a plaintiff’s choice of forum is “inappropriate where the plaintiff has already freely chosen an appropriate venue.” Jumara, 55 F.3d at 880.

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Decision supporting PA ski area when skier skied off the trail supported by the US Court of Appeals for the Third Circuit

Posted: March 4, 2019 | Author: Recreation Law | Filed under: Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: downhill skiing, Federal Court of Appeals, inherent, Inherent Risk, Jurisdiction, Liberty Mountain Resort, Negligence, No Duty, No Duty Rule, Pennsylvania Skier's Responsibility Act, PSRA, ski area, Ski Liberty, Ski Liberty Operating Corp, skiing, sport of downhill skiing, Third Circuit Court of Appeals | Leave a comment

The Federal District Court case, Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013 and reviewed in Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing was upheld

Citation: Vu v. Ski Liberty Operating Corp., (the decision is so new, not id numbers have been assigned to it yet.

State: Pennsylvania

Plaintiff: Quan Vu and his spouse May Siew

Defendant: Ski Liberty Operating Corp., doing business as Liberty Mountain Resort; Snow Time, Inc.

Plaintiff Claims: negligent for, among other things, failing to keep the slope free from unsafe conditions, warn Vu of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the large rocks below and alleged loss of consortium

Defendant Defenses: No duty under the Pennsylvania Skier’s Responsibility Act (PSRA)

Holding: For the Defendant upholding the lower court decision

Year: 2019

Summary

A lower Federal District Court held that a skier assumed the risk when he skied off the trail and over a 3′-4′ embankment. The skier appealed and the Third Circuit Court of Appeals upheld the lower court holding the Pennsylvania Skier Responsibility Act created no duty on the part of the ski area.

Facts

On the evening of January 23, 2015, Vu was skiing down a trail at the Liberty Mountain Resort in Pennsylvania. At some point, Vu encountered a snowboarder, who “either cut [him] off or got awfully close” to him. To avoid colliding with the snowboarder, Vu “had a knee-jerk reaction to veer,” which led him toward the edge of the trail. Id. Vu skied over the edge, left the slope, and landed among a pile of rocks. He suffered multiple serious injuries, which he alleges were caused by his skiing over an unmarked, “artificial three to four-foot cliff at the slope’s edge” that was created by “the Defendants’ snowmaking and snow grooming practices.”

Vu’s daughter, who was skiing with him, testified that she did not see Vu ski off of the slope, but she did find him laying off of the trail. She stated that to get to her father, she had to exercise caution due to the height difference between the artificial snow and the natural terrain. She also testified that she had no “difficulty that evening discerning the edge of the trail.”

Dawson Disotelle was also present on the slope and witnessed the incident. He testified that he was snowboarding behind Vu and Vu’s daughter, and he saw that Vu’s “skis went to the left and his body went with [them] and he just went straight off the run.” Thereafter, Disotelle attempted to render assistance to Vu, which required Disotelle to “hop[] down” to where Vu was laying. According to Disotelle, the elevation change from the slope to where Vu landed was “[t]hree or four feet maybe,” and “it wasn’t a challenge to get down there.” Like Vu’s daughter, Disotelle testified that he was able to “easily” distinguish the skiable trail from off trail.

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

The appellate court simply looked at the Pennsylvania Skiers Responsibility Act (PSRA) and found the ski area had no duty to the Plaintiff Vu.

The PSRA establishes a “no-duty” rule for skiing injuries, relieving ski resorts of the “duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport.” The no-duty rule applies in this context when: (1) the plaintiff was “engaged in the sport of downhill skiing at the time of her injury”; and (2) the risk of the injury at issue “is one of the ‘inherent risks’ of downhill skiing.” When both prongs are met, summary judgment is warranted in favor of the ski resort “because, as a matter of law, [the plaintiff] cannot recover for her injuries.”

The court did have to look at case law and commented on the fact the Pennsylvania act did not identify risks that were inherent in skiing like most other skier safety acts did. “The PSRA “is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing….”

The court identified several cases that held that “…snow and ice, elevation, contour, speed and weather conditions, and falling from a ski lift…” where inherent to skiing.

Nor does the PRSA require proof that a skier assumed the risk, only that the injury “arose from a “general risk” inherent to the sport….” Consequently, the court found the risk of skiing off the edge of the trail over a three to four feet drop was inherent to skiing.

Not only does this risk appear to fall under the umbrella of elevation or contour (or both), which have been identified by Pennsylvania courts as inherent risks, but also other courts have recognized the more general risk of skiing off a trail as inherent to downhill skiing,

The court then added as support for its finding that what the Plaintiff Vu encountered was an inherent risk but that Vu had been skiing for twenty years and was skiing black diamond runs or the most difficult slopes.

So Now What?

The Pennsylvania Skiers Responsibility Act is the weakest of most of the ski area statutes because it does not define what the inherent risks of skiing are. However, the courts in Pennsylvania have done a fairly good job of determining, based on case law and statutes from other states what are the inherent risks of skiing.

However, because the inherent risks are not defined, the plaintiffs are going to continue to test the issues because there is a chance they can win.

What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Get check boxes and initials out of your release!

Posted: February 18, 2019 | Author: Recreation Law | Filed under: Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, All Terrain Vehicle, Assumption of risk, ATV, Check Box, checkbox, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, initials, intent of a party, legal right, material fact, Membership, minor child, non-moving, parties, Public Policy, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, The Lost Trails, The Lost Trails LLC, ticket, Trails, waiver form | Leave a comment

If the defendants release did not have a catch all phrase at the bottom of the document the release would be invalid because an initial had not been signed by the plaintiff.

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

State: Pennsylvania: United States District Court for the Middle District of Pennsylvania

Plaintiff: Patrice Scott-Moncrieff

Defendant: The Lost Trails, LLC, et al

Plaintiff Claims: Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced.

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The plaintiff did not initial one of the initial boxes on the release she signed. This gave the plaintiff enough of an argument to make an appellate argument. But for a final paragraph that covered the uninitialed box language this release would have failed.

Facts

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding.

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

l0. Having had ample time and opportunity to raise any concerns or questions that I may have, and having read and understood the information, I certify my acceptance of the aforementioned provisions by signing below.

I am in good health and physical condition. I am voluntarily participating with knowledge that dangers are involved and agree to assume all risks. I also understand that if I am injured or become ill, I agree that Lost Trails LLC, or any of its employees, volunteers or guests will not be held liable should they render medical assistance to me or my minor child.

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses.

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

The court first reviewed the validity of releases under Pennsylvania law. Pennsylvania has a three-part test to determine if releases are valid.

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.”. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state.

The three requirements all evolve around the public policy argument. It is against public policy to have someone sign a release for a necessity, where the bargaining power is not equal or if the contract is so nasty it should not be signed by anyone. A release, a contract, to ride an ATV is valid because it is not a necessity, it is between parties of equal bargaining power and it is voluntary.

If the release passes the first three tests, it still must be scrutinized by the court to determine if it clearly relieves the defendant of liability. If the language of the agreement sets forth the requirements necessary for the plaintiff to understand she is liable for her injuries.

Even if an exculpatory clause is facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. The following standards guide a court’s determination of the enforceability of an exculpatory clause:

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.

If the release, or any contract under Pennsylvania law meets those tests it is finally reviewed to determine if both parties clearly understood the intent of the agreement. In the case of a release, both parties must understand that the possible plaintiff is giving up his or her right to sue the possible defendant.

Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. When a writing is clear and unequivocal, its meaning must be determined by its contents alone. “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Here, the language of the waiver form is unequivocal in stating the intent that it is binding for all time thereafter.

In this case, the court found the release passed all of the tests.

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.1

Once the release was found to be valid the next issue was whether or not the plaintiff had signed the release. The plaintiff argued because she had not initialed an initial box, had not read the release in its entirety

One who is about to sign a contract has a duty to read that contract first.” In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.)

The court did look at situations were the release was enforceable even if the plaintiff did not read the release or could not read the release.

…(written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

The plaintiff argued the release was unenforceable because it was inconspicuous. However, the argument seemed to be based on case law that found waivers to be void then the real facts of this case.

The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply.

The saving language of the release that covered the un-initialed section 10 was. Even though paragraph 10 was not initialed, the heading clearly stated what the document was and the intentions of the parties. The language that covered the un-initialed paragraph 10 was:

I HAVE READ THIS RELEASE OF LIABILITY, WAIVER OF LEGAL RIGHTS AND ASSUMPTIONS OF RISK AND FULLY UNDERSTAND ITS CONTENTS. I SIGN IT WILLINGLY, VOLUNTARILY AND HAVING HAD AMPLE OPPORTUNITY TO RAISE ANY QUESTIONS OR CONCERNS THAT I MAY HAVE, I ACKNOWLEDGE THAT I AM PARTICIPATING VOLUNTARILY WITH KNOWLEDGE THAT DANGERS ARE INVOLVED AND I AGREE TO ASSUME ALL THE RISKS.

The court found that the entire agreement was covered by this saving language above. So, the failure to initial one paragraph was not enough to void the release.

The court summarized its reasoning for finding the release valid and upholding the dismissal of the plaintiff’s claims because of the release.

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. Plaintiff initialed the paragraphs setting forth the exculpatory clauses,2 and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable.

So Now What?

But for language at the bottom of the release which the court found to cover for the language that was not initialed the release would have failed. It is important to note; the court analysis stated the language that was not initialed was not part of the release.

If you have initial boxes, initials, etc., and one box is not initialed, in Pennsylvania that paragraph that is not initialed or initialed is invalid. Dependent upon the language, your release maybe void, if you don’t have the boxes checked or initialed.

Why use them anyway. Here the court explains why they are unnecessary, the language at the bottom of your release should tie everything together. Once you sign you acknowledge that you have read and understood the entire document. The checkboxes or initials can only hurt you in a release, not help you.

What do you think? Leave a comment.

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exculpatory clause, parties, enforceable, material fact, summary judgment, conspicuity, activities, minor child, initialed, non-moving, Trails, signing, Sports, waiver form, font, summary judgment motion, recreational activity, assumption of risk, intent of a party, genuine issue, legal right, requirements, membership, adhesion, rushed, ticket, ride, gym, check box, checkbox, initials, The Lost Trails, The Lost Trails LLC, ATV, All Terrain Vehicle, Release, Public Policy

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Posted: February 11, 2019 | Author: Recreation Law | Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: activities, adhesion, All Terrain Vehicle, Assumption of risk, ATV, Check Box, checkbox, conspicuity, enforceable, Exculpatory clause, font, genuine issue, Gym, initialed, initials, intent of a party, legal right, material fact, Membership, minor child, non-moving, parties, Public Policy, recreational activity, Release, requirements, ride, rushed, signing, Sports, Summary judgment, summary judgment motion, The Lost Trails, The Lost Trails LLC, ticket, Trails, waiver form | Leave a comment

Scott-Moncrieff v. Lost Trails, LLC, 2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

Scott-Moncrieff v. Lost Trails, LLC

United States District Court for the Middle District of Pennsylvania

August 29, 2018, Decided; August 29, 2018, Filed

CIVIL ACTION NO. 3:16-CV-1105

Reporter

2018 U.S. Dist. LEXIS 146936 *; 2018 WL 4110742

PATRICE SCOTT-MONCRIEFF, Plaintiff v. THE LOST TRAILS, LLC, et al, Defendants

Subsequent History: Appeal filed, 09/13/2018

Core Terms

Counsel: [*1] For Patrice Scott-Moncrieff, Plaintiff: James W. Sutton, III, LEAD ATTORNEY, LAW OFFICES OF VIASAC & SHMARUK, FEASTERVILLE, PA.

For The Lost Trails, LLC, d/b/a Lost Trails ATV Adventures, Defendant, Cross Claimant, Cross Defendant: John T. McGrath, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Scranton, PA; Michael J. Connolly, Moosic, PA.

Judges: KAROLINE MEHALCHICK, United States Magistrate Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM OPINION

Before the Court is a motion for summary judgment filed by Defendant, The Lost Trails, LLC (“Lost Trails”) in this matter. The motion (Doc. 50) was filed on November 14, 2017, together with a brief in support (Doc. 52), and Statement of Facts (Doc. 53). Plaintiff, Patrice Scott-Moncrieff, filed a brief in opposition (Doc. 54) on November 28, 2017, a reply brief (Doc. 55) was filed on December 6, 2017, and a sur reply brief (Doc. 62) was filed on January 17, 2018. This motion is ripe for disposition. For the following reasons, the Court will grant the motion for summary judgment.

I. Factual Background and Procedural History

The factual background is taken from Defendant’s Statements of Undisputed Material Facts (Doc. 53). Where the parties dispute certain facts, [*2] those disputes are noted. In addition, the facts have been taken in the light most favorable to the plaintiff as the non-moving party, with all reasonable inferences drawn in her favor. This is in accordance with the Local Rules of this Court, which state, in pertinent part, as follows:

LR 56.1 Motions for Summary Judgment.

A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.

The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.

Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements.

All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing [*3] party.

Local Rule 56.1 (emphasis added).

To comply with Local Rule 56.1, Plaintiff should (1) clearly and unequivocally admit or deny whether each fact contained in Defendant’s statement of facts is undisputed and/or material, (2) set forth the basis for any denial if any fact is not admitted in its entirety, and (3) provide a citation to the record that supports any such denial. Occhipinti v. Bauer , No. 3:13-CV-1875, 2016 U.S. Dist. LEXIS 136082, 2016 WL 5844327, at *3 (M.D. Pa. Sept. 30, 2016); Park v. Veasie , 2011 U.S. Dist. LEXIS 50682, 2011 WL 1831708, *4 (M.D. Pa. 2011). As such, where Plaintiff disputes a fact set forth by Defendant, but fails to provide a citation to the record supporting their denial, that fact will be deemed to be admitted. “Unsupported assertions, conclusory allegations, or mere suspicions” are insufficient to overcome a motion for summary judgment. Schaar v. Lehigh Valley Health Servs., Inc., 732 F.Supp.2d 490, 493 (E.D.Pa. 2010). In this matter, Plaintiff, though including a statement of fact in her brief in opposition to Defendant’s motion for summary judgment (Doc. 54), does not comply with the local rules and submit a separate statement of material facts in opposition to Defendant’s statement of material facts. Notably, despite being given the opportunity to file a sur-reply brief in this matter, after Defendant raises the issue of Plaintiff’s failure to file a statement of facts in its Reply Brief (Doc. 55), Plaintiff still [*4] did not file a separate statement of fact. As such, the facts set forth in Defendant’s statement of material facts will be deemed admitted.

On October 20, 2013, Plaintiff visited Defendant’s ATV facility for the first time and, prior to using the facility, executed a waiver of liability. (Doc. 50-2, at 4-5; DOC. 53, AT ¶¶ 5, 9). Plaintiff did not read the waiver in its entirety prior to signing it, and claims she was rushed during the process. (Doc. 53, at ¶ 7; Doc. 50-2, at 71). On June 22, 2014, Plaintiff returned to the facility, at which time she alleged suffered injuries when she was thrown from the ATV she was riding. (Doc. 1).

The release from liability signed by Plaintiff on October 20, 2013 reads, in pertinent part, as follows:

In consideration for the opportunity for event participation and utilization of general admission, all facilities, equipment and premises of Lost Trails, LLC (LT), North American Warhorse Inc, (NAW) Theta Land Corp. (TLC), 1000 Dunham Drive LLC (DD), and their respective affiliates, members, agents, employees, heirs and assigns and other associates in furtherance of the sport of Off-Road Riding, racing and any other activities, scheduled or unscheduled, [*5] (hereinafter collectively called “Off-Roading.”) This Waiver shall commence on the date first signed and shall remain binding for all time thereafter.

By signing this document, I hereby understand and agree for me and/or my minor child to this Release of Liability, Wavier of Legal rights and Assumption of Risk and to the terms hereof as follows:

…

2. I hereby RELEASE AND DISCHARGE LT, NAW, TLC, DD and all related parties, event volunteers, company officers, directors, elected officials, agents, employees, and owners of equipment, the land used for Off-Roading activities and any owners of adjourning lands to the premises (hereinafter collectively referred to as “Released parties”) from any and all liability claims, demands or causes of action that I, my minor child or my representatives and my heirs may hereafter have for injuries, loss of life, and all other forms of damages arising out of my voluntary participation in Off-Roading activities.

3. I understand and acknowledge that Off-Road riding and racing activities have inherent dangers that no amount of care, caution, instruction or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY [*6] OR OTHER FORMS OF DAMAGES SUSTAINED WHILE PARTICIPATING IN OFF-ROADING ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASE PARTIES.

4. I further agree that I WILL NOT SUE OR OTHERWISE MAKE A CLAIM on behalf of me and/or on behalf of my minor child, against the Released Parties for damages or other losses sustained as a result of my participation in Off-Roading activities.

5. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorneys’ fees, incurred in the connection with any action brought against them, jointly or severally, as a result of my or my minor child’s participation in “Off-Roading” activities.

6. I take full responsibility for, and hold harmless Released Parties for any injury, property damage, or death that I or my minor child may suffer or inflict upon others .or their property as a result of my engaging in Off-Roading activities.

7. I further represent that I am at least 18 years of age, or that as the parent or (adult) legal guardian, I waive and release any and all legal rights that may accrue to me, to my minor child or to the minor child for whom I am (adult) legal guardian, as the result of [*7] any injury or damage that my minor child, the minor child for whom I am (adult) legal guardian, or I may suffer while engaging in Off-Roading activities.

8. I hereby expressly recognize that this Release of Liability, Waiver of Legal Rights and Assumption of Risks is a contract pursuant to which I have released any and all claims against the Released Parties resulting from participation in Off-Roading activities including any claims related to the negligence of the Released Parties by any of the undersigned.

9. I further expressly agree that the foregoing Release of Liability, Waiver of Legal Rights and Assumption of Risks is intended to be as broad and inclusive as is permitted by law of the province or state in which services, materials and/or equipment are provided and the course of business is conducted, and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full legal force and effect. I agree that, should any claim or action arise from my participation as described herein, including any issue as to the applicability of this Release or any provision contained within it, proper Jurisdiction and Venue will lie only in Monroe [*8] County, Pennsylvania and I waive Jurisdiction and Venue anywhere else.

(Doc. 54-1, at 20-21).

Plaintiff initialed all of the above provisions. She did not initial paragraph 10 on the next page, however, which states as follows:

(Doc. 54-1, at 21).

Despite not specifically initialing paragraph 10, Plaintiff did sign the agreement, indicating her acceptance and understanding of the exculpatory clauses. (Doc. 54-1).

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only [*9] if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson , 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson , 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson , 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes [*10] such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex , 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex , 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n , 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES , 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”).

As this jurisdiction of this Court is sounded in the diversity of the parties pursuant to 28 U.S.C. § 1332(a), Pennsylvania substantive [*11] law will apply. Erie R. Co. v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

III. Discussion

Defendant submits that it is entitled to judgment in its favor because Plaintiff executed a valid waiver of all liability prior to ever engaging in any recreational activities on Defendant’s property; because such releases and waivers are recognized under Pennsylvania law; and because within the waiver, Plaintiff specifically acknowledged that she was assuming all of the risks associated with these activities. (Doc. 52, at 2). In response, Plaintiff argues that Plaintiff did not sign a waiver on the date of the accident, and therefore did not waive any liability or assume any risk; that she was rushed and unable to read the original waiver in its entirety; that the waiver is unenforceable as not properly conspicuous; and finally, that because the earlier waiver signed by Plaintiff was “for all time thereafter” it should not be enforced. (Doc. 54).

A. The Exculpatory Clause is Valid

An exculpatory clause is valid if the following conditions are met: 1) the clause does not contravene public policy; 2) the contract is between parties relating entirely to their own private affairs; and 3) the contract is not one of adhesion. Evans v. Fitness & Sports Clubs, LLC , No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *3 (E.D. Pa. Sept. 28, 2016); [*12] Topp Copy Prods., Inc. v. Singletary , 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993). A valid exculpatory clause is only enforceable if “the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. A waiver of liability violates public policy only if it involves “a matter of interest to the public or the state. Such matters of interest to the public or the state include the employer-employee relationship, public service, public utilities, common carriers, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 400 Pa. Super. 134, 582 A.2d 1380, 1382 (Pa. Super. Ct. 1990); see also Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663, 665 (Pa. Super. Ct. 1992). The exculpatory clause at issue in this case does not contravene public policy because it does not affect a matter of interest to the public or the state. See Kotovsky , 603 A.2d at 665-66 (holding that releases did not violate public policy because “[t]hey were [in] contracts between private parties and pertained only to the parties’ private rights. They did not in any way affect the rights of the public.”). Thus, the exculpatory clause meets the first two prongs of the Topp Copy standard for validity.

The contract meets the third prong of the Topp Copy validity standard because it is not a contract of adhesion. Agreements to participate in “voluntary sporting or recreational activities” are not contracts of adhesion because “[t]he signer is a free agent [*13] who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1190-91 (Pa. 2010). “The signer is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.” Id. The Agreement at issue here is not a contract of adhesion because it is a contract to participate in voluntary recreational activities. The Agreement does not relate to an essential service, and Plaintiff was free to engage in the activity, or not, as she wished. She was under no compulsion to do so. See Chepkevich, supra; see also Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738, 741-2 (Pa. Super. Ct. 2016) (en banc), appeal denied, 636 Pa. 650, 141 A.3d 481 (Pa. 2016) (citing the “thorough and well-reasoned opinion” of the trial court, which held that the plaintiff’s gym membership agreement was not a contract of adhesion because exercising at a gym is a voluntary recreational activity and the plaintiff was under no compulsion to join the gym). The Agreement meets all three prongs of the Topp Copy standard for validity, and thus the exculpatory clause is facially valid.

B. The Exculpatory Clause is Enforceable

Even if an exculpatory clause is [*14] facially valid, it is enforceable only if it clearly relieves a party of liability for its own negligence. Evans v. Fitness & Sports Clubs, LLC , No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *5 (E.D. Pa. Sept. 28, 2016). The following standards guide a court’s determination of the enforceability of an exculpatory clause:

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.

Topp Copy , 626 A.2d at 99.

The Court now turns to Plaintiff’s arguments against the enforceability of the exculpatory clause.

1. Plaintiff’s first waiver is enforceable, including the clause “for all time thereafter.”

Plaintiff submits that the waiver she executed in October 2013 did not apply to her visit to Defendant on June 22, 2014, because “it is uncontroverted that the Defendant has a policy that dictates all [*15] riders must sign a waiver every time they ride an ATV at their park” (Doc. 54, at 4), and Plaintiff did not sign a waiver when she visited the park in June 2014. Defendant counters that Plaintiff is misconstruing the record in making this assertion. (Doc. 55, at 2). Specifically, Defendant submits that the testimony cited by Plaintiff is that of a former maintenance man who has nothing to do with policy or procedure at Defendant’s property, and further, that he neither testifying as a representative of, nor acting on behalf of, Lost Trails, LLC. (Doc. 55-1, at 4). The testimony offered by the Plaintiff on this issue is that of Matthew Anneman, who testified as follows:

Q: Everybody that goes there is supposed sign the waiver before they go out on the trails, is that fair to say?

A: Yes.

Q: Do you know if Miss Moncrieff signed a waiver before she went on the trail that day?

A: Yes. It is imperative that everybody who comes to ride on that mountain is to fill out a waiver.

…

Q: So every single time somebody comes to the facility, before they go out there, they go in and sign a waiver.

A: Yes.

Q: And you’re not involved in that part of it, the sign in, and the waiver.

A: No, no. Leslie or one [*16] of her employees would work the front desk.

(Doc. 54-1, at 12; Anneman Dep. at 36).

The Court finds this testimony to have little to no bearing on the validity and applicability of the October 2013 waiver. Even construing the evidence in the record in Plaintiff’s favor, Mr. Anneman’s testimony does not change the fact Plaintiff did sign a waiver in October 2013, one which indicated that it “shall remain binding for all time thereafter.” (Doc. 54-1, at 20) (emphasis added). Nothing in the record before the Court indicates that Mr. Anneman was responsible for either policy at Defendant’s facility, or in any way even involved with the waiver process. Further, the language of the waiver is clear. In interpreting the language of a contract, courts attempt to ascertain the intent of the parties and give it effect. Sycamore Rest. Grp., LLC v. Stampfi Hartke Assocs., LLC , 2017 Pa. Super. 221, 174 A.3d 651, 656 (2017); LJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 648 (2009). When a writing is clear and unequivocal, its meaning must be determined by its contents alone. Synthes USA Sales, LLC v. Harrison , 2013 Pa. Super. 324, 83 A.3d 242, 250-51 (2013); Murphy v. Duquesne Univ. of the Holy Ghost , 565 Pa. 571, 591, 777 A.2d 418, 429 (2001) (citations and quotation marks omitted). “[I]t is not the function of this Court to re-write it, or to give it a construction in conflict with … the accepted and plain meaning of the language used.” Id.; citing Robert F. Felte, Inc. v. White , 451 Pa. 137, 144, 302 A.2d 347, 351 (1973) (citation omitted). Here, the language of the waiver form (Doc. 54-1, [*17] at 20) is unequivocal in stating the intent that it is binding for all time thereafter. As the Pennsylvania Supreme Court has stated,

The 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. If it had been the intention of the parties to exclude negligent acts they would have so written in the agreement. This paragraph of the lease is clear and unambiguous. No rules of construction are required to ascertain the intention of the parties.

Topp Copy Prods. v. Singletary , 533 Pa. 468, 472, 626 A.2d 98, 100 (1993); citing Cannon v. Bresch , 307 Pa. 31, 34, 160 A. 595, 596 (1932).

As such, the Court finds that the October 2013 waiver executed by Plaintiff was in effect during her June 2014 visit to Defendant’s property.¹

2. Plaintiff’s argument that she was rushed and unable to read the original waiver in its entirety is without merit.

Plaintiff next argues that, should the Court find that the 2013 waiver was in effect in June 2014, she was rushed and therefore did not have time to read the waiver before signing it. “The law of Pennsylvania is clear. One who is about to sign a contract has a duty to read that contract [*18] first.” Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016); In re Estate of Boardman , 2013 PA Super 300, 80 A.3d 820, 823 (Pa.Super.2013); citing Schillachi v. Flying Dutchman Motorcycle Club , 751 F.Supp. 1169, 1174 (E.D.Pa.1990) (citations omitted). In the absence of fraud, the failure to read a contract before signing it is “an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract.” Germantown Sav. Bank v. Talacki , 441 Pa.Super. 513, 657 A.2d 1285, 1289 (1995) (citing Standard Venetian Blind Co. v. American Emp. Ins. Co., 503 Pa. 300, 469 A.2d 563, 566 note (1983)); see also Wroblewski v. Ohiopyle Trading Post, Inc., No. CIV.A. 12-0780, 2013 U.S. Dist. LEXIS 119206, 2013 WL 4504448, at *7 (W.D. Pa. Aug. 22, 2013) (Under Pennsylvania law, the failure to read a contract does not nullify the contract’s validity.); Arce v. U-Pull-It Auto Parts, Inc., No. 06-5593, 2008 U.S. Dist. LEXIS 10202, 2008 WL 375159, at *5-9 (E.D.Pa. Feb.11, 2008) (written release found to be enforceable even when the agreement was in English but the plaintiff only read and spoke Spanish, noting that the “[p]laintiff cannot argue that the release language was inconspicuous or somehow hidden from his attention…. Nor did Defendant have an obligation to verify that [p]laintiff had read and fully understood the terms of the document before he signed his name to it.”). In this case, there is no allegation or evidence of fraud, and as such, Plaintiff’s argument is without merit.

3. The waiver is properly conspicuous.

Finally, Plaintiff avers that summary judgment should be denied because the waiver was not properly conspicuous, and relies on the Pennsylvania Superior Court’s decision in Beck-Hummel in making [*19] this assertion. The Beck-Hummel court addressed the enforceability of a waiver of liability printed on the back of a tubing ticket. The exculpatory language appeared in a font that was “just barely readable,” and smaller than the font used for some other portions of the ticket. Id. at 1274-75. The Beck-Hummel court looked to the conspicuousness of the waiver of liability as a means of establishing whether or not a contract existed, setting forth three factors to consider in determining conspicuousness: 1) the waiver’s placement in the document; 2) the size of the waiver’s font; and 3) whether the waiver was highlighted by being printed in all capital letters or a different font or color from the remainder of the text. Beck-Hummel , 902 A.2d at 1274. After considering these factors, the Beck-Hummel court could not conclude as a matter of law that the exculpatory clause was enforceable because the language of the ticket was not sufficiently conspicuous as to put the purchaser/user on notice of the waiver. Id.at 1275.

However, in a more recent Pennsylvania Superior Court case, the court held that, as in the case presently before this Court, where the exculpatory clause was part of a signed contract between the parties, the requirements of [*20] conspicuity set forth in Beck-Hummel would not necessarily apply. In Hinkal v. Pardoe, the en banc Superior Court of Pennsylvania examined whether the Beck-Hummel conspicuity requirements for the enforcement of exculpatory clauses applies to signed valid written contracts. Hinkal v. Pardoe, 2016 Pa. Super. 11, 133 A.3d 738, 743-745, appeal denied, 636 Pa. 650, 141 A.3d 481 (2016). In Hinkal, the plaintiff had signed a membership agreement with Gold’s Gym that contained a waiver of liability for negligence claims on the back page. Id. at 741. The Hinkal court found the plaintiff’s comparison of her case to Beck-Hummel “inapposite” because, unlike a waiver printed on the back of a tubing ticket that did not require a signature; the gym waiver was part of a signed agreement. Id. at 744-45. Further, the court noted that conspicuity is generally not required to establish the formation of a contract, but “has been resorted to as a means of proving the existence or lack of a contract,” where it is unclear whether a meeting of the minds occurred, and imposing such a requirement would allow a properly executed contract to be set aside through one party’s failure to do what the law requires – reading a contract. Id. at 745. The Hinkal court concluded that the waiver of liability was valid and enforceable because [*21] the plaintiff had signed the agreement. Similarly, in Evans v. Fitness & Sports Clubs, LLC, the District Court determined that the exculpatory clauses contained in a fitness club’s membership agreements were valid and enforceable where the plaintiff had signed both a membership and personal training agreement, including an acknowledgement that the plaintiff had read and understood the entire agreement, including the release and waiver of liability, appears directly above the plaintiff’s signature on the first page of each agreement. Evans v. Fitness & Sports Clubs, LLC , No. CV 15-4095, 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at *6 (E.D. Pa. Sept. 28, 2016).

The Court finds the agreement at issue in this case to be far more in line with the waivers discussed by the Pennsylvania Superior and Eastern District of Pennsylvania courts in Hinkal and Evans. The waiver form in this case was two pages in length, and initialed and signed by Plaintiff. It was not, like the waiver in Beck-Hummel, printed in small font on the back of a tubing ticket. This was a waiver that was reviewed, initialed and signed by Plaintiff. As such, the requirements of conspicuity set forth in Beck-Hummel would not necessarily apply. Hinkal v. Pardoe, 133 A.3d at 743-745.

Even if those conspicuity requirements applied, however [*22] the exculpatory clauses in the Waiver Form would still be enforceable. The document is titled, in larger font, bold, underlined, and all capital letters “LOST TRAILS ATV ADVENTURES WAIVER FORM.” The language specifically indicating release and discharge, assumption of the risk, an agreement not to sue, and indemnification, are set of in all capitals in the numbered paragraphs, and were acknowledged by Plaintiff initialing each paragraph. (Doc. 54-1, at 20). Immediately above the signature line, in all capital bold letters, the release reads:

(Doc. 54-1, at 21).

These clauses are conspicuously set apart, appearing in capital letters, and in the case of the final paragraph, fully set apart, in all bold and all capitals. Further, the agreement itself is titled “Waiver Form” which notifies the reader of the purpose of the form. [*23] Plaintiff initialed the paragraphs setting forth the exculpatory clauses,² and signed the agreement directly underneath the final, most prominent waiver clause. As such, the Court finds that the exculpatory clauses are valid and enforceable. See Evans , 2016 U.S. Dist. LEXIS 133490, 2016 WL 5404464, at n. 6.

IV. Conclusion

For the reasons set forth above, the undisputed material facts in the record establish that Defendant is entitled to summary judgment. Viewing the record in light most favorable to the Plaintiff, the Court finds that the exculpatory clauses at issue are valid and enforceable. As such, Defendant’s motion will be granted, and judgment will be entered in favor of Defendant.

An appropriate Order follows.

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

ORDER

AND NOW, this 29th day of August, 2018, IT IS HEREBY ORDERED that for the reasons set forth in the memorandum filed concurrently with this Order, Defendant’s motion for summary judgment (Doc. 50) is GRANTED, and judgment is entered in favor of Defendant. The Clerk of Court is directed to CLOSE this matter.

BY THE COURT:

Dated: August 29, 2018

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States Magistrate Judge

Plaintiff loses because experts could not prove his claims against a camp used for a football camp.

Posted: May 21, 2018 | Author: Recreation Law | Filed under: New York, Pennsylvania, Summer Camp, Youth Camps | Tags: ACA, Adult, American Camp Association, breached, building code, bunk, Cabin, Coach, constructive notice, cross-claims, engaging, Expert Witness, fellow, fighting, Football Camp, glass, hazardous, high school, horseplay, individual capacity, Infant, inter alia, Leader, negligent supervision, Notice, safety glass, severed, speculative, spontaneous, sudden, Summary judgment, Summer Camp, supervising, Supervision, window | Leave a comment

ACA trained expert witness was hired by injured plaintiff to prove a claim against a summer camp. Again, camp money is used to train expert who then is used against the camp.

Staten Et. Al. v. The City of New York Et. Al., 2013 N.Y. Misc. LEXIS 4257; 2013 NY Slip Op 32252(U)

State: New York, Supreme Court of New York, Richmond County

Plaintiff: Marvin Staten, an Infant Over the Age of 14 years by his Parent and Natural Guardian Cassandra Dozier and Cassandra Dozier, Individually

Defendant: The City of New York, The New York City Department of Education, Camp Chen-A-Wanda, Inc., Louis Cintron, Sr., Louis Cintron, Jr., an infant over the age of 14 years by his Parent and Natural Guardian, Louis Cintron, Sr., Barbara Rose Cintron and Louis Cintron, Jr. an infant over the age of 14 years by his Parent and Natural guardian, Barbara Rose Cintron, Defendants

Plaintiff Claims: Negligent supervision and maintenance of the premises

Defendant Defenses:

Holding: For the defendant Camp

Year: 2013

Summary

American Camp Association (ACA) trained expert witness used ACA material to try and prove the summer camp was liable for the injuries of a camper. The summer camp had passed the duty to control the kids to the school district that had rented the camp and as such was not liable.

To be able to sue for emotional damages under New York law, the parent must have financial damages also. Lacking that, the mother’s claims were dismissed.

Facts

This ruling is the result of several motions filed by different parties and can be confusing.

The minors were at a summer week long football camp. The camp was rented by the defendant New York Department of Education. The camp, Camp Chen-A-Wanda, Inc., was located in Pennsylvania.

The plaintiff was looking through the cabin window where he was bunking to see if anyone was messing with his stuff. The defendant minor punched the plaintiff through the window, injuring the plaintiff with the broken glass from the window. The plaintiff’s expert identified this action as horseplay?

At his deposition, plaintiff testified that shortly after dinner on the date of the accident, he was standing outside his cabin, looking in through a window to “see if anybody was messing around with [his] stuff” when, after a few seconds, defendant Cintron “punched [through] the glass”

The defendant minor had been disciplined before by the school district for fighting.

There was a written agreement between the Defendant Camp and the school district, where the school district agreed to provide one adult (person over age 19) per cabin. In the cabin where the incident took place, the supervisors were two seniors, one of whom was the defendant minor.

The agreement gave control of the people at the camp, including campers to the school district renting the facilities.

This is the decision concerning the various motions.

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

The camp filed a motion for summary judgment arguing:

(1) it owed no duty to supervise plaintiff or to otherwise protect him from horseplay; (2) no facts have been adduced in support of plaintiffs’ claim that the subject window constituted a “defective condition”; and (3) since the proximate cause of the accident was the sudden, unanticipated independent actions of Cintron (i.e., punching the glass), the Camp cannot be found liable for plaintiff’s injury.

The plaintiff argued the camp was negligent and negligent per se. The negligence per se claim was based on a regulation that required safety glass to be used in windows of bunkhouses. The plaintiff also argued the camp was negligent for failing to exercise risk management and supervise the campers.

I’ve never seen a claim that it was negligent to fail to exercise risk management.

The expert hired by the plaintiff had “44 years in the camping industry and a co-author of the American Camp Association’s ‘2006 Camp Accreditation Process Guide’.” However, the court found the testimony of the expert was conclusory and insufficient to raise a question of fact.

…”conclusory testimony” offered by plaintiff’s expert was “insufficient to raise a question of fact as to whether [the Camp] breached its duty to maintain[] [its] property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the in-jury, and the burden of avoiding the risk” and, further, that the failure of plaintiff’s expert to quote any “authority, treatise [or] standard” in support thereof rendered his ultimate opinion speculative and/or “unsupported by any evidentiary foundation…[sufficient] to withstand summary judgment.

The basis of the plaintiff’s expert witness testimony was based on the 2006 American Camp Association Accreditation Process Guide. However, he failed to demonstrate how, where or when the guide had “been accepted as an authoritative reference work in any court of law, or its applicability to a camp constructed in the 1940s.”

The court also found the expert witnesses reliance on the building codes was misplaced because the camp had been built thirty years prior to the creation of the building code.

The court then stated, “the Camp’s motion for summary judgment is granted, and the complaint and any cross claims as against this defendant are hereby severed and dismissed.”

The court then looked at the cities (New York’s) motions. The court found the duty to supervise the youth was contractually assumed by the city in its contract with the camp. The school also had knowledge of the propensity of the defendant minor to get in fights.

In this regard, actual or constructive notice to the school of prior similar conduct is generally required, since school personnel cannot be reasonably expected to guard against all of the sudden and spontaneous acts that take place among students on a daily basis

The it was foreseeable the fight could occur.

The plaintiff’s mothers claim against the city were dismissed.

However, it is well settled that a parent cannot recover for the loss of society and companionship of a child who was negligently injured, while a claim for the loss of a child’s services must be capable of monetarization in order to be compensable. Here, plaintiff’s mother has offered no proof of the value of any services rendered to her by her son. As a result, so much of the complaint as seeks an award of damages in her individual capacity for the loss of her son’s services must be severed and dismissed.

The defendant camp was dismissed from the lawsuit. The mother’s claims were dismissed from the lawsuit because she could not prove actual damages, only emotional damages, which are not a cause of action in New York.

So Now What?

Here again an ACA trained expert witness tries to use ACA material to prove a camp is negligent. The expert would have been successful if he had better training as an expert witness and knew had to get his guide into evidence.

There are great organizations doing great things for their membership. ACA is one of those organizations. However, like others, the attempt to help their membership be better is making their lives in court a living hell.

What would you think if the person sitting across from you being deposed or on the witness stand says you are a crummy operation and negligent. And you know that your association money went into training him and creating the documents he is using to prove you were negligent.

The final issue is many states are reducing or eliminating who can sue for emotional damages when they witness or are relatives of the plaintiff. Here New York has said you can’t sue for emotional damages for the injury your child received if you don’t have financial damages in the game also.

What do you think? Leave a comment.

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By Recreation Law Rec-law@recreation-law.com James H. Moss

A season pass release for a Pennsylvania ski are was limited to the inherent risks of skiing. Consequently, the plaintiff was able to argue his injury was not due to an inherent risk.

Posted: May 14, 2018 | Author: Recreation Law | Filed under: Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: Assumption of risk, atmosphere, contravene, derivative, Downhill, exculpatory, Exculpatory clause, experienced, hazardous, Ice, icy, Inherent Risks, loss of consortium, matter of law, Notice, particularity, Pennsylvania Skier Safety Act, plain language, Public Policy, Release, release agreement, releasing, Resort, risk doctrine, season, Ski, Skier, skiing, Snow, Snowsports, Sport, website, written applica-tion | Leave a comment

The defendant was one because the court was able to interpret the risk as one that was inherent in skiing. The defendant also laid out the risks of skiing quite broadly in its information to the plaintiff.

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

State: Pennsylvania, Common Pleas Court of Adams County, Pennsylvania

Plaintiff: Timothy Joseph Cahill and Anne Leslie Cahill

Defendant: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.

Plaintiff Claims: negligent for failing to properly maintain its ski slopes in a safe manner and/or failing to adequately warn concerning an icy area

Defendant Defenses: Assumption of the Risk and Release

Holding:

Year: 2006

Summary

Plaintiff was injured when he skied over an icy spot and fell at the defendant’s ski area. However, this case was quickly dismissed because he had signed a release and the risk of ice at a ski area was an inherent risk of the Pennsylvania Skier Safety Act.

Facts

The plaintiff purchased a season pass to ski at the defendant’s ski area. He purchased his season pass on-line and signed a release at that time, online. When he went to pick up his season pass, he signed another written release. (See Too many contracts can void each other out; two releases signed at different times can render both release’s void.)

While skiing one day the plaintiff fell on an icy section. He claimed he was unaware of the ice. He severely injured is face, back, ribs and left hand. He sued the defendants for his injuries.

The defendant filed a Motion for Judgment on the Pleadings. A Motion for Judgment on the Pleadings is an argument that the pleadings do not make a legal case to continue the litigation.

A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the [P]laintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law.

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

The court looked at Pennsylvania law. Like most states in Pennsylvania “exculpatory agreements, or releases, are valid provided, they comply with the safeguards enunciated by our Superior Court.”

Under Pennsylvania law, a release to be valid must:

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

The court then went through the facts in this case to see if the requirements under the law were met.

The plaintiff was not forced to sign the release but did so freely. The release was signed based on a personal choice of the plaintiff to ski at the defendant’s facilities. “Clearly, this activity is not essential to Cahill’s personal or economic well-being but, rather, was a purely recreational activity.”

The release does not violate public policy because the agreement was private in nature and “in no way affect the rights of the public.”

The court found the release was unambiguous. The release spelled out the intent of the parties and gave notice to the plaintiff of what he was signing.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, releases Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

The plaintiff had ample opportunity to read and review the release before paying for it. The court found the release was clear and spelled out in detail in plain language the intent of the parties.

The plaintiff argued the icy condition was a hazardous condition created by the defendant and is not an inherent risk of the sport of skiing. Because the condition was hazardous, the plaintiff argued you could not assume the risk of the icy area, and the release should be void.

The court found that icy conditions were an inherent risk of skiing in Pennsylvania.

Cahill is an experienced skier who obviously has personal knowledge of the inherent dangers involved in the sport. His experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport. The self-apparent risks were accepted by Cahill when he voluntarily entered into a business relationship with Ski Liberty. He chose to purchase a ski ticket in exchange for the opportunity to experience the thrill of downhill skiing. In doing so, he voluntarily assumed the risks that not only accompany the sport but may very well add to its attractiveness.

The court upheld the release and granted the defendants motion for judgment on the pleadings. This effectively ended the lawsuit.

So Now What?

It is rare that a Judgment on the Pleadings works, normally; the plaintiff can make an argument that the court finds requires more investigation, so the case can continue.

Here though, the release was well-written and the plaintiff’s argument was thrown out as a risk covered in the Pennsylvania Skier Safety Act.

In this case, the plaintiff was dealt a double blow, with only one being necessary for the defendant to win. He signed a valid release and the risk he undertook was an inherent risk of skiing in Pennsylvania.

What do you think? Leave a comment.

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management

Outdoor Recreation Insurance, Risk Management and Law

and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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By Recreation Law Rec-law@recreation-law.com James H. Moss

@2023 Summit Magic Publishing, LLC

G-YQ06K3L262

Penn State Outing Club Needs Your Help

Posted: April 27, 2018 | Author: Recreation Law | Filed under: Adventure Travel, Pennsylvania | Tags: Outing Club, Penn State, Risk Management | Leave a comment

If you have not been watching the news, you might not know that the Penn State Outing clubs have been restricted to Campus. They are not allowed to go outdoors. 100 Years of Helping students, relax, learn, grow, explore and graduate have been eliminated by a group of old scared board members, their attorneys and risk managers. You can read more about the issues here.

Read the article and then contact Penn State and let them know how stupid and antiquated this thinking is!

In this age of football concussions this entire argument is stupid!

Twitter: @Penn_State

President’s Office

The Pennsylvania State University
201 Old Main
University Park, PA 16802
EMAIL: president@psu.edu
TELEPHONE: 814-865-7611
FAX: 814-863-8583

Department of News and Media Relations

The Pennsylvania State University
312 Old Main
University Park, PA 16802
TELEPHONE: 814-865-7517
FAX: 814-863-3428

Risk Management Office
The Pennsylvania State University
227 West Beaver Avenue
Suite 103 Rider Building
State College, PA 16801

Phone: (814) 865-6307

**RISK MANAGEMENT STAFF**
Name	Title	Email	Phone
Cristene Boob	Contract Coordinator	cnb1@psu.edu	865-0512
Julie Farris	Senior Contract Coordinator	jof10@psu.edu	865-2072
Kim Hannon	Insurance Support Assistant	kmh42@psu.edu	863-5545
Gary Langsdale	University Risk Officer	gwl3@psu.edu	865-6308
Clay Mattson	Outreach Contract Coordinator	cxm2124@psu.edu	867-5451
Lorrie Neiburg	Health Care Operations Risk Mgr.	ljn5126@psu.edu	717-531-0003 ext. 283639
Richel Perretti	Contract Manager	rap126@psu.edu	863-5538
Amy Shilling	Contracts Support Assistant	ask145@psu.edu	867-4906
David Snowe	Assistant Director	dcs28@psu.edu	863-4241
Jared Wise	Claims Supervisor	jhw39@psu.edu	863-5539

Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing.

Posted: April 16, 2018 | Author: Recreation Law | Filed under: Assumption of the Risk, Pennsylvania, Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: assumption of the risk, att, Collision, daughter, Downhill, drop-off, edge, elevation, experienced, foot, genuine, inherent, Inherent Risk, knee-jerk, Lift Ticket, matter of law, Pennsylvania Skier Safety Act, pile, Resort, rocks, Ski, skied, Skier, Skier's Responsibility Act, skiing, Slope, Snow, Snowboarder, specific risk, Sport, Summary judgment, Trail, veering Skier Safety Act | Leave a comment

The terrain off of the trail was different than normally found at a ski area. A 3-4 drop off into a pile of rocks. However, the risk is skiing off the trail, not what you run into when you do.

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Quan Vu and May Siew

Defendant: Ski Liberty Operating Corp., et. al.

Plaintiff Claims: Negligence and Loss of Consortium

Defendant Defenses: Release

Holding: For the defendant

Year: 2018

Summary

The definition of an inherent risk when skiing is not what causes the injury, only the risk that led to the injury. Under Pennsylvania law, there is a broad definition of inherent risks and this case was dismissed because the plaintiff assumed those inherent risks, and the defendant did not owe a duty to protect him from those risks.

Facts

The plaintiff was an experienced skier, who had been skiing for twenty years. He was skiing behind his daughter at the defendant’s ski area. A snowboarder came close to the plaintiff or hit the plaintiff sending or causing him to ski off the trail. He went off the trail, over a 3-4 drop and landed in a pile of rocks.

…Mr. Vu does not recall much detail about his accident. Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. The last thing that Mr. Vu remembered was skiing with his daughter.

He sued the defendant ski area because it was:

…negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition.

The court granted the defendants motion for summary judgment.

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

The decision was based on the Pennsylvania Skier’s Responsibility Act. The court had to decide if the risks encountered by the plaintiff were inherent risks of skiing.

If there is no duty, then there can be no negligence.

Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.

Pennsylvania has a two-part test to determine if the defendant owed the plaintiff a duty.

First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of down-hill skiing.” If so, then summary judgment must be awarded against the plaintiff as a matter of law.

The first test was met; the plaintiff was skiing at the time of his accident.

The court then had to determine if the risks the plaintiff encountered were inherent to skiing. Under Pennsylvania law, inherent risks “are those that are “common, frequent, and expected” in downhill skiing.”

The plaintiff argued that because the plaintiff was no specifically aware of the risk of the 3-4-foot drop off and the pile of rocks, he could not assume the risk.

Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply.

In many cases, assumption of the risk would not be a defense if the injured plaintiff had no specific knowledge of the risk. However, it was not the case here under the statute. It did not matter if the Plaintiff had specific knowledge of the risk or a general knowledge of the risks of skiing, he assumed those risks.

The court then looked at the facts and found there were two circumstances that gave rise to the plaintiff’s injuries, veering to avoid a collision and skiing over the drop off.

The first is an inherent risk of skiing in Pennsylvania.

The next issue was whether skiing over the drop off into a pile of rocks was an inherent risk of skiing. Here again, the court found skiing off the trail, no matter what you may encounter once you are off the trail, is an inherent risk of skiing. The court backed its point up quite interestingly.

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis.

The court found the defendant did not owe the plaintiff a duty because he assumed the risks of his injury under the Pennsylvania Skier’s Responsibility Act.

So Now What?

Actually, an easy case. Easy under Pennsylvania law because of the Pennsylvania Supreme Courts interpretation of the Pennsylvania Skier’s Responsibility Act. When skiing in Pennsylvania collisions with other skiers or boarders are an inherent risk of skiing and skiing off the trail is also.

What do you think? Leave a comment.

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Posted: April 15, 2018 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Pennsylvania, Ski Area, Skier v. Skier, Skiing / Snow Boarding | Tags: assumption of the risk, att, Collision, daughter, Downhill, drop-off, edge, elevation, experienced, foot, genuine, inherent, Inherent Risk, knee-jerk, Lift Ticket, matter of law, Pennsylvania Skier Safety Act, pile, Resort, rocks, Ski, skied, Skier, Skier Safety Act, Skier's Responsibility Act, skiing, Slope, Snow, Snowboarder, specific risk, Sport, Summary judgment, Trail, veering | Leave a comment

Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013

Quan Vu and May Siew, Plaintiffs, v. Ski Liberty Operating Corp., et. al., Defendants,

1:16-cv-2170

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2018 U.S. Dist. LEXIS 49013

March 26, 2018, Decided

COUNSEL: [*1] For Quan VU, May Siew, Plaintiffs: D. Aaron Rihn, Mark D. Troyan, LEAD ATTORNEYS, Robert Peirce & Associates, P.C., Pittsburgh, PA USA.

For Ski Liberty Operating Corp. doing business as Liberty Mountain Resort, Defendant: Anthony W. Hinkle, Snow Time, Inc., Cipriani & Werner, P.C., Philadelphia, PA, USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Plaintiffs: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

For Snow Time, Inc., Ski Liberty Operating Corp., Counterclaim Defendants: Anthony W. Hinkle, Cipriani & Werner, P.C., Philadelphia, PA USA.

JUDGES: Hon. John E. Jones III, United States District Judge.

OPINION BY: John E. Jones III

OPINION

MEMORANDUM

Plaintiffs are Quan Vu and his wife, May Siew. (“Plaintiffs”). Defendants are Ski Liberty Operating Corp. and Snow Time, Inc., operating as Liberty Mountain Resort. (“Defendants”). This action arises out of a skiing accident at Liberty Mountain that left Mr. Vu severely injured. The complaint brings one count of negligence on behalf of Mr. Vu and one count of loss of consortium on behalf of Mrs. Siew, both alleging that the accident was caused by the Defendants’ negligence in maintaining the ski slope and failing to warn Mr. Vu of [*2] the slope’s hazardous condition. (Doc. 1). Presently pending before the Court is the Defendants’ motion for summary judgment. (the “Motion”) (Doc. 36). The Motion has been fully briefed and is therefore ripe for our review. (Docs. 38, 42, 43). For the reasons that follow, the Motion shall be granted.

I. BACKGROUND

On January 23, 2015, Mr. Vu was downhill skiing with his daughter at Liberty Mountain. (Doc. 41, ¶ 24). Mr. Vu was following his daughter from behind as they skied down the Lover Heavenly trail, a blue square intermediate hill, when he had his accident. (Id. at ¶¶ 24-25). Due to his injuries, Mr. Vu does not recall much detail about his accident. (Doc. 37, ¶ 11). Mr. Vu testified: “I believe there was a snowboarder involved and I — the snowboarder got — either cut me off or got awfully close and I had a knee-jerk reaction to veer because the last thing I want to do is ram into somebody. So I — my knee-jerk reaction is to veer.” (Doc. 37, att. 1, pp. 65-66). However, Mr. Vu could not recall what he saw that caused him to veer, whether he veered to the right or to the left, or whether the snowboarder was above or below him on the hill. (Id. at pp. 65-66). The last thing that Mr. Vu remembered [*3] was skiing with his daughter. (Id. at p. 66).

Mr. Vu’s daughter testified: “I saw someone get really close to him and he was trying to avoid them and it was either ramming into him, the snowboarder, or person who was trying to get really close to him, or veering off path.” (Doc. 42, att. 2, p. 8). “He — there was someone trying to kind of get really close to him. And he didn’t want to ram into him. So he — I don’t really understand — know what happened. But he tried to avoid it. And there was like a big ditch or something there. And he tried to stop and tried to avoid the person who was trying to cut him off.” (Id.). “My dad was — the snowboarder was — my dad was kind of like the ham in the middle of a sandwich. Between the end of the trail, the edge of the trail and the snowboarder.” (Id. at p. 9). “I just felt that the snowboarder was getting quite close to my dad and I didn’t want a collision to happen or the snowboarder to ram into my dad.” (Id. at p. 10).

Ultimately, whether he did so intentionally or not, Mr. Vu skied off of the edge of the trail and suffered catastrophic injuries. There was a drop-off at the edge of the ski trail of about three to four feet. (Doc. 41, ¶ 32). Below that drop-off was a large pile [*4] of rocks. (Id. at ¶ 31). Mr. Vu skied off of the edge of the trail, off of the embankment, and landed on the pile of rocks. (Doc. 37, ¶ 11).

Mr. Vu was an experienced skier at the time of his accident. He had skied for over twenty years and was capable of skiing black diamond slopes. (Id. at P 6). Mr. Vu testified that he was familiar with the Skier’s Responsibility Code and understood that he was responsible for skiing in control and in such a manner that he could stop or avoid other skiers. (Id.). Mr. Vu also testified that he understood that skiing is a dangerous sport and that he could get hurt if he skied out of control or if he fell. (Id.).

On the day of his accident, Mr. Vu’s wife purchased his Liberty Mountain Resort Lift Ticket. (Id. at ¶ 18). The back of the lift ticket reads as follows:

PLEASE READ

Acceptance of this ticket constitutes a contract. The conditions of the contract are stated on this ticket & will prevent or restrict your ability to sue Liberty Mountain Resort. If you do not agree with these conditions, then do not use the facility. Snowsports in their various forms, including the use of lifts, are dangerous sports with inherent and other risks. These risks include but are [*5] not limited to: variations in snow, steepness & terrain, ice & icy conditions, moguls, rocks, trees & other forms of forest growth or debris (above or below the surface), bare spots, lift towers, utility lines & poles, fencing or lack of fencing, snowmaking & snowgrooming equipment & component parts, on-snow vehicles & other forms of natural or man-made obstacles, and terrain features on or off designated trails as well as collisions with equipment, obstacles or other snowsport participants. Trail conditions vary constantly because of weather changes and use. All the inherent and other risks involved present the risk of permanent catastrophic injury or death. In consideration of using Liberty’s facilities, the purchaser or user of this ticket agrees to accept the risks of snowsports and understands and agrees that they are hazardous and further agrees NOT TO SUE Ski Liberty Operating Corp., its owners or employees if injured while using the facilities regardless of any negligence, including gross negligence, on the part of the resort, and/or its employees or agents. The purchaser or user of this ticket voluntarily assumes the risk of injury while participating in the sport, and agrees [*6] to report all injuries before leaving the resort . . .

(Doc. 37, Ex. D) (emphasis in original). Though Mr. Vu was uncertain if he read the language on the lift ticket on the day of his accident, he testified that he had read it at some point prior to his accident. (Doc. 37, ¶ 20). At his deposition, Mr. Vu was asked to read portions of the lift ticket and he had trouble doing so because the font was too small. (Doc. 37, att. 1, p. 70).

Mr. Vu and his wife initiated this action with the filing of a complaint on October 27, 2016. (Doc. 1). Plaintiffs allege that Defendants were negligent in the design, construction, and maintenance of the ski slope, failure to warn Mr. Vu of the dangerous condition, failure to construct a barrier to stop skiers from going over the edge into the pile of rocks, failure to inspect the scope and detect the defective condition, and failure to repair that condition. Defendants filed the instant motion for summary judgment on January 31, 2018. (Doc. 36).

I II. LEGAL STANDARD

Summary judgment is appropriate if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute [*7] is “genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a fact is “material” only if it might affect the outcome of the action under the governing law. See Sovereign Bank v. BJ’s Wholesale Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court should view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences therefrom, and should not evaluate credibility or weigh the evidence. See Guidotti v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764, 772 (3d Cir. 2013) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).

Initially, the moving party bears the burden of demonstrating the absence of a genuine dispute of material fact, and upon satisfaction of that burden, the non-movant must go beyond the pleadings, pointing to particular facts that evidence a genuine dispute for trial. See id. at 773 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). In advancing their positions, the parties must support their factual assertions by citing to specific parts of the record or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P. 56(c)(1).

A court should not grant summary judgment when there is a disagreement about the facts or the proper inferences that a factfinder could draw from them. See Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010) (citing Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982)). Still, “the [*8] mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.” Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205, 211 (3d Cir. 2011) (quoting Anderson, 477 U.S. at 247-48) (internal quotation marks omitted).

III. DISCUSSION

Defendants move for summary judgment on two legal bases. First, Defendants argue that Plaintiffs’ claims are barred as a matter of law because Mr. Vu’s injuries were caused by an inherent risk of skiing. Second, Defendants argue that Plaintiffs’ claims are barred by the exculpatory release language contained on the Liberty Mountain lift ticket. Because we find that Mr. Vu’s injuries arose out of risks inherent to the sport of downhill skiing, we hold that Defendants are entitled to summary judgment as a matter of law without even considering the exculpatory release language of the lift ticket.

The material facts surrounding Mr. Vu’s accident are not in dispute. Though Mr. Vu and his daughter are unclear on the specifics, it is undisputed that Mr. Vu ended up skiing off of the trail, over a drop-off, and into a pile of rocks. (Doc. 37, ¶ 11). Mr. Vu testified that a snowboarder was getting too close to him and his “knee-jerk” reaction was to veer to avoid a collision, causing him [*9] to ski off of the trail and over the embankment. (Doc. 37, att. 1, pp. 65-66). Mr. Vu’s daughter also testified that her father’s accident occurred when he tried to avoid a collision with a snowboarder. (Doc. 42, att. 2, p. 8). While Defendants argumentatively refer to this person as the “phantom snowboarder” and question the credibility of the testimony, for purposes of this Motion we can take Plaintiffs’ facts as true and assume that Mr. Vu skied off of the trail, either intentionally or as a result of a knee-jerk reaction, to avoid colliding with a snowboarder. Even so, summary judgment must be granted in favor of the Defendants because Mr. Vu’s accident occurred as a result of inherent risks of downhill skiing.

The Pennsylvania General Assembly expressly preserved the doctrine of assumption of the risk as a defense in downhill skiing cases in the Skier’s Responsibility Act, recognizing that “there are inherent risks in the sport of downhill skiing.” 42 Pa. C.S. § 7102(c). As the Supreme Court of Pennsylvania explained, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a [*10] place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2). “Where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.

In Hughes v. Seven Springs Farm, Inc., the Supreme Court of Pennsylvania established a two-part test for courts to use to determine whether a plaintiff’s claims are barred by the no duty rule of the Skier’s Responsibility Act. 762 A.2d 339, 343 (2000). “First, this Court must determine whether [the plaintiff] was engaged in the sport of downhill skiing at the time of her injury.” Id. at 344. “If that answer is affirmative, we must then determine whether the risk” of the circumstance that caused the plaintiff’s injury “is one of the ‘inherent risks’ of downhill skiing.” Id. If so, then summary judgment must be awarded against the plaintiff as a matter of law. Id. In the case at-bar, there can be no dispute that Mr. Vu was engaged in the sport of downhill skiing at the time of his accident. The salient question, therefore, becomes whether veering off-trail and over a drop-off into a pile [*11] of rocks to avoid a collision with a snowboarder are inherent risks of downhill skiing. If those risks are inherent to skiing, then Defendants had no duty to protect Mr. Vu. Chepkevich, 2 A.3d at 1186. If those risks are not inherent, traditional principles of negligence apply and we must determine what duty the Defendants owed Mr. Vu, whether the Defendants breached that duty, and whether the breach caused Mr. Vu’s injuries.

We begin with a discussion of what it means for a risk to be “inherent.” The Hughes court explained that “inherent” risks are those that are “common, frequent, and expected” in downhill skiing. Id. In interpreting risks, the Supreme Court of Pennsylvania has instructed that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Chepkevich, 2 A.3d at 1187-88. “Accordingly, courts have rejected attempts by plaintiffs to define the injury producing risks in very a specific and narrow manner.” Cole v. Camelback Mountain Ski Resort, 2017 WL 4621786, at *4 (M.D. Pa. Oct. 16, 2017) (Mariani, J.). For example, the Supreme Court of Pennsylvania in Chepkevich rejected the plaintiff’s argument that she did not assume the “specific [*12] risk” involved, looking instead to the “general risk” that gave rise to the accident. 2 A.3d at 1188. A number of courts have addressed the scope of the Skier’s Responsibility Act and have concluded that some of the inherent risks of downhill skiing include: lack of netting, improper course plotting, or soft snow¹; skiing off trail and striking a tree²; collisions with unpadded snow equipment poles³; striking a fence on the edge of the trail⁴; and collisions with other skiers or snowboarders.⁵

1 Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir. 2008).

2 Id.

3 Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983).

4 Cole, 2017 WL 4621786, at *5.

5 Hughes, 762 A.2d 339.

Before addressing the risks that Mr. Vu encountered, we must address Plaintiffs’ initial argument that the assumption of the risk doctrine is inapplicable. Plaintiffs argue that while Mr. Vu “was generally aware of the dangers of downhill skiing,” he was not aware “of the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8) (emphasis in original). Because there is no evidence that Mr. Vu had subjective awareness of these risks, Plaintiffs argue, the doctrine of assumption of the risk cannot apply. (Id. at pp. 9-13). For support of this argument, Plaintiffs cite several cases that are materially distinct from the case at-bar. First, Plaintiffs [*13] quote Barillari v. Ski Shawnee, Inc., “[i]t is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks.” 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013). Importantly, the court made this statement when analyzing the doctrine of voluntary assumption of the risk after determining that the Skier’s Responsibility Act was not applicable because the plaintiff was not engaged in the sport of downhill skiing at the time of the accident. Id. at 561. The instruction of this quote is inapplicable to our consideration of the no duty doctrine of assumption of the risk.

Next, Plaintiffs rely heavily on Bolyard v. Wallenpaupack Lake Estates, Inc., 2012 WL 629391(M.D. Pa. Feb. 27, 2012) (Caputo, J.). In Bolyard, the plaintiff sued the defendant for negligence after sustaining injuries while snow tubing on the defendant’s property. Id. at *1. The court recognized that while the plaintiff had “general knowledge” of the dangers of snow tubing on the hill, she did not assume the risk because “there is no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Id. at *6. Plaintiffs argue that “[s]imilar to the patron in Bolyard,” Mr. Vu was only generally aware of the risks he could suffer while skiing and thus assumption of the risk is inapplicable. (Doc. [*14] 42, p. 8). We disagree.

Notably, the slope in Bolyard was an old slope that was not currently in operation. 2012 WL 629391, at *1. The court used principles of negligence as applicable to landowners and licensees to determine the duty owed to the plaintiff and, consequently, considered the doctrine of voluntary assumption of the risk as a defense. Id. at **3-6. Analyzing the present action under the no duty rule, we do not consider the defense of voluntary assumption of the risk; instead, we must determine whether Mr. Vu’s injuries arose out of an inherent risk of the sport of skiing such that the Defendants had no duty at all. Pursuant to Hughes and the Skier’s Responsibility Act, there is no duty to protect a skier from the inherent risks of skiing and therefore, “when inherent risks are involved, negligence principles are irrelevant.” Id.

Finally, Plaintiffs cite Perez v. Great Wolf Lodge of the Poconos LLC,⁶
Staub v. Toy Factory, Inc.,⁷
Jones v. Three Rivers Mgmt. Corp,⁸ and Telega v. Sec. Bureau, Inc.⁹ in support of their position that assumption of the risk does not apply because Mr. Vu did not appreciate the specific risks that caused his accident. To start, none of these cases address the Skier’s Responsibility [*15] Act. These cases discuss appreciation of specific risk only after determining that the no duty rule was inapplicable because the risk encountered was not inherent. Again, we reiterate that “[n]egligence principles are irrelevant where the ‘no duty’ rule applies.” Lin v. Spring Mountain Adventures, Inc., 2010 WL 5257648, at *7 (E.D. Pa. Dec. 23, 2010). Whether the no duty rule applies turns on whether Mr. Vu’s particular injuries arose out of risks inherent in the sport of skiing — an issue that is not dependent on a plaintiff’s subjective awareness of those specific risks.

6 200 F. Supp. 3d 471, 478 (M.D. Pa. 2016) (Mariani, J.).

7 749 A.2d 522, (Pa. Super. 2000).

8 483 Pa. 75, 85, 394 A.2d 546, 551 (1978).

9 719 A.2d 372, 376 (Pa. Super. Ct. 1998).

We now turn to the risks involved in Mr. Vu’s accident. The facts reveal two circumstances that gave rise to Mr. Vu’s injuries: (1) veering to avoid a collision with a snowboarder; and (2) skiing over the drop-off at the edge of the trail and into a pile of rocks. If these risks are inherent to the sport of downhill skiing, Plaintiffs’ claims cannot stand.

We can easily conclude that the first risk is inherent and gives rise to no duty on behalf of Defendants. The Supreme Court of Pennsylvania has specifically determined that the risk of collision with another person on the slope is inherent to the sport of downhill skiing: “the risk of colliding with another skier is one of the common, frequent and expected [*16] risks ‘inherent’ in downhill skiing. Indeed, other skiers are as much a part of the risk in downhill skiing, if not more so, than the snow and ice, elevation, contour, speed and weather conditions.” Hughes, 762 A.2d at 344. Likely in recognition of the clear case law, Plaintiffs do not argue in their brief in opposition to the Motion that avoiding a collision with a snowboarder is a risk that would give rise to a duty on behalf of Defendants. To the extent that Plaintiffs’ claims of negligence are premised on Mr. Vu’s avoidance of a collision with the snowboarder, those claims must fail.

Next, we consider whether skiing over the edge of the trail and encountering a three to four foot drop-off into a pile of rocks is an inherent risk of downhill skiing. Plaintiffs frame this risk as the primary cause of Mr. Vu’s injuries.¹⁰ “Simply put, the risk of ejectment from a ski trail due to a 3 to 4 foot drop off and striking one’s head on rocks and/or boulders . . . is not an inherent, frequent, common, and expected risk of skiing.” (Doc. 42, p. 11). All parties recognize that the drop-off was at the edge of the trail rather than a ditch or hole in the slope itself. Though Plaintiffs stress that Mr. Vu did not “willingly [*17] decide to ski off trail,” the distinction is of no consequence. Plaintiffs describe the incident in terms of Mr. Vu being “ejected” from the trail due to the embankment, but it is illogical to argue that the existence of the drop-off itself would cause a skier to go over it. Whether Mr. Vu did so intentionally, accidentally, or as a means of avoiding a collision, the incontrovertible fact is that Mr. Vu did, ultimately, ski off of the three to four foot edge of the trail.

10 “. . . the specific hazard of being ejected from the ski trail due to a steep 3 to 4 foot drop-off on that particular slope’s trail edge.” (Doc. 42, p. 8); “Even if Defendant could establish that having a 3 to 4 foot trail edge drop presents a danger inherent to the sport of skiing . . .” (Id. at p. 9); “. . . he was ejected from the trail when attempting to avoid a collision and was confronted with a 3 to 4 foot drop in elevation from the ski trail.” (Id. at p. 11).

We hold that the risk of skiing off trail and suffering from the change of elevation between the trail and surrounding terrain is an inherent risk of downhill skiing. Mr. Vu was an experienced skier who was well aware of the risks of skiing off the designated slope; he testified repeatedly that he “would never ski off-trail.” (Doc. 41, att. 1, p. 43). He had previously skied at Liberty Mountain on multiple occasions and could not remember ever complaining about the trail or trail markings. (Id. at pp. 35-36). Additionally, Mr. Vu’s daughter testified that she did not have any difficulty discerning the edge of the slope where her father went off trail the evening of the accident. (Doc. 41, att. 2, p. 14). It would be irrational for [*18] any court to hold that skiing off trail and encountering dangerous terrain is not an inherent risk of the sport of downhill skiing — ski slopes are marked and maintained in appreciation of this risk, and beginner and experienced skiers alike know to stay within the trail limits to avoid injury. Mr. Vu himself testified that he understood that he could run into trees, rocks, boulders, or snowmaking equipment if he skied off trail. (Doc. 37, att. 1, p. 71).

We struggled to find case law on point to support our holding because we believe it to be such a common sense and logical conclusion that does not require in-depth analysis. One case from the New York appellate court, however, was particularly analogous. In Atwell v. State, the plaintiff was skiing near the edge of the trail when he observed a “floundering” skier in his path. 645 N.Y.S.2d 658, 659 (1996). Plaintiff “instinctively reacted and turned without thinking” to avoid a collision and ended up skiing off trail and into a tree. Id. The court easily found that plaintiff’s injuries were due to inherent risks of skiing. Id. at 650. “[F]rom claimant’s own description of the accident, there can be no dispute that everything he encountered, including the skier he turned [*19] to avoid hitting, the berm at the edge of the trail referred to by claimant’s expert and the tree with which he collided, are all statutorily recognized as inherent dangers of skiing.” The court noted that “[c]laimant chose to ski near the edge of the trail and there is nothing in the record to indicate that the location of the edge of the trail was not readily observable to him.” Id. Similarly here, Mr. Vu was an experienced skier who chose to ski near the edge of the slope. He had a knee-jerk reaction to avoid a skier, and ended up veering off of the trail and suffering from the elevation change and his collision with rocks. Not only is there a lack of any evidence that the edge of the trail was difficult to discern, but Mr. Vu’s daughter testified at length about how her father was close to the edge of the trail and specifically stated that she could observe the edge of the slope without difficulty. (Doc. 41, att. 2, p. 14).

We agree with the Supreme Court of New Hampshire, which simply held: “Even the most generous reading of the plaintiff’s pleadings reveals the chief cause of his injuries to be an unenumerated, yet quintessential risk of skiing: that a skier might lose control [*20] and ski off the trail. By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.” Nutbrown v. Mount Cranmore, Inc., 140 N.H. 675, 684, 671 A.2d 548, 553 (1996).

IV. CONCLUSION

For the foregoing reasons, the Motion shall be granted. A separate order shall issue in accordance with this memorandum.

ORDER

Presently before the Court is Defendants’ motion for summary judgment. (Doc. 36). In conformity with the Memorandum issued on today’s date, IT IS HEREBY ORDERED THAT:

1. Defendants’ motion for summary judgment (Doc. 36) is GRANTED.

2. The Clerk of the Court SHALL CLOSE the file on this case.

/s/ John E. Jones III

John E. Jones III

United States District Judge

Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey

Posted: October 9, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, New Jersey, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: actionable, advertised, advertisement, ascertainable loss, Assumption of risk, assumption of the risk, business practice, Camelback Mountain Ski Resort, Cammelback, Cause of action, cognizable, common law, concealment, Consumer, consumer fraud, Downhill, factual allegations, Immunity, Legal Case, material fact, merchandise, misleading, New Jersey, New Jersey Consumer Fraud Act, NJCFA, omission, Pennsylvania, presumed to know, quotation marks omitted, reasonable inference, residents, ski area, Ski Area Statutes, Ski Resort, Skier's Responsibility Act, skiing, Skiing / Snow Boarding, Snow, Sport, tort liability, unlawful practice | Leave a comment

The lawsuit failed, this time. However, the failure was due to Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Gyl Cole, Ronald Cole, her husband

Defendant: Camelback Mountain Ski Resort

Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act

Defendant Defenses: The statute did not apply

Holding: For the defendant

Year: 2017

Summary

In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act.

However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area.

Facts

The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.

While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.

The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear.

The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.

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

The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.

All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…”

Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the consumer put fraudulent practices or business on notice or out of business.

Under the act, an unlawful practice was defined as:

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.”

A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.”

The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act.

The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act.

The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.

Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.

Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)

Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”

There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here.

Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”

The case was dismissed.

So Now What?

I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.

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Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

Posted: October 8, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, New Jersey, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: actionable, advertised, advertisement, ascertainable loss, Assumption of risk, assumption of the risk, business practice, Camelback Mountain Ski Resort, Cammelback, Cause of action, cognizable, common law, concealment, Consumer, consumer fraud, Downhill, factual allegations, Immunity, material fact, merchandise, misleading, New Jersey, New Jersey Consumer Fraud Act, NJCFA, omission, presumed to know, quotation marks omitted, reasonable inference, residents, Ski Resort, Skier's Responsibility Act, skiing, Snow, Sport, tort liability, unlawful practice | Leave a comment

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

Gyl Cole, et al., Plaintiffs, v. Camelback Mountain Ski Resort, et al., Defendants.

3:16-CV-1959

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2017 U.S. Dist. LEXIS 100183

June 28, 2017, Decided

June 28, 2017, Filed

CORE TERMS: skiing, advertisement, omission, ski resort, consumer, immunity, consumer fraud, presumed to know, residents, quotation marks omitted, downhill, common law, cause of action, factual allegations, assumption of risk, unlawful practice, sport, business practice, ascertainable loss, material fact, merchandise, concealment, advertised, cognizable, actionable, misleading, snow, Skier’s Responsibility Act, tort liability, reasonable inference

COUNSEL: [*1] For GYL COLE, RONALD COLE, her husband, Plaintiffs: EDWARD F. BEZDECKI, LEAD ATTORNEY, TOMS RIVER, NJ.

For CAMELBACK MOUNTAIN SKI RESORT, Defendant: Samuel J. McNulty, LEAD ATTORNEY, Hueston, McNulty, PC, Florham Park, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

This matter presents the following question to the Court: Does a plaintiff state a cause of action for violation of the New Jersey Consumer Fraud Act when he or she alleges that a Pennsylvania ski resort advertised its business in New Jersey but failed to include any information in its advertisements regarding the protections from tort liability the business enjoyed under Pennsylvania law? For the reasons that follow, the Court finds that such a claim is not cognizable under the New Jersey Consumer Fraud Act.

I. Introduction and Procedural History

The above captioned matter was first removed from the Superior Court of New Jersey, (Doc. 1), and then transferred by the District Court for the District of New Jersey to this Court, (Docs. 10). Plaintiffs, Gyl and Ronald Cole, represented by counsel, bring a two count Complaint against Camelback Mountain Ski Resort (“Camelback”), and two John [*2] Doe maintenance companies, (Doc. 1-1), concerning injuries that Gyl Cole sustained while skiing at Defendant Camelback’s skiing facility. Plaintiffs, both residents of New Jersey, allege that Defendants are liable both for negligence (Count I), and for violation of the New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-2, (Count II). Defendant Camelback now moves to dismiss Count II of Plaintiffs’ Complaint. (Doc. 20).

II. Factual Allegations

Plaintiffs’ Complaint alleges the following facts:

Plaintiffs, Gyl and Ronald Cole, are husband and wife and reside in Waretown, New Jersey. (Doc. 1-1). Camelback is a snow skiing resort facility located in Pennsylvania. (Id. at 14). According to Plaintiffs’ Complaint, Camelback advertises its business heavily in New Jersey through a variety of forms of media. (Id.). Camelback’s advertisements, however, contain no information that, under Pennsylvania law, skiing facilities enjoy “immunity” from liability for the injuries patrons sustain while skiing. (Id.). On March 15, 2014, presumably after viewing one of Camelback’s advertisements, Gyl and Ronald Cole went skiing at Camelback’s skiing facility. (Id. at ¶¶ 1 , 3-4). While skiing on one of the black diamond slopes, Gyl Cole [*3] slammed into a six inch metal pipe and sustained severe injuries. (Id. at ¶ 3).

III. Standard of Review

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Twombly, 550 U.S. at 555 (internal citations and alterations omitted). In other words, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. A court “take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal [*4] require [a court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged–but it has not show[n]_–that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (internal citations and quotation marks omitted). This “plausibility” determination will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

IV. Analysis

Count II of Plaintiffs’ Complaint alleges a violation of the New Jersey Consumer Fraud Act (“NJCFA”). (Doc. 1-1 at ¶¶ 13-22). The NJCFA was enacted to address “sharp practices and dealings in the marketing of merchandise¹ and real estate whereby the consumer could be victimized by being lured [*5] into a purchase through fraudulent, deceptive or other similar kind of selling or advertising practices.” Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 390 A.2d 566, 569 (N.J. 1978). “The Act creates a private cause of action, but only for victims of consumer fraud who have suffered an ascertainable loss.” Weinberg v. Sprint Corp., 173 N.J. 233, 801 A.2d 281, 291 (N.J. 2002).

1 Under the NJCFA, the term “merchandise” is broadly defined to “include any objects, wares, goods, commodities, services or anything offered, directly or indirectly to the public for sale.” N.J. Stat. Ann. § 56:8-1

“A consumer who can prove (1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss, is entitled to legal and/or equitable relief, treble damages, and reasonable attorneys’ fees.” Gonzalez v. Wilshire Credit Corp., 207 N.J. 557, 25 A.3d 1103, 1115 (N.J. 2011) (quotation marks omitted).

Unlawful practices include

N.J. Stat. Ann. § 56:8-2. The New Jersey Supreme Court has specified that “[u]nlawful practices fall into three general categories: affirmative acts, knowing omissions, and regulation violations.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 647 A.2d 454, 462 (N.J. 1994).

In the case at hand, Plaintiffs assert that the unlawful practice that Defendant Camelback allegedly engaged [*6] in was a failure to inform, i.e., an omission. (Doc. 1-1 at ¶ 14; Doc. 29 at 4). Under the NJCFA, an omission is actionable “where the defendant (1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 297 (D.N.J. 2009). “Implicit in the showing of an omission is the underlying duty on the part of the defendant to disclose what he concealed to induce the purchase.” Id.

Plaintiffs’ Complaint alleges that Defendant Camelback failed to include any information in its advertisements with respect to the protections from tort liability it enjoyed under Pennsylvania law. Specifically, Plaintiffs’ Complaint alleges the following:

Camelback knew that their [sic] advertising heavily in New Jersey induced New Jersey residents to attend Camelbacks [sic] site in Pennsylvania. Camelback knew that it had immunity granted to it through the legislation passed by the Pennsylvania Legislature but at no time did Camelback ever tell New Jersey residences [sic] that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback. Knowing full well that they [sic] had this immunity, Camelback elected not to notify any of [*7] the invitees to their [sic] site about the immunity.

(Doc. 1-1 at ¶ 14).² Defendant Camelback argues that this is insufficient to state a claim under NJCFA. (Doc. 22 at 7). Plaintiffs respond that they have adequately pleaded that “Camelback knew and should have advised the skiing public [through its advertisements] . . . that if they utilize the services of Camelback that they would be subject to the immunity clause granted to Camelback by the Pennsylvania Legislature.” (Doc. 29 at 4).

2 Additionally, and somewhat confusingly, the Complaint also alleges that “Camelback misrepresented to the New Jersey residents at large through its media blitz that the New Jersey residences [sic] can use Camelback facilities for snow skiing.” (Doc. 1-1 at ¶ 17). This singular statement is in stark contrast with the rest of the Complaint which alleges that Plaintiffs, both residents of New Jersey, did in fact engage in snow skiing at Camelback.

The inaptly described “immunity clause” Plaintiffs refer to is no doubt the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S. § 7102(c). The Act states:

(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 [42 Pa. C.S. § 7102(a)-(a.1)]

42 Pa. C.S. § 7102, The Pennsylvania Supreme Court has made clear that “the Act did [*8] not create a new or special defense for the exclusive use of ski resorts, but instead kept in place longstanding principles of common law.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (Pa. 2010). The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Id. In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Id.

Thus, the Court arrives at the question of whether Plaintiffs’ state a claim under the NJCFA when they allege that Defendant Camelback advertised its Pennsylvania skiing facility to New Jersey residents but failed to include a disclaimer with respect to the Pennsylvania Skier’s Responsibility Act or the common law doctrine of voluntary assumption of risk. As this is a question of New Jersey state law, this Court must turn to the decisions of that state’s courts for an answer. U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co., 80 F.3d 90, 93 (3d Cir. 1996). The parties have not directed the Court to any [*9] New Jersey case–and the Court’s own research did not uncover any–that squarely addresses this issue. Nor have New Jersey courts apparently addressed the analogous issue of whether, under the NJCFA, advertisers are ever obliged to educate the public on the law applicable to their product absent other specific authority requiring such disclosures. Accordingly, it falls to this Court to predict how the highest tribunal in New Jersey would rule on the matter. Id. For the following reasons, this Court predicts that the New Jersey Supreme Court would find that such a claim is not cognizable under the NJCFA.

First, this is simply not the type of omission contemplated by the NJCFA. The Court is cognizant of the fact the NJCFA “is intended to be applied broadly in order to accomplish its remedial purpose, namely, to root out consumer fraud, and therefore to be liberally construed in favor of the consumer.” Gonzalez, 25 A.3d at 1115 (internal citations and quotation marks omitted). Additionally, the Court is aware that “[t]he statutory and regulatory scheme is . . . designed to promote the disclosure of relevant information to enable the consumer to make intelligent decisions in the selection of products and services.” Div. of Consumer Affairs v. Gen. Elec. Co., 244 N.J. Super. 349, 582 A.2d 831, 833 (N.J. Super. Ct. App. Div. 1990). [*10] Nevertheless, the NJCFA has limits. To qualify as an unlawful practice under the NJCFA, “[t]he practice must be misleading and outside the norm of a reasonable business practice.” Hughes v. TD Bank, N.A., 856 F. Supp. 2d 673, 680 (D.N.J. 2012); see also Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 110 A.3d 137, 144 (N.J. Super. Ct. App. Div. 2015). Indeed, the “advertisement must have ‘the capacity to mislead the average consumer in order for it to be actionable. Adamson v. Ortho-McNeil Pharm., Inc., 463 F. Supp. 2d 496, 501 (D.N.J. 2006) (quoting Union Ink Co., Inc. v. AT&T Corp., 352 N.J. Super. 617, 801 A.2d 361, 379 (N.J. Super. Ct. App. Div. 2002)). Finally, the omission must concern a material fact. Arcand, 673 F. Supp. 2d at 297. The alleged omission in this case, however, is not one of fact, is not misleading, and does not fall outside the norm of reasonable business practices.

Plaintiffs’ allege that Defendant Camelback failed to provide information in its advertisements concerning the Pennsylvania Skier’s Responsibility Act and the common law doctrine of voluntary assumption of risk. Initially, as omissions of law, these allegations fall outside of the statutory language of the NJCFA. Additionally, the type or nature of legal defenses to liability which a business may assert in the event of a lawsuit is not information normally included in an advertisement, as both parties have equal access to that information. Consequently, Defendant Camelback’s alleged failure to include such information does not imply its nonexistence and is therefore not [*11] misleading nor outside of the norm of a reasonable business practice. As such, omissions of this type are not actionable under the NJCFA.

Second, a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.” Atkins v. Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 86 L. Ed. 2d 81 (1985); see also Gilmore v. Taylor, 508 U.S. 333, 360, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (“[A] citizen . . . is presumed to know the law . . . .”); Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir. 1986) (“Private citizens are presumed to know the law . . . .”); State v. Moran, 202 N.J. 311, 997 A.2d 210, 216 (N.J. 2010) (“Every person is presumed to know the law.”); Maeker v. Ross, 219 N.J. 565, 99 A.3d 795, 802 (N.J. 2014) (“[E]veryone is presumed to know the law . . . .”); Widmer v. Mahwah Twp., 151 N.J. Super. 79, 376 A.2d 567, 569 (N.J. Super. Ct. App. Div. 1977) (“[T]he principle is well established that every person is conclusively presumed to know the law, statutory and otherwise.”); cf. Commonwealth v. McBryde, 2006 PA Super 289, 909 A.2d 835, 838 (Pa. Super. Ct. 2006) (“[E]veryone is presumed to know the law; an out-of-state driver is not absolved from following the laws of this Commonwealth or any other state in which he or she chooses to drive.”). Thus, as a matter of law, Defendant Camelback’s advertisement did not have the capacity to mislead because the law presumes that Plaintiffs–and everyone else for that matter–already knew the information Defendant Camelback allegedly omitted. Stated otherwise, the law should not obligate Defendant Camelback to inform its prospective customers of what they [*12] already know.³

3 The Court, however, may have come to a different conclusion had Plaintiffs alleged that Defendant Camelback made an affirmative misrepresentation of the law in its advertisements. Nevertheless, such a situation is not presently before this Court.

Finally, if this Court were to come to the opposite conclusion, businesses would have almost unending liability. For example, a Pennsylvania retailor may be liable under the NJCFA if it advertised its clothing outlet to New Jersey residents but failed to include a disclaimer stating that a customer injured at the store by an employee’s negligence may have his or her recovery reduced if the shopper was also negligent. See 42 Pa. C.S. § 7102(a) (“[A]ny damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.”). Or a marketer of a curling iron may be liable under the NJCFA for failing to disclose to consumers that, even if they are injured due to a design flaw in the product, the users may not be able to recover for their injuries if “there was no reasonable alternative design” for the curling iron at the time of manufacturing. See Cavanaugh v. Skil Corp., 164 N.J. 1, 751 A.2d 518, 520 (N.J. 2000) (quotation marks omitted); see also N.J. Stat. Ann. § 2A:58C-3(a)(1). Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.

V. Conclusion

For the reasons outlined above, this Court will grant Defendant Camelback Mountain [*13] Ski Resort’s Motion to Dismiss Plaintiffs’ claim for violation of the New Jersey Consumer Fraud Act, (Doc. 20). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW. THIS 29th DAY OF JUNE, 2017, upon consideration of Defendant Camelback Mountain Ski Resort’s partial Motion to Dismiss, (Doc.20), IT IS HEREBY ORDERED THAT the Motion is GRANTED. Count II of Plaintiffs’ Complaint, (Doc. 1-1), is DISMISSED WITH PREJUDICE.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Court Judge

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Posted: June 6, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, Equine Activities (Horses, Donkeys, Mules) & Animals, Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: Animal, Assumption of risk, broken, counter, entity, enumerate, Equine, Equine Liability Act, exculpatory, Exculpatory clause, faulty, genuine, Happy Trails and Riding Center, Horse, horseback riding, Immunity, Inc., Inherent Risk, material fact, recklessness, recreational, Rental, ride, rider, riding, Ski, Skier, skiing, Sport, stable, stirrup, Summary judgment, Trail | Leave a comment

Melendez v. Happy Trails and Riding Center, Inc., 2016 U.S. Dist. LEXIS 131576

Wilberto Melendez, Plaintiff, v. Happy Trails and Riding Center, Inc., Defendant.

3:14-CV-1894

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

2016 U.S. Dist. LEXIS 131576

September 26, 2016, Decided

September 26, 2016, Filed

CORE TERMS: trail, summary judgment, exculpatory, recklessness, equine, stirrup, stable, immunity, genuine, horse, horseback riding, recreational, animal, material fact, skiing, ride, assumption of risk, faulty, broken, ski, rider, inherent risk, exculpatory clause, riding, sport, skier, enumerate, counter, rental, entity

COUNSEL: [*1] For Wilberto Melendez, Plaintiff, Counterclaim Defendant: Robin A. Feeney, LEAD ATTORNEY, FINE & STAUD LLP, PHILADELPHIA, PA.

For Happy Trails and Riding Center, Incorporated, Defendant, Counterclaim Plaintiff: Dennis M. Marconi, Barnaba & Marconi, LLP, Trenton, NJ.

JUDGES: Robert D. Mariani, United States District Judge.

OPINION BY: Robert D. Mariani

OPINION

MEMORANDUM OPINION

I. Introduction and Procedural History

On September 30, 2014, Plaintiff, Wilberto Melendez, filled a one count Complaint with this Court against Defendant, Happy Trails and Riding Center, lnc.1 (Doc. 1). The Complaint alleges that Plaintiff suffered injury as a result of Defendant’s negligence in its operation of a business which rented horses and equipment to the public for recreational horseback riding. After the conclusion of fact discovery, Defendant filed a Motion for Summary Judgment (Doc. 19) and supporting brief (Doc. 20) on October 29, 2015. Plaintiff filed a Brief in Opposition (Doc. 22) and Defendant filed a Reply. (Doc. 23). Oral argument on the matter was held on April 4, 2016.

1 Defendant points out that the business is owned and operated by Randolph Bennett, d/b/a Happy Trails Stables, and was incorrectly pleaded as Happy Trails Riding [*2] Center, Inc. For the purposes of this motion, the error, if any, is immaterial and the opinion will refer to Defendant as “Defendant” or “Happy Trails.”

The motion is now ripe for decision. For the reasons set forth below the Court will deny Defendant’s motion in its entirety.

II. Statement of Undisputed Facts

In accordance with Local Rule 56.1, Defendant submitted a Statement of Material Facts in Support of its Motion for Summary Judgment, (Doc. 20), as to which it contends that there is no genuine dispute for trial. Plaintiff submitted a response, a Counter Statement of Facts, (Doc. 22), with the result being that the following facts have been admitted, except as specifically noted:

Plaintiff, Wilberto Melendez, went to Defendant’s stable on May 31, 2014, for the purpose of going horseback riding. (Doc. 20, ¶¶ 1, 2). After his group arrived, Plaintiff went into the stable’s office to register. (Id. at ¶ 5). Plaintiff was presented with a form (the “agreement”), which stated, in pertinent part:

AGREEMENT FOR PARTICIPATION AND\OR VOLUNTEERS [sic] I RELEASE AND DISCHARGE, ACCEPTANCE OF RESPONSIBILITY AND ACKNOWLEDGE [sic] OF RISK:

IN CONDERATION [sic] FOR BEING PERMITTED TO UTILIZE THE FACILITIES AND EQUIPMENT [*3] OF HAPPY TRAILS RIDING STABLES AND TO ENGAGE IN HORSEBACK RIDING, AND ALL RELATED ACTIVITIES.

….

1. I understand and acknowledge that the activity I am voluntarily engage [sic] in as a participant and/or [sic] bears certain know [sic] risk [sic] and unanticipated risks which could result in jury, [sic] death, illness, or disease, physical or mental, or damage to myself, to my property, or to spectators or other third parties. I understand and acknowledge those risk [sic] may result in personal claims against “HAPPY TRAILS STABLES” or claims against me by spectators or other third parties.

1. [sic] The nature of the activity itself, including the possible risks to you the rider.

A. The animal may be startled by unforeseen or unexpected noises from other animals, people, vehicles, activities and as a result you the rider may be hurt or injured should the animal react to said noises or activity, by running, bucking, rolling, or kicking, etc.

B. That you as the rider realizes [sic] that the animal is reacting to your physical instructions, conduct, and verbal instructions and commands, and therefore, the animal will respond in accordance with your reactions or commands. However, there are [*4] times when the animal may be confused or distracted during course [sic] of your instructions and/or commands.

C. You the rider understands [sic] that an animal may kick or bite you the rider, or you the pedestrian, and that other animals which may be on tour, could kick or bite you the rider and/or pedestrian.

D. You the rider are aware that physical conditions of the trails may cause injury or risk to you, should these physical conditions such as low tree limbs, bushes, or other type of natural growth come in contact with animal [sic] or yourself.

2. I hereby release and discharge Happy Trails Stables, instructors, trail guides, stable managers, employees, owners of the horses and related equipment and land utilized for Happy Trails Stables activities, hereinafter referred to as the “Released Parties,” from any and all claims, demands, or cause of action that I, or any of my heirs, successors or assigns, [sic] may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence of the released parties.

3. I further agree that I, my heirs, successors, or assigns, [sic] will not sue or make claim [*5] against the Released Parties for damage or other loses sustained as a result of my participation in Happy Trails activities.

….

4. I understand and acknowledge that Happy Trails activities have inherent dangers that no amount of cares, [sic] caution, instruction, or expertise can eliminate and I expressly and voluntarily assume all risk of personal injury or death sustained while participating in “Happy Trails Stables” activities weather [sic] or not caused by negligence of the Released Parties ….

….

6. I hereby expressly recognize that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence of the Released Parties. I also assume the risk of the equine activities pursuant to the [sic] Pennsylvania law.

(Id. at ¶¶ 5, 11; Doc. 20-7) (emphasis original). An employee of Happy Trails informed Plaintiff that Plaintiff must sign the agreement in order to go horseback riding. (Doc. 20, 5). Plaintiff signed the agreement. (Id. at ¶ 8). In addition to the agreement, there were signs posted inside the office, outside [*6] the office, and by the stable which read “You assume the risk of equine activities pursuant to Pennsylvania Law.” (See id. at ¶¶ 12-15; Doc. 20-8).

After completing the agreement, Plaintiff waited while a Happy Trails employee saddled up a horse. (Doc. 20, ¶ 17). Plaintiff then mounted the horse and participated in a guided group horseback ride for the next forty-five minutes without incident. (Id. at ¶¶ 19, 21). On several occasions during the ride, Plaintiff requested permission from the guide to gallop the horse. (Id. at ¶¶ 22, 23). Plaintiff was told it was too dangerous to do on the trail. (Id.). At the end of the ride, one of the guides brought Plaintiff away from the group so that Plaintiff could canter the horse. (Id. at ¶ 26). Plaintiff then put the horse into a gallop and, while rounding a turn, a stirrup broke and Plaintiff fell from the animal. (id. at ¶¶ 27-29).

Plaintiff maintains that the stirrup Defendant provided him was faulty or defective and that this was the cause of his fall. (Doc. 22 at 1). Plaintiff further maintains that this fall resulted in fractured ribs and pneumothorax. (Id. at 3).

III. Standard of Review

Through summary adjudication, the court may dispose of those [*7] claims that do not present a “genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a). “As to materiality, ….[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record…or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Inferences [*8] should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

However, “facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

IV. Analysis [*9]

Plaintiffs complaint alleges that Defendant was negligent in providing broken or defective equipment–the stirrup–to Plaintiff, which directly resulted in his injury. (Doc. 1, ¶ 20). Defendant puts forth two arguments that it maintains are separate and independent grounds for summary judgment. First, Defendant argues that the agreement that Plaintiff signed prior to the horseback ride insulates Defendant from liability under these facts. (Doc. 20 at 9). Second, Defendant argues that, pursuant to 4 P.S. §§ 601-606 (hereinafter “Equine Activities Immunity Act,” “EAIA,” or “the Act”), Happy Trails is immune from liability as a provider of equine activities. (Id.).

A. Exculpatory Agreement

An exculpatory clause is valid if (1) the clause does “not contravene public policy”; (2) the contract is “between persons relating entirely to their own private affairs”; and (3) each party is “a free bargaining agent to the agreement so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (Pa. 2010) (quoting Topp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (Pa. 1993)). However, a valid exculpatory clause will nevertheless be unenforceable “unless the language of the parties is clear that a person is being relieved of liability for his own acts of negligence.” Id. (quoting Topp Copy Prods., 626 A.2d at 99). Contracts immunizing a [*10] party against liability for negligence are not favored by law and therefore established standards must be “met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (Pa. 1963). Thus, Pennsylvania courts have established several standards governing the enforceability of exculpatory clauses:

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 immunity is upon the party invoking protection under the clause.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1196 (Pa. 2012) (quoting Topp Copy Prods., 626 A.2d at 99). Further, exculpatory clauses may not immunize a party for intentional or reckless behavior. Id. at 1202-03.

Defendant contends that the agreement Plaintiff signed is valid, enforceable, and encompasses broken equipment. (Doc. 20 at 13-16). Therefore, Defendant argues, Plaintiffs negligence [*11] claim is barred and Happy Trails is entitled to summary judgment. (Id. at 16).

Plaintiff does not appear to argue that the agreement is not valid on its face. Nor should he, considering that the agreement easily satisfies the validity requirements under Chepkevich. First, the agreement does not violate any public policy of Pennsylvania. In light of the Equine Activities Immunity Act–discussed in the next section–and similar statutes addressing other recreational activities, it is the policy of the state to encourage participation in those activities, despite their inherent danger, and assign the risk of loss to those who choose to participate in them. Cf. Chepkevich, 2 A.3d at 1191 (finding that, in light of a statute that preserves the assumption of risk defense in the context of downhill skiing, it is “the clear policy of this Commonwealth . . .to encourage the sport and to place the risks of skiing squarely on the skier.”). Further, Pennsylvania courts have held as valid similar exculpatory agreements in the context of a variety of other inherently dangerous recreational activities. See, e.g., id. (downhill skiing); Wang v. Whitetail Mountain Resort, 2007 PA Super 283, 933 A.2d 110, 113-14 (Pa. Super. Ct. 2007) (snow tubing); Valeo v. Pocono Int’l Raceway, Inc., 347 Pa. Super. 230, 500 A.2d 492, 492-93 (Pa. Super. Ct. 1985) (auto racing); Nissley v. Candytown Motorcycle Club, Inc., 2006 PA Super 349, 913 A.2d 887, 889-91(Pa. Super. Ct. 2006) (motorcycle riding).

Second, the agreement was between two private [*12] parties, Happy Trails and Mr. Melendez, concerning the purely private matter of renting a horse for recreational purposes. Finally, this is not a contract of adhesion. See Chepkevich, 2 A.3d at 1190-91 (“The signer I is under no compulsion, economic or otherwise, to participate, much less to sign the exculpatory agreement, because it does not relate to essential services, but merely governs a voluntary recreational activity.”). Thus, the agreement is facially valid.

Turning to enforceability, Plaintiff contends that Defendant has failed to meet its burden to show either that defective equipment is an inherent risk of horseback riding, or that the language of the agreement shows that Plaintiff expressly assumed the risk of defective equipment. (Doc. 22 at 11). Plaintiff points out that the agreement does not enumerate defective equipment as a risk. (Id.). Further, Plaintiff argues that a broken stirrup is not an inherent risk of horseback riding as demonstrated by the testimony of both Happy Trails’ owner and a Happy Trails’ employee who both stated they had never seen a stirrup break before. (Id. at 12-13). Thus, Plaintiff argues, because the risk was not foreseeable and was not expressly in the agreement, Plaintiff could [*13] not appreciate the risk and could therefore not assume it. (Id. at 13).

Plaintiffs argument essentially states that the second element from Tayar –that “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”–is not met in this case because the agreement did not specifically enumerate the risk of defective equipment. Pennsylvania courts, however, have rejected this argument before. See Chepkevich, 2 A.3d at 1193-94.

In Chepkevich, a skier, Lori Chepkevich, sued a ski resort after she fell from a ski lift and was injured. Id. at 1175-76. She claimed her injury occurred because an employee promised to stop the ski lift briefly to allow Chepkevich to help a child board the lift and then the employee failed to do so. Id. Prior to the accident, Chepkevich had signed a document titled “RELEASE FROM LIABILITY” which stated, in pertinent part,

Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to [certain enumerated risks]…. I agree to accept all these risks and agree not to sue Hidden Valley [*14] Resort or their employees if injured while using their facilities regardless of any negligence on their part.

Id. at 1176. The Pennsylvania Supreme Court first rejected Chepkevich’s argument that she did not assume the specific risk that caused her injury and instead found that a fall from a ski lift was an inherent risk in the sport of skiing. Id. at 1188. Therefore, the Court found that the suit was barred by the Skier’s Responsibility Act, 42 PA. Cons. Stat. Ann. § 7102(c), which preserves the common law assumption of the risk defense in the context of downhill skiing. Chepkevich, 2 A.3d at 1187-88.

Turning to an alternative ground for summary judgment–the release–the Chepkevich Court held that the term “negligence” did not require any definition or illustration to be given effect. Id. at 1193. Indeed, reversing the court below on that point, the Court found “no reason to require the drafters of exculpatory releases to provide definitions and context for commonly used terms such as ‘negligence.”‘ Id. The Court then found that the plain language of the release encompassed Chepkevich’s claim for negligence and therefore barred the claim. Id. at 1194-95. Because the Court had already found that the risk involved was inherent, the Court found it unnecessary to address the merits of Chepkevich’s [*15] final argument “that the Release exempted Hidden Valley from liability only when its negligence gave rise to a risk otherwise inherent to the sport of skiing.” Id. at 1193-94.

Concerning the case at hand, while this Court agrees with Plaintiff that the provision of defective equipment is not an inherent risk in the sport of horseback riding, this point is not dispositive. As one Pennsylvania court explained, “the assumption of the risk doctrine bars a plaintiff from recovering in tort for risks inherent to a certain activity. In contrast, the explicit, broad, and valid language of the exculpatory clause bars all claims, regardless of whether they arise from an inherent risk.” Nissley, 913 A.2d at 892 (footnote and internal citations omitted). Thus, as long as the language of the exculpatory agreement applies, any inherent risk analysis is superfluous. The fact that the court in Chepkevich found it unnecessary to its holding to address the plaintiffs argument that non-inherent risks cannot be released in exculpatory agreements does not affect this analysis. As that court saw no need to overturn the language in Nissley, this Court sees no reason not to follow it.

As for enforceability of the agreement, in the realm of recreational [*16] activities, Pennsylvania has upheld expansive language in exculpatory agreements. See, e.g., Nissley, 913 A.2d at 890-91 (upholding motor cycle club’s exculpatory agreement in a negligence action when the release stated that plaintiff “hereby give[s] up all my rights to sue or make claim”); Zimmer v. Mitchell & Ness, 385 A.2d 437, 440 (Pa. Super. Ct. 1978), aff’d per curiam, 416 A.2d 1010 (1980) (upholding ski rental shop’s exculpatory agreement in a negligence action when the release stated that skier released defendant from “any liability”); Valeo, 500 A.2d at 492-93 (upholding race track’s exculpatory agreement in a negligence action where race car driver signed an agreement releasing “defendants ‘from all liability …for all loss or damage'”).

Here, Plaintiff signed an agreement that he knew to be a waiver. (Doc. 20-2 at 51-53; Doc. 20-7). Paragraph two of the agreement stated that Plaintiff released Happy Trails “from any and all claims, demands, or cause of action that I…may hereafter have for injuries and/or damages arising out of my participation in Happy Trails activities, including but not limited to, loses caused by negligence.” Further, paragraph six states that Plaintiff “hereby expressly recognize[s] that this Agreement and Release of Liability is a contract pursuant to which I have released any and all claims against the [*17] Released Parties resulting from my participation in Happy Trails activities including any claims caused by negligence.” Plaintiff has alleged that Defendant was negligent in providing him defective equipment during his trail ride. The plain language of the agreement signed by Plaintiff releases Defendant from “all claims” including those “caused by negligence.” Thus, Plaintiffs claim, in as much as it is alleging that Defendant acted negligently, is encompassed by the exculpatory language of the agreement and therefore barred.2

2 This Court notes that there is some language in Chepkevich that seems to support Plaintiffs argument. As an aside, the Chepkevich Court states that “the risk [in this case] was not so unexpected, or brought about in so strange a manner, as to justify placing this injury beyond the reach of the plain language of the Release.” Chepkevich, 2 A.3d at 1194. Plaintiff has pointed out that a broken stirrup is a very uncommon, and therefore unexpected, occurrence. (Doc. 22 at 12-13). Nevertheless, because Chepkevich does not give any standards for what type of risks fall beyond the realm of the plain language of an exculpatory agreement, this Court must turn to other cases. This Court finds [*18] Zimmer v. Mitchell and Ness instructive.

In Zimmer, a skier, Joseph Zimmer, sued a ski rental company after the bindings on the skis he rented failed to release as they were supposed to during a fall, causing him substantial injury. Zimmer, 385 A.2d at 438. Zimmer argued that the rental company was negligent in renting him skis without testing and fitting the bindings. Id. at 440. The court granted the ski rental company’s motion for summary judgment based on an exculpatory agreement that Zimmer signed when he rented the skis that released the rental company “from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment.” Id.

Thus, while the specific issue of a broken stirrup may be very uncommon, Pennsylvania courts have enforced exculpatory agreements in the case of a released party negligently providing the releasing party with defective or broken equipment.

Plaintiff advances a more narrow reading of the agreement and argues that because the agreement does not enumerate defective equipment as a risk, he did not expressly assume it. The Chepkevich Court, however, was clear that no illustrations or examples are required to give common terms effect in an exculpatory [*19] agreement. See Chepkevich, 2 A.3d at 1193. “All claims” and “negligence” are commonly used terms and Pennsylvania law does not require drafters of exculpatory clauses to enumerate every possible contingency that is included in broader language they choose to use. Plaintiff agreed to release Defendant from “all claims” including those that arose from Defendant’s negligence. Plaintiff cannot now protest that he did not know what “all claims” included.3

3 At oral argument, Plaintiff advanced a slightly different argument. Plaintiff argued, in effect, that because paragraph one of the agreement enumerates risks associated with horseback riding, the rest of the agreement is limited to those enumerated lists. This argument was also advanced in Chepkevich. See Chepkevich, 2 A.3d at 1194. There, the court rejected the plaintiff’s argument that “by enumerating risks inherent to downhill skiing and then requiring the skier to accept those risks, the Release only bars suits that arise out of the listed risks.” Id. The court found that the release, which stated that skiing “is a dangerous sport with inherent and other risks,” was not limited to the enumerated the risks, but clearly included “other risks.” Here, as in Chepkevich, Plaintiff’s argument [*20] fails on textual grounds. It is true that the agreement, in paragraph one, lists some risks inherent to horseback riding. However, in paragraph two and six, the agreement states that Plaintiff relinquishes “any and all claims.” There is no limiting language in paragraph two or six that would indicate that Plaintiff was only relinquishing claims arising out of the enumerated risks in paragraph one.

Plaintiff finally argues that Defendant’s conduct amounts to recklessness and exculpatory agreements cannot immunize reckless conduct. (Doc. 22 at 14); see Tayar, 47 A.3d at 1202-03. Defendant concedes that the agreement only releases it from suits for negligence, not recklessness, and counters that its “conduct at most amounts to ordinary negligence.” (Doc. 23 at 10). “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.” Tayar, 47 A.3d at 1200.

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 [*21] 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.

Id. at 1200-01 (quoting Restatement (Second) of Torts § 500).

Defendant’s bare assertion that its actions do not rise to the level of recklessness does not satisfy its burden to show that there is no genuine dispute as to a material fact. The record shows that Happy Trails provided a saddle for Plaintiffs ride, that a stirrup on that saddle broke during the ride, and that Plaintiff fell from a horse when the stirrup broke. (Doc. 22-5 at 35-36, 39-40). It was the responsibility of Happy Trails, not the customer, to inspect the equipment, but no records of inspections or repairs were kept, nor was the Happy Trails’ owner able to say if any inspection of the specific stirrup occurred on the day of the accident. (Id. at 13, 53-55, 58, 60). Happy Trails’ owner testified that he bought used saddles on the internet and also from individuals who walk into his business. (Id. at 18). He was unable to say where he procured the saddle in question, how long he had had it, or how old it was. (Id. at 18-19, 58, 60). Additionally, Happy Trails’ owner displayed a somewhat cavalier attitude towards [*22] safety, asserting that customers assume all risks associated with the activity, including equipment breaking, staff failing to put equipment on the horses correctly, and even staff failing to provide basic equipment like stirrups or a bridal. (Id. at 32-33). Viewing the record in a light most favorable to Plaintiff, a question of fact therefore remains as to whether Defendant’s action rose to the level of recklessness.

Defendant goes on to argue that Plaintiff failed to plead recklessness and that if “recklessness is the standard to apply in this case, plaintiffs compliant must be dismissed with prejudice.” (Doc. 23 at 10). This argument, however, runs counter to the holding in Archibald v. Kemble, 2009 PA Super 79, 971 A.2d 513 (Pa. Super. Ct. 2009).

Archibald involved a lawsuit stemming from Robert Archibald’s participation in a “no-check” adult hockey league. Id. at 515. In his complaint, Archibald alleged that another player, Cody Kemble, checked him into the boards of the ice hockey rink. Id. The complaint went on to say that

Cody Kemble’s negligence consisted of the following:

a. failing to assure that Robert Archibald was aware and/or warned that the check was going to be attempted before checking him into the boards;

b. failing to assure that Robert Archibald was willing [*23] to be checked;

c. checking Robert Archibald when not safe to do so;

d. failing to understand and learn the rules, prohibition and limitation on any checking prior to participating in the non-checking league and game.

Id. at 516. First determining that Archibald would only be able to recover if he showed that Kemble acted recklessly, the Court went on to hold that recklessness “may be averred generally.” Id. at 517, 519. Thus, “merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations.” Id. at 519. Instead, “Archibalds’ cause of action was…subsumed within the negligence count pled in their Complaint.” Id.; see also M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 629 (E.D. Pa. 2015) (construing a separately pleaded recklessness claim “simply as a mechanism to recover punitive damages under [the] negligence claim” because “[t]here is no cause of action for recklessness under Pennsylvania law” and “recklessness is a heightened standard of care required to potentially recover punitive damages”).

Consequently, under Archibald, the fact that Plaintiff did not specifically plead recklessness in his Complaint is not fatal to his claim. In his Complaint, Plaintiff alleged that, among other things, [*24] Defendant “provid[ed] equipment or tack that defendant knew or should have known was faulty.” This statement encompasses the allegation that Defendant recklessly provided Plaintiff with defective or faulty equipment. The fact that Plaintiffs Complaint does not contain the word “reckless” is immaterial.

In sum, because the agreement that Plaintiff signed is only enforceable to immunize Defendant for its negligence, and not for its recklessness, and because there is a genuine dispute as to the material fact of whether Defendant acted recklessly in this case, the Court finds that the agreement is not a sufficient basis for summary judgment.

B. Equine Activities Immunity Act

Defendant next points to the Equine Activities Immunity Act, 4 P.S. §§ 601-606, as an alternative, independent basis for summary judgment. The EAIA limits the liability of certain providers of equine activities if specific requirements are met. Defendant argues that, as a provider of a qualifying equine activity who has complied with the EAIA’s statutory requirements, it is entitled to immunity from suit. (Doc. 20 at 10-11). Plaintiff counters that Defendant’s negligent provision of defective or faulty equipment puts the suit outside of the EAIA’s [*25] protections. (Doc. 22 at 4).

The issue of whether a covered entity is immunized from liability under the EAIA for providing defective or faulty equipment is a question of first impression. As such, this Court must engage in statutory interpretation. For this Court to interpret state law, it “must determine how the highest court of the State would decide an issue.” Baker ex rel. Thomas v. Gen. Motors Corp., 522 U.S. 222, 249, 118 S. Ct. 657, 139 L. Ed. 2d 580 (1998). Pennsylvania interprets statutes according to the Statutory Construction Act of 1972, 1 Pa.Cons. Stat. Ann. §§ 1501-1991. “When interpreting statutory language, the Pennsylvania Supreme Court is guided by the ‘plain meaning’ rule of construction.” Hofkin v. Provident Life & Accident Ins. Co., 81 F.3d 365, 371 (3d Cir. 1996) (citing Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583, 587 (Pa. 1982)). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa. Cons. Stat. Ann. § 1921(a). “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” Id. at § 1921(b).

The EAIA provides immunity for “an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity” including “[r]ecreational rides or drives which involve riding or other activity [*26] involving the use of an equine.” 4 P.S. §§ 601, 602(b)(6). The EAIA, however, only provides immunity where signs of at least a certain size are “conspicuously posted on the premises…in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.” Id. at § 603. For covered entities in compliance with the signs requirement, “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.” Id. at § 602(a). Finally, the Act is clear that “[t]he immunity provided for by this act shall be narrowly construed.” Id. at § 606.

Plaintiff does not argue that Defendant, as a provider of recreational horseback riding activities, is not a covered entity under the statute. Additionally, Plaintiff does not argue that Defendant did not have the appropriate signs as prescribed under the EAIA. Plaintiffs sole argument is that the Act does not bar actions for the negligent provision of faulty or defective equipment. (Doc. 22 at 6). Stated otherwise, Plaintiff argues that because he did not know he might be given defective or faulty [*27] equipment, he could not knowingly assume the risk of such. Defendant counters that “[o]nce plaintiff entered the stables property and took part in recreational horse riding, he assumed the risk of harm associated with such activities.” (Doc. 20 at 11).

The EAIA states that “liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven.” 4 P.S. § 602(a). The Act, therefore, appears to preserve the common law assumption of risk doctrine in the context of equine activities. In delineating the contours of this doctrine, the Pennsylvania Supreme Court has looked to the Restatement Second of Torts. See Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341-42 (Pa. 2000). The Restatement outlines four varieties of the doctrine, the first two of which are of interest in this case. See Restatement (second) of Torts § 496A cmt. c. The first, express assumption of risk occurs when lithe 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. (emphasis added). This is the type of assumption of risk examined above in respect to the agreement signed by Plaintiff. The second, implied assumption of risk, occurs when lithe plaintiff has [*28] entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Id. (emphasis added).

It is self-evident that a person “cannot be found to have implicitly assumed a risk of which he had no knowledge.” Rutter v. Ne. Beaver Cty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1204 (Pa. 1981) (plurality opinion). As such, lithe defense of assumption of the risk requires that the defendant show that the plaintiff was subjectively aware of the facts which created the danger and…must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”‘ Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 532 (Pa. Super. Ct. 1988) (alteration in original) (quoting Crance v. Sohanic, 344 Pa. Super. 526, 496 A.2d 1230, 1232 (Pa. Super. Ct. 1985)); See also Restatement (second) of Torts § 496D.4 Thus, for a defendant to prevail on a summary judgment motion based on the assumption of risk defense, it must be “beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996) (citing Struble v. Valley Forge Military Acad., 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. Ct. 1995)). Finally, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 572 (Pa. Super. Ct. 2000).

4 Of course, a plaintiff’s own assertion about whether he knew of and understood [*29] the risk is not conclusive.

There are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those of drowning in water or falling from a height, in the absence of any special circumstances which may conceal or appear to minimize the danger.

Restatement (Second) of Torts §496D cmt. d.

In short, to preclude Plaintiffs negligence action under the EAIA, Defendant must show that Plaintiff knew that the equipment he was provided with might break and voluntarily continued with the horseback ride in spite of that knowledge. Only then can Plaintiff be said to knowingly assume the risk. Defendant, however, has made no such showing. Defendant has failed to point to anything in the record to show that Plaintiff decided to use the equipment with the knowledge that the stirrup or any other equipment Plaintiff was provided with might break. Nor is this a case where the risk is so obvious that the knowledge could be inferred. The owner of Happy Trails testified that, in the approximately ten years he operated [*30] the stable, he never remembered a single stirrup breaking. (Doc. 20-3 at 20-21). Given that it is not a common occurrence, it strains credibility to argue that a recreational participant would know that being provided broken equipment was likely.

Therefore, because there has been no showing that Plaintiff knew of the risk and voluntarily disregarded it, the EAIA provides no relief for Defendant.5

5 At oral argument, counsel for the Defendant conceded that, even under the broad interpretation of the Act that Defendant argued for, the Act would not immunize a covered entity for acts of recklessness or gross negligence. As this Court has already found that there is a genuine dispute as to the material fact of whether the Defendant acted recklessly, this provides an alternative ground for the finding that the Act does not provide immunity under these facts.

V. Conclusion

For the reasons stated above, the Court will deny Defendant’s Motion for Summary Judgment (Doc. 19). A separate Order follows.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

ORDER

AND NOW, THIS 26th DAY OF SEPTEMBER, 2016, upon consideration of Defendant’s Motion for Summary Judgment (Doc. 19), IT IS HEREBY ORDERED [*31] THAT:

1. Defendant’s Motion for Summary Judgment (Doc. 19) is DENIED.

2. A telephone scheduling conference will be held on Wednesday, October 5, 2016, at 4:00 p.m. Counsel for Plaintiff is responsible for arranging the call to (570) 207-5750, and all parties should be ready to proceed before the undersigned is contacted.

/s/ Robert D. Mariani

Robert D. Mariani

United States District Judge

Pennsylvania Equine Activities Immunity Act

Posted: June 6, 2017 | Author: Recreation Law | Filed under: Pennsylvania | Tags: Equine, Equine Liability Act, Equine Liability Protection Act, Equine Liability Statute, Horse, Immunity, Pennsylvania Equine Activities Immunity Act, stable | Leave a comment

Pennsylvania Equine Activities Immunity Act

Pennsylvania Statutes

Title 4. Amusements

Chapter 13. Equine Activity

§ 601. Scope. 1

§ 602. Immunity. 1

§ 603. Signing. 2

§ 604. Equine propensity. 3

§ 605. Effect on other laws. 3

§ 606. Construction.. 3

§ 601. Scope
This act shall apply to an individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity as defined in this act.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 1, approved Nov. 22, 2005, eff. in 60 days.

§ 602. Immunity
(a) ASSUMPTION OF RISK.–

As to those within the scope of this act, liability for negligence shall only be barred where the doctrine of knowing voluntary assumption of risk is proven with respect to damages due to injuries or death to an adult participant resulting from equine activities.

(b) EQUINE ACTIVITIES.–

For the purposes of this act, immunity shall apply where an equine is utilized in the following manner:

(1) Equine training, teaching, riding instruction, shows, fairs, parades, competitions or performances which involve breeds of equine participating in an activity. This paragraph shall include, but not be limited to, dressage, hunter and jumper shows, Grand Prix jumping, three-day eventing, combined training, rodeos, reining, cutting, team penning and sorting, driving, pulling, barrel racing, steeplechasing, English and Western performance riding and endurance and nonendurance trail riding. This paragraph shall also include Western games, gymkhana, hunting, packing, therapeutic riding and driving and recreational riding.

(2) Equine or rider and driver training, teaching, instruction or evaluation. This paragraph includes clinics, seminars and demonstrations.

(3) Boarding equines, including normal daily care.

(4) Breeding equines, whether by live cover or artificial insemination.

(5) Inspecting, riding or evaluating an equine belonging to another by a purchaser or agent, whether or not the owner of the equine has received anything of value for the use of the equine or is permitting a prospective purchaser or a purchaser’s agent to ride, drive, inspect or evaluate the equine.

(6) Recreational rides or drives which involve riding or other activity involving the use of an equine.

(7) Placing, removing or replacing of horseshoes or the trimming of an equine’s hooves.

(8) Leading, handling or grooming of an equine.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 2, approved Nov. 22, 2005, eff. in 60 days.

1. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).

2. In support of an affirmance on appeal, judgment was properly entered for a decedent’s estate administratrix on her claims of negligence, wrongful death, and survival against a race track entity that arose when the thoroughbred race horse that decedent was exercising reacted to chickens that were roaming freely on the track, as the Pennsylvania Equine Activities Act was inapplicable to the decedent’s activity. Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394 (Pa. C.P. Nov. 24, 2014).

§ 603. Signing
% This act shall provide immunity only where signing is conspicuously posted on the premises on a sign at least three feet by two feet, in two or more locations, which states the following: You assume the risk of equine activities pursuant to Pennsylvania law.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 3, approved Nov. 22, 2005, eff. in 60 days.

§ 604. Equine propensity
Evidence of viciousness of the equine shall not be required before a possessor of an equine shall be subject to liability for harm.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 4, approved Nov. 22, 2005, eff. in 60 days.

§ 605. Effect on other laws

This act shall not affect common law or any statute for the protection of the user of the equine. In no event shall this act apply to any matter involving a motor vehicle covered by 75 Pa.C.S. Ch. 17 (relating to financial responsibility) or a successor act or to any non-equine-related activity or entity.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 5, approved Nov. 22, 2005, eff. in 60 days.

§ 606. Construction
The immunity provided for by this act shall be narrowly construed.

HISTORY: Act 2005-93 (S.B. 618), P.L. 472, § 6, approved Nov. 22, 2005, eff. in 60 days.

LexisNexis (R) Notes: Go to CASE NOTESCASE NOTESGo back to the top of LexisNexis (R) NotesCASE NOTES

Pennsylvania wrongful death statute is written in a way that a split court determined the deceased release prevented the surviving family members from suing.

Posted: April 10, 2017 | Author: Recreation Law | Filed under: Pennsylvania, Racing, Release (pre-injury contract not to sue), Triathlon | Tags: hiladelphia Triathlon, LLC., Release, swimming, Triathalon, Wrongful Death Statute | Leave a comment

Plaintiff argued that because she did not sign the release, the release did not apply to her. However, the court found that the release was written broadly enough that it covered the plaintiff’s suit as well as finding that the release included enough assumption of risk language that the deceased knowingly assume the risk.

Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663

State: Pennsylvania, Superior 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: inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees, outrageous acts, gross negligence, recklessness, and punitive damages.

Defendant Defenses: release

Holding: for the defendant

Year: 2016

This is an interesting case, because the Pennsylvania, wrongful death statute is written in a way that almost prevented a release from stopping a claim by a widow. The decision was also in front of the entire court of appeals and was a split decision.

This case centers on the Philadelphia triathlon. The deceased signed up for the triathlon electronically in January. While signing up for the triathlon, he signed a release to enter the race electronically.

At the start of the triathlon the deceased entered the water and never finished the swim part of the race. His body was found the following day by divers.

On June 26, 2010, at approximately 8:30 a.m., Mr. Valentino entered the Schuylkill River to begin the first part of the Triathlon. He never completed the swimming portion of the competition or any other part of the race. The following day, on June 27, 2010, divers retrieved his body from the Schuylkill River.

The widow of the deceased, the plaintiff, filed a complaint under the Pennsylvania wrongful death statute. Most states have a wrongful-death statute. The wrongful-death statute is the specific ways that the survivors can sue the person who caused the death of a loved one.

After filing the original complaint the plaintiff then filed an amended complaint. The defendant filed objections which the trial court upheld arguing that the complaint failed to state facts, which would allow the court or jury to reach a claim of outrageous acts, gross negligence or recklessness and thus award punitive damages.

The defendant filed an additional motion for summary judgment which the court granted dismissing all the claims of the plaintiff. The plaintiff then appealed the dismissal of her claims.

Most appellate courts may have anywhere from 3 to 15 or more judges sitting on the appellate court. When appeals are filed, judges are then assigned to these cases. Not all judges are assigned to every case. The majority the time a case is heard by three Appellate Ct. judges.

The decision in this case was split. Three judges affirmed the trial court’s order concerning some motions. However, two of the members of the appellate court concluded that the release executed by the deceased did not apply to his widow, the plaintiff, because she was not a signor release.

…however, two of the three members of the petite panel concluded that the liability waiver executed by Mr. Valentino did not apply to Appellant because she was not a signatory to the agreement.

The defendant then petitioned the court for hearing en banc. En banc means in front of the entire panel of the appellate court. The entire panel agreed to hear the case again specifically looking at five specific issues set forth below. In this case en banc meant in front of nine judges.

Consequently, this Court vacated summary judgment in favor of Appellee as to Appellant’s wrongful death claims.5 Thereafter, both Appellant and Appellee requested reargument en banc. By order filed on March 11, 2016, this Court granted en banc reargument and withdrew our opinions of December 30, 2015. We now address the following questions:

1. Whether the [trial c]ourt erred in sustaining the [p]reliminary [o]bjections [] where, when the material facts set forth in the [a]mended [c]omplaint, as well as all reasonable inferences deducible therefrom, are accepted as true, it cannot be said with certainty that [Appellee’s] actions were not sufficiently reckless, outrageous and/or egregious to warrant an award of punitive damages?

2. Whether the [trial c]ourt erred [*8] in sustaining the [p]reliminary [o]bjections [] and striking para-graph[s] 22(a), (c), (e), and (m) of the [a]mended [c]omplaint where these averments, and the [a]mended [c]omplaint in general, were sufficiently specific to enable [Appellee] to respond and prepare a defense?

3. Whether the [trial c]ourt erred in granting [Appellee’s] second [m]otion for [s]ummary [j]udgment where the issue of waiver and release was previously decided in the [o]rder of January 29, 2013 that denied [Appellee’s] first [m]otion for [s]ummary [j]udgment, and the [c]ourt was precluded by the coordinate jurisdiction rule from revisiting the question?

4. Whether the [trial c]ourt erred in granting [Appellee’s] [m]otion for [s]ummary [j]udgment where, when the record is viewed in the light most favorable to [Appellant], questions of fact remain as to whether the purported release in question was effectively executed by the decedent and, if it was, whether it was enforceable?

5. Whether the [trial c]ourt erred in granting [Appellee’s] [m]otion for [s]ummary [j]udgment where the report issued by Mark Mico fully and adequately addressed the questions of duty, breach of duty and causation and, in addition, he was fully qualified to render opinions in these regards?

Only the fourth and fifth issues that the court identified, are relevant to us. The first is whether or not the decedent effectively executed an electric agreement and whether not the case should be dismissed because of the release.

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

The court first looked at the issue punitive damages and defined punitive damages were under Pennsylvania law. Pennsylvania like most of the states, defines punitive damages for acts that are outrageous because of an evil motive or recklessness or an indifference towards the rights of others.

In Pennsylvania, “[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” As the name suggests, punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct.” To support a claim for punitive damages, the plaintiff must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that the defendant acted, or failed to act, in conscious disregard of that risk. “Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages.”

The plaintiff argued in her amended complaint that the defendant was inattentive to the needs of the contestants, failed to inspect and maintain the course, failed to warn or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards and failed to properly train and supervise its employees.

…inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees

The court looked at these allegations and held that they simply argued simple negligence, and none of the allegations rose to the level to be outrageous, evil or showing an indifference the welfare of others. The court sustained, upheld, dismissal of the gross negligence claims against the defendant.

These allegations, however, averred nothing more than ordinary negligence arising from inadvertence, mistake, or error in judgment; they do not support a claim involving outrageous behavior or a conscious disregard for risks confronted by Triathlon participants. Hence, the trial court correctly dismissed

The next issue important to us, is whether or not the plaintiff can contractually waive liability for reckless or intentional conduct.

Appellant next maintains that a plaintiff cannot contractually waive liability for reckless or intentional conduct and that, as a result, the liability waiver executed in this case is incapable of extinguishing such claims. Appellant also asserts that, pursuant to our prior decision in Pisano, a decedent’s liability waiver is ineffective as to non-signatory third-party wrongful death claimants. Lastly, Appellant claims that the trial court erred in granting summary judgment because she offered the testimony of a qualified expert to address lingering questions of Appellee’s duty, breach of duty, and injury causation.

The first major argument made by the plaintiff was there were two different releases presented to the court in different motions filed by the defendant. One was two pages long I will was 2 ½ pages long.

Appellant draws our attention to differences between the version of the liability waiver introduced in support of Appellee’s first motion for summary judgment and the version submitted in support of its second motion. Appellant notes that the second version was two and one-half pages in length while the first version was only two pages. Appellant also notes that the second version bore the date “2011” while the event occurred in 2010. Lastly, the second version included the words “Yes, I agree to the above waivers” above the signature line while the first version did not.

However, the court found that this was not an issue, and both pieces of evidence were the same release. The defendant hired a third-party firm to administer the sign up for the event and the execution of the release by the participants. The principle of the third-party firm testified that once the release is signed it is stored electronically and in storing the document it is shrunk so that when it is presented a second time it is actually a different size but the identical document.

The record shows that Appellee retained the services of ACTIVE Network (ACTIVE) to implement the online registration process for the Triathlon. ACTIVE implemented the required specifications for online registration, including guidelines for specific waiver and assumption of the risk language, supplied by Appellee and USA Triathlon (USAT), the national governing body of the sport of triathlon. USAT sanctioned the Triathlon because Appellee followed USAT registration guidelines.

According to Mr. McCue’s affidavit, “ACTIVE’s computer system condenses older registration and waiver documents for storage purposes, making any printed version of the older retained registration and waiver documents appear smaller than when they were viewed online by the reader/registrant.”

The third-party also demonstrated that there was no way the participant could’ve entered the race without a bib. The only way to get a bib was to sign the release.

Appellee also demonstrated that no one could participate in the Triathlon without registering online, a process that could not be completed without the execution of a liability waiver.

The plaintiff next argued that the release is unenforceable against claims of reckless or intentional conduct. However, the court quickly dismissed this, by referring to its earlier ruling that the complaint did not allege facts to support a claim of reckless or intentional conduct.

The next issue centered on the definition and wording of the Pennsylvania wrongful death statute. To be successful in the plaintiff’s Pennsylvania wrongful death claim, the plaintiff must show that the actions of the defendant were tortious. Because the release was validly executed by the deceased, and it showed that he knowingly and voluntarily assume the risk of taking part in the competition, the deceased assumed of the risk and eliminated the tortuous act of the defendant.

Here, Mr. Valentino, in registering online for the Triathlon, executed a detailed liability waiver under which he expressly assumed the risk of participating in the Triathlon and agreed to indemnify Appellee for liability stemming from his involvement in the event. The valid liability waiver executed by Mr. Valentino was available to support Appellee’s claim that Mr. Valentino knowingly and voluntarily assumed the risk of taking part in the competition and that, therefore, Appellee’s actions were not tortious. Since Appellant’s wrongful death claims required her to establish that Appellee’s conduct was tortious, the trial court did not err in granting summary judgment in favor of Appellee.

The plaintiff argued that a prior decision by the court had invalidated releases for wrongful-death claims. The court distinguished that prior decision from this one because the prior decision required arbitration of the claims and that the decedent in that case had not signed the actual agreement. In that case the husband of the deceased when putting her in a nursing home signed all the paperwork. The deceased did not sign a release or arbitration agreement.

A liability waiver, however, operates quite differently from an arbitration clause. By executing a liability waiver, the decedent signatory acknowledges and assumes identified risks and pledges that the defendant will not be held liable for resulting harms. If the decedent executes the waiver in a knowing, intelligent, and voluntary manner (as here), the waiver is deemed valid and it shifts the risk of loss away from the defendant and onto the decedent. In effect, an enforceable waiver under which the decedent assumes specified risks transforms the nature of the defendant’s conduct vis-à-vis the decedent from tortious to non-tortious.

The court held that a release stops a claim under the Pennsylvania wrongful death statute when it is signed by the deceased.

Consequently, the court upheld the trial court’s dismissal of the claims against the plaintiff based upon the release.

So Now What?

Wrongful-death statutes are quite specific in how they must operate and how they are to be interpreted by the courts. You should look at your wrongful-death statute or have your attorney look at the wrongful-death statute for the state where your release will be argued to make sure that it passes or succeeds in stopping a wrongful-death claim. It would be extremely rare to find a release that did not stop the claims, absent proof of misrepresentation or fraud.

The second thing you need to do you always make sure you that your release covers not only all the defendants if you want to protect from any lawsuit but also includes all the possible plaintiffs who might sue you. This includes the deceased obviously but also a spouse and any children of the deceased. If the deceased is single, you want to make sure it includes any siblings or parents who may have a legal claim upon the deceased death.

The outcome would be pretty forgone in most states. However, nothing is ever set in stone in the law.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663

Posted: April 9, 2017 | Author: Recreation Law | Filed under: Legal Case, Pennsylvania, Racing, Release (pre-injury contract not to sue), Triathlon | Tags: Release, swimming, Triathalon, Wrongful Death Statute | Leave a comment

Valentino v. Philadelphia Triathlon, LLC, 2016 PA Super 248; 2016 Pa. Super. LEXIS 663

Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in her Own Right, Appellant v. Philadelphia Triathlon, LLC, Appellee

No. 3049 EDA 2013

SUPERIOR COURT OF PENNSYLVANIA

2016 PA Super 248; 2016 Pa. Super. LEXIS 663

November 15, 2016, Decided

November 15, 2016, Filed

PRIOR HISTORY: [*1] Appeal from the Order Entered September 30, 2013. In the Court of Common Pleas of Philadelphia County. Civil Division at No(s): April Term, 2012 No. 1417.

Valentino v. Phila. Triathlon, LLC, 2015 PA Super 273, 2015 Pa. Super. LEXIS 862 (Pa. Super. Ct., 2015)

JUDGES: BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OLSON and OTT, JJ. OPINION BY OLSON, J. Gantman, P.J., Bender, P.J.E., Bowes, Shogan and Ott, JJ., join this Opinion. Ford Elliott, P.J.E., files a Concurring and Dissenting Opinion in which Panella and Lazarus, JJ. join.

OPINION BY: OLSON

OPINION

OPINION BY OLSON, J.:

Appellant, Michele Valentino (in her own right and as administratrix of the estate of Derek Valentino), appeals from an order entered on September 30, 2013 in the Civil Division of the Court of Common Pleas of Philadelphia County granting summary judgment on behalf of Philadelphia Triathlon, LLC (Appellee). After careful consideration, we affirm.

In 2010, Appellee organized an event known as the Philadelphia Insurance Triathlon Sprint (the Triathlon). Three events comprised the Triathlon: a one-half mile swim, a 15.7 mile bicycle race, and a three and one-tenth mile run. Trial Court Opinion, 8/14/14, at 2. The swimming portion of the competition occurred in the Schuylkill River in Philadelphia, Pennsylvania. [*2]

To compete in the Triathlon, each participant was required to register for the event. As part of the registration process, participants paid a fee and electronically executed a liability waiver form.1 Each participant also completed and submitted a registration form to obtain a number and a bib to wear on the day of the race. Mr. Valentino electronically registered as a participant in the Triathlon on January 24, 2010.

1 Among other things, the lengthy form stated that Mr. Valentino “underst[ood] and acknowledge[d] the physical and mental rigors associated with triathlon,” “realize[d] that running, bicycling, swimming and other portions of such [e]vents are inherently dangerous and represent[ed] an extreme test of a person’s physical and mental limits,” and, “underst[ood] that participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis and death [as well as] dangers arising from adverse weather conditions, imperfect course conditions, water, road and surface hazards, equipment failure, inadequate safety measures, participants of varying skill levels, situations beyond the immediate control of [Appellee], and other presently unknown risks and dangers[.]” Appellee’s Motion [*3] for Summary Judgment Ex. G, 8/5/13. The form further provided that Mr. Valentino “underst[ood] that these [r]isks may be caused in whole or in part by [his] actions or inactions, the actions or inactions of others participating in the [e]vent, or the acts, inaction or negligence of [Appellee]” and that he “expressly assume[d] all such [r]isks and responsibility for any damages, liabilities, losses or expenses” that resulted from his participation in the event. Id. The liability waiver form also included a provision stating as follows: “[Mr. Valentino] further agree[s] that if, despite this [a]greement, he, or anyone on [his] behalf, makes a claim of [l]iability against [Appellee], [he] will indemnify, defend and hold harmless [Appellee] from any such [l]iability which [it] may [] incur[] as the result of such claim.” Id.

In block capital lettering above the signature line, the liability waiver provided that Mr. Valentino’s acceptance of the agreement confirmed that he read and understood its terms, that he understood that he would surrender substantial rights (including the right to sue), and that he signed the agreement freely and voluntarily. Id. Lastly, the form states that acceptance of the agreement constituted “a complete and unconditional release of all liability [*4] to the greatest extent allowed by law.” Id.

Appellant (Mr. Valentino’s widow) filed her original complaint on April 12, 2012, asserting wrongful death and survival claims against various defendants, including Appellee. Thereafter, she amended her complaint on June 22, 2012. All of the defendants filed preliminary objections on June 22, 2012. On July 27, 2012, the trial court sustained the defendants’ preliminary objections and struck all references in Appellant’s amended complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages. The court concluded that these allegations were legally insufficient since the alleged facts showed only ordinary negligence. In addition, the court struck paragraphs 22(a), (c), (e), and (m) in the amended complaint on grounds that those averments lacked sufficient specificity. The defendants answered the amended complaint [*5] and raised new matter on August 9, 2012.

Shortly after discovery commenced, the defendants moved for summary judgment in December 2012. The trial court denied that motion on January 29, 2013. Eventually, Appellant stipulated to the dismissal of all defendants except Appellee. At the completion of discovery, Appellee again moved for summary judgment on August 5, 2013. The trial court granted Appellee’s motion on September 30, 2013.2 Appellant sought reconsideration but the trial court denied her request. Appellant then filed a timely notice of appeal on October 23, 2013. Pursuant to an order of court, Appellant filed a concise statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). Subsequently, the trial court explained its reasons for sustaining Appellee’s preliminary objections in an opinion issued on March 18, 2014. In a separate opinion issued on August 14, 2014, the trial court set forth its rationale for granting Appellee’s motion for summary judgment.3

2 Because the trial court previously sustained preliminary objections to Appellant’s claims of outrageous acts, gross negligence, recklessness, and punitive damages, we read the trial court’s summary judgment order as dismissing [*6] claims of ordinary negligence that comprised Appellant’s survival and wrongful death actions. In reaching this decision, the court relied upon the liability waiver executed by Mr. Valentino.

3 This Court filed its decision in Pisano v. Extendicare Homes, Inc., 2013 PA Super 232, 77 A.3d 651 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S. Ct. 2890, 189 L. Ed. 2d 838 (2014) on August 12, 2013, holding that [HN1] a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent. Owing to our decision in Pisano, the trial court in its Rule 1925(a) opinion urged this Court to vacate the order granting summary judgment as to Appellant’s wrongful death claims.

On December 30, 2015, a divided three-judge panel of this Court affirmed, in part, and reversed, in part, the rulings issued by the trial court. Specifically, the panel unanimously affirmed the trial court’s order sustaining Appellee’s preliminary objections. In addition, the panel unanimously agreed that: (1) the completion of discovery and the further development of the factual record defeated application of the coordinate jurisdiction rule and eliminated factual issues surrounding Mr. Valentino’s execution of the liability waiver; (2) Appellant’s failure to state viable claims involving recklessness, outrageousness, and intentional [*7] misconduct on the part of Appellee mooted Appellant’s argument that a contractual waiver of such claims would be ineffective; and, (3) there was no basis to consider the sufficiency of the testimony of Appellant’s expert since the trial court did not address that issue. Citing Pisano, however, two of the three members of the petite panel concluded that the liability waiver executed by Mr. Valentino did not apply to Appellant because she was not a signatory to the agreement.4 Consequently, this Court vacated summary judgment in favor of Appellee as to Appellant’s wrongful death claims.5 Thereafter, both Appellant and Appellee requested reargument en banc. By order filed on March 11, 2016, this Court granted en banc reargument and withdrew our opinions of December 30, 2015. We now address the following questions:

2. Whether the [trial c]ourt erred [*8] in sustaining the [p]reliminary [o]bjections [] and striking paragraph[s] 22(a), (c), (e), and (m) of the [a]mended [c]omplaint where these averments, and the [a]mended [c]omplaint in general, were sufficiently specific to enable [Appellee] to respond and prepare a defense?

Appellant’s Substituted Brief at 7-8.

4 Distinguishing the arbitration clause at issue in Pisano, the dissent found that Appellant’s claims were subject [*9] to the liability waiver under which Mr. Valentino expressly assumed the risk of participating in the Triathlon since Appellant’s wrongful death action required her to demonstrate that Mr. Valentino’s death resulted from tortious conduct on the part of Appellee.

5 Our ruling did not purport to alter the trial court’s reliance on the liability waiver as grounds for entering summary judgment as to Appellant’s survival claims.

In the first issue, Appellant asserts that the trial court erred in sustaining the preliminary objections and striking all references to outrageous acts, gross negligence, and reckless conduct. Appellant also asserts that the trial court erred in dismissing her claims for punitive damages. The basis for these contentions is that, when the allegations set forth in the amended complaint are taken as true, the pleading asserts a claim that, “[Appellee] intentionally created a situation where swimmers [went] into a river with inadequate supervision and no reasonable means of rescue if they got into trouble.” Appellant’s Substituted Brief at 22 (emphasis in original).

The standard of review we apply when considering a trial court’s order sustaining preliminary objections is [*10] well settled:

[HN2] [O]ur standard of review of an order of the trial court overruling or [sustaining] preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

[HN3] Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. [HN4] Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., 2014 PA Super 278, 107 A.3d 114, 118 (Pa. Super. 2014).

[HN5] In Pennsylvania, “[p]unitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (Pa. 2005), quoting, Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 747 (Pa. 1984). [HN6] “As the name suggests, [*11] punitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct.” Hutchison, 870 A.2d at 770. [HN7] To support a claim for punitive damages, the plaintiff must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that the defendant acted, or failed to act, in conscious disregard of that risk. Id. at 772. [HN8] “Ordinary negligence, involving inadvertence, mistake or error of judgment will not support an award of punitive damages.” Hutchinson v. Penske Truck Leasing Co., 2005 PA Super 179, 876 A.2d 978, 983-984 (Pa. Super. 2005), aff’d, 592 Pa. 38, 922 A.2d 890 (Pa. 2007).

Appellant’s amended complaint alleges that Mr. Valentino died while swimming in the Schuylkill River during the Triathlon. The amended complaint alleges further that Appellee was inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees. These allegations, however, averred nothing more than ordinary negligence arising from inadvertence, mistake, or error in judgment; they do not support a claim involving outrageous [*12] behavior or a conscious disregard for risks confronted by Triathlon participants. Hence, the trial court correctly dismissed Appellant’s allegations of outrageous and reckless conduct and properly struck her punitive damage claims.

In the second issue, Appellant asserts that the trial court erred in sustaining the preliminary objections and striking paragraphs 22(a), (c), (e), and (m) from her amended complaint. Appellant maintains that these averments are sufficiently specific to enable Appellee to respond to Appellant’s allegations and to formulate a defense in this case.

Contrary to Appellant’s argument, we agree with the trial court’s assessment that the challenged portions of the amended complaint are too vague and ambiguous to satisfy the requirements found in Pa.R.C.P. 1019. [HN9] Under Rule 1019, “[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019. [HN10] “Pennsylvania is a fact-pleading state; a complaint must not only give the defendant notice of what the plaintiff’s claim is and the grounds upon which it rests, but the complaint must also formulate the issues by summarizing those facts essential to support the claim.” Feingold v. Hendrzak, 2011 PA Super 34, 15 A.3d 937, 942 (Pa. Super. 2011).

The challenged provisions of [*13] Appellant’s amended complaint referred only to “dangerous conditions” (¶ 22(a)), “warnings” (¶ 22(c)), “failures to reasonably plan, operate, supervise, and organize the event” (¶ 22(e)), and “failures to employ adequate policies, procedures, and protocols in conducting the event” (¶ 22(m)) as the basis for her claims. Upon review, we concur in the trial court’s determination that this boilerplate language was too indefinite to supply Appellee with adequate information to formulate a defense.

Appellant cites the decision of the Commonwealth Court in Banfield v. Cortes, 922 A.2d 36 (Pa. Cmwlth. 2007) as supportive of her contention that the amended complaint set forth material facts with sufficient specificity. Banfield, however, is distinguishable. In that case, a group of electors filed suit alleging that the Secretary of the Commonwealth, in certifying the use of certain electronic systems in elections, failed to adopt uniform testing procedures that addressed the security, reliability, and accuracy of voting systems. The Secretary requested an order directing the plaintiffs to re-plead their allegations with greater specificity. In rejecting this request, the Commonwealth Court explained that in challenging the adequacy of the testing [*14] features inherent in the newly adopted electronic voting systems, the plaintiffs provided sufficient facts to enable the Secretary to prepare a defense. Id. at 50.

Here, in contrast, Appellant referred vaguely, and without elaboration, to unspecified dangerous conditions, indefinite warnings, and generic failures to reasonably plan and employ adequate policies in carrying out the Triathlon. Moreover, even if Appellee possessed some knowledge of the facts around which Appellant’s allegations centered, this alone would not relieve Appellant of her duty to allege material facts upon which she based her claims. See Gross v. United Engineers & Constructors, Inc., 224 Pa. Super. 233, 302 A.2d 370, 372 (Pa. Super. 1973). Thus, Appellant’s reliance on Banfield is unavailing and we conclude that the trial court committed no error in striking paragraphs 22(a), (c), (e), and (m) from the amended complaint.

The final three claims challenge the entry of summary judgment in favor of Appellee. Our standard of review over such claims is well settled.

[HN11] Th[e] scope of review of an order granting summary judgment is plenary. Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. [HN12] Summary judgment is [*15] appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.

Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1221-1222 (Pa. 2002).

Appellant advances several arguments in support of her contention that the trial court erred in granting summary judgment. First, Appellant asserts that the coordinate jurisdiction rule precluded the trial court from addressing Appellee’s motion since a prior summary judgment motion was denied. Second, Appellant contends that genuine issues of material fact regarding whether Mr. Valentino actually executed a liability waiver form barred the entry of summary judgment in Appellee’s favor. Appellant next maintains that a plaintiff cannot contractually waive liability for reckless or intentional conduct and that, as a result, the liability waiver executed in this case is incapable of extinguishing [*16] such claims. Appellant also asserts that, pursuant to our prior decision in Pisano, a decedent’s liability waiver is ineffective as to non-signatory third-party wrongful death claimants. Lastly, Appellant claims that the trial court erred in granting summary judgment because she offered the testimony of a qualified expert to address lingering questions of Appellee’s duty, breach of duty, and injury causation. We address these contentions in turn.

We begin with Appellant’s claim alleging that the coordinate jurisdiction rule precluded consideration of Appellee’s motion for summary judgment since the trial court denied a prior summary judgment motion. [HN13] The coordinate jurisdiction rule holds that, “upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge.” Zane v. Friends Hospital, 575 Pa. 236, 836 A.2d 25, 29 (Pa. 2003). An exception to this rule applies, however, “when there has been a change in the controlling law or where there was a substantial change in the facts or evidence.” Id. We agree with the trial court that the completion of discovery and the development of a more complete record defeated application of [*17] the coordinate jurisdiction rule in this case. Hence, this contention merits no relief.

Appellant next advances a claim asserting that genuine issues of fact surrounding Mr. Valentino’s execution of the liability waiver preclude summary judgment in favor of Appellee. In developing this contention, Appellant draws our attention to differences between the version of the liability waiver introduced in support of Appellee’s first motion for summary judgment and the version submitted in support of its second motion. Appellant’s Substituted Brief at 37-41. Appellant notes that the second version was two and one-half pages in length while the first version was only two pages. Appellant also notes that the second version bore the date “2011” while the event occurred in 2010. Lastly, the second version included the words “Yes, I agree to the above waivers” above the signature line while the first version did not.

There is ample support for the trial court’s finding that Mr. Valentino executed the liability waiver when he electronically registered for the Triathlon. See Trial Court Opinion, 8/14/14, at 4 (“In the second motion for summary judgment, it is undisputed that a waiver was among the [*18] decedent’s possessions, prior to being discovered in the Schuykill River.”). The record shows that Appellee retained the services of ACTIVE Network (ACTIVE) to implement the online registration process for the Triathlon. ACTIVE implemented the required specifications for online registration, including guidelines for specific waiver and assumption of the risk language, supplied by Appellee and USA Triathlon (USAT), the national governing body of the sport of triathlon. USAT sanctioned the Triathlon because Appellee followed USAT registration guidelines.

Appellee also demonstrated that no one could participate in the Triathlon without registering online, a process that could not be completed without the execution of a liability waiver. It is not disputed that Mr. Valentino registered online by completing the required process. He paid his registration fee with a credit card issued in his name and for which he retained exclusive possession.

Appellee also offered the affidavit of Eric McCue, the general manager of ACTIVE, to explain why the appearance of the liability waiver varied between the submission of the first and second motions for summary judgment. According to Mr. McCue’s affidavit, [*19] “ACTIVE’s computer system condenses older registration and waiver documents for storage purposes, making any printed version of the older retained registration and waiver documents appear smaller than when they were viewed online by the reader/registrant.” Appellee’s Motion for Summary Judgment Ex. L at ¶ 9, 8/5/13. Mr. McCue also stated that “the reader/registrant would view the online registration for the subject event exactly as it appears on Exhibit B [of Appellee’s August 5, 2013 motion for summary judgment] on his or her computer screen.” Id. at ¶ 10. Appellant offered no evidence to dispute Mr. McCue’s affidavit testimony.

Lastly, Appellee relied upon the deposition testimony of witnesses to demonstrate that Mr. Valentino executed the liability waiver during the electronic registration process. At her deposition, Appellant admitted she had no reason to believe that Mr. Valentino did not read and understand the liability waiver or that he did not sign it during the registration process. In addition, Appellee pointed to the deposition testimony of Andrea Pontani, Mr. Valentino’s friend. Ms. Pontani testified that Appellant and Mr. Valentino were aware of the liability waiver because [*20] they spoke with her about it before the competition, stating that Mr. Valentino signed the form and presented it in order to obtain his competitor’s bib during the registration process on the day of the event. Based upon the forgoing, we agree with the trial court that Appellant presented no evidence raising a genuine issue of fact as to whether Mr. Valentino executed the liability waiver at issue in this case.

We turn next to Appellant’s position that, even if Mr. Valentino executed the liability waiver, the agreement is unenforceable with regard to claims asserting reckless or intentional conduct. Here, however, we have previously affirmed the trial court’s determination that Appellant did not state viable claims involving reckless or intentional conduct. See infra. As such, Appellant’s contention cannot serve as a basis for disturbing the trial court’s summary judgment order, which dismissed allegations of ordinary negligence comprising Appellant’s wrongful death and survival actions.6

6 Appellant does not challenge the substantive validity of the liability waiver as a bar to her claims of ordinary negligence. Consequently, we need not address the validity of the exculpatory provisions [*21] in the context of this case.

Appellant forwards a claim that our decision in Pisano bars Appellee’s reliance on a liability waiver to defend wrongful death claims asserted by a non-signatory statutory claimant. See Appellant’s Substituted Brief at 45-47; see also Trial Court Opinion, 8/14/14, at 5. In Pisano, a nursing home resident signed a contract agreeing to submit all claims against the home to binding arbitration. When the resident died, the administrator of the resident’s estate asserted wrongful death claims against the home and the home invoked the arbitration clause. The trial court denied the home’s petition to compel arbitration. On appeal, this Court affirmed, concluding that the arbitration clause was not binding against wrongful death claimants who did not sign the agreement because they possessed a separate and distinct right of action. Pursuant to this holding, Appellant maintains that since she did not sign the liability waiver executed by her late husband, the contractual waiver cannot be asserted as a bar to her wrongful death claims. We disagree.

The statute authorizing wrongful death claims in Pennsylvania provides as follows:

§ 8301. Death action

(a)General rule.– An [*22] action may be brought [for the benefit of the spouse, children or parents of the deceased], under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

42 Pa.C.S.A. § 8301 (emphasis added) (sometimes referred to as “Wrongful Death Act”). Eight decades ago, our Supreme Court interpreted a prior, but similar, version of the statute. The Court made clear that the statute contemplated that a claimant’s recovery required a tortious act on the part of the defendant:

[W]e have held that [HN14] a right to recover must exist in the party injured when he died in order to entitle[] those named in the act to sue. We have therefore held, in order that the death action impose no new and unjust burden on the defendant, that where the deceased would have been barred by contributory negligence, or by the statute of limitations, the parties suing for his death [*23] are likewise barred. We have announced the principle that the statutory action is derivative because it has as its basis the same tortious act which would have supported the injured party’s own cause of action. Its derivation, however, is from the tortious act, and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor.

Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 664 (Pa. 1936) (internal citations omitted; emphasis added).

Our decision in Pisano limited a decedent’s authority to diminish or alter a non-signatory third-party claimant’s procedural election to pursue a claim in the forum of his or her choice. That decision, however, did not purport to undermine the fundamental principle that [HN15] both an estate in a survival action, and a statutory claimant in a wrongful death action, shoulder the same burden of proving that tortious conduct on the part of the defendant caused the decedent’s death. Under Pisano, [HN16] “wrongful death actions are derivative of decedents’ injuries but are not derivative of decedents’ rights.” Pisano, 77 A.3d at 659-660. Thus, while a third party’s wrongful death claim is not derivative of the decedent’s right of action, [*24] a wrongful death claim still requires a tortious injury to succeed.

As suggested above, [HN17] Pennsylvania case law has long held that a wrongful death claimant’s substantive right to recover is derivative of and dependent upon a tortious act that resulted in the decedent’s death. Our reasoning in Sunderland v. R.A. Barlow Homebuilders, 2002 PA Super 16, 791 A.2d 384 (Pa. Super. 2002), aff’d, 576 Pa. 22, 838 A.2d 662 (Pa. 2003) illustrates this point:

[HN18] A wrongful death action is derivative of the injury which would have supported the decedent’s own cause of action and is dependent upon the decedent’s cause of action being viable at the time of death. [Moyer v. Rubright, 438 Pa. Super. 154, 651 A.2d 1139, 1143 (Pa. Super. 1994)]. [HN19] “As a general rule, no action for wrongful death can be maintained where the decedent, had he lived, could not himself have recovered for the injuries sustained.” Ingenito v. AC & S, Inc., 430 Pa. Super. 129, 633 A.2d 1172, 1176 (Pa. Super. 1993). Thus, although death is the necessary final event in a wrongful death claim, the cause of action is derivative of the underlying tortious acts that caused the fatal injury. Id.

Sunderland, 791 A.2d at 390-391 (emphasis added; parallel citations omitted).

Applying these settled principles in the present case, we conclude that [HN20] a decedent may not compromise or diminish a wrongful death claimant’s right of action without consent. Nevertheless, a third-party wrongful death claimant is subject to substantive defenses supported by the decedent’s [*25] actions or agreements where offered to relieve the defendant, either wholly or partially, from liability by showing that the defendant’s actions were not tortious. Here, Mr. Valentino, in registering online for the Triathlon, executed a detailed liability waiver under which he expressly assumed the risk of participating in the Triathlon and agreed to indemnify Appellee for liability stemming from his involvement in the event. The valid liability waiver executed by Mr. Valentino was available to support Appellee’s claim that Mr. Valentino knowingly and voluntarily assumed the risk of taking part in the competition and that, therefore, Appellee’s actions were not tortious. Since Appellant’s wrongful death claims required her to establish that Appellee’s conduct was tortious, the trial court did not err in granting summary judgment in favor of Appellee.

Appellant construes Pisano as holding that a wrongful death claimant’s rights are wholly separate, in all contexts and for all purposes, from not just the “rights” of a decedent but also the injuries sustained by a decedent. This reading of Pisano conflates the concept of a right of action under Pennsylvania’s Wrongful Death Act, referring [*26] to the non-derivative right of a statutory claimant to seek compensation, with the principle that a claimant’s substantive right to obtain a recovery always remains, even in the wake of Pisano, “depend[ant] upon the occurrence of a tortious act.” Pisano, 77 A.3d at 654 (emphasis added). The issue in Pisano was whether a wrongful death claimant should be bound by an arbitration clause that he did not sign. This is a uniquely procedural issue that differs greatly from the enforcement of a valid liability waiver such as the one at issue in the present case. An arbitration clause dictates the forum where a litigant may present his claim. The terms of such a clause do not fix substantive legal standards by which we measure a right to recovery. Because the decedent signatory agreed to submit his claim to arbitration, his claim is subject to the compulsory provisions of the agreement. [HN21] A non-signatory wrongful death claimant, on the other hand, cannot be compelled to present his claim to an arbitrator since he has not consented to arbitration and since he possesses an independent, non-derivative right to air his claim in the forum of his choice.

A liability waiver, however, operates quite differently from an arbitration clause. [*27] By executing a liability waiver, the decedent signatory acknowledges and assumes identified risks and pledges that the defendant will not be held liable for resulting harms. If the decedent executes the waiver in a knowing, intelligent, and voluntary manner (as here), the waiver is deemed valid and it shifts the risk of loss away from the defendant and onto the decedent. In effect, an enforceable waiver under which the decedent assumes specified risks transforms the nature of the defendant’s conduct vis-à-vis the decedent from tortious to non-tortious. Since Pisano retains the requirement that the decedent’s death result from a tortious act, even non-signatory wrongful death claimants remain subject to the legal consequences of a valid liability waiver.

Appellant also overinflates the importance of the presence of a wrongful death claimant’s signature when evaluating the enforceability of a liability waiver. Under Pisano, a wrongful death claimant possesses an independent, non-derivative right of action that cannot be subject to compulsory arbitration in the absence of consent. Thus, to enforce an arbitration clause in the wrongful death context, the claimant’s signature is necessary [*28] to demonstrate that she agreed to submit her claim to binding arbitration. The same is not true for a liability waiver, however. As explained above, [HN22] a valid waiver signed only by the decedent transfers the risk of harm from the defendant to the decedent, effectively rendering the defendant’s conduct non-tortious. Since the wrongful death claimant’s substantive right of recovery presupposes tortious conduct on the part of the defendant, the claimant’s signature on the waiver is unnecessary.

Although we have uncovered no recent Pennsylvania case law that discusses the application of a valid waiver in a subsequent wrongful death action, several decisions from California are instructive on this point. These cases illustrate that, [HN23] while a valid waiver does not bar a wrongful death claim, it can support a defense asserting that the alleged tortfeasor owed no duty to the decedent:

[HN24] Although a wrongful death claim is an independent action, wrongful death plaintiffs may be bound by agreements entered into by decedent that limit the scope of the wrongful death action. Thus, for example, although an individual involved in a dangerous activity cannot by signing a release extinguish his heirs’ wrongful [*29] death claim, the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk.

Ruiz v. Podolsky, 50 Cal. 4th 838, 114 Cal. Rptr. 3d 263, 237 P.3d 584, 593 (Cal. 4th 2010). Hence, [HN25]

where a decedent executes a valid waiver:

the express contractual assumption of the risk, combined with the express waiver of defendants’ negligence, constitute[s] a complete defense to the surviving heirs’ wrongful death action. This is different than holding th[at the wrongful death] action is barred.

Scroggs v. Coast Community College Dist., 193 Cal.App.3d 1399, 1402, 239 Cal. Rptr. 916 (Cal. App. 4th Dist. 1987); Eriksson v. Nunnink, 233 Cal. App. 4th 708, 183 Cal. Rptr. 3d 234 (Cal. App. 4th Dist. 2015); Madison v. Superior Court 203 Cal.App.3d 589, 250 Cal. Rptr. 299 (Cal. App. 2nd Dist. 1988).

These cases align with Pennsylvania law in a way that the decisional law of other states does not. For example, in Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 845 A.2d 720 (N.J. Super. 2004), the Appellate Division of the New Jersey Superior Court rejected the rationale in Madison and the other California cases, noting that the California approach was “internally inconsistent” since it allowed claimants to file a lawsuit that ultimately would not succeed. This reasoning constitutes a one-dimensional view of the issue. Take, for example, a case in which the decedent executes a valid liability waiver, as here. Thereafter, the defendant raises a successful assumption of the risk defense against the decedent’s estate in a survival action. Under the holding in Gershon, the defendant cannot raise the defense in a companion wrongful death action. [*30] Gershon thus trades one “inconsistency” for another since it allows a wrongful death action to proceed in the face of a valid waiver that precludes a related survival action. Since the same underlying conduct by the defendant is the focus of scrutiny in this hypothetical situation, it is entirely consistent to reject a wrongful death claim where a valid waiver precludes recovery in a related survival action.7

7 This Court recently required consolidation of related wrongful death and survival actions since wrongful death beneficiaries cannot be compelled to arbitrate wrongful death claims. Taylor v. Extendicare Health Facilities, Inc., 2015 PA Super 64, 113 A.3d 317 (Pa. Super. 2015), appeal granted, 122 A.3d 1036 (Pa. 2015). However, our Supreme Court overruled our decision in Taylor, concluding that the Federal Arbitration Act, 9 U.S.C. § 2, preempted application of Pa.R.C.P. 213(e) (requiring consolidation of survival and wrongful death actions at trial) and required arbitration of survival claims where a valid and enforceable arbitration clause exists. Taylor v. Extendicare Health Facilities, Inc., 2016 Pa. LEXIS 2166, 2016 WL 5630669 (Pa. 2016).

Our conclusion that Appellee may rely on a liability waiver signed only by the decedent to defeat Appellant’s wrongful death claims is undiminished by Pennsylvania case law holding that a settlement and release agreement does not bind non-signatories. See, e.g., Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (Pa. 1989). In Buttermore [*31] , James Buttermore sustained injuries in an automobile accident. Eventually, he resolved his claims against the tortfeasor in exchange for the sum of $25,000.00 and executed a release and settlement agreement in which he agreed to release any and all persons from liability, whether known or unknown. Later, Buttermore and his wife initiated an action against Aliquippa Hospital and certain physicians claiming that treatment he received aggravated the injuries he sustained in the accident. The defendants moved for summary judgment on the strength of the release. Our Supreme Court held that the release barred Buttermore’s claims against all tortfeasors, including those who were unnamed. The Court further held, however, that Buttermore’s wife had an independent cause of action for loss of consortium, which was not barred by the release since she did not sign the agreement.

A pair of examples illustrates the distinction between the situation in Buttermore and the situation presently before us. In the first example, the driver of car A operates his vehicle on a public highway. He is injured after a rear-end collision caused by the driver of car B. Litigation ensues between the two drivers and, [*32] eventually, the driver of car A resolves his claims against the driver of car B for the sum of $30,000.00. At that time, the driver of car A executes a release and settlement agreement, releasing all persons from liability — whether known or unknown — for claims stemming from injuries and losses he sustained in the accident. His spouse does not sign the release. As in Buttermore, the release signed by the driver of car A bars all claims he initiates in the future but does not bar loss of consortium claims or wrongful death claims (should he succumb to his injuries) brought by his spouse, who possesses independent causes of action. In this scenario, the execution of the release manifests the driver of car A’s agreement to forgo all future claims but does not establish his assumption of the risk of operating his vehicle. Nothing in the release suggests that the driver of car A intended to shift the risk of loss away from the driver of car B and onto himself. Indeed, the execution of the release after the injury-causing accident leaves no room for the inference that he assumed this risk of negligence on the part of the driver of car B. Since nothing in the release precludes a finding [*33] that the driver of car B acted tortiously, the release has no preclusive effect on the spouse’s right to seek damages in the context of a subsequent loss of consortium or wrongful death action.

In the second example, the driver of car A decides to participate in a demolition derby. As a condition of entry, he voluntarily executes a liability waiver under which he assumes the risk of participation in the event and waives all potential claims against other participants and event organizers. Again, the spouse of the driver of car A does not sign the liability waiver. During the demolition derby, the driver of car A sustains injuries and eventually dies as a result of a collision with another participant. In this scenario, loss of consortium and wrongful death claims asserted by the spouse of the driver of car A are subject to the liability waiver. This is because the driver of car A expressly manifested his intent to assume the risk of participating in the demolition derby, thereby shifting the risk of loss or injury away from other participants and event organizers. Unlike the release and settlement agreement in the first example that said nothing about assumption of the risk or any other [*34] substantive basis to oppose tort liability, the liability waiver in this hypothetical supports a complete bar to financial responsibility for injury and losses and bears directly on the formula by which we assess whether a defendant acted tortiously in causing damages. Because even non-signatory wrongful death claimants bear the burden of proving that tortious conduct caused the decedent’s death, their claims are subject to liability waivers under which the deceased assumed the risk of engaging in a particular activity.8 As the circumstances before us more closely reflect this second example, the instant appeal calls for application of the principles alluded to in prior Pennsylvania cases and specifically articulated in the California line of authority. See infra. Thus, we are not persuaded that Pennsylvania case law construing the applicable scope of release and settlement agreements undermines our conclusion that Appellant’s wrongful death claims are subject to the liability waiver signed by Mr. Valentino.

8 [HN26] Although strictly construed, Pennsylvania law recognizes the enforceability of valid liability waivers, particularly in cases where the injured party elects to engage in activities [*35] that entail an obvious risk of injury or loss. See, e.g., Hinkal v. Pardoe, 2016 PA Super 11, 133 A.3d 738 (Pa. Super. 2016) (en banc) (gym membership), appeal denied, 2016 Pa. LEXIS 1407, 2016 WL 3910827 (Pa. 2016). We would substantially reduce the utility of liability waivers if we were to hold that they are enforceable only against signatories, but not against non-signatory wrongful death claimants. Moreover, it would be extremely impractical to expect defendants to acquire signatures from all such potential plaintiffs. Indeed, it should almost go without saying that event organizers and hosts of activities that entail a risk of injury would likely cease operations if valid liability waivers could not be enforced against non-signatory statutory claimants such as Appellant.

For related reasons, we conclude that the decision in Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957) is also unpersuasive. In that case, Brown, a neurotic, entered a sanitarium for treatment which included electrical shock therapy. While in the sanitarium, Brown fell down a flight of stairs. After the fall, sanitarium employees picked Brown up by his extremities, causing paralysis. Upon entry into the sanitarium, Brown and his wife signed a release relieving the sanitarium and its employees from liability for injuries resulting from his mental health [*36] treatment, including electro-shock therapy or similar treatments. As Brown’s widow and the executrix of his estate, Brown’s wife brought claims under the Wrongful Death Act on behalf of herself and her three minor children, as well as a Survival Act claim. The court’s opinion in Brown suggested that the release was sufficient to alleviate the defendants’ liability under the Survival Act and to defeat Brown’s widow’s claims under the Wrongful Death Act since the decedent and Brown’s wife signed the agreement. Nevertheless, the court opined that Brown’s children could recover on their wrongful death claims since they were non-signatories. We find it significant, however, that immediately before reaching this conclusion, the court concluded that Brown’s treatment following his fall down the stairs was unrelated to his treatment for his mental health issues, which was the subject of his release. In essence, then, the court held that while Brown may have assumed the risk of electro-shock therapy or similar treatments, he did not assume the risk of faulty medical treatment for injuries sustained during his fall. Accordingly, Brown does little to support Appellant’s claim before us.9

9 As our [*37] analysis suggests, [HN27] courts must exercise great care and caution to differentiate between an agreement that addresses only the procedural rights of a signatory (i.e., an arbitration agreement) or a signatory’s right to pursue further claims (i.e., a release and settlement agreement) from an agreement that goes further and unambiguously manifests a signatory’s intent to assume the risk of involvement in a particular event or activity (i.e., a liability waiver). This is because the former binds only the parties to the agreement while the latter extends to non-signatory third-parties. We accord broader reach to liability waivers under which the signatory assumes a particular risk because, where valid, such agreements support a complete bar to tort liability and therefore form an important part of the assessment of whether tortious conduct brought about injury, loss, or death. A court’s examination of this issue necessarily will involve the nature and purpose of the agreement, as expressed in the exculpatory language of the instrument, together with the circumstances under which the parties entered the contract. The analysis should not be limited simply to the label applied to the agreement [*38] and, occasionally, will ask whether the signatory expressly assumed the precise risk that resulted in his injury. In Brown, for example, we doubt whether the release should have been given preclusive effect at all since the precise injury sustained in that case fell outside the scope of the exculpatory waiver.

The learned Dissent rejects the conclusion that assumption of the risk and the liability waiver support the trial court’s entry of summary judgment in favor of Appellee. The Dissent instead argues that, “Pisano is clear that a wrongful death action is an independent cause of action, created by statute, and is not derivative of the decedent’s rights at the time of death.” Dissenting Opinion at 8. This position overlooks settled Supreme Court precedent and over eight decades of Pennsylvania case law holding that wrongful death actions are derivative of “the same tortious act which would have supported the injured party’s own cause of action.” Kaczorowski, 184 A. at 664 (noting that wrongful death action would be barred by affirmative defenses such as contributory negligence or statute of limitations); see also Sunderland, 791 A.2d at 390-391; Moyer, 651 A.2d at 1143; Ingenito, 633 A.2d at 1176. Not only does the Dissent ignore binding Pennsylvania precedent, the premise of the Dissent’s [*39] conclusion is unavailing.

Citing Pisano, the Dissent asserts that Appellant is not “bound” by the liability waiver executed by Mr. Valentino and, therefore, the agreement does not bar her from bringing a wrongful death action. Respectfully, these contentions miss the point. First, Appellant filed a wrongful death action in the venue of her choosing and no one asserts that the liability waiver precluded her from doing so. Second, since it is undisputed that Mr. Valentino knowingly and voluntarily executed the liability waiver, the issue of whether Appellant was “bound” by the waiver agreement is irrelevant to whether Appellee was entitled to an order granting summary judgment as to the negligence claims asserted in Appellant’s wrongful death action. We explain.

The record undeniably contains a valid waiver agreement. As such, the agreement itself constitutes tangible and, indeed, overwhelming proof that Mr. Valentino intelligently and willingly assumed the risk of participating in the Triathlon. This is so regardless of whether Appellant was “bound” by the agreement. The law is clear that a wrongful death claimant’s recovery must derive from a tortious actious act. Sunderland, 791 A.2d at 390-391. As even the Dissent [*40] concedes, “[a] wrongful death claimant [must] prove negligence.” Dissenting Opinion at 8, fn.6. The law is also clear that [HN28] the doctrine of assumption of the risk is a function of the duty analysis required in any negligence action and that summary judgment may be entered where the record discloses an absence of general issues of material fact. Thompson v. Ginkel, 2014 PA Super 125, 95 A.3d 900, 906-907 (Pa. Super. 2014), appeal denied, 630 Pa. 745, 108 A.3d 36 (Pa. 2015). Since assumption of the risk serves as a complete bar to tort recovery, Pa.R.C.P. 1035.2(2) permitted Appellee to seek summary judgment based upon Mr. Valentino’s voluntary and knowing assumption of the hazards attendant to triathlon participation. See Staub v. Toy Factory, Inc., 2000 PA Super 87, 749 A.2d 522, 527 (Pa. Super. 2000).10

10 In Staub, this Court explained:

[HN29] For summary judgment purposes, affirmative defenses are generally decided under Pa.R.Civ.P. 1035.2(1), where it is the moving party’s burden to establish the defense as a matter of law. Under [Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (Pa. 1993) and Hardy v. Southland Corp., 435 Pa. Super. 237, 645 A.2d 839 (Pa. Super. 1994), appeal denied, 539 Pa. 679, 652 A.2d 1324 (Pa. 1994)], however, assumption of risk is now considered part of a “no-duty” analysis. As such, the doctrine now falls under the second type of summary judgment motion, described in Pa.R.Civ.P. 1035.2(2). Under Rule 1035.2(2), a party may obtain summary judgment by pointing to the adverse party’s lack of evidence on an essential element of the claim. . . . [HN30] One of the essential elements of a negligence claim is that [*41] the defendant owes the plaintiff a duty of care. Under Rule 1035.2(2), the defendant’s method for pointing to a lack of evidence on the duty issue is to show that the plaintiff assumed the risk as a matter of law. This process will entail gathering and presenting evidence on the plaintiff’s behavior, and attempting to convince the court that the plaintiff knew the risk and proceeded to encounter it in a manner showing a willingness to accept the risk. Thus, for all practical purposes, the process for showing “no-duty” assumption of the risk under Rule 1035.2(2) is indistinguishable from showing assumption of the risk as an affirmative defense under Rule 1035.2(1).

Staub, 749 A.2d at 527. For purposes of proving negligence, the only legal duty referred to in this case is the one allegedly owed by Appellee to Mr. Valentino. The Dissent identifies no source and no proof of a separate and independent legal duty owed by Appellee to Appellant.

More broadly, we note that the Dissent places great weight on its contention that Appellant’s wrongful death action is not derivative of Mr. Valentino’s injuries. Notwithstanding, even a brief review of Appellant’s amended complaint and the submissions of the parties reveals that all of the allegations of negligence [*42] underpinning Appellant’s wrongful death claims involve legal duties, alleged breaches, proximate causation, and harms that focus exclusively upon Mr. Valentino. Thus, in substantive terms, the conclusion that Appellant’s wrongful death claims are derivative of the injuries sustained by Mr. Valentino is inescapable.

In this case, Appellant does not dispute that the liability waiver constituted an express assumption of the risk by Mr. Valentino. This confirms that Appellee owed no legal duty to Mr. Valentino and, therefore, Appellee cannot be found to be negligent. It follows, then, that the waiver agreement not only defeated the negligence claims asserted in the context of Appellant’s survival action, but also the negligence claims asserted in the context of Appellant’s wrongful death action. Appellee’s right to summary judgment simply did not depend upon Appellant’s execution of the agreement.11

11 The Dissent also makes the point that wrongful death claims are intended to compensate for the loss of the decedent. Wrongful death claims, however, were not intended to place new and unjust burdens on defendants and compensation is due only when tortious conduct results in death. In the present [*43] case, the trial court properly entered summary judgment because Appellant cannot demonstrate that Appellee was negligent, as Appellee owed no duty to Mr. Valentino. Thus, the goal of compensation does not support reversal of the trial court’s order. This holding does not “eviscerate” but wholly aligns with our Wrongful Death Statute, which imposes liability only where the defendant’s tortious conduct causes death. Compare Dissenting Opinion at 5.

We turn now to Appellant’s claim that the trial court erred in granting summary judgment because she offered the testimony of a qualified expert to address lingering questions of Appellee’s duty, breach of duty, and injury causation. Here, Appellant relies on Mark Mico, an experienced triathlete, race director, and race management consultant. Mr. Mico concluded that Appellee’s negligence caused Mr. Valentino to drown in the Schuylkill River. Among other things, Mr. Mico stated in his report that Appellee failed to provide a sufficient number of lifeguards and allowed too many swimmers into the water during wave launches. He also stated that contestants were not permitted to wear buoyant wetsuits and that Appellee failed to provide to lifeguards [*44] appropriate instruction and training in open water safety. Mr. Mico opined that swimmers were given black swimming caps that offered poor visibility in open water. Finally, Mr. Mico stated that most lifeguards were familiar only with conditions in swimming pools, not open water.

In this case, the trial court granted summary judgment in favor of Appellee based upon the liability waiver executed by Mr. Valentino. The trial court did not consider the contents of Mr. Mico’s report and did not discuss the issue in its Rule 1925(a) opinion. Nonetheless, since our scope of review is plenary, we may and must examine Mr. Mico’s report to determine if it precludes the entry of summary judgment based on the liability waiver. We conclude that it does not.

Assuming for purposes of argument that Mr. Mico’s expert report establishes a prima facie case of negligence, the liability waiver operated to release Appellee from liability for negligence, and Appellant does not challenge the validity of the release on that basis. Furthermore, Mr. Mico’s conclusory opinion that Appellee’s “conduct was to such a degree of carelessness that it amounts to reckless disregard for the safety of its participants[,]” does not permit [*45] Appellant to avoid the liability waiver. Report of Michael Mico, 6/30/13, at unnumbered 7. As we previously determined, the trial court properly held that the facts alleged in the amended complaint did not support claims that Appellee acted outrageously, recklessly, or intentionally, and dismissed such claims with prejudice. Expert opinion to the contrary cannot alter that legal assessment. In particular, Mr. Mico’s report did not identify specific actions or omissions that rose to the level of reckless disregard. [HN31] Reckless disregard requires a different state of mind and a substantially greater knowledge of impending risks than ordinary negligence, not simply a higher degree of carelessness, a distinction the expert failed to appreciate.12 See Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012) ( [HN32] “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.”) Consequently, nothing in Mr. Mico’s expert report alters our determination that the liability waiver is dispositive of Appellant’s wrongful death and survival claims.

12 Section 500 of the Restatement (Second) of Torts defines reckless disregard of safety as follows:

[HN33] The actor’s [*46] 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.

In sum, [HN34] Pennsylvania law distinguishes a wrongful death claimant’s non-derivative right to bring an action from her derivative right to recover damages based upon a defendant’s tortious conduct. This distinction allows a defendant, like Appellee, to assert an express, contractual assumption of risk based upon a valid liability waiver against a wrongful death claimant, even where the claimant does not sign the liability waiver agreement. Applying these settled principles to the case at hand, the order granting summary judgment in favor of Appellee fully comports with prevailing Pennsylvania law. Thus, we affirm the court’s summary judgment order dismissing Appellant’s wrongful death and survival claims.

Order affirmed.

Gantman, P.J., Bender, P.J.E., Bowes, Shogan [*47] and Ott, JJ., join this Opinion.

Ford Elliott, P.J.E., files a Concurring and Dissenting Opinion in which Panella and Lazarus, JJ. join.

Judgment Entered.

Date: 11/15/2016

Because I conclude that Derek Valentino’s release agreement did not bind appellant and did not preclude her from bringing a wrongful death action, I must respectfully dissent from that part of the Majority’s Opinion. I join the Opinion in all other respects.

While the Majority attempts to distinguish Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (Pa. 1989), and Brown v. Moore, 247 F.2d 711 (3rd Cir. 1957), cert. denied, 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957), I find those cases to be instructive. In Buttermore, James Buttermore was involved in an automobile accident, sustaining injuries. Buttermore, 561 A.2d at 734. He signed a release in settlement of his claim against the tortfeasor for the sum of $25,000, agreeing to release from liability any and all persons, known or unknown. Id. Subsequently, Buttermore and his wife instituted suit against Aliquippa Hospital and the treating physicians alleging that the treatment he received aggravated the injuries he sustained in the accident, worsening his condition. Id. at 734-735. The defendants moved for summary judgment on the basis of Buttermore’s release. Id. at 735.

After first holding that the release applied to all tortfeasors, including the defendants, [*48] whether specifically named or not, the court in Buttermore turned to the matter of Buttermore’s wife’s loss of consortium claim: “That is not to say, however, that parties may bargain away the rights of others not a party to their agreement. That question rises here because a spouse not a party to the agreement seeks to sue in her own right for loss of consortium.” Id. at 735. The Buttermore court held that the wife had an independent cause of action for loss of consortium regardless of her husband’s release and settlement agreement: “The question is, does the wife, not a signatory to the agreement, have an independent right to sue for the injury done her. We answer that she does.” Id. at 736. See also Pisano v. Extendicare Homes, Inc., 2013 PA Super 232, 77 A.3d 651, 658 (Pa.Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014), cert. denied, 134 S.Ct. 2890, U.S. , 189 L. Ed. 2d 838 (2014), citing Pennsylvania Railroad Co. v. Henderson, 51 Pa. 315, 317, 23 Legal Int. 284, 13 Pitts. Leg. J. 561 (1866) (“This suit is brought by the widow, and her right of action cannot be affected by any discharge or release of [husband] in his lifetime.”).

Similarly, in Brown v. Moore, the plaintiff, the widow and executrix of George Brown, brought a cause of action under the Wrongful Death Act for the benefit of herself and her three minor children, as well as a Survival Act claim. Id. at 714. Brown, a neurotic, was admitted to a sanitarium for treatment including electrical shock therapy, [*49] following which he fell down a flight of stairs. Id. at 715. After the fall, Brown was picked up by his extremities, with his head hanging down, resulting in paralysis. Id. Brown had signed a release agreeing to release the sanitarium and its employees from liability for any injury resulting from his treatment as a neurotic while at the sanitarium, including electro-shock therapy or treatment of a similar nature. Id. at 722. After concluding that Brown’s treatment following his fall down the stairs was unrelated to his treatment as a neurotic by electro-shock therapy or other similar therapeutic means, the Brown court stated,

[S]ince this case may well come before the reviewing Court we point out that even if the release were deemed sufficient to relieve the defendants of liability under the Pennsylvania Survival Act is [sic] could scarcely relieve them of liability under the Pennsylvania Wrongful Death Act for that Act provides benefits not only for the widow of a deceased person but also for his children. Even assuming that the release was effective as to the plaintiff, who executed it as did Brown, nonetheless Brown’s children would be entitled to a recovery.

Id. (emphasis added).1

1 Brown was disapproved of by [*50] Grbac v. Reading Fair Co., 688 F.2d 215 (3rd Cir. 1982). However, Grbac was criticized by this court in Pisano:

In Grbac, the court of appeals held that a liability release executed by decedent was binding on the widow’s wrongful death claim. Id. at 217-218. Erroneously following the Pennsylvania Supreme Court’s holding in [Hill v. Pennsylvania Railroad Company, 178 Pa. 223, 35 A. 997, 39 Week. Notes Cas. 221 (Pa. 1896)], the court of appeals misinterpreted Pennsylvania law in holding that a “wrongful death action is purely derivative” in Pennsylvania. Id. at 217. The Grbac Court cites no further cases in support of its holding, and no binding Pennsylvania authority exists with a similar holding. In fact, the limited authority on this subject indicates the opposite conclusion of Grbac.

Pisano, 77 A.3d at 658.

Relying on California law, including Madison v. Superior Court, 203 Cal.App.3d 589, 250 Cal. Rptr. 299 (Cal.App. 2 Dist. 1988), the Majority concludes that even if appellant can bring the wrongful death action, appellee had no duty to the decedent because of his complete waiver. According to the Majority, the decedent agreed to waive liability and assume all risks inherent to the dangerous activity of sprint triathlon; therefore, appellee owed the decedent no duty to protect him from injury. Therefore, even assuming appellant can sue for wrongful death, she cannot possibly recover where appellee has a complete defense based on the decedent’s assumption of the risk. [*51]

I view the Madison line of cases as creating a distinction without a difference, i.e., a wrongful death claimant can bring suit but will inevitably lose on summary judgment because of the decedent’s waiver of liability, to which the wrongful death claimant was not a party. Such a holding would effectively eviscerate the Pennsylvania wrongful death statute which creates an independent and distinct cause of action, not derivative of the decedent’s rights at time of death.2 I believe the better approach is outlined by the New Jersey Superior Court in Gershon v. Regency Diving Center, Inc., 368 N.J. Super. 237, 845 A.2d 720 (N.J.Super. 2004), which explicitly rejected Madison and its progeny, aptly describing Madison’s holding as “paradoxical” and “internally inconsistent.” Id. at 725.3

2 The Pisano court explained that a wrongful death action is “derivative” of the original tort in the same way that a loss of consortium claim is derivative, in that both arise from an injury to another person. Pisano, 77 A.3d at 659. However, unlike, e.g., a stockholder’s derivative lawsuit or a subrogation action, loss of consortium and wrongful death claims are separate and distinct causes of action. Id. at 660.

3 “Although we acknowledge that the pronouncements of sister states are not binding authority on our courts, such decisions may be [*52] considered as persuasive authority.” Shedden v. Anadarko E&P Co., L.P., 2014 PA Super 53, 88 A.3d 228, 233 n.3 (Pa.Super. 2014), affirmed, 136 A.3d 485 (Pa. 2016).

In Gershon, the decedent was a scuba diver and signed up for advanced diving training. Id. at 723. As a condition of his participation, he executed a release agreement. Id. The decedent expressly waived liability, including for wrongful death, and assumed all risk. Id. The lower court held that while the exculpatory release signed by the decedent barred any survivorship claim which could have been asserted by his estate, it did not preclude an independent wrongful death action where the decedent’s heirs had not signed the agreement. Id. at 724. Relying on Madison, supra, the defendant, Regency Diving Center, argued that the release operated as a complete bar to all claims. Id.

On appeal, the Superior Court of New Jersey, Appellate Division, affirmed, holding that the decedent did not have the legal authority to bargain away his heirs’ statutory right to bring a wrongful death action:

The release agreement here was signed by decedent and defendants. It can therefore only bind these parties. On its face the release only manifests decedent’s intention to waive defendants’ duty of care pertaining to his personal safety. In order for such a waiver to also apply to decedent’s [*53] heirs, the agreement must manifest the unequivocal intention of such heirs to be so bound. The public policy underpinning the Wrongful Death Act requires that we narrowly construe any attempt to contractually limit or, as in this case, outright preclude recovery. Decedent’s unilateral decision to contractually waive his right of recovery does not preclude his heirs, who were not parties to the agreement and received no benefit in exchange for such a waiver, from instituting and prosecuting a wrongful death action.

Id. at 727.

The Gershon court also rejected the Madison line of cases as against the public interest4 intended to be protected by the Wrongful Death Act:

[T]he intended beneficiaries of the Act are deprived of their statutorily authorized remedy merely to provide defendants with an environment from which to operate their business, apparently free from the risk of litigation. Such a prospect would directly undermine the remedial purpose of the Act. Stated differently, even if decedent had the legal authority to bargain away the statutory right of his potential heirs, society’s interest in assuring that a decedent’s dependents may seek economic compensation in a wrongful death action outweighs [*54] decedent’s freedom to contract.

Id. at 728.5

4 As in New Jersey, in Pennsylvania, exculpatory agreements are not favored by the law and must not contravene public policy. Id. at 726-727; Tayar v. Camelback Ski Corp., Inc., 616 Pa. 385, 47 A.3d 1190 (Pa. 2012).

5 As in New Jersey, in Pennsylvania, the purpose of the wrongful death statute is to create a right of recovery for economic loss caused by the death of a family member, including children who were dependent upon the decedent for economic support. See Pisano, 77 A.3d at 658-659 (“In contrast [to a survival action], wrongful death is not the deceased’s cause of action. An action for wrongful death may be brought only by specified relatives of the decedent to recover damages in their own behalf, and not as beneficiaries of the estate. . . . This action is designed only to deal with the economic effect of the decedent’s death upon the specified family members.”) (citations omitted); see also Amato v. Bell & Gossett, 2015 PA Super 83, 116 A.3d 607, 625 (Pa.Super. 2015), appeal granted in part on other grounds, 130 A.3d 1283 (Pa. 2016) (“The purpose of the Wrongful Death Statute . . . is to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death. This includes the value of the services the victim would have rendered to his family if he had lived. A wrongful death action does not compensate the decedent; [*55] it compensates the survivors for damages which they have sustained as a result of the decedent’s death.” (citations omitted)).

The Majority contends that allowing third-party claims including wrongful death where the decedent expressly assumed the risk of injury would expose insurers to increased liability, and that it is impractical to expect defendants to obtain releases from all potential plaintiffs. The court in Gershon addressed those concerns as follows:

We recognize that our decision today may prevent insurance carriers from obtaining complete releases from all possible wrongful death claims, except perhaps by the inclusion in any such agreement of all persons who subsequently are determined to be wrongful death beneficiaries under N.J.S.A. 2A:31-4. The policy favoring settlement and finality of claims, cannot defeat statutory rights created for the protection of survivors of one wrongfully killed.

Id. at 728-729, quoting Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (N.J. 1981) (citations omitted).6

6 Presumably, there are still triathlons, road races, and similar events held in the State of New Jersey, despite the decision in Gershon. A wrongful death claimant would still have to prove negligence. I would also note that these liability waivers are contracts of adhesion, [*56] and a participant cannot compete without executing the waiver and agreeing to assume all risk.

Following Pisano, I conclude that Derek Valentino’s release agreement did not bind appellant and did not preclude her from bringing a wrongful death action. Pisano is clear that a wrongful death action is an independent cause of action, created by statute, and is not derivative of the decedent’s rights at time of death. Furthermore, I reject the Majority’s position that the decedent’s waiver of liability and assumption of the risk can be used as a complete defense to appellant’s claims. The release agreement was only between the decedent and appellee and has no effect on the decedent’s non-signatory heirs including appellant.

For these reasons, I would remand the matter for further proceedings, including for the trial court to consider the issue of Mr. Mico’s expert report. As such, I am compelled to respectfully dissent.

Panella and Lazarus, JJ. join this Concurring and Dissenting Opinion.

“Marketing makes promises Risk Management has to pay for” in this case, the marketing eliminated the protection afforded by the warning labels

Posted: March 20, 2017 | Author: Recreation Law | Filed under: Assumption of the Risk, Health Club, Jurisdiction and Venue (Forum Selection), New York, Pennsylvania | Tags: assumption of the risk, Causation, Cornell, Cornell University, Failure to Warn, Gym, Gymnastic, Open and Obvious, Punitive damages, Summary judgment, Tumbl Trak | Leave a comment

Cornell and a manufacturer of a piece of equipment used in a gym at Cornell were being sued by an injured student who used the equipment. The court definitely was leaning towards the student; however, the student had come to court prepared, (and backed by a lot of money I’m guessing.)

Duchesneau v. Cornell University, et al., 2012 U.S. Dist. LEXIS 106412

State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania

Plaintiff: Randall Duchesneau

Defendant: Cornell University and Tumbltrak

Plaintiff Claims: Product Liability, Failure to Warn, requesting punitive damages

Defendant Defenses:

Holding: No duty, Failure to state a claim, Assumption of Risk & Release?

Year: 2012

This case spent four years getting to this point, and it is obvious the court is a little tired of the litigation. Consequently, the facts are difficult to determine.

It seems the plaintiff was a beginning gymnast and injured himself on a piece of equipment at the Cornell University gym called the Tumbletrak. The extents of his injuries are never clear, but based on the number of experts the plaintiff hired and the lengthy fight; I guess his injuries were extensive.

This case was being heard in a Pennsylvania Federal Court with a Michigan and a New York Defendant. That fact alone is confusing.

The decision is based on motions for summary judgment filed by both Cornell and the manufacturer Tumbletrak.

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

The court first examines the manufacture’s motion for summary judgment. The first issue the manufacturer claimed the plaintiff failed to establish the minimum facts necessary to go to trial; the plaintiff is not entitled to punitive damages, and the plaintiff assumed the risk. The court first looked at what was required to establish a failure to warn case. Meaning a manufacturer has a duty to warn users of the product of the risks and failed to do so.

Under New York law, 2 to establish a prima facie case of failure to warn, a Plaintiff must show that (1) the defendant-manufacturer had a duty to warn; (2) the manufacturer breached such duty and so the product is rendered defective, i.e., reasonably certain to be dangerous; (3) the product’s defect was the proximate cause of the injury to plaintiff; and (4) the plaintiff suffered loss or damage.

The burden is on the plaintiff to prove the failure to warn of the risk by the manufacturer was the cause of the plaintiff’s injury.

This burden includes adducing proof that a user of the product at issue would have read and heeded a warning had one been given. Conversely, failure to warn claims can be decided as a matter of law against an injured party where the injured party was “fully aware of the hazard through general knowledge, observation, or common sense” or where the hazard is “patently dangerous.”

Failure to warn can be denied both by proving the plaintiff read and heeded the risk or knew of the risk prior to using the equipment. The manufacturer argued the risk was open and obvious, which does not require proof because the plaintiff should have seen the risk.

T-Trak contends that Plaintiff cannot establish a prima facie case of failure to warn where (1) the risk of injury was open and obvious and (2) Plaintiff did not actually read the warnings that were on the TTA. First T-Trak argues that “the risk of injury while performing a back flip was open and obvious and readily discernable to Plaintiff.” More specifically, T-Trak opines that general knowledge dictates that “an individual might land on his head if he attempts a back flip on a rebounding

In a footnote at this point, the court states the plaintiff signed a release stating he understood the risks; however, nothing else is mentioned about the release in the rest of the decision.

One way to defend against a motion for summary judgment is to argue there are enough facts or issues that make the facts relied upon by the defendant an issue. Meaning if enough facts are in dispute, the motion for summary judgement cannot be granted. This is what the plaintiff did through his experts.

Plaintiff has produced the report of warnings expert Dr. William J. Vigilante Jr., which, inter alia, cited numerous deficiencies in the warnings on the TTA: the warnings on the TTA were blurred and could not be read even at a close distance; the warnings were located on either end of the TTA, not in the middle where a user would mount it; and the warnings were located adjacent to a cartoon depicting teddy bears conducting unspotted, unsupervised backflips on the TTA. [Emphasize added]

Here the manufacturer shot his defense down before the product left the assembly plant by confusing risk management and marketing. Teddy bears doing the activities unspotted that the warning allegedly warns against eliminated the warning in the court’s eyes. (And rightfully so!) If the manufacturer shows cartoons doing the act without regard for safety, then the act must be safe, no matter what the warning says. If the warning can be located.

In a scary statement, the court held that failure to read the warnings on the product is not an issue in a failure to warn case.

However, failure to read the TTA’s warnings “does not necessarily sever the causal connection between the alleged inadequacy of those warnings, on the one hand, and the occurrence of the accident, on the other.”

The court based this analysis on the many different statements by witnesses who seemed to go in every direction, but all stated they never saw the warning.

Indeed, there is more than just that fact here. According to the summary judgment record none of the many fact witnesses in this case (including Plaintiff) testified that they ever saw any warning on the TTA. Furthermore, Plaintiff himself has submitted sworn testimony that if he had seen what Dr. Vigiliante characterized as a proper warning, Plaintiff would have heeded the proper warning and either never have attempted a backflip or done so only with the assistance of a qualified coach or spotter.

A warning does not exist unless the consumer can’t miss it. Meaning the warning must be in the consumer’s face every time they go to use a product. On top of that the warning must be in the manual, in some states on the packaging and maybe on a hangtag with the product.

The failure to warn claim was sustained and would be decided at trial.

The court then looked at the assumption of the risk defense brought by the defendant manufacturer. The court started this analysis looking at the requirements to prove a negligence claim in a product case.

To prove a prima facie case of negligence, a plaintiff must establish (1) existence of a duty of the defendant to the plaintiff; (2) breach of the duty; and (3) that the breach of the duty was a proximate cause of the injury to the plaintiff.

However, assumption of the risk in a product’s case is a little more stringent then in a recreation case. “Assumption of risk is frequently applied to claims arising out of participation in sporting events.” In sporting or recreation cases, the risk is clear and understood by all involved and to be effective the risk was not altered or enhanced by the defendant. In a product’s case the requirements are slightly different.

Assumption of risk operates to eliminate the duty of care to a plaintiff, and can therefore be a complete bar to recovery for negligence. To establish assumption of risk, a defendant bears the burden of establishing that the “plaintiff was aware of the defective or dangerous condition and the resultant risk.” This determination depends in part on the openness and obviousness of the risk.

Again, the case goes back to did the plaintiff know of the risks. Where the risks open and obvious or can you prove under the law the plaintiff knew of the risk. Because no one ever saw the warning, the warning had no value. That left it up to a jury to decide if the plaintiff knew the risk of the sport or activity.

The next argument was a motion to eliminate a punitive damages claim by the manufacturer arguing the case should be tried under Michigan’s law because the manufacturer was based in Michigan. Michigan does not allow punitive damages, unless they are expressly authorized by statute.

There has been a prior argument about the jurisdiction and venue of the case decided by a prior judge. (Which is alone confusing since none of the defendants are located in Pennsylvania where the court sits, however, the court is applying New York law?) Because of the prior decision, this court followed it and ruled that New York law would be applied to the facts of the case, and punitive damages were going to be at issue.

Cornell University was then giving a shot at its motions starting with the punitive damages issue. Cornell claimed the plaintiff had not presented any evidence that could support a punitive damages claim. The plaintiff responded arguing facts that could prove a punitive damages claim against the university.

(1) Cornell ran its own gymnasium without rules, standards, coaching, instruction, screening, supervision, and spotting; (2) multiple experts have opined that Cornell’s conduct in that regard was, inter alia, “highly dangerous,” “indefensible,” “outrageous,” “reckless,” and “an accident waiting to happen”; and (3) Cornell violated “every applicable mainstream gymnastics safety standard, [and] systematically allowed a wholly-incompetent individual to supervise the gymnasium.”

The court defined the requirements to prove a punitive damages claim.

As discussed supra, New York law allows a plaintiff to recover punitive damages, so as to punish gross misbehavior for the public good. An award of punitive damages would be proper “where the conduct of the party being held liable evidences a high degree of moral culpability, or where the conduct is so flagrant as to transcend mere carelessness, or where the conduct constitutes willful or wanton negligence or recklessness.”

The court found there was sufficient evidence to support a possible punitive damages claim.

There is substantial evidence of record concerning purported behavior of Cornell that could be found to rise to the level of egregious recklessness and moral culpability necessary to trigger punitive damages. There are major disputes of fact as to whether Cornell failed to exhibit care to such a degree as would amount to wanton behavior or recklessness. Cornell’s argument primarily rests on its self-serving conclusion that — despite evidence offered to the direct contrary — this case just does not involve one of those rare, egregious instances of recklessness that is punishable by punitive damages. That, however, is properly the jury’s decision. Summary judgment is inappropriate, and the claim for punitive damages shall remain.

Cornell next argued that the plaintiff assumed the risk and there was no evidence proving causation. Cornell was arguing a breach of a duty was not related to the injury. There was no causation between the two which is required to prove negligence.

The court found that Cornell’s case law did not apply correctly to the facts of this case. That means the case law facts were sufficiently different from the facts of this case, that the law could not be interpreted the same way. “Cornell’s caselaw presents numerous, distinct factual circumstances, none of which are analogous here.”

On the causation issues the judge found the plaintiff had presented enough evidence that there could be an issue leading to punitive damages against the college.

Nor can I conclude that Cornell is entitled to summary judgment based upon causation. There is extensive, often-conflicting evidence concerning causation. Plaintiff has adduced significant amounts of evidence concerning Cornell’s systemic negligent conduct leading up to the accident. In addition, Plaintiff has offered evidence from multiple experts that goes directly to duty of care and causation (e.g., that the lack of spotting equipment and spotters proximately caused Plaintiff’s injuries; that the lack of warnings failed to notify Plaintiff of the risks associated with the TTA; that Cornell’s “outrageous” conduct in organizing and supervising Plaintiff’s use of the gymnasium directly contributed to Plaintiff’s accident). Cornell may strongly disagree with these experts, but it is not entitled to have them ignored in favor of summary judgment.

Both defendants failed in their motion for summary judgment, and the decision was to allow the case to proceed to trial.

So Now What?

I have not been able to find the outcome of this case. Meaning it probably settled. The entire issue was the warning on the product; it was not clear; it was not visible, and it could not be seen in normal use.

If you manufacture products and your product poses a risk to the user, then you need to notify the consumer as often and as many were possible that you can. User manuals, hangtags, the container or bag the product is shipped in and on the product itself. It is also not enough that you can say the label or warning is there; the user must be able to see the warning……every time.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Motion for Summary Judgment failed because the plaintiff’s claim was based upon a failure to follow a statute or rule creating a negligence per se defense to the release in this Pennsylvania sailing case.

Posted: August 1, 2016 | Author: Recreation Law | Filed under: Florida, Pennsylvania, Release (pre-injury contract not to sue), Rivers and Waterways | Tags: Diversity, Florida, Negligence per se, Release, Sailing, Seamanship, Vessel for Hire, Waiver | Leave a comment

Negligence per se is an elusive legal issue that generally prevents a release to be effective as in this case. Understanding the issue for your state is important.

Citation Knarr v. Chapman School of Seamanship, 2000 U.S. Dist. LEXIS 5351

State: Pennsylvania, United States District Court for the eastern District of Pennsylvania

Plaintiff: Jean Knarr & Lester Knarr

Defendant: Chapman School of Seamanship

Plaintiff Claims: negligence per se

Defendant Defenses: release and plaintiff failed to plead enough facts to establish a negligence per se case

Holding: for the plaintiff

Year: 2000

Negligence per se cases are arising with more frequency. They are a way the plaintiff can beat the release in recreational activities. In most states, a successful negligence per se claim is not dismissed because of a release, and the plaintiff can go to trial. On top of that, Juries take a dim view of a defendant who did not follow the law or rules for his industry.

In this case, the plaintiff (wife) enrolled in a seamanship school with the defendant in Florida. (Thus the reason why the Federal District Court was hearing the case.)

The defendant filed a motion for summary judgment based on the release; the plaintiff had signed and argued the negligence per se claims of the plaintiff should be dismissed because the plaintiff failed to present evidence that the defendant had violated a rule or statute. This was the second motion for summary judgement; the first was over the issues of the release and the simple or ordinary negligence claims.

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

Florida’s law allows a release to stop a negligence claim. (See Release fails under Florida’s law because it is only an assumption of risk form, not a release in a Go-Kart case.; Trifecta of stupidity sinks this dive operation. Too many releases, operation standards and dive industry standards, along with an employee failing to get releases signed, sunk this ship on appeal.; Release for bicycle tour wins on appeal but barely; Electronic release upheld in Florida federal court for surfing on a cruise ship, Florida statute that allows a parent to release a minor’s right to sue)

However, Florida does not allow a release to stop a negligence per se claim.

In denying an earlier motion for summary judgment, the Honorable Marvin Katz concluded that although the indemnification agreement protected the Defendant from liability arising from mere negligence, it could not protect itself from claims arising from negligence per se.

Under Florida’s law, negligence per se is defined as:

According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.”

Negligence per se under Florida’s law was defined broadly: Florida’s state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. Negligence per se was applied to violation of Florida Department of Health and Rehabilitative Service Rules, violations of administrative regulations, and FAA regulations. (Compare this to the limited application of negligence per se in a Colorado rafting case in 10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality.)

The issue here was whether any US Coast Guard regulation applied to this defendant and the ship the injury occurred upon and whether the regulation applied to the ladder, specifically.

Here the court found that the boat was of the size the regulation was applied to. The court also found the boat was “for hire” because the plaintiff had paid to be on the boat to take the seamanship course. The final issue was whether the regulation, which was a standard created by ANSI, (American National Standards Institute) applied in this case.

The court found the regulation was specifically adopted for situations, specifically like this:

One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic.

The reference was to the sinking of the Titanic.

The final issue was whether the claims of the plaintiff, as plead, fit the requirement for negligence per se, an injury the regulations were designed to prevent. Here again, the court found the pleadings were not specific, but outlined enough of the issues to meet the definitions of a ladder that was dangerous. This was based more on the failure of the defendant to show the ladder met the ANSI and subsequent US Coast Guard regulations.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some of which will, no doubt, be the subject of expert opinions.

Consequently, the case was allowed to proceed.

So Now What?

If you were to speculate, this boat was probably a sail boat created for some owner. It has been converted to a vessel for hire when the classes were offered by the owner. As such, no standard applied to the vessel as a pleasure vessel, when it was being built; however, now that it fit the regulations, it had to meet the regulations.

Another scenario could be the vessel was old enough that it was built before the regulations were in effect.

Both scenarios can be found in outdoor programs daily. Land is purchased for a recreation program with buildings already on the land. No emergency exit from the second floor, no fire alarms, all could lead to losing a law suit.

A release is a great line of defense against claims, but fraud, gross negligence and as seen here, negligence per se will not be stopped by a release. Consequently, risk management and education is a never-ending requirement for a recreation provider to be on the lookout for.

For other articles, looking at Negligence per se issues see:

Instructional Colorado decision Negligence, Negligence Per Se and Premises Liability http://rec-law.us/wEIvAW

10th Circuit Court of Appeals upholds Colorado law concerning releases in a whitewater rafting fatality. http://rec-law.us/1njzlhf

If you really are bad, a judge will figure out a way to void your release http://rec-law.us/Xyu8CZ

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By Recreation Law Rec-law@recreation-law.com James H. Moss

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Posted: July 26, 2016 | Author: Recreation Law | Filed under: Florida, Legal Case, Pennsylvania, Release (pre-injury contract not to sue), Rivers and Waterways | Tags: Diversity, Florida, Negligence per se, Release, Sailing, Seamanship, Vessel for Hire, Waiver | Leave a comment

Knarr v. Chapman School Of Seamanship, 2000 U.S. Dist. LEXIS 5351

Jean Knarr & Lester Knarr v. Chapman School Of Seamanship

CIVIL ACTION NO. 99-952

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2000 U.S. Dist. LEXIS 5351

April 14, 2000, Decided

April 14, 2000, Filed

COUNSEL: For JEAN KNARR, LESTER KNARR, PLAINTIFFS: DAVID S. KATZ, DAVID S. KATZ, ESQ., P.C., NORRISTOWN, PA USA.

For CHAMPMAN SCHOOL OF SEAMANSHIP, DEFENDANT: ANDREW P. MOORE, MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, DOYLESTOWN, PA USA.

JUDGES: JACOB P. HART, UNITED STATES MAGISTRATE JUDGE.

OPINION BY: JACOB P. HART

OPINION

MEMORANDUM AND ORDER

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

April 14, 2000

The Defendant in this personal injury action has filed a motion for summary judgment. It argues that the Plaintiffs have failed to present any expert testimony to support their contention that the Defendant violated Coast Guard regulations and Florida state laws and codes that would constitute negligence per se pursuant to Florida law. Without the ability to prove negligence per se, Defendant argues that Plaintiffs’ claims are all barred by the release Mrs. Knarr signed.

[HN1] Summary judgment is warranted where the pleadings and discovery, as well as any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pr. 56. [HN2] The moving [*2] party has the burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). [HN3] When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn from it in favor of the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

Construing the evidence in favor of the Plaintiffs, as we are required to do at this stage of the proceedings, reveals the following. Plaintiff, Jean Knarr, was a student at the Chapman School of Seamanship, (“Chapman”). In March of 1997, Mrs. Knarr slipped and fell on one of the wet, wooden ladder steps, while disembarking from a ship, owned and operated by Chapman. To stop her fall, she attempted to reach for a railing on the right side of the ladder. Unfortunately, there was no railing on the right side of the ladder. As a result of the fall, Mrs. Knarr fractured her right foot, ankle, and leg, and suffered other bruises and lacerations.

Before the accident took place, Mrs. Knarr signed an agreement to indemnify Chapman for any suit or claim arising [*3] from the use of Chapman’s equipment.

I, the undersigned, for myself … and all those claiming by, through or under me, for and in consideration of being allowed to use the equipment, motors and vessels … owned by … the Chapman School of Seamanship, Inc. … hereby forever release and indemnify said Chapman School of Seamanship, Inc. from any … bodily injury … suit or claim arising out of the use of any equipment, motors or vessels, whether or not such … bodily injury … is based upon the sole negligence of Chapman School of Seamanship … .

(Chapman Application/Registration Form).

[HN4] While, under Florida law, contracts indemnifying a party against its own negligence will be enforced if the language of the contract is clear and unequivocal, see Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979)(citation omitted), a party [*4] cannot indemnify itself against negligence per se. See John’s Pass Seafood Co. v. Weber, 369 So. 2d 616, 618 (Fl. 2d Dist. Ct. App. 1979)(holding such indemnification is against public policy).

(Order, 9/9/99). Judge Katz found that there were unresolved issues of fact regarding Chapman’s conduct and whether such conduct constituted negligence per se.

Chapman has now filed a second motion for summary judgment, arguing that the Plaintiffs have failed to present any expert testimony supporting their contention that certain conditions on the ship constituted statutory violations, establishing negligence per se. In response, the Plaintiffs present the court with a report and a letter from the engineering firm of Goedken, Liss. Specifically, Harold A. Schwartz, P.E., states that Chapman violated Coast Guard Regulations, Florida laws and codes, and the rules of the State Boating Law Administrators for safe boating certification.

In the report, however, Mr. Schwartz fails to identify any specific statute, regulation, or rule, that Chapman violated. In a follow-up letter, Mr. Schwartz refers to a standard adopted by the American National Standards Institute [*5] (“ANSI”), applying to ladders. He opines that the ladder in question fails to comply with the ANSI standard in three respects. First, the top rung is not level with the landing platform. Second, the side rails failed to extend the required 3 feet 6 inches above the top of the landing platform. Finally, the ladder did not have sufficient step across distance (the distance from the centerline of the rungs to the nearest edge of the structure). (Letter of Schwartz, 12/9/99).

The court is left to answer the questions of whether a violation of these ANSI standards is sufficient to constitute negligence per se under Florida law, and if not, are these standards embodied in any governing statutes, a violation of which would constitute negligence per se.

We answer the first question in the negative. [HN5] According to ANSI, it is the “coordinator of the United States private sector voluntary standardization system.” <<UNDERLINE>http://web.ansi.org/public/about.html, 4/11/00> As such, the ANSI standards do not have the force of law, absent adoption by statute, ordinance, or regulation. See Jackson v. H.L. Bouton Co., 630 So. 2d 1173, 1174-75 (Dist. Ct.App.Fl. 1994)(violation [*6] of ANSI standard is “merely evidence of negligence.”); Evans v. Dugger, 908 F.2d 801, 807 (11th Cir. 1990)(ANSI standards regarding handicapped access adopted by Florida regulation); Nicosia v. Otis Elevator Co., 548 So. 2d 854, 855 (Dist. Ct.App.Fl. 1989)(Florida adopted ANSI standard for elevator safety by statute).

However, our own search of Coast Guard regulations reveals that the Coast Guard has adopted the specific ANSI standard regarding the step off space (minimum of 7 inches) for escape ladders on small passenger vessels. 46 C.F.R. § 177.500(k). Therefore, we must determine whether a violation of this Coast Guard regulation constitutes negligence per se pursuant to Florida law.

[HN6] According to the Supreme Court of Florida, negligence per se is established if there is “a violation of any … statute which establishes a duty to take precautions to protect a particular class of persons from a particular injury or type of injury.” DeJesus v. Seaboard Coast Line Railroad Co., 281 So. 2d 198, 201 (Fla. 1973). Although we have been unable to find any case arising out of the state courts in Florida which concludes that a violation [*7] of a Coast Guard regulation amounts to negligence per se, [HN7] the Fifth Circuit and the United States Supreme Court have concluded that such a violation does constitute negligence per se. Reyes v. Vantage Steamship Co., Inc., 609 F.2d 140, 143 (5th Cir. 1980)(“the failure to follow any Coast Guard regulation which is a cause of an injury establishes negligence per se.”); Kernan v. American Dredging Co., 355 U.S. 426, 2 L. Ed. 2d 382, 78 S. Ct. 394 (1958). [HN8] Similarly, Florida state courts have concluded that violations of other legal pronouncements, other than statutes, amount to negligence per se. See First Overseas Investment Corp. v. Cotton, 491 So. 2d 293, 295 (Dist.Ct.App.Fl. 1986)(violation of Florida Department of Health and Rehabilitative Service Rule constitutes negligence per se); Underwriters at La Concorde v. Airtech Services, Inc., 493 So. 2d 428, 430 (Fla. 1986)(Boyd, J. concurring)(acknowledging expansion of negligence per se concept to include violations of administrative regulations); H.K. Corporation v. Miller, 405 So. 2d 218 (Dist.Ct.App.Fl. 1981)(violation of state administrative [*8] regulation constituted negligence per se); Florida Freight Terminals, Inc. v. Cabanas, 354 So. 2d 1222, 1225 (Dist.Ct.App.Fl. 1978)(violation of FAA regulation constitutes negligence per se). But see Murray v. Briggs, 569 So. 2d 476, 480 (Dist.Ct.App.Fl. 1990)(violation of Interstate Commerce Commission regulation not negligence per se); Jupiter Inlet Corp. v. Brocard, 546 So. 2d 1 (Dist.Ct.App.Fl. 1989)(violation of OSHA regulation does not constitute negligence per se). ¹ Therefore, we conclude that a violation of a Coast Guard regulation will constitute negligence per se if the plaintiff is a member of the particular class of persons that the regulation sought to protect and she suffered an injury that the regulation was designed to prevent.

1 In Jones v. Spentonbush-Red Star Co., 155 F.3d 587 (2nd Cir. 1998), the Second Circuit distinguished violations of OSHA and Coast Guard regulations. The court explained that OSHA, itself, states that it should not be construed “to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees.” Jones, at 595 (citing 29 U.S.C. § 653(b)(4)). Relying on this language, the court explained that imposing negligence per se for an OSHA violation would “enlarge or diminish or affect … the liability of a maritime employer.” Jones, at 595.

[*9] As indicated above, the only ANSI standard relevant to the issues in this case that has actually been adopted by the Coast Guard, is the one dealing with the minimum distance that must be observed between the rungs of the ladder and the nearest permanent object in back of the ladder (here the side of the cabin). 46 C.F.R. § 177.500(k) requires that this distance be at least 7 inches.

The first question we must answer about this regulation is whether the plaintiff is a member of the particular class of persons that the regulation sought to protect. We have little trouble concluding that she is. The regulation appears at Subchapter T of the Coast Guard regulations. This subchapter specifically covers “Small Passenger Vessels (Under 100 Tons).” There is no dispute here that defendant’s boat is such a vessel. The general provisions of subchapter T state that the provisions of the subchapter apply, inter alia, if the vessel carries less than 150 passengers, but more than 6, so long as at least one of the six passengers is “for hire.” Since she was a student of defendant, using defendant’s boat for instruction, clearly Mrs. Knarr was a passenger “for hire.” Finally, the specific ladder [*10] regulation in question appears under the heading “Escape Requirements.” One could hardly imagine a set of ship regulations more specifically written for the benefit of passengers for hire than ones dealing with escape, as evidenced by certain events that occurred 88 years ago today in the North Atlantic. Cf. The Titanic, 233 U.S. 718, 34 S. Ct. 754, 58 L. Ed. 1171 (1914).

The next question — whether plaintiff suffered an injury that the regulation was designed to prevent — is a bit more difficult to answer. We nevertheless conclude that there are present here at least some genuine issues of material fact that prevent the court from ruling, as a matter of law, that Mrs. Knarr’s injuries could not have been avoided had the ladder complied with this regulation.

Defendant urges us to give a literal reading to plaintiffs’ complaint, and to find from such a reading that Mrs. Knarr has not alleged any fact from which a jury could conclude that the distance between the cabin wall and the ladder step could have proximately caused her fall. We decline to do so. In addition to the well known principle of federal pleading that [HN9] the facts alleged in a complaint need only put the defendant on notice of the [*11] plaintiff’s theories of recovery and need not state each element of proof with specificity, see Fed.R.Civ.P. 8(a)(2), we have here at least two specific allegations that could relate to the ladder’s set back distance.

In paragraph 10 a. of the complaint, Mrs. Knarr alleges that “the step upon which she was standing was in an unsafe condition.” In the next subparagraph, 10 b., she claims that “there were slippery substances on the steps which were not visible to the plaintiff.” While neither of these allegations specifically attributes negligence to the ladder set-back distance, we think it would be improper, at this point, to preclude plaintiff’s expert from testifying that the setback distance was related to the general “unsafe condition” allegation, or to the plaintiff’s alleged inability to see the condition of the ladder steps themselves.

Our conclusion would be different, of course, if the record contained either some specific information on the ladder’s actual set-back distance, or on the precise features of the ladder that allegedly caused the accident. At this point, however, we have neither. It thus appears that the case will turn on a resolution of disputed facts, some [*12] of which will, no doubt, be the subject of expert opinions. Accordingly, summary judgment is inappropriate at this time.

An appropriate order follows.

ORDER

AND NOW, this 14 day of April, 2000, upon consideration of the Defendant’s Motion for Summary Judgment, the Plaintiffs’ response, thereto, including the attached reports of his expert engineer, and for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that the Motion is DENIED.

BY THE COURT:

JACOB P. HART

UNITED STATES MAGISTRATE JUDGE

Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute.

Posted: February 22, 2016 | Author: Recreation Law | Filed under: First Aid, Medical, Pennsylvania | Tags: AED, AED Good Samaritan, Automatic External Defibrillator, Good Samaritan, Gulph Mills Tennis Club, Immunity, Negligence, Pennsylvania | Leave a comment

The law that creates a safe harbor from civil liability for being a Good Samaritan does not create a duty to act. There still is no legal requirement to act as a Good Samaritan, however, if you do, you cannot be sued.

Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

State: Pennsylvania, Supreme Court of Pennsylvania

Plaintiff: Jerry Atcovitz and Roslyn Atcovitz

Defendant: Gulph Mills Tennis Club, Inc, Jkst, Inc. and Gulph Mills/Jkst Tennis Club, Inc., Lafayette Ambulance Rescue Squad I

Plaintiff Claims: whether a tennis club owes a duty of care to its members to acquire and maintain an automated external defibrillator, hereinafter “AED,” on its premises for emergency use

Defendant Defenses: No duty

Holding: for the defendant Tennis Club

Year: 2002

The plaintiff was playing tennis at the defendant’s tennis club. While playing he suffered a stroke which was secondary to a heart attack. Within one minute tennis club, members started CPR on the plaintiff and ten minutes later an ambulance arrived. The ambulance administered defibrillation and transported the plaintiff to the hospital.

The plaintiff had a history of heart problems for twenty years, including a previous heart attack and bypass surgery. The tennis club did not know of the plaintiff’s medical history.

The heart attack and stroke left the defendant unable to concentrate or think, is unable to walk or get out of bed and requires assistance in all aspects of his life.

The plaintiff and his wife sued the defendant tennis club for not having an AED and not using it: “…had [Gulph Mills] possessed an AED device and used it on [Atcovitz] promptly, his injuries would have been significantly less and; therefore, that [Gulph Mills] is liable to him for damages.”

The plaintiff’s moved for summary judgment to prevent the defendant from asserting the defenses. The defendant then cross-filed a motion for summary judgment which the trial court granted. The case was appealed and the Pennsylvania Appellate court, called the Superior Court, reversed. The case was then appealed to the Pennsylvania Supreme Court.

Between the incident that the plaintiff suffered and the decision by the trial court to dismiss the Pennsylvania legislature passed an AED Good Samaritan Act. The Appellate court based some of the reasoning for its decision on the AED Good Samaritan Act the legislature passed.

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

The court started out by defining the specific issues it would look at as well as the procedural definitions it must follow. This provides a clear look at how Pennsylvania courts make decisions.

The Supreme Court first reviewed the standard of review the court must use. “Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion.”

The court then reviewed under Pennsylvania law the requirements for granting a motion for summary judgment.

Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment.

The court then defined the elements necessary to successfully plead a negligence claim under Pennsylvania.

The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant.

The court then further defined the element of duty in a negligence case. “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.“

This definition was supported by the definition of duty in a legal treatise, Prosser and Keeton on the Law of Torts. This is the book referenced by courts in defining the law.

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the 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.”

The bad news issue the law changes as everything else in the US changes, Public policy and public opinion are just some of the factors that affect the law. The good news is the law attempts to stay current with the changing issues facing the law. Albeit a lot slower than most might wish, but it does change. “Thus, the legal concept of duty is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice, and society.”

The care as defined by a legal duty was further broken down by the court.

In Althaus, this Court enunciated several discrete factors, derived from the aforementioned principles, that our courts are to balance [HN6] in determining whether a common law duty of care exists: (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 interest in the proposed solution.

Thus the court takes in other issues in looking at determining how a case is to be decided, however, the law and prior decisions come first. Making a change requires a major commitment by the courts to go down a different path and dismiss the prior cases leading down the old path. Consequently, you rarely see these changes, what you do see is slight modifications of the direction the path is taking.

Major changes are left to the legislature to respond more quickly to the issues facing the public. In this case, the court looked at the legislature’s intent in creating an AED Good Samaritan Act.

…the overall public interest in the proposed solution. The Legislature’s enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this Court must refrain from imposing additional requirements upon that legislation.

The appellate court used the newly enacted AED Good Samaritan Act to hold the defendant liable. The Supreme Court looked at the act differently in relation to this decision. The Supreme Court saw the act as proof that the legislature intended the issues surrounding AEDs was highly regulated. “Rather, they are relevant to demonstrate that the acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated.”

When reviewing an act, the information within the law enacted by the legislature is the only information that can be reviewed. Anything not included in the act is therefore excluded from the analysis. “We must infer that, [HN11] under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters.”

The AED Act provides immunity for trained AED users and immunity for untrained users who use an AED in good faith.

The AED Good Samaritan Act, which was adopted two years after Atcovitz sustained his injuries, provides civil immunity for trained users of AEDs and requires that [HN12] “expected users shall complete training in the use of an AED. . . .” As an exception to that general rule, the AED Good Samaritan Act also provides civil immunity to untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Significantly, the AED Good Samaritan Act defines “good faith” as including “a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed until emergency medical services personnel arrive or the person is hospitalized.”

The act, consequently, only creates a safe harbor for using an AED. It does not create liability for someone who does not use an AED.

Thus, the AED Good Samaritan Act merely creates an exception for imposing liability on an untrained individual who uses an AED in limited emergency situations; it does not authorize its use by any such individual.

In addition, it does not indicate that the Legislature aimed to dispense with the regulations governing the training and use of AEDs. Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to ac-quire, maintain, and use such a device on its premises.

The act cannot, then be used to create liability for not using an AED; it only removes liability for someone who does use an AED.

Neither the EMS Act nor the AED Good Samaritan Act imposed a duty upon Gulph Mills to acquire, maintain, and use an AED. Appellees do not cite any other case, statute, or regulation that would have imposed such a duty on Gulph Mills at the time of Atcovitz’s injuries in January 1996. Because Gulph Mills did not owe a duty to carry an AED, Appellees could not have established a prima facie claim of negligence.

There was a dissenting opinion, in this case. The dissent agreed with the majority opinion; it disagreed on how broad the decision was and thought several of the issues should be sent back for review by the trial court.

So Now What?

First understand there is a difference between what is moral, ethical, and legal. My job is not to help you decide on those issues. My job is to help you understand the law when you are faced with the issues. You can be morally and ethically right and be sued and lose. You can have no morals or ethics and be sued and lose. How you balance those aspects of your life, and how you approach the issues you face in your life is not the subject of these articles. How the law applies to the facts set forth in the specific cases may affect your choices is what the article is about.

The good news is the decision prevents lawsuits for not having an AED or using an AED in Pennsylvania.

This case also defines how it would look at the reverse. If the law restricted the use of a device, the application of the law would not only allow for civil liability but possibly criminal liability also.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Pennsylvania Good Samaritan Act

Posted: February 11, 2016 | Author: Recreation Law | Filed under: Pennsylvania | Tags: Good Samaritan, Good Samaritan law, Pennsylvania Good Samaritan Act | Leave a comment

Pennsylvania Consolidated Statutes

Title 42. Judiciary and Judicial Procedure

Part VII. Civil Actions and Proceedings

Chapter 83. Particular Rights and Immunities

Subchapter C. Immunities Generally

42 Pa.C.S. § 8331 (2016)

§ 8331. Medical good Samaritan civil immunity.

(a) General rule. —

Any physician or any other practitioner of the healing arts or any registered nurse, licensed by any state, who happens by chance upon the scene of an emergency or who arrives on the scene of an emergency by reason of serving on an emergency call panel or similar committee of a county medical society or who is called to the scene of an emergency by the police or other duly constituted officers of a government unit or who is present when an emergency occurs and who, in good faith, renders emergency care at the scene of the emergency, shall not be liable for any civil damages as a result of any acts or omissions by such physician or practitioner or registered nurse in rendering the emergency care, except any acts or omissions intentionally designed to harm or any grossly negligent acts or omissions which result in harm to the person receiving emergency care.

(b) Definition. —

As used in this section “good faith” shall include, but is not limited to, a reasonable opinion that the immediacy of the situation is such that the rendering of care should not be postponed until the patient is hospitalized.

HISTORY: Act 1976-142 (S.B. 935), P.L. 586, § 2, approved July 9, 1976, See section of this act for effective date information.

NOTES:

EDITOR’S NOTES.

Section 2 of Act 1976-142 enacted new subchapter C, “Immunities Generally.”

1. Neither the Emergency Medical Services Act, Pa. Stat. Ann. tit. 35, §§ 6921 to 6938, nor the AED Good Samaritan Act, 42 Pa. Cons. Stat. § 8331.2, imposed a duty upon a tennis club to acquire, maintain, and use an automated external defibrillator, as defined in 42 Pa. Cons. Stat. § 8331.2(f), and summary judgment was properly entered against a tennis player who suffered a stroke while playing tennis and sought damages for the club’s negligence in failing to have a defibrillator available for such an emergency. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).

2. Good Samaritan statute did not apply to a situation where a doctor received a telephone call from a hospital and provided advice for treatment of a hospitalized patient who was suffering from respiratory difficulties; the statute did not provide the doctor with a defense to an action resulting from the death of the patient and the doctor’s summary judgment motion was denied. The Good Samaritan statute did not apply because the doctor was not at the scene of an emergency, as required by 42 Pa.C.S. § 8331(a), and § 8331(b) implied that the statute did not apply to hospitalized patients. Phebus v. UPMC Horizon, 71 Pa. D. & C.4th 513, 2005 Pa. Dist. & Cnty. Dec. LEXIS 68 (Pa. County Ct. 2005).

3. Neither the Emergency Medical Services Act, Pa. Stat. Ann. tit. 35, §§ 6921 to 6938, nor the AED Good Samaritan Act, 42 Pa. Cons. Stat. § 8331.2, imposed a duty upon a tennis club to acquire, maintain, and use an automated external defibrillator, as defined in 42 Pa. Cons. Stat. § 8331.2(f), and summary judgment was properly entered against a tennis player who suffered a stroke while playing tennis and sought damages for the club’s negligence in failing to have a defibrillator available for such an emergency. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).

4. Good Samaritan statute did not apply to a situation where a doctor received a telephone call from a hospital and provided advice for treatment of a hospitalized patient who was suffering from respiratory difficulties; the statute did not provide the doctor with a defense to an action resulting from the death of the patient and the doctor’s summary judgment motion was denied. The Good Samaritan statute did not apply because the doctor was not at the scene of an emergency, as required by 42 Pa.C.S. § 8331(a), and § 8331(b) implied that the statute did not apply to hospitalized patients. Phebus v. UPMC Horizon, 71 Pa. D. & C.4th 513, 2005 Pa. Dist. & Cnty. Dec. LEXIS 68 (Pa. County Ct. 2005).

5. Neither the Emergency Medical Services Act, Pa. Stat. Ann. tit. 35, §§ 6921 to 6938, nor the AED Good Samaritan Act, 42 Pa. Cons. Stat. § 8331.2, imposed a duty upon a tennis club to acquire, maintain, and use an automated external defibrillator, as defined in 42 Pa. Cons. Stat. § 8331.2(f), and summary judgment was properly entered against a tennis player who suffered a stroke while playing tennis and sought damages for the club’s negligence in failing to have a defibrillator available for such an emergency. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).

3943. 14-246 Pennsylvania Transaction Guide–Legal Forms § 246.31, Division 1 Individuals and Families, Standard of Care Owed by Health Care Providers.

3944. 38 P.L.E. PHYSICIANS AND SURGEONS § 25, Pennsylvania Law Encyclopedia, Acts or Omissions Constituting Malpractice, Copyright 2013, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

Pennsylvania AED Good Samaritan Act

Posted: February 11, 2016 | Author: Recreation Law | Filed under: Pennsylvania | Tags: AED, AED Good Samaritan Act, Good Samaritan, Pennsylvania | 1 Comment

Pennsylvania Consolidated Statutes

Title 42. Judiciary and Judicial Procedure

Part VII. Civil Actions and Proceedings

Chapter 83. Particular Rights and Immunities

Subchapter C. Immunities Generally

42 Pa.C.S. § 8331.2 (2016)

§ 8331.2. Good Samaritan civil immunity for use of automated external defibrillator.

(a) General rule. —

Any person who in good faith acquires and maintains an AED or uses an AED in an emergency shall not be liable for any civil damages as a result of any acts or omissions by an individual using the AED, except if acts or omissions intentionally designed to harm or any grossly negligent acts or omissions result in harm to the individual receiving the AED treatment.

(b) Requirements. —

Any person who acquires and maintains an AED for use in accordance with this section shall:

(1) Ensure that expected AED users receive training pursuant to subsection (c).

(2) Maintain and test the AED according to the manufacturer’s operational guidelines.

(3) Provide instruction requiring the user of the AED to utilize available means to immediately contact and activate the emergency medical services system.

(4) Assure that any appropriate data or information is made available to emergency medical services personnel or other health care providers as requested.

For purposes of this section, expected AED users shall complete training in the use of an AED consistent with American Red Cross, American Heart Association or other national standards as identified and approved by the Department of Health in consultation with the Pennsylvania Emergency Health Services Council.

(d) Obstruction of emergency medical services personnel. —

Nothing in this section shall relieve a person who uses an AED from civil damages when that person obstructs or interferes with care and treatment being provided by emergency medical services personnel or a health professional.

(e) Exception. —

Any individual who lacks the training set forth in subsection (c) but who has access to an AED and in good faith uses an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances shall receive immunity from civil damages as set forth in subsection (a).

(f) Definitions. —

As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Automated external defibrillator” or “AED.” –A portable device that uses electric shock to restore a stable heart rhythm to an individual in cardiac arrest.

“Emergency.” –A situation where an individual is believed to be in cardiac arrest or is in need of immediate medical attention to prevent death or serious injury.

“Good faith.” –Includes a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed until emergency medical services personnel arrive or the person is hospitalized.

HISTORY: Act 1998-126 (H.B. 1897), P.L. 949, § 11, approved Dec. 15, 1998, eff. Jan. 1, 1999; Act 2012-125 (S.B. 351), P.L. 1081, § 1, approved July 5, 2012, eff. in 60 days.

NOTES:

AMENDMENT NOTES.

The 2012 amendment rewrote (a); deleted “not be liable for civil damages provided that the person” at the end of the introductory language of (b); rewrote (c), which formerly read: “For purposes of this section, expected AED users shall complete training in the use of an AED provided by the American National Red Cross or the American Heart Association or through an equivalent course of instruction approved by the Department of Health in consultation with a technical committee of the Pennsylvania Emergency Health Services Council”; deleted (e); in (f), substituted “or is” for “and” in the definition of “Emergency”; and made related changes.

Go back to the top of LexisNexis (R) NotesCASE NOTES

1. Trial court properly entered summary judgment in favor of a tennis club in a negligence action by a stroke victim because neither the Emergency Medical Services Act nor the Good Samaritan Act imposed a duty upon the club to acquire, maintain, and use an automated external defibrillator. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).

2. Unpublished decision: Court recommended the affirmance of its decision granting judgment to a health club in an executor’s suit brought after the club’s patron collapsed and died after suffering sudden cardiac arrest while exercising at the club. While the executor maintained that the club had a duty to have an automated external defibrillator (AED) on its premises, the court rejected this contention, noting that, under binding state supreme court precedent, a sports club had no duty under the Emergency Medical Services Act or the Good Samaritan Act to acquire, maintain, or use an AED. Goldin v. Bally Total Fitness Corp., 2011 Phila. Ct. Com. Pl. LEXIS 54 (Pa. C.P.), aff’d, 38 A.3d 931, 2011 Pa. Super. LEXIS 5470 (Pa. Super. Ct. 2011).

3946. Definitions, see20 Pa.C.S. § 5483.

3947. 28 Pa. Code § 1051.2(2014), PART EMERGENCY MEDICAL SERVICES.

3948. 28 Pa. Code § 1051.51(2014), PART EMERGENCY MEDICAL SERVICES.

3950. 6-LIV Remick’s Pennsylvania Orphans’ Court Practice § 54.01, CHAPTER LIV Health Care, Living Wills, Health Care Agents and Representatives, and Out-of-Hospital Nonresuscitation Act.

Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

Posted: February 9, 2016 | Author: Recreation Law | Filed under: Pennsylvania | Tags: AED, AED Good Samaritan, Automatic External Defibrillator, Good Samaritan, Gulph Mills Tennis Club, Immunity, Negligence, Pennsylvania | Leave a comment

To Read an Analysis of this decision see: Pennsylvania Supreme Court decision on duty to have and use an AED defines how statutes are to be interpreted and when liability can attach and cannot attach to a statute.

Atcovitz v. Gulph Mills Tennis Club, Inc, 571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

Jerry Atcovitz and Roslyn Atcovitz, H/W, v. Gulph Mills Tennis Club, Inc, Jkst, Inc. and Gulph Mills/Jkst Tennis Club, Inc., Lafayette Ambulance Rescue Squad I; appeal of: Gulph Mills Tennis Club, Inc., Jkst, Inc. and Gulph Mills/Jkst Tennis Club

No. 29 EAP 2001

SUPREME COURT OF PENNSYLVANIA

571 Pa. 580; 812 A.2d 1218; 2002 Pa. LEXIS 2832

April 8, 2002, Argued

December 20, 2002, Decided

PRIOR HISTORY: [***1] Appeal from the Order of the Superior Court entered January 16, 2001, at No. 3061 EDA 1999, reversing and remanding the Order of the Court of Common Pleas of Philadelphia County, Civil Division, entered September 13, 1999, at No. 1357 January Term 1998. Trial Court Judge: Flora Barth Wolf, Judge. Intermediate Court Judges: Joseph A. Del Sole, President Judge, Joseph A. Hudock and Correale F. Stevens, JJ.

Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 2001 Pa. Super. LEXIS 16 (2001).

DISPOSITION: Reversed. Trial court’s grant of summary judgment in favor of Gulph Mills affirmed.

COUNSEL: For Gulph Mills Tennis Club, Inc., APPELLANT: Lucien R. Tharaud, Esq.

For Gulph Mills/JKST Tennis Club, Inc., APPELLANT: Charles W. Craven, Esq.

For Jerry Atcovitz and Rosyln Atcovitz, h/w, APPELLEE: Alfred Anthony Brown, Esq. and J. Craig Currie, Esq.

JUDGES: BEFORE: ZAPPALA, C.J., AND CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR AND EAKIN, JJ. MR. CHIEF JUSTICE ZAPPALA. Mr. Justice Cappy files a concurring opinion. Mr. Justice Nigro files a dissenting opinion in which Mr. Justice Saylor joins.

OPINION BY: ZAPPALA

OPINION

[**1220] MR. CHIEF JUSTICE ZAPPALA [*583]

We granted allowance of appeal in this case to determine whether a tennis club owes a duty of care to its members to acquire and maintain an automated external defibrillator, hereinafter “AED,” on its premises for emergency use. ¹ For the reasons that follow, we hold that such clubs do not owe a duty to have an AED available on their premises.

1 An AED is [HN1] “[a] portable device that uses electric shock to restore a stable heart rhythm to an individual in cardiac arrest.” 42 Pa.C.S. § 8331.2(f).

[***2] On January 16, 1996, Jerry Atcovitz suffered a stroke, secondary to a heart attack, while playing tennis at the Gulph Mills Tennis Club. ² Within a minute of his collapse, two tennis club members administered cardiopulmonary resuscitation and called for an ambulance. Approximately ten minutes later, emergency medical technicians arrived and administered a series of defibrillation shocks with an AED and transported Atcovitz to a hospital. ³ Although he survived the incident, Atcovitz “sustained severe and permanent injuries, including anoxic encephalopathy with multiple permanent central nervous system disorders. He is no longer able to think or concentrate, is no longer able to walk or get out of bed unassisted, and requires assistance in virtually every aspect of his life.” R. 42a-43a.

2 Atcovitz was then sixty-four years old and had a twenty-year history of heart problems, including a previous heart attack and bypass surgery. Appellees do not assert that Gulph Mills had knowledge of such history.

3 Atcovitz did not respond to any of the AED shocks administered by the emergency medical technicians, but did subsequently respond to a transcutaneous pacemaker. From this, Gulph Mills remarks that Atcovitz was suffering from “atrial fibrillation,” as opposed to “ventricular fibrillation.” Thus, Gulph Mills implies that, even if Atcovitz would have received electrical defibrillation immediately after he collapsed, it would not have had any beneficial effect. Appellant’s Br. at 6; see also R. 30a, 147a-149a. This Court, however, must view the record in the light most favorable to the nonmoving party in reviewing a grant of summary judgment. Thus, we must operate under the assumption that earlier use of an AED would have mitigated Atcovitz’s injuries.

[***3] [*584] Appellees, Jerry Atcovitz and his wife, Roslyn, sued Gulph Mills for negligence in the Court of Common Pleas of Philadelphia County. ⁴ Specifically, they claimed that, “had [Gulph Mills] possessed an AED device and used it on [Atcovitz] promptly, his injuries would have been significantly less and, therefore, that [Gulph Mills] is liable to him for damages.” Trial Ct. Op. at 2. In its defense, Gulph Mills asserted that, at the time of Atcovitz’s injury, its employees would not have been permitted by law to use an AED.

4 Atcovitz also sued Lafayette Ambulance Rescue Squad, but the parties eventually agreed to dismissal of the rescue squad with prejudice. R. 111a-112a.

In an attempt to preclude Gulph Mills from asserting its defense, Appellees moved for partial summary judgment, which the trial court denied. Immediately prior to trial, however, Appellees orally moved for reconsideration of their motion. At the same time, Gulph Mills cross-moved [**1221] for summary judgment. ⁵ The trial court granted Gulph Mills’s [***4] cross-motion for summary judgment and dismissed the case. The court based its grant of summary judgment on the Emergency Medical Services Act, ⁶ hereinafter the “EMS Act,” and the regulations issued pursuant thereto. The court concluded that, at the time of Atcovitz’s injury, Gulph Mills’s employees were legally prohibited from using an AED. Thus, the court held that Gulph Mills “cannot be held negligent for failure to use the device.” Trial Ct. Op. at 4.

5 The Superior Court, citing Pennsylvania Rule of Civil Procedure 1035.2, reproved the trial court for considering a motion for summary judgment on the day of trial. Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 1281 n.2 (Pa. Super. 2001). The court’s admonition, however, seemed to overlook that the parties had agreed to reconsideration of Appellees’ motion and consideration of Gulph Mills’s cross-motion. R. 8a-14a. Indeed, the motions presented a pure question of law that would avoid the time and expense of trial if Gulph Mills prevailed, which, ultimately, it did.

6 Act of July 3, 1985, P.L. 164, No. 45, § 1, as amended, 35 P.S. §§ 6921- 6938.

[***5] Appellees filed a timely appeal to the Superior Court, which reversed the trial court’s order granting summary judgment. See Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, [*585] 1281 n.2 (Pa. Super. 2001). The court opined that the trial court’s reliance on the EMS Act was inappropriate because it was designed for and aimed at the administration of emergency services by trained and licensed professionals. As the EMS Act did not contain any provision addressing emergency actions by untrained lay persons, i.e., Gulph Mills’s employees, the court concluded that the trial court’s grant of summary judgment could not be supported by reference to the EMS Act or its implementing regulations.

The court also addressed the effect of 42 Pa.C.S. § 8331.2, hereinafter the “AED Good Samaritan Act,” which provides “Good Samaritan civil immunity” for use of an AED in certain instances. It specifically provides immunity for untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Although the [***6] AED Good Samaritan Act was enacted after Atcovitz’s injuries, the court found that its passage evinced the Legislature’s desire that use of AEDs not be restricted solely to trained professionals. Accordingly, the court held that the trial court erred as a matter of law in granting Gulph Mills’s motion for summary judgment. See Atcovitz, 766 A.2d at 1282. Subsequently, Gulph Mills petitioned this Court for allowance of appeal, which we granted. See Atcovitz v. Gulph Mills Tennis Club, Inc., 566 Pa. 656, 782 A.2d 541 (Pa. 2001) (table).

[HN2] This Court’s scope of review of an order granting summary judgment is plenary. Basile v. H & R Block, Inc., 563 Pa. 359, 761 A.2d 1115, 1118 (Pa. 2000). Our standard of review is clear: the trial court’s order will be reversed only where it is established that the court committed an error of law or clearly abused its discretion. Id. Summary judgment is appropriate only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035.2; see also Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (Pa. 2001). [***7] [*586] The reviewing court must view the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Basile, 761 [**1222] A.2d at 1118. When the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Id. (citing Cochran v. GAF Corp., 542 Pa. 210, 666 A.2d 245, 248 (Pa. 1995)).

[HN3] The elements necessary to plead an action in negligence are: (1) the existence of a duty or obligation recognized by law, requiring the actor to conform to a certain standard of conduct; (2) a failure on the part of the defendant to conform to that duty, or a breach thereof; (3) a causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or damage suffered by the complainant. Orner v. Mallick, 515 Pa. 132, 527 A.2d 521, 523 (Pa. 1987) (citing Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 684 n.5 (Pa. 1983)); see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 30 at 164 (5th ed. 1984). Here, we must focus our analysis on [***8] the threshold element of duty. ⁷ Only therein may we resolve the fundamental question of whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.

7 Appellees argue that the issue of duty was not considered by the lower courts and, therefore, may not be addressed by this Court. Appellees’ Br. at 4-5 (citing Pa.R.A.P. 302). Instead, Appellees assert that “the sole question under review is whether the law of this Commonwealth, at the time of Mr. Atcovitz’s cardiac arrest in January of 1996, made it illegal for Gulph Mills to have and use an [AED].” Id. at 4 (emphasis in original). Appellees’ characterization of the issue is too narrowly focused. Gulph Mills’s illegality defense is a subsidiary argument of the broader issue of duty, i.e., whether there was no duty because carrying an AED would have been illegal. Thus, the issue properly before this Court’s plenary review remains whether Gulph Mills owed a duty of care to Atcovitz to acquire and maintain an AED on its premises for emergency use.

[***9] [HN4] “A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” Law of Torts, supra, § 53 at 356. This Court has embraced [*587] an oft-quoted passage articulating the considerations that underlie the concept of common law duty:

These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the 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 [***10] 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.”

D. Prosser, Palsgraf Revisited, 52 Mich.L.Rev. 1, 15 (1953) (quoting Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99, 104 (N.Y. 1928) (Andrews, J., dissenting)); Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 756 A.2d 1166, 1169 (Pa. 2000); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (Pa. 1979). Thus, [HN5] the legal concept of duty is necessarily rooted in often amorphous public policy considerations, which may include our perception of history, morals, justice, and society. Althaus, [**1223] 756 A.2d at 1169 (citing Gardner v. Consolidated Rail Corp., 524 Pa. 445, 573 A.2d 1016, 1020 (Pa. 1990)).

In Althaus, this Court enunciated several discrete factors, derived from the aforementioned principles, that our courts are to balance [HN6] in determining whether a common law duty of care exists: (1) the relationship between the parties; (2) the social utility of the actor’s conduct; (3) the nature of the risk imposed and foreseeability [***11] of the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall public interest in the proposed solution. Althaus, 756 A.2d at 1169. [*588] Within this construct, we must resolve whether Gulph Mills owed a duty to Atcovitz to acquire and maintain an AED.

Here, our analysis turns upon the fifth Althaus factor, i.e., the overall public interest in the proposed solution. The Legislature’s enactments and the ensuing regulations reveal that acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Where our lawmakers have so thoroughly considered the statewide application and implications of a subject, this Court must refrain from imposing additional requirements upon that legislation.

Looking first to the EMS Act, the Legislature aspired [HN7] “to assure readily available and coordinated emergency medical services of the highest quality to the people of Pennsylvania.” 35 P.S. § 6922(a). To accomplish this purpose, the Secretary of Health is required [HN8] “to plan, guide, assist and coordinate the development of areawide emergency medical services systems into a unified Statewide [***12] system and to coordinate the system with similar systems in neighboring states.” 35 P.S. § 6925(a). For that reason, [HN9] the Department of Health has adopted comprehensive regulations implementing the provisions of the EMS Act, including regulations establishing the qualifications, duties, and certification procedures for those involved in providing emergency medical services. See 28 Pa. Code §§ 1001.1- 1015.2. Similar to the EMS Act, the stated purpose of the regulations [HN10] “is to plan, guide, assist and coordinate the development of regional EMS systems into a unified Statewide system and to coordinate the system with similar systems in neighboring states, and to otherwise implement the Department’s responsibilities under the act consistent with the Department’s rulemaking authority.” Id. at § 1001.1.

To achieve these goals, the EMS Act and its implementing regulations explicitly classify and identify the capacities, training requirements, and qualifications of individuals who are authorized to deliver emergency medical services. See, e.g., 35 P.S. § 6931 (delineating [***13] emergency medical services personnel). Although the Superior Court’s observation [*589] that the EMS Act and its regulations do not specifically refer to the use of AEDs by untrained individuals is correct, we do not agree with the court’s conclusion that the EMS Act and its regulations are irrelevant to the issue of whether Gulph Mills had a duty to use an AED on its premises. Rather, they are relevant to demonstrate that the acquisition, maintenance, and use of an AED, along with AED training requirements, are highly regulated. Indeed, the implication of the Legislature’s exclusion of untrained laypersons from the EMS Act and its regulations is to preclude unqualified and untrained individuals from administering emergency medical services using an AED. We must infer that, [HN11] under the doctrine of expressio unius est exclusio alterius, the inclusion of a specific matter in a statute implies the exclusion of other matters. Pane v. Commonwealth, Dep’t of Highways, 422 Pa. 489, 222 A.2d 913, 915 (Pa. 1966) (citing Cali v. City of Philadelphia, 406 Pa. 290, 177 A.2d 824, 832 (Pa. 1962)). It [**1224] would be absurd for the governmental system charged with rendering [***14] effective emergency medical care to hinder the delivery of that care using AEDs through the system, while ordinary citizens would be duty-bound to acquire, maintain, and use AEDs free from any regulation by the Department of Health.

Likewise, the Superior Court also misconstrued the AED Good Samaritan Act as evincing the Legislature’s intention that the EMS Act should not restrict the use of AEDs to trained professionals. The AED Good Samaritan Act, which was adopted two years after Atcovitz sustained his injuries, provides civil immunity for trained users of AEDs and requires that [HN12] “expected users shall complete training in the use of an AED. . . .” 42 Pa.C.S. §§ 8331.2(a), (c). [HN13] As an exception to that general rule, the AED Good Samaritan Act also provides civil immunity to untrained individuals who, in good faith, use an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances. Id. at § 8331.2(e). Significantly, the AED Good Samaritan Act defines [HN14] “good faith” as including “a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed [***15] until emergency [*590] medical services personnel arrive or the person is hospitalized.” Id. at § 8331.2(f).

Thus, the AED Good Samaritan Act merely creates an exception for imposing liability on an untrained individual who uses an AED in limited emergency situations; it does not authorize its use by any such individual. Indeed, the exception expresses that personnel under the EMS Act are the preferred users of AEDs: it applies only to instances where emergency medical services personnel are unavailable. In addition, it does not indicate that the Legislature aimed to dispense with the regulations governing the training and use of AEDs. Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to acquire, maintain, and use such a device on its premises. ⁸

8 Even if the AED Good Samaritan Act imposed a duty upon Gulph Mills to carry an AED, it would not control this case. The Legislature did not adopt it until two years after Atcovitz sustained his injuries

[***16] Neither the EMS Act nor the AED Good Samaritan Act imposed a duty upon Gulph Mills to acquire, maintain, and use an AED. Appellees do not cite any other case, statute, or regulation that would have imposed such a duty on Gulph Mills at the time of Atcovitz’s injuries in January 1996. Because Gulph Mills did not owe a duty to carry an AED, Appellees could not have established a prima facie claim of negligence. See Orner, 515 Pa. 132, 527 A.2d 521. Thus, there was no genuine issue of material fact and Gulph Mills was entitled to judgment as a matter of law. See Basile, 563 Pa. 359, 761 A.2d 1115. We reverse the order of the Superior Court and affirm the trial court’s grant of summary judgment in favor of Gulph Mills.

Mr. Justice Cappy files a concurring opinion.

Mr. Justice Nigro files a dissenting opinion in which Mr. Justice Saylor joins.

CONCUR BY: CAPPY

CONCUR

CONCURRING OPINION

MR. JUSTICE CAPPY

I join the majority opinion to the extent that it holds that we must balance the factors in Althaus ex rel. Althaus v. [*591] Cohen, 562 Pa. 547, 756 A.2d 1166 (Pa. 2000). After evaluating all five factors, I agree [***17] that no duty exists here.

DISSENT BY: NIGRO

DISSENT

[**1225] DISSENTING OPINION

MR. JUSTICE NIGRO

While I do not necessarily disagree with the majority’s conclusion that a tennis club does not owe a duty to its members to acquire and maintain an automated external defibrillator (“AED”) on its premises for emergency use, that issue is not before us here. The only issue that the Superior Court considered below was whether the Emergency Medical Services Act, 35 Pa.C.S. §§ 6921- 6938, and the Department of Health regulations promulgated pursuant to that Act specifically prohibited Appellants from using an AED. Concluding that they did not, the Superior Court reversed the trial court’s entry of summary judgment in favor of Appellants on the basis of those authorities. Atcovitz v. Gulph Mills Tennis Club, Inc., 2001 PA Super 16, 766 A.2d 1280, 1282 (Pa. Super. 2001) (“Although we make no finding on the ultimate merits of [plaintiffs’] claim, we find that the trial court erred as a matter of law in granting [defendant’s] motion for summary judgment on the basis of the statutes and regulations cited.”) As I agree [***18] with the Superior Court’s conclusion in that regard, I would affirm the Superior Court’s order and remand the case to the trial court to consider in the first instance whether there is any basis on which to conclude that Appellants owed a duty to Appellees.

Mr. Justice Saylor joins the dissenting opinion.

Release lacked language specifying the length of time it was valid. Since the court could not determine the time the case was sent to a jury for that determination.

Posted: February 8, 2016 | Author: Recreation Law | Filed under: Pennsylvania, Release (pre-injury contract not to sue) | Tags: Business Invitee, Contract, FactFinder, Go Kart, Go Kart Racing, Missing Phrase, Missing Term, Open and Obvious, Release, Time | Leave a comment

Release lacked one clause and consequently, failed to protect the defendant sending the case to trial.

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

State: Pennsylvania: Common Pleas Court of Lehigh County, Pennsylvania, Civil Division

Plaintiff: Nicholas Weinrich

Defendant: Lehigh Valley Grand Prix Inc, incorrectly Identified As Lehigh Valley Grand Prix LLC

Plaintiff Claims: Negligence

Defendant Defenses: Release & Premises Liability

Holding: For the Plaintiff

Year: 2015

This is an interesting case. The activity is outside the normal area of the law covered by this site; however, the legal issues are very important to everyone reading these posts.

The plaintiff was injured driving a go-kart around the defendant’s go-kart track. This was the second time the plaintiff had been at the go-kart track; the first time was about six months prior.

While driving around the track a piece of plastic from the guard rail was sticking into the track. The plaintiff drove past it and it hit is leg giving him a two-inch laceration.

The plaintiff had signed a release the first time he attended the go-kart track which was six months prior to the date of his injury. He did not sign one the second time when he was injured. The defendant stated that people who have already signed a release are not asked to sign one again.

The defendant filed a motion for summary judgment based on the release the Pennsylvania Premises Liability Act. The act stated that a defendant’s business did not owe a duty to the business invitee for open and obvious hazards.

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

First, the court reviewed the requirements for a release to be valid in Pennsylvania.

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.

The next issue was whether a release for recreational issues violates public policy in Pennsylvania. Again, releases for recreational activities do not violate Pennsylvania public policy concerns. Participants are free to go to any recreational facility or none at all.

In the context of recreational activities, releases generally function as a bar to liability because the party executing the release is free to choose whether or not he or she wants to participate in the activity. Such releases do not contravene public policy. However, where the injury was caused by recklessness or gross negligence, enforcement of the release would contravene public policy and the releases are thereby rendered void under those circumstances.

The court then got into the real issue. The plaintiff argued the release was not valid because he had signed the release six months prior to the date of his injury. The issue then resolved around when a contract terminates. Normally, a contract terminates based on a date or time frame which is based on language within the contract itself. This release had no language as to how long the release was supposed to last. “The salient issue in evaluating the instant waiver is that the language on the form neither limits the time for its applicability nor specifies the event or occasion to which it applies.”

Generally, time frames are to be determined by the parties to the agreement. If not by the parties, then the language of the release is to be examined for an indication of time. Failing language in the release terminating the agreement, the court can infer from the parties intended performance, which must be within a reasonable amount of time.

Since the release had no language on termination, then the court determined the release terminated within a reasonable amount of time. Since this was not defined, then a term, phrase or clause was missing from the release.

If an essential term is left out of a contract, the court can infer the term. (An essential term is always the one that the issue resolves around in court.)

However, since the reasonable period of time is not set forth by the industry, parties, the release or the law, that time period must be determined by the factfinder. The fact finder when a case has been set for a jury trial is the jury. “What constitutes a reasonable time, however, is generally a question of fact to be resolved by the factfinder.”

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

The simple phrase stating the release is valid for a year or more sent this case back to the jury for trial.

The other issue argued by the defendant was the definition of a business invitee which as defined did not create liability on the part of the defendant. A landowner does not owe a duty for open and obvious conditions on the land. In this case, the open and obvious condition would be the piece of plastic sticking out into the track.

The issue of open and obvious then was reviewed as it is defined in Pennsylvania.

A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” “For a danger to be ‘known,’ it must not only be known to exist, but … also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.”

Generally in Pennsylvania, a landowner has no duty to protect business invitees from open and obvious dangers. “In the context of amusement facilities, Pennsylvania courts have held that there is no duty to protect participants against the typical risks attendant to those activities.”

However, here again whether something is open and obvious in this case, a plastic part peeling off a guard rail is something that must be determined by the factfinder.

Nonetheless, the question of whether conditions on land were, in fact, open and obvious is generally a question of fact for a jury to decide. Id. It may be decided by a court where reasonable minds could not differ as to the conclusion.

Because in both cases, the release and the definition of the law required completion by the fact finder, the case was sent back for trial.

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

So Now What?

Here again, the release failed either because of a lazy program, an ineffective system or with both those failing a release that is missing components.

Either every time someone comes to your facility, event or business, they sign a release, or you have a system that tracks when people have signed the release and not and a release that covers that period of time.

At a minimum, you should have someone sign your release yearly. Season’s change, activities change and you might change your business, program, activities, anything and everything. That change may need to be placed in your release and at least follows up on.

This change in your program or start of the new year or season is the perfect opportunity to have an attorney review your release. Inform your attorney of any changes in your operation. Have your release checked to make sure it will do the job you and your insurance company expect it to do.

What do you think? Leave a comment.

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By Recreation Law Rec-law@recreation-law.com James H. Moss

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

Posted: January 26, 2016 | Author: Recreation Law | Filed under: Legal Case, Pennsylvania, Release (pre-injury contract not to sue) | Tags: Business Invitee, Contract, FactFinder, Go Kart, Go Kart Racing, Missing Phrase, Missing Term, Open and Obvious, Release, Time | Leave a comment

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

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

File No. 2014-C-0226

COMMON PLEAS COURT OF LEHIGH COUNTY, PENNSYLVANIA, CIVIL DIVISION

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

August 14, 2015, Decided

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

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

Ian T. Baxter, Esq. for Defendant.

JUDGES: Douglas G. Reichley, J.

OPINION BY: Douglas G. Reichley

OPINION

ORDER

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

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

By the Court:

Douglas G. Reichley, J.

Memorandum Opinion

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

Factual and Procedural History

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

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

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

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

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

This Opinion follows.

Discussion

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

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

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

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

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

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

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

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

The relevant language of the release in question provides:

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

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

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

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

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

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

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

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

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

As a general rule, possessors of land are not liable to invitees for physical harm caused to them by activities or conditions on the land whose danger is known or obvious to them unless the possessor should anticipate the harm despite such knowledge or obviousness. Restatement (Second) of Torts, § 343A. A danger is deemed to be “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 123-24 (Pa. 1983) (citation omitted). “For a danger to be ‘known,’ it must not only be known to exist, but … also be recognized that it is dangerous and the probability and gravity of the threatened harm must be appreciated.” Id. at 124.

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

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

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

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

Conclusion

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

By the Court:

Douglas G. Reichley, J.

8/14/15

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Scott-Moncrieff v. Lost Trails, LLC

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Read the article and then contact Penn State and let them know how stupid and antiquated this thinking is!

In this age of football concussions this entire argument is stupid!

Twitter: @Penn_State

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Pennsylvania Equine Activities Immunity Act

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Title 4. Amusements

The Pennsylvania State University
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FAX: 814-863-8583

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TELEPHONE: 814-865-7517
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