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).

Liability for Skiing Accident Found to be Barred by Signed Waiver and Under the Skier's Responsibility Act

The case of Lin v. Shawnee Mountain Ski Resort, No. 4031-CV-2022 (C.P. Monroe Co. Dec. 11, 2024 Williamson, J.), the court granted the Defendant ski resort’s Motion for Summary Judgment in a case arising out of a skiing accident at the resort.

According to the Opinion, the Plaintiff was relatively a novice at skiing.  As part of the ski rental process at the resort, the Plaintiff executed a release or waiver document.

After some time on the “bunny slope,” the Plaintiff and her friend went to ski on other trails on the mountain. 

At some point during the day, when coming down one of the other trails, the Plaintiff came all the way down the hill and was unable to slow or stop allegedly due to icy conditions and missed crashing into the ski racks situated outside of the lodge but skied into the lodge itself. The Plaintiff, who was wearing a helmet, went head first through a glass window of the lodge. 

The Plaintiff alleges that, as a result of the collision, she suffered a broken pelvis and multiple stomach lacerations which have resulted in considerable scarring.

The Plaintiff sued on various theories of negligence. In part, the Plaintiff alleged that the lodge was located too close to the bottom of the trail, that the Defendants failed to provide some sort of stopping mechanism in front of the ski racks in the lodge, and that the Defendants should have installed safety glass in the lodge's windows. The Plaintiff additionally alleged that the trail she came down was mislabeled as a easier or beginner's slope.

The Defendants filed a Motion for Summary Judgment asserting that the Plaintiff’s inability to stop and result an accident where inherent risks of skiing which is deemed to be an assumed risk under the Pennsylvania Skier’s Responsibility Act.

In the alternative, the Defendants alleged that the Plaintiff's claims were barred by the release that the Plaintiff signed at the time she rented the ski equipment.

The Defendants also requested summary judgment on the punitive damages claims asserted.

Judge David J. Williamson of the Monroe County Court of Common Pleas granted the Defendants’ Motion for Summary Judgment, holding in pertinent part, that the Plaintiff’s negligence claims were barred by both the Skier’s Responsibility Act and the liability waiver that the Plaintiff had signed before commencing her skiing activities.

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


Source: The Legal Intelligencer Common Pleas Case Alert, www.Law.com (Jan. 29, 2025).

Judge Mannion of Federal Middle District Addresses Motion for Summary Judgment in a Skiing Accident Case

In the case of Mattei v. Tuthill Corp., No. 3:19-CV-2196 (M.D. Pa. Feb. 28, 2023 Mannion, J.), the court denied a Defendant’s Motion for Summary Judgment in a case arising out of a skiing accident. 

As noted by Judge Malachy E. Mannion at the outset of his Opinion, this case raised questions as to the inherent risks of downhill skiing, the enforceability of releases on lift tickets, and the legal sufficiency of the facts alleged by the Plaintiff relative to the Defendant's alleged gross negligence and recklessness.

The court reviewed the terms of the Pennsylvania Skier's Responsibility Act and ruled that the “no duty” rule relieving ski resorts of liability under the Act for common and inherent risk attendant with skiing was in dispute in this matter because it was unclear as to whether the Plaintiff was skiing on or off a designated trail at the Blue Mountain Resort in the Poconos.  

Judge Malachy E. Mannion additionally noted that there was other conflicting evidence as to whether the hazard at issue was perceptible to skiers.

The court found that whether a certain danger is perceptible to skiers is generally relevant to the question of whether that risk is inherent to downhill skiing.

The court additionally found that the Defendant had not proven that the Plaintiff’s negligence claims were barred by the exculpatory release contained on the back of the lift ticket.

Judge Mannion noted that, in this case, the lift ticket was an exemplar. There was no other proof offered beyond a disputed inference that the Plaintiff actually received a lift ticket.

Given that the court also found that there were genuine issues of material fact relative to the Defendant’s alleged gross negligence and recklessness involving an alleged conscious disregard of the risk of harm allegedly posed by an alleged five foot ditch on the ski trail, summary judgment was denied.

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

Source of image:  Photo by Mati Mango on www.pexels.com.

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.

Exculpatory Clause in a Lease Found To Apply Only to Injuries Suffered Inside Plaintiff's Apartment And Not to Slip and Fall in Parking Lot of Complex

In the case of Lower v. Nevil, No. CV-153-2020 (C.P. Snyder Co. May 6, 2022 Sholley, P.J.), the court denied a Motion for Summary Judgment in a slip and fall case that occurred at an apartment complex.

The Plaintiff allegedly sustained injuries when she slipped and fell as she walked around her car in the parking lot of a small apartment complex at which she resided. She sued the Defendant landowner for personal injuries.

After discovery was completed, the landlord filed a Motion for Summary Judgment relying upon the hills and ridges doctrine and also asserting that an exculpatory clause in the residential lease relieved the Defendant from any liability.

The court found that issues of fact prevented the entry of summary judgment relative to the hills and ridges doctrine. 

With regard to the exculpatory clause in the lease agreement, the court rejected the Plaintiff’s claim that the lease was a contract of adhesion but accepted the Plaintiff’s argument that the exculpatory clause of the lease only applied to release the landlord from any liability for any injuries that occurred inside the specific apartment rented by the Plaintiff and not with respect to the common areas and/or parking lot where the Plaintiff actually fell. As such, the court denied summary judgment in this regard as well.

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

Source of image:  Photo by Asael Pena on www.unsplash.com.

Exculpatory Clause in Fitness Center's Membership Agreement Upheld

In the case of Milshteyn v. Fitness International, LLC, 2022 Pa. Super. 30 (Pa. Super. Feb. 18, 2022 Panella, P.J., Kunselman, J., and Stevens, P.J.E.) (Op. by Panella, P.J.), the Pennsylvania Superior Court found that the trial court properly granted summary judgment to a fitness facility in a Plaintiffs’ slip and fall action where the membership agreement signed by the Plaintiff was not found to be a contract of adhesion.

The court also found that the release in the agreement clearly foreclosed the Plaintiff from proceeding on the claim presented.

The court additionally found that the Plaintiffs’ claim for gross negligence found in an Amended Complaint constituted a wholly distinct claim from the claim presented in the original Complaint. The court noted that the Plaintiffs had attempted to add a claim of gross negligence after the expiration of the applicable statute of limitations in an effort to get around the release in the membership agreement given that a claim for gross negligence would not have been barred by the membership agreement. As such, the court stated that, in this context, the Plaintiff’s claims for gross negligence should be deemed to constitute a new cause of action.

As such, the appellate court affirmed the trial court’s entry of summary judgment.

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 8, 2022).

Photo by Max Vakhtbovych from www.pexels.com.

ADR Provision in Trampoline Park's Participation Agreement Upheld But Not Provision for Attorney's Fees

In the case of Wearing v. Lyon Tamer, LLC, d/b/a Defy Scranton, No. 20-CV-233 (C.P. Lacka. Co. Jan. 24, 2022 Nealon, J.), the court addressed the validity of an alternative dispute resolution clause contained in a participation agreement signed by the Plaintiff’s mother when the Plaintiff went to the Defendant’s trampoline park.

According to the Opinion, the Plaintiff filed this negligence action against a trampoline park operator for injuries suffered by the Plaintiff while using a trampoline as a minor allegedly without any supervision or oversight.

The Defendant trampoline park operator filed Preliminary Objections. 

With the Preliminary Objections, the Defendant sought to stay this litigation and compel the Plaintiff to submit to mediation and non-binding arbitration in compliance with the participation agreement executed by the Plaintiff’s mother as a condition for the minor to enter and use the trampoline park. 

The Defendant also sought to recover counsel fees and costs under a separate provision in the participation agreement which allowed the Defendant to recover such damages “to the extent permitted by law” in seeking to enforce the mediation and non-binding arbitration provision.

Judge Terrence R. Nealon
Lackawanna County

After reviewing the law of Pennsylvania regarding such agreements and applying the law to the terms of the participation agreement before him, Judge Nealon granted the Preliminary Objections seeking a stay of the tort action given that there was a valid agreement of the parties to participate in alternative dispute resolution. 

However, the court denied the request for attorneys’ fees and costs after finding that the provision in the participation agreement in this regard was unreasonably favorable to the trampoline park operator whose customers had no meaningful choice regarding the acceptance of that provision. The court found that that provision was unenforceable in this regard only due to this procedural and substantive unconscionability.

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

Source:  Photo by Matheus Costa on www.unsplash.com.

Pennsylvania Superior Court Addresses Validity of a Concise Statement of Matters Complained of on Appeal; Also Upholds Exculpatory Clause in a Lease

In the case of Keystone Specialty Services Co. v. Ebaugh, No. 1289 WDA 2020 (Pa. Super. Nov. 22, 2021 Olson, J., Nichols, J., and Collins, J.) (Op. by Collins, J.), the Pennsylvania Superior Court affirmed the entry of summary judgment in favor of landlord Defendants in a breach of contract and negligence action that the Plaintiff filed.

The case arose out of alleged damage to equipment and other personal property that the Plaintiff stored in a building owned by the landlord. The Plaintiff’s property allegedly sustained water damage from water flowing from a broken pipe in the building.

The landlord Defendants asserted that exculpatory provisions in the lease agreement protected the landlords from any liability exposure. The trial court entered summary judgment on the basis of the exculpatory clauses and the Plaintiff eventually appealed.

With regard to an appellate procedure issue of note, the court found fault with the Plaintiff’s sparse Concise Statement of Errors Complained of on Appeal required by Pa. R.A.P. 1925(b). The Plaintiff had responded that it was unable to discern from the lower court’s Order as to the reasons relied upon by the trial court in entering its decision.

In this regard, the Pennsylvania Superior Court noted that, if a party feels that it cannot discern the basis for the trial court’s Order sufficiently in order to identify the issues that the party intends to raise on appeal, the party is required to preface the [Rule 1925(b)] Statement with an explanation as to why the Statement has identified the errors only in general terms.  See Pa. R.A.P. 1925(b)(4)(i).

On this basis, in terms of the Plaintiff’s failures with its Concise Statement, the court found that the Plaintiff’s appeal was barred by the Doctrine of Waiver. The Pennsylvania Superior Court also went on to note that the Plaintiff’s appeal failed on the merits in any event.

In this regard, the court upheld the exculpatory clause relied upon by the Defendant. The court noted that exculpatory clauses and contracts are valid (1) where they do not contravene public policy, (2) where the clauses are between persons relating entirely to their own private affairs, and (3) where each party was a free bargaining agent to the agreement. See Op. at 9.

As such, the trial court’s entry of summary judgment was affirmed by the Pennsylvania Superior Court for these multiple reasons noted.

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

Fitness Center's Exculpatory Release Muscles Out Plaintiff's Claim

In the case of Urena v. L.A. Fitness, No. 20-964 (E.D. Pa. July 29, 2021, Schmehl, J.), Court granted summary judgment in a personal injury case arising out of an injury that occured at a fitness center.

The Court ruled that an exculpatory waiver agreement involving voluntary recreational activities is valid and enforceable. The Court found that the waiver did not implicate any public policy as private recreation does not implicate any public interest.

The Court additionally rejected the Plaintiff’s argument that the agreement was a contract of adhesion since the Plaintiff was under no compulsion to exercise at a gym.

Notably, the Court also ruled that a signed exculpatory clause can not be avoided by a signatory’s claim of an inability to understand English.

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


I send thanks to Attorney James M. Beck of the Reed Smith Law Firm from Philadelphia for bringing this case to my attention.

Source of Image:  Photo by Samuel Girven on Unsplash.com.

Pennsylvania Supreme Court Rules Bike Race Exculpatory Release Invalid as to Municipality's Liability

In the case of Degliomini v. City of Philadelphia, No. 5 EAP 2020 (Pa. June 22, 2021) (Majority Op. by Doughterty, J.), Pennsylvania Supreme Court, in a 4-3 decision reversed a Commonwealth Court decision and ruled that an exculpatory release signed by a participant in a charity bike ride through the City of Philadelphia did not serve to immunize the city for allegedly breaching its duty to repair and maintain the public streets. 

According to the Opinion, this incident arose out of a twenty mile bike ride through the streets of Philadelphia. The injured party allegedly crashed into an unmarked and unbarricaded sink hole and was severely injured as a result.

Pennsylvania Supreme Court ruled that, because the release signed by the injured party would allow the city to give itself immunity for the claims presented, the release was found to prohibit what the Tort Claims Act expressly allowed and would impermissibly achieve for the city what Pennsylvania law plainly prohibited.

The Court ruled that the definitive policy to remove the shield of immunity for a municipality’s negligence in the maintenance or repair of dangerous street conditions for which a municipality has proper notice could not be set aside and rendered unenforceable by a contract between individuals. 

As such, the Majority of the Supreme Court found that the release at issue was invalid in this case because it contravened public policy.

Anyone wishing to review a copy of the Majority's decision may click this LINK.  The Dissenting Opinion by Chief Justice Baer can be viewed HERE.


Source: Article: “Pa. Justices: Release Can’t Shield Phila. From Suit Over Cyclist’s Crash,” Pennsylvania Law Weekly (June 29, 2021).

Source of image:  Photo by Quino Al on unsplash.com

Fitness Club's Exculpatory Clause Upheld to Defeat Plaintiff's Personal Injury Claim

In the case of Cifarelli v. RKKB Capital Partners Corp., No. 9626-CV-2019 (C.P. Monroe Co. March 1, 2021 Zulick, J.), the court granted a Defendant fitness facility’s Motion for Summary Judgment in a matter in which a Plaintiff fell while using a treadmill.

According to the Opinion, the Plaintiff was using a treadmill when the treadmill mat slipped off its track, causing the Plaintiff to fall and suffer injuries.   

The Plaintiff filed suit against the gym. In its Answer and New Matter, the gym raised a defense of a release. 

According to the Opinion, the Plaintiff had signed a membership agreement in which she agreed to release the fitness center from liability for injuries she suffered on the premises due to negligence.   

Judge Zulick noted that, in a number of cases involving fitness club agreements, the Pennsylvania appellate courts have consistently held that exculpatory provisions violate public policy only when they involved a matter of interest to the public or the state.   The court cited examples such as cases involving employer/employee relationships, public utilities, common carriers, and hospital. 

The court noted that the Plaintiff had signed a membership agreement for a gym or health club.  The court noted that the Plaintiff was free to refuse to sign the release and to look elsewhere for fitness activities.   

By signing the agreement, the Plaintiff agreed that she understood that she was giving up important legal rights and that the contract would be a full release of liability for injury.   

The court also rejected the Plaintiff’s attempt to get around the release by arguing reckless conduct.   While the court agreed that an attempt in a release to avoid liability for reckless conduct is not enforcement as a violation of public policy in Pennsylvania, the case at hand did not contain facts supporting a claim of reckless conduct.  

As such, the Defendant’s Motion for Summary Judgment was granted.   

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

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (March 23, 2021). 

I also send thanks to Attorney Daniel D. Stofko of the Scranton, PA office of Margolis Edelstein for bringing this case to my attention.

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Skiing Accident Case Survives Summary Judgment

In the case of Kozlowski v. JFBB Ski Areas, Inc., No. 3:18-cv-353 (M.D. Pa. Dec. 12, 2019 Mariani, J.), the court addressed a Motion for Summary Judgment filed on behalf of a Defendant in a case arising out of a skiing accident that occurred at the Big Boulder Ski Resort. The Plaintiff filed a Complaint alleging a claim of negligence and a count in gross negligence/recklessness.

In his Complaint, the Plaintiff alleged that he was skiing at Big Boulder ski resort and, as it came to an intersection of trails, he followed tracks which led to an embankment at the edge of a catwalk. The Plaintiff additionally alleged that, as he skied down the embankment, he suddenly and unexpectedly collided with partially exposed snowmaking pipes which alleged could not be seen from a reasonable safe distance in the area where he was skiing. The Plaintiff alleges injuries as a result.

Before the court was a Motion for Summary Judgment by the Defendant asserting that the Plaintiff’s claims were barred by the Pennsylvania Skier’s Responsibility Act, the common law construing that act, and the release found on Big Boulder’s ski lift ticket.

The court denied the motion on various grounds.

Relative to the defense claim that the Plaintiff’s negligence count was barred by the assumption of risk doctrine as bound under the Skier’s Responsibility Act, the court noted that the Defendant had not established, as a matter of law, that the risk at issue (colliding with hidden snowmaking pipes) is inherent in the sport of downhill skiing.

On the claims of gross negligence and/or recklessness, the court decided that judgment could not be entered on the current record as the case was not entirely free from doubt. As such, the court allowed this issue to go to the jury. 

Relative to the validity of the Release language contained on the Big Boulder lift ticket, the court noted that, since it had ruled that the question of gross negligence and/or recklessness could not be determined that this stayed the proceeding, the validity of the lift ticket release provision, and whether it applied to claims of gross negligence and recklessness, also could not be determined on the current record before the court. 

For these reasons, the court denied the Motion for Summary Judgment filed by the Defendant.

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

Pennsylvania Supreme Court Holds That Exculpatory Release Invalid as to Claims of Gross Negligence and Recklessness

The Pennsylvania Supreme Court affirmed the Pennsylvania Superior Court’s decision and ruled in the case of Feleccia v. Lackawanna College, 75 MAP 2017 (Pa. Aug. 20, 2019)(Op. by Dougherty, J.)(Wecht, J., Concurring and Dissenting)(Saylor, J., Concurring and Dissenting), that a waiver of liability in a release form is unenforceable with regards to claims of gross negligence and recklessness.

The case arose out of injuries sustained by two university football players during practice.

More specific to the facts at hand before it, the Court held that a university had a special relationship with its student athletes such that the university "had a duty to provide duly licensed athletic trainers for the purpose of rendering treatment to its student athletes participating in athletic events."

The Majority Opinion by Justice can be viewed HERE

Justice Wecht's Concurring and Dissenting Opinion can be viewed at this LINK.

Chief Justice Saylor's Concurring and Dissenting Opinion can be viewed HERE.


I send thanks to Attorney Paul Oven of the Moosic, PA office of the law firm of Dougherty, Leventhal & Price for bringing this case to my attention.

Pennsylvania Supreme Court Splits Evenly on Impact of Waiver of Liability Form

Tort Talkers may recall the case of Valentino v. Philadelphia Triathlon, 150 A.3d 485 (Pa. Super. 2016), in which the Superior Court ruled that a waiver form served to prevent a widow from suing for the death of her husband who died competing in a triathlon.

The prior Tort Talk posts on this case can be viewed HERE.

On June 18, 2019, the Pennsylvania Supreme Court issued a Per Curiam Order affirming the Pennsylvania Superior Court"s decision upholding the waiver.  The Pennsylvania Supreme Court was evenly split on the issue with Justice Wecht not participating.  As such, by operation of law, the Superior Court decision stands.

Here is a LINK to the Pennsylvania Supreme Court's Per Curiam Order.

Justice Baer's Concurring Opinion can be viewed HERE.

Justice Donohue's Dissenting Opinion can be viewed HERE,

Justice Dougherty's Dissenting Opinion can be viewed HERE.

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.

Waiver Form Found to Support Summary Judgment in Off-Road Riding Case

In the case of Scott-Moncieff v. Lost Trails, LLC, 3:16-CV-1105 (M.D. Pa. Aug. 29, 2018 Mehalchick, Mag. J.), Federal Middle District Magistrate Judge Karoline Mehalchick granted summary judgment in favor of the Defendant on the basis of a Release signed by the Plaintiff prior to engaging in off-road riding activities.  

The court found that the Plaintiff’s Release or Waiver, which was signed before engaging in the off-road riding, was valid and served to preclude the Plaintiff’s cause of action.  

The court found that, since the activities involved were purely private, the Release did not contravene any public policy interest.   The court additionally noted that Releases involved in voluntary sporting an recreational activities are not contracts of adhesion.  

 The court additionally noted that, even though the Plaintiff did not sign a waiver on the date of the injury, the Plaintiff had previously signed a waiver while using the same facility, and that waiver was clearly and unequivocally binding for “all time thereafter.”  

Judge Karoline Mehalchick
U.S. M.D.Pa. M.J.

Judge Mehalchick additionally reaffirmed the general rule of law that a person signing a contract has a duty to  read it and that, absent fraud, failure to read a signed contract is no defense.  

The court additionally found that conspicuousness was not a requirement for the validity of the document that the Plaintiff was actually required to sign.   Judge Mehalchick found that, in any event, the language at issue in the Release was indeed conspicuous in the court’s determination.  

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 and the writer of the excellent Drug and Device Law blog for bringing this case to my attention.

Release Language in Ski Waiver Form Upheld as Supporting Summary Judgment

In the case of Kibler v. Blue Knob Recreation, Inc., No. 903 WDA 2017 (Pa. Super. April 19, 2018 Ford Elliot, P.J.E., Bowes, J.; Stabile, J., concurring) (Op. by Ford Elliot, P.J.E.), the court affirmed the trial court’s entry of summary judgment after finding that the Defendant’s release or waiver form was valid and enforceable in a downhill skiing accident case.  

The Plaintiff attempted to get around the waiver form he signed by asserting that his accident was caused when the Plaintiff attempted to ski over an area where there were wheel ruts left in the snow by an ATV used by a resort employee.

The Superior Court affirmed the trial court’s finding that wheel ruts left by a vehicle operated by the Defendant’s employees are an inherent risk of downhill skiing for which the Defendant ski resort had no duty to protect skiers.   The court additionally noted that tire tracks in snow do not amount to evidence of reckless conduct on the part of the ski resort so as to get around the terms of the release signed by the Plaintiff. 

Relative to the waiver signed by the Plaintiff, the court found that the release terms did not contravene law or public policy.  

The court additionally reaffirmed the well-settled principle of law that the alleged failure to read a release is not a defense.  

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

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 Granted on Basis of Release in Membership Agreement With Gym

In the case of Hill v. LA Fitness, No. 2017 - CV - 2092 (E.D. Pa. April 10, 2018 Joyner, J.), the court granted summary judgment for the Defendant on the Plaintiff’s personal injury claim where the Plaintiff knowingly and voluntarily agreed to a valid and enforceable exculpatory waiver or release of liability. 

According to the Opinion, the Plaintiff was allegedly injured when he tripped and fell over a yoga mat mistakenly left on the floor on the basketball court at an LA Fitness facility.  

The defense filed a summary judgment asserting that the Plaintiff’s action was barred by the exculpatory waiver in the Plaintiff’s membership agreement.  

In opposition to the motion, the Plaintiff did not challenge the validity or enforceability of the agreement but instead argued that there was a genuine issue of material fact as to whether he signed the agreement.

The court noted that, although the Plaintiff testified at his deposition that his then girlfriend signed his name to the first page of the agreement, the Plaintiff otherwise admitted that he did read the agreement and initialed the remaining pages of the same.   The court found this to be evidence that the Plaintiff understood that he was entering the membership agreement, including the exculpatory waiver.  

Because the Plaintiff was found to have entered a valid enforceable exculpatory waiver, the court ruled that the Plaintiff’s negligence claims were barred by that waiver and, therefore, granted the Defendant’s Motion for Summary Judgment. 

The Court's Opinion can be viewed at this LINK.  Here is the LINK to the companion Order.

Exculpatory Clause in Gym's Membership Agreement Supports Summary Judgment in Slip and Fall Case

In the case of Vinson v. Fitness & Sports Clubs, LLC, No. 2018 Pa. Super. 113 (Pa. Super. May 4, 2018 McLaughlin, Bowes, Musmanno, J.J.) (Op. by McLaughlin, J.), the court affirmed a trial court’s entry of summary judgment based upon a Plaintiff’s execution of a recreational release. 

This case involved a plaintiff who was allegedly injured when she slipped and fell due to a wet floor mat.

The court ruled that recreational releases, such as those required by gyms are valid and are enforceable.   The court additionally noted that an alleged failure to read the release is not a valid defense. 

The court also noted that voluntary athletic or recreational activities are not matters of public or state interests.  

The Vinson court upheld the exculpatory clause contained in gym's membership agreement under which the member agreed to release the gym for any liability for any injuries sustained in the gym.

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 Reid Smith law firm for bringing this case to my attention.