Monday, November 21, 2022

Pennsylvania Superior Court Provides Appellate Guidance on Propriety of Allegations of Recklessness

In the case of Monroe v. CBH2O LP, d/b/a Camelback Ski Resort, No. 1862 EDA 2019 (Pa. Super. Nov. 21, 2022) (en banc) (per curiam), the Pennsylvania Superior Court, in a split decision, addressed the issue of the propriety of allegations of recklessness in a premises liability case regarding injuries that the Plaintiff sustained while utilizing a zip-line.

In the Majority Opinion of this case, the Pennsylvania Superior Court adopted what appeared to be the rule of law followed by the minority of Pennsylvania trial courts and held that allegations of recklessness are allegations of states of mind and, as mere forms of negligence, such allegations are not to be considered independent causes of action.   As such, according to the Majority in this Monroe decision, under Pa. R.C.P. 1019(b), given that allegations of recklessness are considered to be allegations of a state of mind, such allegations can be averred generally.  In this regard, the court cited, in part, the case of Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009).

I note that, in footnote 6 of the Opinion, the Majority cited to the review of the split of authority amongst the trial court judges across the Commonwealth on this issue as set forth in my article, “Pleading for Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters,” 93 Pa. B.A.Q. 32 (Jan. 2022). 

Notably, in that same footnote, the Superior Court pointed to the case of Koloras v. Dollar Tree by Judge Terrence R. Nealon of Lackawanna County as an example of a trial court decision that had previously properly decided this issue, i.e., that allegations of recklessness were allegations of a state of mind that could be pled generally.

The Pennsylvania Superior Court also stated in footnote 6 that, with regards to the split of authority amongst the trial courts on the issue of the proper pleading of allegations, the decision in this Monroe case should serve to “remove[] any doubt that, so long as a plaintiff’s complaint (1) specifically alleges facts to state a prima facie claim for the tort of negligence, and (2) also alleges that the Defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.” See Op. at 24, n. 6.

In other words, under the Majority Opinion, a Plaintiff may plead recklessness in any case whatsoever with reckless abandon.  The court suggested that a defendant can revisit the issue by way of a summary judgment motion after the discovery in the case has been completed.

In two separate Dissenting Opinions in the case, one by President Judge Emeritus Bender and one by Judge Stabile, the alternative rule was advocated based upon 50 years of precedent, that being that a Plaintiff should have to plead sufficient facts in order to proceed on a claim for recklessness. However, that viewpoint, as found in the Dissenting Opinions, was not adopted by the Majority of the judges on this case.

It is noted that my above-referenced Pennsylvania Bar Quarterly article entitled “Pleading for Clarity” was also cited on page 2 of Judge Bender’s Dissenting Opinion as outlining the previous existing split of authority on the issue presented in trial courts across the Commonwealth.

That split of authority has been put to rest by this appellate guidance provided by the Pennsylvania Superior Court in the case of Monroe v. CBH2O LP, d/b/a Camelback Ski Resort.    

Anyone wishing to review a copy of the majority Opinion in this case may click this LINK

The dissenting Opinion by Judge Bender may be reviewed at this LINK.

The dissenting Opinion by Judge Stabile may be reviewed at this LINK.

[Public retraction:  I take back my commentary from my recent Lackawanna County Bench Bar Conference CLE presentation during which I asserted that the Judges of Lackawanna County were wrong in following the minority rule and the Archibald v. Kemble case.  It turns out that the Lackawanna County Judges were right and I was wrong --  the Superior Court has ruled that it is permissible to assert recklessness in any negligence case whatsoever regardless of the facts presented. 

In such cases, defendants will have to attempt to secure a stipulation for the removal of the recklessness allegations once discovery has been completed.  If such a stipulation is not forthcoming, defendants will have to file a motion for summary judgment asserting that the plaintiff has not produced facts during discovery to support that type of claim.]

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