Summary Judgment Granted in Amusement Ride Case

White Water Landing Log Flume - Dorney Park

In the case of Tepox v. Six Flags Entertainment Corp., No. 2024-CV-2312 (C.P. Lehigh Co. May 16, 2025 Pavlack, J.), the court granted summary judgment in a case where a Plaintiff, while at an amusement park, was hit by water while walking over a bridge built over a log flume water ride 

The court noted that the bridge was designed for people to both observe the ride and to get wet by the splash the ride creates.

The court ruled that the no-duty rule/inherent risk doctrine applicable to amusement park accidents supported the entry of summary judgment in this case. 

The court noted that spectators and patrons assume certain risks when participating in amusements such that no duty exists on the part of the Defendant to protect against those risks.

Anyone wishing to review a copy of this decision may click this LINK.

Statutory Employer Test Applied in the Context of the Provision of Professional Services

In the case of Smith v. Supportive Concepts for Families, Inc., No. 21-2038 (C.P. Berks Co. Jan. 25, 2025 Nevius, J.), the court addressed a Motion for Summary Judgment filed by a provider of outpatient psychiatric services in a case in which the Plaintiff alleged that she was assaulted by a patient during a psychiatric medical examination.

The Plaintiff was attacked when she visited a group home owned and operated by the Defendant. The Plaintiffs allege that the Defendant knew of the assailant’s violent pre-disposition but failed to adequate safeguard against harm.

In significant part, the Defendant relied upon the statutory employer defense in its Motion for Summary Judgment. The court noted that there was no dispute that, at the time of the incident, the Plaintiff was an employee of the separate entity that sent her to this facility to complete the medical examination. 

Nevertheless, the Defendant in this case was asserting immunity as a statutory employer of the Plaintiff pursuant to the five (5) part test set forth in the case of McDonald v. Levinson Steel Co., 302 Pa. 287, 153 A. 424 (Pa. 1930).

The court in this Smith case noted that the McDonald factors are under current review in the Pennsylvania Supreme Court. The court refused to speculate on whether or not the statutory employee test would survive that Supreme Court review. The court instead applied the McDonald factors to arrive at its decision to deny the Defendant’s Motion for Summary Judgment.

Notably, this court noted that the Defendant did not provide any authority for the application of the McDonald factors in the context of the provision of professional services. The court noted that the McDonald test is typically used in connection with construction cases.

The court in this Smith case also noted that, in any event, the Defendant had not offered sufficient evidence to establish that it met all of the factors of the statutory employer test.

As such, the Motion for Summary Judgment was denied.

The court additionally denied the defense arguments set forth under the assumption of the risk doctrine and relative to the alleged exculpatory release involved in the case.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (April 23, 2025).

Federal Court Addresses Exception to "No-Duty" Rule In a Slip and Fall Case

In the case of Neyman v. Sunbelt Rentals, Inc., No. 2:23-CV-00226-WSS (W.D. Pa. Dec. 13, 2024 Stickman, J.), the court denied a Defendant’s Motion for Summary Judgment in a slip and fall case.

According to the Opinion, the Plaintiff filed a lawsuit against the Defendant to recover for injuries that the Plaintiff sustained when he slipped and fell on a wet and muddy ramp while unloading a forklift from a tractor trailer.

The defense filed a Motion for Summary Judgment arguing that it had not duty to the Plaintiff because the Plaintiff knew of the dangerous conditions on the ramp and chose to voluntarily walk on the ramp and was injured as a result. Essentially, the Defendants were arguing that a “no-duty” rule arises in favor of a Defendant when a danger is known and obvious to a Plaintiff and the Plaintiff chooses to voluntarily encounter that danger.

The Plaintiffs argued that the second clause of §343A, along with comment F of that Section under the Restatement (Second) of Torts created an exception to the “no-duty” rule. The Plaintiff more specifically argued that, even if a danger is known and obvious to a Plaintiff, a Defendant may still be liable if the Defendant should expect that a business invitee will not protect themselves against the danger due to being distracted at the time of the incident.

After reviewing the law as applied to the facts presented, the court held that, although it was clear that the Plaintiff knew about the dangerous condition of the ramp based upon the Plaintiff’s testimony that the ramp was indeed muddy and wet, the court otherwise found that issues of fact remained as to whether the Defendant should have anticipated a harm to the Plaintiff despite the Plaintiff’s knowledge of the ramp conditions.

There was evidence in the case that, prior to the Plaintiff’s fall, an employee of the Defendant had slipped on the ramp. Accordingly, the court noted that a jury could reasonably determine not only that the Defendant knew that the ramp was slippery, but that its slippery condition could lead to workers falling on the ramp. The court stated that it would be up to a jury to determine whether, despite the Plaintiff’s knowledge of the dangerous condition on the ramp, the Defendant should have anticipated a harm despite such knowledge on the part of the Plaintiff or the fact that the danger was obvious.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Garrett L. Trettel and Attorney Brendan B. Lupetin of the Pittsburgh, PA law firm of Lupetin & Unatin for bringing this case to my attention.

Source of image:  Photo by Ace Cranes on www.pexels.com.

Summary Judgment Denied in Slip and Fall Case

In the case of Sanner v. Airbnb, Inc., No. 3:22-CV-00274 (M.D. Pa. March 29, 2024 Mehalchick, J.), the court denied a Motion for Summary Judgment in a wintry slip and fall case.

The court found that the hills and ridges doctrine does not apply to a localized patch of ice or to circumstances when the icy condition is allegedly created by human intervention.

In this case, the court found that whether the conditions at issue were due solely to a natural snow accumulation was a disputed fact.

Judge Karoline Mehalchick
M.D. Pa.

The court also found that allegations regarding Plaintiff’s assumption of the risk were also disputed. As such, summary judgment was denied and the case was allowed to proceed.

Anyone wishing to review a copy of this decision may click this LINK.


I thank Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Summary Judgment Granted in MVA Case Where Plaintiff Had Seat Belt Off and Defendant Driver Stopped Short

In the case of Lucykanish v. Flurer, No. 2545-CV-2022 (C.P. Monroe Co. Feb. 1, 2024 Williamson, J.), Judge David J. Williamson granted summary judgment to a Defendant driver in a motor vehicle accident case in which the Plaintiff was a passenger in that Defendant’s vehicle.

According to the Opinion, the Plaintiff was a rear seat passenger in the Defendant’s truck when another passenger dropped her cell phone in the rear footwell. The Plaintiff removed her seat belt to crawl around in the footwell to look for the phone.

At the same time, another vehicle improperly passed the Defendant’s truck on the right and then cut back into the Defendant’s lane.  In order to avoid a collision, the Defendant forcefully applied the truck’s brakes, which allegedly resulted in the Plaintiff striking her head on the truck’s center console.

After discovery, the Defendant filed a Motion for Summary Judgment arguing that the Plaintiff could not demonstrate that he acted negligently in operating his vehicle and that there was no proximate causation established by the Plaintiff with respect to the Defendant’s actions and the Plaintiff’s alleged injuries.

Judge Williamson granted the Motion for Summary Judgment and held that the Plaintiff failed to demonstrate that the Defendant acted negligently or that any alleged negligence on the part of the Defendant was a proximate cause of the Plaintiff’s injuries.

The court noted that the evidence developed during discovery confirmed that the Defendant braked his truck forcefully in order to avoid a collision with another vehicle that had improperly tried to pass the Defendant on the right and then attempted to cut back into the Defendant’s lane of travel. The court noted that Defendant driver’s actions were meant to protect the entire vehicle from a potentially serious motor vehicle accident. The court found that the Plaintiff’s alleged injury, that occurred while the Plaintiff was crawling around the floor in the back seat area, unrestrained, did not impute negligence to the Defendant when the urgent need unexpectedly arose to hit the brakes in a forceful fashion.

The Plaintiff otherwise attempted to argue that the Defendant was negligence per se by speeding in a construction zone. The court noted that this argument failed because, even if the Defendant had violated the Motor Vehicle Code as alleged by the Plaintiff, the Plaintiff had still failed to show that the Defendant’s alleged speeding was a proximate cause of the injury.

The crux of the Plaintiff’s claim was that the Defendant had braked too hard or too late. The court stated, however, that the force that one applies the brakes of a vehicle is not grounds for a finding of a negligence under circumstances of this case.

Rather, Judge Williamson noted that, here, the Plaintiff would have not been injured if she had simply stayed in her seat with her seat belt on. The court noted that the Plaintiff failed to explain why she had to crawl around the footwell of a moving vehicle, let alone one that she would later claim was driving allegedly dangerously fast.

Overall, the court emphasized that the Defendant had acted appropriately under the circumstances in order to avoid an accident. Accordingly, the court agreed with the Defendant that the Plaintiff had failed to prove negligence or that any alleged negligence on the part of the Defendant was the alleged proximate cause of the Plaintiff’s injuries.

As noted, summary judgment was granted and the case was dismissed.

Anyone wishing to review this decision may click this LINK.

Source: “The Legal Intelligencer Common Pleas Case Alert,” at Law.com (April 4, 2024).

Chief Magistrate Judge Saporito of Federal Middle District Court Reviews Assumption of Risk Doctrine

In the case of Hazen v. Woodloch Pines Resort, No. 3:21-CV-00174 (M.D. Pa. Feb. 16, 2024 Saporito, C.M.J.) Chief Magistrate Judge Joseph F. Saporito, Jr., of the Federal Middle District Court of Pennsylvania denied a Motion for Summary Judgment by a Defendant resort in a fall down case.

According to the Opinion, the Plaintiff was engaged in a corporate team building activity on an outdoor low ropes challenge course. During one of the challenges, the Plaintiff fell, along with other members of her team, to the ground below.  The Plaintiff allegedly suffered a significant ankle injury, including an ankle dislocation and fracture.

The Defendants filed a Motion for Summary arguing that the Plaintiff’s claims were barred under the assumption of risk doctrine.

Judge Saporito reviewed the current status of the Pennsylvania law on the assumption of risk doctrine. While the court found that it was undisputed that the Plaintiff was generally aware of the risk that she might fall from the balance beam during the activity she was engaged in, the court noted that awareness of a general risk does not amount to awareness of a specific risk under the assumption of the risk doctrine under Pennsylvania law. Here, the court did not find that the potential for serious injury such as a complex ankle fracture and other injuries could have been appreciated under the circumstances presented.

Moreover, the court noted that there is factual dispute as to whether the Plaintiff’s participation in the challenge course was voluntary as that term is defined under the assumption of the risk doctrine. The Plaintiff offered testimony that she felt that her participation in this team building activity was required rather than voluntary.

Accordingly, in light of the issues of fact presented, the court denied the Motion for Summary Judgment.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney James Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Source:  Photo by Thomas Couillard from www.unsplash.com.

Court Rules That But For Plaintiff Approaching and Petting Dog Uninvited, She Never Would Have Gotten Hurt

In the case of Hendrix v. Freemer, No. A.D. 53 of 2022 (C.P. Forest Co. Oct. 27, 2023 Skerda, P.J.), the court granted summary judgment in a dog bite case.

According to the Opinion, the Defendants brought their dog "Oliver," a King Charles Spaniel, to a market village and had their dog on a leash. The Plaintiff came up to pet the dog and, when the Plaintiff squatted down in front of the dog, the dog bit the Plaintiff on the face. It was noted that the Plaintiff did not ask the permission of the dog owners to pet the dog.

The court ruled that, had the Plaintiff not approached the dog uninvited and attempted to pet the dog after squatting down, the Plaintiff never would have been injured.  The court stated otherwise that the reason the Plaintiff got hurt is because she chose to approach the dog, without permission or ample notice to the dog owners, and because she chose to squat down and get close to the dog.  

The court reviewed the law of Pennsylvania that requires a Plaintiff to prove that the dog owner knew or should have known of the possible dangerous or vicious propensities of the dog, and found that the Plaintiff did not produce any evidence to meet the elements of the cause of action in this case.

As such, summary judgment was granted.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney William Wagner of the Erie, PA law firm of Marnen, Mioduszewski, Bordonaro, Wagner & Sinnott, LLC for bringing this case to my attention.

(570) 319-5899

dancummins@CumminsLaw.net

Issues of Fact Preclude Entry of Summary Judgment in Case of Slip and Fall Sustained by Ice Skater

In the case of Murphy v. Pines, No. 3:20-CV-00320 (M.D. Pa. Nov. 21, 2022 Saporito, M.J.), the court denied summary judgment after finding genuine issues of material fact existed on whether the Plaintiff, an experienced skater, was entitled to a recovery when she slipped and fell while skating on ice.  The court noted that the Plaintiff had never before skated on synthetic ice.   

In his Opinion, Judge Joseph F. Saporito, Jr., noted that, while falling while ice skating is an inherent risk of that activity, the risks of alleged damaged surfaces are not.  The court found that the issue of assumption of the risk was for the jury to decide under the conflicting facts presented in this case.   

The court also addressed the “no duty” rule.  While the court noted that the “no duty” rule precludes liability for injuries from risk that are common, frequent, expected, and inherent in a sporting activity, and while that rule can apply when the assumption of the risk doctrine does not, the court found that issues of fact in this case prevented the entry of summary judgment in favor of the Defendant.

Judge Joseph F. Saporito, Jr.
M.D. Pa.

Judge Saporito additionally addressed separate arguments raised relative to the scope and impact of the release that was signed by the Plaintiff prior to engaging in the ice skating activity at the facility.  

The court noted that the release language was boilerplate and was only located on a rental receipt.  The language was not conspicuous and was never explained to the Plaintiff or even brought to the Plaintiff’s attention.   As such, given these issues, the court ruled that the issue of whether the Release was effective to preclude a recovery would be left for the jury’s consideration. 

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention. 

Source of top image: Photo by Efrem Efre on www.pexels.com.

Chief Judge Matthew W. Brann of Middle District Addresses Admissibility of Alleged Contributory Negligence of Plaintiff in Products Case

In the case of Cote v. Schnell Industries, No. 4:18-CV--1440 (M.D. Pa. Nov. 8, 2022 Brann, J.), the court addressed several issues with respect to the admissibility of alleged misconduct by a Plaintiff in a products liability case.

According to the Opinion, this case involved a machine involved in a workplace accident that nearly severed the Plaintiff's hand.

The court noted that a Plaintiff’s comparative negligence is not admissible in a strict liability action, except as a superceding cause where the Plaintiff is the sole cause of the accident. The court otherwise noted that negligence that relates to the product itself cannot be a sole cause.

Here, the court found that the Plaintiff’s conduct in putting his hand in a dangerous position in the product relates to the product and was, therefore, inadmissible to be used against the Plaintiff.

The court also noted that the Plaintiff’s conduct is not relevant to the consumer expectation or risk-utility factors applicable to a products liability action because these tests to determine a product defect are concerned with the actions of an “ordinary” person, and not any particular Plaintiff.

However, the court did note that evidence of a Plaintiff’s voluntary assumption of the risks, misuse of a product, or highly reckless conduct is admissible to prove the issue of causation.

Chief Judge Matthew W. Brann
M.D. Pa.

Chief Judge Matthew W. Brann stated that, under Pennsylvania law, the assumption of the risk doctrine requires a knowing and voluntary exposure of oneself to a known risk. The court found that his assumption of the risk doctrine is inapplicable where a Plaintiff was required to use equipment provided by an employer.

Judge Brann additionally noted that product misuse and highly reckless conduct involve a Plaintiff’s unforeseeable, outrageous, and extraordinary use of a product. Whether a Plaintiff’s conduct meets this standard is for a jury to decide.

However, because a Plaintiff’s misuse and highly reckless conduct cannot be a sole cause of the accident, the court found the evidence of such conduct was inadmissible. 

On another issue before the Court, Judge Brann additionally noted that the Defendants could not use a Motion In Limine as a belated substitute for a Rule 702 motion relative to the competency of an expert’s opinion.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


I thank Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Judge Williamson of Monroe County Finds that Transit Authority Had No Duty Where Plaintiff Assumed Risk of Injury

In another decision out of the case of Essington v. Monroe County Transit Auth., No. 5117-CV-2020 (C.P. Monroe Co. Aug. 15, 2022 Williamson, J.), the court granted the Motion for Summary Judgment filed by the Defendant, Monroe County Transit Authority in a matter where a Plaintiff was injured after exiting a bus at a bus stop and being struck by an oncoming vehicle under nighttime conditions.

According to the Opinion, the Plaintiff alleged that the Defendant, Monroe County Transit Authority, was negligent relative to the selection of the location of the bus stop which was allegedly inherently dangerous.

The court applied the Sovereign Immunity Act, 42 Pa. C.S.A. §8542.

Under the Sovereign Immunity Act, local governmental agencies are not liable for damages unless (1) the damages would be recoverable under common law, and (2) the injury was caused by a negligent act of the local government of its agent that fell within one of the enumerated exceptions to tort immunity. 

One of the exceptions under 42 Pa. C.S.A. §8542(b)(1) includes accidents caused by the operation of any motor vehicle.

The Plaintiff based their claims for a recovery based upon an allegation that the location of the bus stop was dangerous and that the harm to the Plaintiff was a foreseeable risk.

The court agreed that the stopping of the bus at the bus stop for passengers to disembark was part of the operation of the bus that was owned by the governmental agency.

However, the court found that, based upon the evidence presented, the acts or omissions by the Monroe County Transit Authority were not the proximate cause of the decedent’s harm. While the Defendant chose the location of the bus stop, that Defendant was not responsible for the narrow shoulder, the lack of guardrails, sidewalks, lights, bus shelters, or cut-a-ways in the roadway for passengers to the cross the street.

Rather, the road was owned by PennDOT and the Monroe County Transit Authority had no control over the conditions of the roadway.

The court also noted that the record before the court also showed the decedent was wearing dark clothing during this nighttime accident and was also wearing headphones plugged into his phone when he was crossing street. 

As such, the court found that the allegedly defective conditions at the site did not cause the Plaintiff’s death. The court noted that wider shoulders, guardrails, sidewalks, lighting, a bus shelter, or a road cut-a-way would not have protected the decedent from the accident. 

Rather, the court stated, the accident occurred, according to the facts gathered during discovery, because the decedent was distracted and crossed the road in front of an oncoming vehicle under nighttime conditions. The court also noted that there was no evidence that better lighting in the area would have prevented the accident.

The court also agreed with the Defendant, Monroe County Transit Authority, that the bus stop was generally safe. There was no prior notice of any other accidents at the stop or that the bus stop was dangerous in any way.

The court additionally noted that the decedent did not have to get off at this stop. There were a total of five (5) stops in the area where the Plaintiff had disembarked. As such, the court found that the decedent assumed the risk of getting off at this particular stop, when he could have gotten off at other stops. As such, the court found that any duty that the Defendant, Monroe County Transit Authority may have had in this matter was extinguished by the actions of the decedent and his assumption of the risk of his injury.

As such, for these multiple reasons, Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Motion for Summary Judgment filed by the Defendant, Monroe County Transit Authority.

Anyone wishing to review a copy of this case may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Oct. 3, 2022).

Source of image: Photo by Darren Viollet from www.pexels.com.

Summary Judgment Granted in Monroe County Slip and Fall Matter

 

In the case of Kelly v. Northampton County Area Comm. College, No. 965-CV-2019 (Monroe C.P. Nov. 5, 2020 Williamson, J.), the court granted summary judgment in a case where the Plaintiff alleged personal injuries from a slip and fall event following a snowstorm.

According to the court's Opinion, the Plaintiff was a student at the college.  After a snowstorm fell, classes were delayed the following day.  The Plaintiff was apparently not aware of the delay and showed up for class at 8 a.m.

It was noted that there were no other cars in the parking lot and there was snow removal work being completed on the walkways.  Nevertheless, the Plaintiff still ventured out of her car and began to shuffle through a walkway that was not cleared.  The Plaintiff then slipped and fell.

Judge Williamson reviewed the facts presented along with a video of the incident and, in the end, entered summary judgment.

The court ruled that the Defendant's actions in attempting to clear the snow were reasonable.  The court also found that the defense was entitled to summary judgment under the Hills and Ridges Doctrine as there was no evidence of any hills or ridges in the area in question.  

The court additionally found that summary judgment was warranted under a finding that the Plaintiff assumed the risk of slipping, falling, and being injured under the circumstances.

Anyone wishing to to review this decision may click this LINK

I send thanks to Attorney Jason Banonis of the Allentown office of Marshall, Dennehey for bringing this case to my attention.

Summary Judgment Granted in Snow Tubing Case Based on No-Duty Rule

In the case of Hamber v. CBH2O, LP t/a Camelback Mountain Resort, No. 8778-CV-2017 (C.P. Monroe Co. Jan. 9, 2020 Harlacher Sibum, J.), the court granted the Defendant’s Motion for Summary Judgment and dismissed the Complaint with prejudiced in a case involving allegations of injuries allegedly sustained by the Plaintiff while snowtubing at Camelback Mountain Resort.

The Plaintiff alleged that, while nearing the end of a snow tube run, his tube came into contact with a deceleration mat and became airborne, causing the Plaintiff to be ejected from the snow tube and to land on his neck in an adjacent snow tubing lane. The Plaintiff alleges that the accident was caused by the improper placement of the deceleration mat.

The court ruled that the use of a deceleration mat was directly related and inherent to the sport of snow tubing as it would be a common, frequent and expected part of the activity to encounter some decelerating agent at the end of the run.

Given that contact with the deceleration mat was an inherent part of the snow tubing activity, and given that the risk of being thrown from the snow tube as an inherent part of snow tubing, the court held that the Defendant had no duty to protect the Plaintiff under Pennsylvania law from contact with the deceleration mat or the general risk of being thrown from the tube.

As such, the court found that the Plaintiff’s negligent claim was barred under the “no-duty” doctrine.

Judge Harlacher Sibum more specifically stated that, under Pennsylvania law, “the assumption of 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 place of amusement has no duty to protect the user from any hazards inherent in the activity.” In this regard, the court quoted the case of Chepkevich v. Hidden Valley Resort, LP., 2 A.3d 1174, 1186 (Pa. 2010).

The court further stated, again citing Chepkevich, that “where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant… and there can be no recovery based on allegations of negligence.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Feb. 5, 2020).

Latest Appellate Decision on Defamation-Type Claims

In the case of Meyers v. Certified Guar. Co. LLC, 2019 Pa. Super. 316 (Pa. Super. Oct. 18, 2019 Murray, J., Strassburger, J., and Pelligrini, J.) (Op. by Pellegrini, J.), the Pennsylvania Superior Court ruled that a trial court erred in dismissing a Plaintiff’s claim for defamation and related torts.

According to the Opinion, the Plaintiffs were in the profession of restoring comic books and the Defendant company graded and certified comic books for valuation purposes.

This decision is notable as providing the Pennsylvania Superior Court’s latest review on Pennsylvania law pertaining to claims such as defamation, false light, tortious interference with a contract, and civil conspiracy claims.

The decision is also notable in that Pennsylvania Superior Court held that Pennsylvania did not recognize the assumption of risk doctrine as a defense to a false light claim.

In the end, the Superior Court ruled that the trial court erred in granting summary judgment on the defamation claims presented as there was evidence of communications by the Defendant that were disclosed to third parties.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 5, 2019).

Assumption of Risk Doctrine Supports Summary Judgment in Dirt Bike Accident case

In the case of Hawkins v. Switchback Mx., No. 2:16-CV-1719 (W.D. Pa. Sept. 12, 2018 Connor, J.), the court granted summary judgment in favor of a Defendant after ruling, by statute, that an operator of an off-road vehicle riding area has no duty to protect the riders from the well-known risks inherent to the activity, such as collisions and falls.  

According to the Opinion, the Plaintiff injured himself when he made an unsuccessful jump on his dirt bike on an indoor track.  The Plaintiff was noted to have a decade of experience.

This court also affirmed the continuing validity of the assumption of risk doctrine by finding that the Plaintiff’s participation in this sport constituted an assumption of the risks involved as a matter of law. 

The court noted that the Plaintiff in this matter was experienced in the sport of dirt bike racing and was well aware that such activity had a risk of serious injury or death.  The court additionally reaffirmed the rule that a minor is capable of assuming the risk of a dangerous activity in certain circumstances.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order in the case can be viewed HERE.

I send thanks to Attorney James M. Beck, of the Philadelphia office of the Reed Smith law firm and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

Assumption of Risk Doctrine Valid and Can Support Entry of Summary Judgment (But Summary Judgment Denied Here)

In his recent decision in the case of Smerdon v. GEICO, No. 4:16-cv-02122 (M.D. Pa. Sept. 21, 2018 Brann, J.), the court granted in part and denied in part a Motion for Summary Judgment filed by Defendant GEICO, and granted a Motion for Partial Summary Judgment by the Plaintiffs in a Post-Koken uninsured motorist matter.

According to the Opinion, the Plaintiff was shopping at a Wal-Mart in Mansfield, Tioga County, Pennsylvania when a robber demanded cash from a customer service employee.   The Plaintiff and several others chased the robber out into the parking lot and towards the robber’s car, which the robber had left running.  

While these individuals scuffled with the robber, the Plaintiff entered the passenger side of the vehicle and attempted to remove the keys from the ignition.  The robber put the vehicle in drive, stepped on the gas, and the Plaintiff was injured by the vehicle as a result.  

As the robber had no car insurance, the Plaintiff pursued an uninsured motorist claim against GEICO.  

Under the GEICO uninsured motorist provisions of the policy, it was provided that the Plaintiff must prove that she was “legally entitled to recover” from the operator of an uninsured motor vehicle in order to recover UM benefits.   

The Plaintiff filed a Complaint against GEICO alleging breach of contract and bad faith.  Under the breach of contract claim, the Plaintiff sought a declaratory judgment requiring GEICO to cover her for uninsured motorist coverage.  The Plaintiff filed a bad faith count seeking damages, arguing that GEICO’s handling of her claim amounted to bad faith under 42 Pa. C.S.A. §8371.   

A main issue before the court was whether the assumption of risk doctrine operated as a total bar to the Plaintiff’s recovery such that she was not "legally entitled to recover" against the uninsured operator of the vehicle that injured her.  

Judge Matthew W. Brann
M.D. Pa.

In his Opinion, Judge Brann reaffirmed the continuing validity of the assumption of risk defense under Pennsylvania law.   The court noted that, “[a]lthough disfavored and narrowly applied, assumption of the risk remains a viable affirmative defense under Pennsylvania law.”   See Op. at p. 7 [citations omitted].

Notably, the court additionally confirmed that summary judgment can be granted on the assumption of risk doctrine as a matter of law.   Id.  

In this regard, Judge Brann stated that, “to grant summary judgment on assumption of the risk as a matter of law, the court must – conclusively and beyond question – find that the Plaintiff was subjectively aware of a specific risk, voluntarily accepted it and acted in spite of that risk, and suffered harm contemplated by that specific risk.”  Id.  citing with “See, e.g.” signal, Zeidman v. Fisher, 980 A.2d 637, 641, Pa. Super. 2009).

Here, the court denied GEICO’s motion and granted the Plaintiff’s motion on the assumption of risk issue.   In this regard, Judge Brann found that there were no facts that demonstrated that the Plaintiff was aware of the particular danger from which she was ultimately injured.  

More specifically, there were no facts to establish that the Plaintiff was specifically aware of the risks that the robber would run her over with his vehicle or otherwise cause her to fall down and strike her head on the pavement.   

The Court noted that awareness of a general risk of harm does not amount to an awareness of a specific risk as required by the assumption of risk doctrine.   

The court also held that, under the assumption of risk doctrine, a court should look at what a Plaintiff actually knew, appreciated, and assumed in terms of the risks, rather than what a Plaintiff should have known under the circumstances.   Here, the court found that there were no facts to demonstrate that the Plaintiff was subjectively aware of the danger that would eventually befall her.  

Judge Brann also found that there were no circumstances where the risk of harm was so obvious with this case in that the Plaintiff implied relieved the robber from exercising due care for the Plaintiff’s safety.   

Accordingly, based upon the above factors, the court concluded that the assumption of risk doctrine did not serve to bar the Plaintiff’s claims.  

 

The court also added that, to the extent that GEICO questions the reasonableness of the Plaintiff’s actions at trial, that is an inquiry that should be resolved through comparative negligence principles and not assumption of the risk principles.  The court noted that whether the Plaintiff acted reasonably under the circumstances remains an issue for the jury to decide.   

On the separate bad faith claim, GEICO asserted that it did not act in bad faith because it had a reasonable basis to assert the assumption of the risk doctrine as an affirmative defense and given that GEICO did not unreasonably delay the matter in evaluating the case presented.  

After reviewing the law of bad faith under §8371, Judge Brann held that the Plaintiff cannot sustain her burden of proof on the bad faith claim.   The court found that GEICO had a reasonable basis to question coverage because the assumption of risk doctrine remains a valid defense under Pennsylvania law.   

The Court found that the fact that GEICO ultimately erroneously relied upon that doctrine in this case, did not advance the Plaintiff’s bad faith claim because the presence or absence of bad faith does not turn on the legal correctness of the basis for a carrier’s denial of an insured’s claim.   

The court additionally noted that, even if it was assumed that GEICO lacked a reasonable basis to rely upon the assumption of risk doctrine as an affirmative defense, the Plaintiff still failed to present clear and convincing evidence that GEICO knew or recklessly disregarded that lack of a reasonable basis as required by bad faith liability.   

Judge Brann reiterated that, under the bad faith statute, the Plaintiff’s burden of proof is “substantial: ‘Bad faith must be proven by clear and convincing evidence and not merely insinuated.  This heightened standard requires evidence so clear, direct, weighty, and convincing as to enable a clear conviction, without hesitation, about whether or not the Defendants acted in bad faith.’”   [citations omitted].  

The court additionally found that the Plaintiff could not show that GEICO unreasonably delayed in the handling of her claim as the parties communicated with each other over several months in an effort to resolve the case.   Judge Brann also noted that, by the time the Plaintiff filed her Complaint, she had still not produced certain documentation, including the police report, requested by the carrier.   As such, the court found that any delay incurred in GEICO’s resolution of Plaintiff’s claims cannot be construed as unreasonable.  

In the end, the court noted that, because no reasonable jury could find in the Plaintiff’s favor, GEICO’s Motion for Summary Judgment on the bad faith claim was granted. 

 

Anyone wishing to review a copy of this decision may click this LINK.  Here is a LINK to the companion Order of Court.

Assumption of Risk Found to Bar Trip and Fall Plaintiff's Recovery

In the case of Sycalik v. Hoover, No. 2016-1227-CD (C.P. Clearfield Co. April 16, 2018 Ammerman, P.J.), the court granted summary judgments filed by the Defendants in a trip and fall case after finding that the Plaintiff had voluntarily assumed the risk of her own injuries.  

According to the Opinion, the Plaintiff tripped and fell near the bottom of the steps to the outside portion of the property.   There was no dispute in the record that the bottom portion of the steps to the property, along with the berm at the bottom and adjacent to the road, were damaged.  

However, the record also established that the Plaintiff was very familiar with the premises having lived there for many years in the past and given that her father currently resided in the home for the past ten (10) years such that the Plaintiff visited the home “thousands” of times since her childhood. The court noted that this meant that she had ascended and descended the front steps thousands of times as well as the steps were the only entrance/exit from the home.  

As such, the record confirmed that the Plaintiff knew that the bottom step was damaged and problematic and that the Plaintiff had discussed the damaged step with the persons who lived on the premises.  It was also noted that the Plaintiff confirmed at her deposition that she had a habit of stepping to the left of the last damaged step, onto a grassy slope, in order to avoid the step.  

According to the Opinion, on the date of the Plaintiff’s injury, the Plaintiff had stepped to the left as usual, but missed the spot where she would usually step and instead caught her left foot on the corner of the last step, as a result of which she was caused to fall.  

Turning to the law, the court referred to the §342 of the Restatement (Second) of Torts which covers the liability of a possessor of land towards a licensee and confirms that liability applies if the possessor of land knew of the condition and realized that it involved an unreasonable risk of harm that is likely to be undiscoverable and fails to make the condition safe or provide adequate warning. 

The Restatement also indicates that, in order for liability to apply, it must be established that the licensee did not know or have reason to know of the condition and the risk involved.  

Relying on the case of Carrender v. Fitterer, 469 A.2d 120, 126 (Pa. 1983), the court in Sycalik applied the assumption of risk doctrine to bar the Plaintiff’s recovery.  

The court also rejected the Plaintiff’s assertion that the assumption of risk cases were distinguishable because the Plaintiff had no alternative route.  

The Sycalik court additionally noted that Pennsylvania law also establishes that, when a Plaintiff voluntarily chooses to walk upon an area not intended to be traversed, such as a grassy slope, the Plaintiff has not stated a valid cause of action.   By way of an example, the court cited to the case of Gilligan v. Villanova University, 584 A.2d 1005, 1008 (Pa. Super. 1991), in which judgment was entered against a Plaintiff who fell when the Plaintiff chose to walk over a grassy area instead of the nearby sidewalk..   

Given that there were no genuine issues of material fact and given that the court found that the Plaintiff had assumed the risk of her injury, summary judgment was granted. in this Sycalik case. 

 

Anyone wishing to read this decision, may click this LINK.

I send thanks to Attorney Thomas McDonnell of the Pittsburgh law firm of Summers, McDonnell, Hudock, Guthrie & Rauch for bringing this case to my attention.

Pennsylvania Supreme Court Agrees to Address Issue of Duty of Care Owed to College Athletes

According to an article in today's Legal Intelligencer by Max Mitchell, the Pennsylvania Supreme Court issued an Order on November 29, 2017 agreeing to hear an appeal in the case of Feleccia v. Lackawanna College, No. 359 MAL 2017 (Pa. 2017), which involved the issue of what standards colleges have to adhere to in order to meet their duty of care towards student-athletes engaged in college sports.

The Feleccia case arose out injuries to two college students at a pre-season football practice. 

At the trial court level in Lackawanna County, Judge James A. Gibbons ruled on a motion for summary judgment that waivers of liability executed by the athletes barred their recovery.  The trial court also ruled that the student-athletes had assumed the risk of their own injuries in playing college football.  Here is a LINK to the Tort Talk post on the trial court decision.

The Pennsylvania Superior Court reversed after finding that issues of fact precluded the entry of summary judgment.  The Tort Talk post on that decision can be viewed HERE

The Pennsylvania Supreme Court noted that the more specific issues presented by the case involved whether colleges are required to have medical personnel on hand at athletic events, and whether clauses releasing the school from any and all liability is enforceable.

The Supreme Court's Order granting the appeal and stating the issue can be viewed HERE.

Source:  "Justices Take Up Case on Colleges' Duty of Care to Student-Athletes," by Max Mitchell of the Legal Intelligencer (Dec. 5, 2017).

Pennsylvania Superior Court Addresses Waiver Form and Assumption of Risk Defense in Context of College Football Injuries

In its recent decision in the case of Feleccia v. Lackawanna College, No. 2017 Pa.Super. 44 (Pa.Super. Feb. 24, 2017 Ford Elliott, P.J.E., Shogan, J., and Stevens, P.J.E.)(Op. by Shogan, J.), the Pennsylvania Superior Court was faced with the issue whether two junior college students who were injured at a preseason football practice were barred from recovering against the college because both signed waivers of liability prior to their injuries.

The Superior Court reversed the trial court's entry of summary judgment.  With regards to the waiver form, the appellate court found that issues of fact precluded the entry of summary judgment.  The court noted, in part, that issues of fact on whether the defendants had acted with gross negligence or recklessly under the case presented raised a question of whether the waiver form was sufficient to preclude a finding of liability against the defendants.

The appellate court also recognized the continuing validity of the assumption of risk defense under Pennsylvania law but found that issues of fact precluded the entry of summary judgment under that doctrine as well.

Anyone wishing to review this decision online may click this LINK.

I send thanks to Attorney Andrew Motel for bringing this decision to my attention. 

Pennsylvania Superior Court Rules Jury Cannot Award Damages That Were Neither Sought or Proven

In the case of Stapas v. Giant Eagle, Inc., 2016 Pa. Super. 303 (Pa. Super. Dec. 23, 2016 Stabile, J. Bowes, J. Musmanno, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court reversed, in part, the trial court’s denial of post-trial motions in a personal injury matter arising out of a shooting incident. 

Of note was the fact that the court found that the amount of $1.3 million dollars awarded the Plaintiff for future income loss was not supported by the evidence and was not even sought by the Plaintiff.  As such, the court ruled, under the rationale that a verdict must bear a reasonable resemblance to the proven damages, that a jury cannot award damages that were neither sought nor proven.   In so ruling, the court also stated that, even though the jury was not required to itemize its award of damages, it chose to do so, and those findings revealed the unsupported award.   

This decision is also notable in the Superior Court’s decision that the brief mention of the Plaintiff’s lack of health insurance did not require a new trial.  The court noted that this testimony was immediately stricken by the trial court.   The Superior Court also reasoned that the prohibition against the mentioning of insurance in civil litigation matters under Pa. R.E. 411 generally applies to a Defendant’s possession of liability insurance.  

The Stapas court also addressed the assumption of risk defense raised in this matter and stated that getting into a fight should not be considered the assumption of the risk of being shot.   The court emphasized that, in the case before it, the Plaintiff did not know that his attacker was armed.  

 The court returned the case to the trial court for a new trial on damages only.  

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.    

Summary Judgment Denied in Lycoming County Slip and Fall Case

In a recent decision out of the Lycoming County Court of Common Pleas in the case of Goldy v. Woodlands Bank, No. 15-01334 (C.P. Lycoming Co. May 31, 2016 Gray, J.), Judge Richard A. Gray denied a landowner Defendant’s Motion for Summary Judgment in a trip and fall case.  

Judge Richard A. Gray
Lycoming County

 

The landowner initially asserted that the Plaintiff assumed the risk by walking over an allegedly dangerous condition that the Plaintiff had previously encountered.  The landowner Defendant also argued that it was entitled to summary judgment given that the Plaintiff was unable to state exactly what caused her to fall.  

The court denied the motion after finding issues of fact precluded the entry of summary judgment.  

 

Anyone wishing to review a copy of this decision may click this LINK.