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).

Plaintiff Found to Have Released Personal Injury By Signing a Business Termination Agreement

In the case of Werner v. 1281 King Associates, LLC, No. 1725 MDA 2023 (Pa. Super. Nov. 13, 2024 Panella, P.J.E., Lane, J., and Stevens, P.J.E.) (Op. by Stevens, P.J.E.), the court affirmed a trial court’s sustaining of Preliminary Objections by Defendants based upon a claim that the Plaintiffs had released the Defendants from liability in this tort litigation under an agreement that the Plaintiff had executed which terminated the parties’ business relationship.

According to the Opinion, the Plaintiffs filed a negligence action against the Defendants based upon injuries sustained by the Plaintiff at a property owned by the Defendants. The Plaintiff was injured when the leg of his pants caught on a jagged edge of a ramp provided for delivery drivers and caused him to fall and suffer a hip fracture which required surgery.

According to the Opinion, prior to the accident, the Plaintiff had entered into an independent distributor agreement in which the Plaintiff was designated as the exclusive distributor for the Defendants’ products in a particular territory.

After the accident, the parties entered into a termination, release, consent, and arbitration agreement that allowed the Plaintiff to assign his distribution rights to another party in return for the termination of his distribution agreement.

That termination agreement contained a comprehensive release clause that provided that the Plaintiff release the Defendants “from any and all actions, causes of action, claims… and compensation of any nature whatsoever…. in any way arising out of, relating to, or having any connection with the Distributor Agreement."

When this personal injury lawsuit was filed, the Defendants filed Preliminary Objections asserting that the Plaintiff’s negligence case should be dismissed because of the release clause in the business termination agreement.

The trial court found that the release clause was clear and unambiguous and and served to preclude the Plaintiff from also pursuing the personal injury claims at issue.  The Superior Court agreed.

On a procedural level, the Superior Court noted that the Plaintiffs had waived any arguments that the Defendants had improperly raised the doctrine of release by way of Preliminary Objections by virtue of the Plaintiff’s failure to file Preliminary Objections to these Preliminary Objections.

Turning to the merits of the Defendants' request for a dismissal, the Superior Court agreed that the release language was unambiguous and that the language showed the intent of the parties to release the Defendants from any claims with any causal connection to the Distributor Agreement or the Plaintiff’s role as a distributor or party. The Superior Court noted that the Plaintiff would not have been on the property or injured but for his duties to fulfill his contractual obligations under the Distributor Agreement.

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


Source: “The Legal Intelligencer State Appellate Case Alert.” www.law.com (Dec. 3, 2024).

Third Party Release Held to Bar Companion UIM Claim

In the case of Richards v. Nationwide Prop. & Cas. Ins. Co., No. 289 of 2019, G.D. (C.P. Fay. Co. Feb. 23, 2022 George, J.), the court granted the Defendant insurance company’s Motion to Dismiss a Plaintiff’s UIM claims on the basis that the Plaintiff had signed a Release which discharged the carrier Defendant from all past, present, and future claims arising out of the accident at issue.   

According to the Opinion, the Plaintiff and her husband were in a motor vehicle accident after the Plaintiff’s husband lost control of the vehicle, struck a center divider, and then were struck by another vehicle. 

At the time of the accident, there were two (2) policies issued by Nationwide that existed for the Plaintiff’s household.   The first policy covered the Plaintiff and her husband as well as the car involved in the accident and the second policy covered other household vehicles.   

As the husband was the allegedly at-fault driver in the accident, the Plaintiffs made a third party bodily injury negligence claim against her husband under the first policy, under which the Defendant carrier paid the policy limits.   

The Plaintiff, who then assisted by counsel, signed a Release with respect to that tortfeasor Defendant in terms of the accident.

The Plaintiff then attempted to assert a claim for UIM benefits under the second Nationwide policy, claiming that there was a mutual understanding of the parties that the above noted Release would not affect this request.  

The Defendant carrier denied this claim and argued that the UIM policy did not provide coverage for any motor vehicle furnished for the regular use of the Plaintiff, the Plaintiff’s resident, or the Plaintiff’s relative.  

The Plaintiff then brought suit against the Defendant alleging that the regular use exclusion in the policy conflicted with Pennsylvania’s Motor Vehicle Financial Responsibility Law. 

The Defendant carrier responded by filing a Motion for Summary Judgment in which it was separately also asserted that the Plaintiff had previously settled all claims by executing an unambiguous Release.  

The defense argued that, although the Plaintiff argued that there was a mutual mistake at the time of the signing of the settlement agreement, the court held that Pennsylvania law treats releases as contracts and that the Plaintiff was represented by counsel at the time of the signing of the settlement agreement at which point she indicated that she understood the nature of the contract.  

Based on this analysis the court granted the Defendant’s Motion for Summary Judgment.  The court emphasized that the Plaintiff was admittedly aware of the existence of the additional insurance policies when she signed the Release under which she agreed to settle all claims.

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

Source:  “Digest of Recent Opinions.”  Pennsylvania Law Weekly (July 19, 2022).   

Source of image: Photo by Mikhail Nilov on www.pexels.com.

No Medical Expert Testimony Needed To Establish Causation Where Causal Relationship is Obvious

In the case of Bixler v. Lamendola, No. 3:20-CV-01819-CCC (M.D. Pa. July 5, 2022 Connor, J.), the court denied a Defendant’s Motion for Summary Judgment in a motor vehicle accident case after finding that expert medical testimony was not required to establish causation given that the driver’s testimony would allow the jury to infer that the claimed injuries resulted from the accident.

According to the Opinion, at the time of the accident, the Plaintiff was driving an empty tractor trailer at a speed of approximately 45-50 mph when the Defendant, who was traveling in from of the Plaintiff in the same direction, attempted to make a U-turn. More specifically, the Defendant’s vehicle moved towards the right side of the road and/or the right shoulder and then, as the Plaintiff’s vehicle approached, the Defendant pulled back onto the road and attempted to turn his vehicle into the opposing lane of travel. The Plaintiff was unable to avoid a collision which occurred while the tractor trailer was still moving at about 25-30 mph.

It was noted that the vehicle that the Plaintiff was operating at the time of the accident was rendered inoperable for about four (4) months following the accident due to the damages sustained.

The Plaintiff testified that, although he was wearing a seat belt at the time of the accident, he believed he struck parts of the interior of his vehicle because he had a bump on his head as well as bumps and bruises on his knees and arm. The Plaintiff did admit that he did not immediately notice any pain and declined medical treatment at the scene of the accident. 

Approximately two (2) days later, the Plaintiff began to experience left hand numbness and then sought out medical treatment with his family doctor the day after that at which point he was referred to a neurologist and then began to treat on a continuing basis thereafter.

Post-accident diagnostic tests including x-rays, an MRI, and a nerve test lead the neurologist to diagnose the Plaintiff with a bulging disc in his neck, causing a pinched nerve, which was noted to explain the complaints of left hand numbness.

During the course of the matter, the Defendant filed a Motion for Summary Judgment arguing, in part, that the Plaintiff's failure to produce an expert medical opinion on causation defeated the Plaintiff's claim. 

The court cited to the law of Pennsylvania generally requiring expert medical opinion testimony to prove causation in personal injury cases. 

However, the court noted that expert opinion is not required if there is an obvious causal relationship between the alleged negligent act and the injury complained of. The court stated that a causal relationship is “obvious” if the injury is “either an ‘immediate and direct’ or the ‘natural and probable’ result of” the alleged negligence.

The court further noted that, in those cases in which expert testimony is not required, there are typically two common traits, that is, (1) the Plaintiff began to exhibit symptoms of the injury immediately after the accident or within a relatively short time thereafter, and (2) the alleged injury is the type that one would reasonably expect to result from the accident in question.

The court applied that law to this case and held that the record revealed facts under which expert medical testimony on causation was not required. As such, the Defendant’s Motion for Summary Judgment in this regard was denied as a jury could easily find that the Plaintiff’s injuries were the natural and probable consequence of the accident.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (July 21, 2022).

Supreme Court of Pennsylvania Allows Legal Malpractice Claim Based Upon Scope of a Release to Proceed

In the case of Khalil v. Williams, No. 24 EAP 2021 (Pa. July 20, 2022) (Maj. Op. by Todd), the Pennsylvania Supreme Court addressed the issue of whether the Plaintiff’s legal malpractice claims against her former attorneys were barred under the Pennsylvania Supreme Court’s previous decision in the case of Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, 587 A.2d 1346 (Pa. 1991), which held that a Plaintiff could not sue his or her attorney on the basis of the adequacy of a settlement to which the Plaintiff had agreed, unless the Plaintiff alleged that the settlement was the result of fraud.

After reviewing the record on appeal before it in this case, the Pennsylvania Supreme Court ruled that the Plaintiff’s Complaint demonstrated that the Plaintiff was not merely challenging the amount of her settlement, but rather was alleging that the attorneys provided incorrect legal advice regarding the scope and effect of the Release presented by the insurance carrier. As such, the Pennsylvania Supreme Court held that the prohibition set forth in the Muhammad case on legal malpractice lawsuits based upon the adequacy of settlements was not implicated by the record in this case.

Anyone wishing to review a copy of the Majority Opinion by Justice Todd for this decision may click this LINK.

The Concurring Opinion by Justice Wecht may be viewed HERE.

The Concurring Opinion by Justice Mundy may be viewed HERE.

Source of image:  Photo by Andrea Piacquadio from 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.

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

Release Signed by Plaintiff Found to Preclude Other Claims

In the case of Slinger v. Sal-Mart, Inc., No. 9763-CV-2018 (C.P. Monroe Co. Oct. 29, 2020 Higgins, J.), the court found that the unambiguous language of a Release previously executed by the Plaintiff covered potential claims by the Plaintiff against other third parties and, as such, the court granted the third party Defendant’s Motion for Summary Judgment. 

According to the Opinion, the Plaintiff sustained injuries when he was hit by a truck which slid on ice and crushed the Plaintiff against a dumpster. The Defendant landowner, Sal-Mart (not a typo), owned the property where the incident occurred.

The Plaintiff sued Sal-Mart and Sal-Mart joined into the case the driver of the truck that was involved in the accident.

During the course of this matter, Sal-Mart filed a Motion for Summary Judgment asserting that a Release agreement previously entered into by the Plaintiffs and the truck driver barred the Plaintiff from seeking a recovery against Sal-Mart. 

The record confirmed that the Plaintiff had previously executed a Release in favor of the truck driver, as well as their heirs, executors, administrators, agents, assigns, and all other persons, firms or corporations which might be claimed to be liable in exchange for payment of $250,000.00. 

In this matter, the court noted that the Plaintiff did not claim any fraud with respect to the execution of the Release and admitted that he had either read the document himself or had someone else read it to him.

The Plaintiff asserted the existence of a mutual mistake in that both parties to the Release had believed that the Release only applied to the settling parties and not any other potentially liable parties.

The court noted that the clear language of the settlement agreement conflicted with the Plaintiff’s assertion that the Release only applied to the truck driver. 

The court otherwise noted that, the Plaintiff’s deposition testimony indicated that he was aware of the terms of the Release and was under no time pressure to sign it. It was also confirmed that, although the Plaintiff had the opportunity to consult with an attorney prior to signing a Release, he had chosen not to do so.

Given that the court found that the language of the Release was unambiguous in that it not only applied to the truck driver but to anyone else the Plaintiff may have contemplated suing in connection with the accident, the summary judgment motion filed by the Defendant store was granted.

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


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 8, 2020).

Source of image: www.lexisnexis.com

Pennsylvania Supreme Court Addresses Proper Application of Fair Share Act

In the case of Roverano v. John Crane, Inc., No. 26 EAP 2018 (Feb. 19, 2020 Mundy, J.), the Pennsylvania Supreme Court addressed the issue of whether the Fair Share Act, 42 Pa. C.S.A 7102, required a factfinder to apportion liability on a percentage, as opposed to per capita, basis in strict liability asbestos actions.

According to the Opinion, the Plaintiff, William Roverano, was allegedly exposed to a variety of asbestos products from 1971 to 1981 in the course of his employment as a helper and a carpenter with PECO Energy Company. Additionally, he allegedly smoked cigarettes for approximately thirty years. In November 2013, Roverano was diagnosed with lung cancer in both lungs. 

In 2014, Roverano brought a strict liability lawsuit against various defendants asserting that exposure to their asbestos products caused his lung cancer. His wife, Jacqueline Roverano, filed a loss of consortium claim. 

Before trial, several defendants filed a Motion In Limine seeking a ruling that the Fair Share Act applied to asbestos cases. The issues raised in that Motion gradually made its way up the appellate ladder to the Pennsylvania Supreme Court. 

The Supreme Court concluded the Act’s plain language was consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases was impossible to execute. 

Accordingly, the Supreme Court reversed the Superior Court’s Order, which had vacated the trial court’s judgment and remanded this case for a new trial to apportion damages on a percentage basis. 

Additionally, the Supreme Court considered whether the Act required a factfinder to apportion liability to bankrupt entities that had previously entered into a release with the Plaintiff. In this regard, the Court concluded that, upon appropriate requests and proofs, bankruptcy trusts that were either joined as third-party defendants or that had entered into a Release with the plaintiff should be included on the verdict sheet for purposes of liability only. 

In the end, this case was remanded to the trial court to consider whether the parties submitted sufficient requests and proofs to apportion liability to the settled bankruptcy trusts.

The Majority Opinion can be viewed HERE.

Justice Wecht's Concurring Opinion can be viewed HERE.

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

I send thanks to Attorney Kenneth Newman of the Pittsburgh Office of Thomas, Thomas & Hafer for noting this case.

ARTICLE: POST-KOKEN UPDATE

Here is a copy of an article of mine that was published in the January, 2020 edition of Counterpoint, the official publication of the Pennsylvania Defense Institute. 

A copy of any of the opinions noted can be secured by typing the case name into the Search Box in the upper right hand corner of the Tort Talk Blog at www.TortTalk.com.  This will take you to the Tort Talk post(s) that review the case searched in which you will find a Link to the Opinion.

POST-KOKEN UPDATE

By

Daniel E. Cummins

Daniel E. Cummins is the managing partner of the Clarks Summit, PA law firm of Cummins Law. He is also the writer of the Tort Talk Blog and provides mediation services through Cummins Mediation.


Bifurcation of Trial

In the Post-Koken case of Pena v. Van Blargen and State Farm, No. 10185-CV-2016 (C.P. Luz. Co. Oct. 1, 2019 Gartley, J.), Judge Tina Polachek Gartley of the Luzerne County Court of Common Pleas denied a tortfeasor Defendant's Motion to Bifurcate the Trial of third party negligence claims from the breach of contract and bad faith claims asserted against the UIM carrier. The decision was issued by Order only.

Effect of Third Party Release

In the case of Bonk v. American States Ins. Co., No. 3:18-CV-2417 (M.D. Pa. Oct. 1, 2019 Caputo, J.), the court declined to preclude a Plaintiff from pursuing a UIM claim based upon the language of the Release that the Plaintiff executed in the companion third party case.

The UIM carrier in this case argued that, because the third party Release referred to a release of liability in favor of “any and all persons” that Release amounted to a blanket barring of all claims given that the UIM claim was not exempted out.

More specifically, the Release at issue confirmed that the Plaintiff “release[d] and forever discharge[d] [the tortfeasor] and any other person, firm, or corporation charged or chargeable with responsibility of liability” from any and all claims and causes of actions arising out of the subject incident.

While the court agreed that the UIM carrier was indeed a firm or corporation, the court felt that the UIM carrier had not established how it had been “charged or chargeable with responsibility of liability” with respect to the third party matter. The court emphasized that the UIM carrier did not cover the tortfeasor. The language in the Release was read by the court as applying only to those parties that would be held accountable for causing the accident.

Notably, Judge Caputo declined to follow the Philadelphia County Court of Common Pleas decision in the case of Crisp v. Ace American Ins. Co., No. 150902953 (C.P. Phila. Co. 2017).

The court in this Bonk case noted that the language in the Release in the Crisp case released “any and all persons or entities whatsoever,” making that Release distinguishable in the court’s eyes from the Release in the Bonk case before it.

Effect of Third Party Release

In the case of Lane v. USAA General Indem. Co., NO. 18-537 (E.D. Pa. Oct. 18, 2019 Surrick, J.), the UIM carrier argued that a general release signed in a third party claim can be used by the underinsured motorist carrier to release an underinsured motorist claim, even when the UIM carrier paid no consideration.

The Plaintiff executed a release in the third party action which included language releasing “any other person, firms or corporations liable or who might be claimed to be liable.” The Court noted that the Release did not identify the UIM insurer directly.

In rejecting the carrier's position , the District Court relied, in part, upon the Pennsylvania Superior Court's decision in Sparler v. Fireman’s Ins. Co. of Newark, N.J., 521 A.2d 433 (Pa. Super. 1987), allocator denied, 540 A.2d 535 (Pa. 1988). The District Court noted that, “[u]nder Sparler, Plaintiff’s general release…..will not preclude Plaintiff from pursuing the present action against Defendant for UIM benefits because the executed release did not contain language unequivocally discharging Defendant from its contractual obligation to provide UIM benefits to Plaintiff.”

The District Court finds that the carrier's reliance on Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989) to be distinguishable because Buttermore did not involve UIM benefits.

The Court also rejected the UIM carrier's reliance on the Philadelphia Court of Common Pleas case of Crisp v. ACE Am. Ins. Co., 2017 Phila Ct. Com. Pl. LEXIS 125 (Phila. Cnty. C.C.P. 2017) is because that case was not binding precedent.

Household Exclusion

The Pennsylvania Supreme Court's decision in Gallagher v. Geico, 201 A.3d 131 (Pa. 2019), which served to invalidate the Household Exclusion in automobile insurance policies, was relied upon in a recent Lebanon County case to deny a Defendant carrier's Preliminary Objections.

In the case of Loose v. Pennsylvania National Mutual Insurance, No. 2019-00664 (C.P. Leb. Co., Oct. 23, 2019 Kline, J.), the court denied Penn National’s Preliminary Objection in a case in which a Plaintiff sought to a ruling to find the household exclusion invalid under the Gallagher decision.

In the Loose case, the Plaintiff was injured after being in an accident while on her husband’s Geico insured motorcycle. The Plaintiff received the underinsured motorist (UIM) coverage on the motorcycle.

The Plaintiff then made a claim on her personal UIM policy with Penn National that had stacked coverage.

Penn National attempted to limit Gallagher to the facts of the case, i.e., efforts to recover UIM coverage under two separate policies that had been issued by the same carrier. The trial court in Loose rejected the carrier's efforts to limit the scope of the Gallagher case.

Rather , the trial court in Loose held “that Gallagher's conclusion invalidating the Household Vehicle Exclusion as violative of the Motor Vehicle Financial Responsibility Law shall be permissibly extended and applied as precedent to the issue at bar.”

It therefore appears, at least in Lebanon County where the Loose case was handed down, that having different companies providing UIM coverage under a given set of facts does not change the result that the Household Exclusion is invalid as a being violative exclusion is not valid. The trial court is now following the federal courts on this issue.

Household Exclusion

The Superior Court’s recent decision in the case of Kline v. Travelers, No. 104 MDA 2019 (Pa. Super. 2019 McLaughlin, J., Ford Elliott, P.J.E., Gantman, P.J.E.)(Op. By Gantman, P.J.E.), involved both the Sackett stacking issue as well as the issue of the retroactive effect of the Pennsylvania’s eradication of the household exclusion in the Gallagher v. GEICO decision.

The trial court had ruled in favor of the insured on the Sackett issue but against the insured on the household exclusion issue.  Travelers appealed the Sackett issue, and the insured appealed the household exclusion issue.

In this Kline case, the Superior Court found in favor of the insured on both issues, vacated the lower court's decision and remanded the case for further proceedings.

The case involved issues surrounding whether the Plaintiff-insured was entitled to stack his UIM coverage on two vehicles that had been added to his policy prior to the accident where the carrier did not secure new waiver of stacking forms from him. Another issue was whether the Plaintiff-insured was able to further stack coverage under a policy separately issued to his mother. As such, there were inter-policy and intra-policy stacking questions at issue in this case.

With regards to the Plaintiff-insured's own policy, the Court in Kline ruled that prior precedent under the Bumbarger supported its decision that the Plaintiff should be permitted to stack the coverages under his own policy.

Relative to the Household Exclusion and the retroactive effect of the Gallagher decision, the Court in Kline ruled that, as a general rule, appellate courts are required to apply the law as it exists as of the time of appellate review before the court. After applying the law of Gallagher, the court in Kline ruled that the Gallagher case rendered the Household Exclusion invalid such that the Plaintiff-insured could pursue stacked coverage that included the coverage under his mother's policy.

Future Medical Expenses

For the first time in a precedential Opinion, the Pennsylvania Superior Court addressed, in the case of Farese v. Robinson, 2019 Pa. Super. 336 (Pa. Super. Nov. 8, 2019 Lazarus, J., Kunselman, J., and Colins, J.)(Op. by Colins, J.), the somewhat recurring issue of whether a claim for future medical expenses in an automobile accident case must be reduced in accordance with the cost containment provisions under Act 6 (75 Pa.C.S.A. Section 1797) of Pennsylvania's Motor Vehicle Financial Responsibility Law (MVFRL).

In this motor vehicle accident case, the jury entered a verdict in excess of $2.5 million dollars, of which $900,000 was an award for future medical expenses.

In the end, the Court in Farese held that future medical expenses did not need to be reduced in accordance with Act 6 before being presented to the jury. See p. 21-26 of Opinion.

Overall, the Court is Farese concluded that the limitations placed upon medical providers in terms of what they could charge for treatment of motor vehicle accident injuries (i.e., Act 6 reduced amounts) simply did not apply to claims for future medical expenses.

It is noted that this decision did not affect the rule of law that past medical expenses have to be reduced in accordance with Act 6 before being presented to a jury.

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.

UIM Carrier's Attempt to Rely Upon Third Party Release to Preclude UIM Claim is Rejected

Here's another decision in which a court rejected a UIM carrier's attempt to argue that a Plaintiff's UIM claim was barred by the Release executed by the Plaintiff in the companion third party case arising out of the same accident.

In the case of Lane v. USAA General Indem. Co., NO. 18-537 (E.D. Pa. Oct. 18, 2019 Surrick, J.), the UIM carrier argued that a general release signed in a third party claim can be used by the underinsured motorist carrier to release an underinsured motorist claim, even when the UIM carrier paid no consideration.

The Plaintiff executed a release in the third party action which included language releasing “any other person, firms or corporations liable or who might be claimed to be liable.”  The Court noted that the Release did not identify the UIM insurer directly.

In rejecting the carrier's position , the District Court relied, in part, upon the Pennsylvania Superior Court's decision in Sparler v. Fireman’s Ins. Co. of Newark, N.J., 521 A.2d 433 (Pa. Super. 1987), allocator denied, 540 A.2d 535 (Pa. 1988).  The District Court noted that, “[u]nder Sparler, Plaintiff’s general release…..will not preclude Plaintiff from pursuing the present action against Defendant for UIM benefits because the executed release did not contain language unequivocally discharging Defendant from its contractual obligation to provide UIM benefits to Plaintiff.”

 The District Court finds that the carrier's reliance on Buttermore v. Aliquippa Hosp., 561 A.2d 733 (Pa. 1989) to be distinguishable because Buttermore did not involve UIM benefits.

The Court also rejected the UIM carrier's reliance on the Philadelphia Court of Common Pleas case of Crisp v. ACE Am. Ins. Co., 2017 Phila Ct. Com. Pl. LEXIS 125 (Phila. Cnty. C.C.P. 2017) is because that case was not binding precedent.  The Tort Talk post on the Crisp case, which contains a Link to that Opinion, can be viewed HERE.

The Lane case reviewed in this post can be accessed at this LINK

I send thanks to Attorney Scott B. Cooper of the Harrisburg, PA law firm of Schmidt Kramer for bringing this case to my attention. 

Effort By UIM Carrier To Argue UIM Claim Barred By Terms of Third Party Release Rebuffed

In the case of Bonk v. American States Ins. Co., No. 3:18-CV-2417 (M.D. Pa. Oct. 1, 2019 Caputo, J.), the court declined to preclude a Plaintiff from pursuing a UIM claim based upon the language of the Release that the Plaintiff executed in the companion third party case.

The UIM carrier in this case argued that, because the third party Release referred to a release of liability in favor of “any and all persons” that Release amounted to a blanket barring of all claims given that the UIM claim was not exempted out. 

More specifically, the Release at issue confirmed that the Plaintiff “release[d] and forever discharge[d] [the tortfeasor] and any other person, firm, or corporation charged or chargeable with responsibility of liability” from any and all claims and causes of actions arising out of the subject incident.

While the court agreed that the UIM carrier was indeed a firm or corporation, the court felt that the UIM carrier had not established how it had been “charged or chargeable with responsibility of liability” with respect to the third party matter. The court emphasized that the UIM carrier did not cover the tortfeasor. The language in the Release was read by the court as applying only to those parties that would be held accountable for causing the accident.

Notably, Judge Caputo declined to follow the Philadelphia County Court of Common Pleas decision in the case of Crisp v. Ace American Ins. Co., No. 150902953 (C.P. Phila. Co. 2017).   Click HERE to view the Tort Talk blog post on the Crisp case and to see a Link to that case.

The court in this Bonk case noted that the language in the Release in the Crisp case released “any and all persons or entities whatsoever,” making that Release distinguishable in the court’s eyes from the Release in the Bonk case before it.

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

I send thanks to Attorney Scott B. Cooper from the Harrisburg, PA law firm of Schmidt Kramer, P.C. for bringing this decision 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.

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.

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).

UIM Claims Found Barred by General Release Signed by Plaintiff

In the case of Crisp v. Ace Am. Ins. Co., No. 150902953, 3167 EDA 2016 (C.P. First Judicial District March 7, 2017 Cohen, J.), the court issued an Rule 1925 Opinion asserting that its decision to dismiss a motor vehicle accident Plaintiff’s underinsured motorist claim against her employer’s insurer should be affirmed by the appellate court because the Plaintiff, after consulting with a lawyer, signed a General Release releasing “any and all other persons or entities whatsoever.”  

The trial court granted summary judgment in favor of the carrier’s insurer in which that company asserted the Plaintiff’s claims were precluded by the General Release.  

In support of its decision, the trial court stated that it was settled Pennsylvania law that General Releases should be enforced against all parties listed in the Release, even when the party at issue is not listed by name and did not provide any consideration in support of the Release.  

The court also noted that the Plaintiff made no allegations that she had signed the Release because of fraud, accident, or mutual mistake.  Rather, the Plaintiff acknowledged that she had reviewed the Release with an attorney and agreed to be bound by its provisions.  

Anyone wishing to review this decision may click this LINK.

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.