Motion For Summary Judgment Denied in Zipline Accident Case

In the case of Witkowski v. Hellerick’s Family Farm, Inc., No. 230900999 (C.P. Phila. Co. Sept. 18, 2025), the trial court issued a Rule 1925 Opinion requesting the Superior Court to affirm its decision denying a Motion for Summary Judgment in a premises liability case.

According to the Opinion, this matter arises out of a fatal accident that occurred when the Plaintiff died after experiencing difficulties on a zipline course at the Defendant’s farm.

Prior to the incident, the Plaintiff has signed liability waivers acknowledging the risks involved in the activity.

After the accident, the Plaintiff filed a negligence suit in which recklessness was alleged as well.

The Defendant farm moved for summary judgment arguing that the signed waivers and the Agritourism Activity Protection Act shielded the Defendants from liability.

According to the Opinion, the Agritourism Activity Protection Act limits liability for agritourism providers unless gross negligence or recklessness is proven.

The court found that issues of fact with regards to whether the Defendant’s conduct constituted gross negligence or recklessness, which would negate the protections of the waivers and the act existed in the case presented. As such, the court noted that the issues should be permitted to proceed to a jury.

The trial court otherwise noted that the appeal should be dismissed on procedural grounds as its order did not meet the criteria for an appealable Order under Pennsylvania law given that the Order at issue was not a final Order.

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. 8, 2026).

Superior Court Addresses Scope of Immunity Provisions Under the Mental Health Procedures Act

In the case of Toth v. Chambersburg Hospital, No. 208 MDA 2024 (Pa. Super. Oct. 15, 2024 Stevens, P.J.E., Panella, P.J.E., and Lane, J.) (Op. by Stevens, P.J.E.), the Pennsylvania Superior Court affirmed the entry of a summary judgment in a case involving a Plaintiff who was diagnosed with dementia and who was injured after falling while pushing an aide away and attempting to run while under the care of a hospital.

A central issue raised in this matter was whether the Defendant was entitled to immunity under the Mental Health Procedures Act.  The Plaintiff argued that the process of walking a patient in a medical facility did not fall under the types of "treatment" for which immunity is afforded under the Act.  

The Superior Court agreed with the trial court's ruling that decisions regarding the ambulatory care of mental health facility residents within a facility are governed by the Mental Health Procedures Act and subject to the statutory immunity limits under the Act.

The Court separately ruled that the facts of the case did not support the claim of gross negligence asserted by the Plaintiff.  More specifically, the Court noted that the circumstances of the Plaintiff’s injury, which involved a Plaintiff falling after pushing an aide away and attempting to run, could not possibly rise to the level of an allegation of gross negligence on the part of the Defendants. The Pennsylvania Superior Court noted that legislature intended that “gross negligence” refer to a form of flagrant negligence where the facts support findings of liability substantially more than ordinary carelessness.

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

Chief Judge Brann of Middle District Federal Court of PA Provides a Definition for Gross Negligence

In the case of Johnson v. Keane Group Holdings, LLC, No. 4:20-CV-00491 (M.D. Pa. May 3, 2023 Brann, C.J.), the court reviewed the definition of “gross negligence.”

In this matter, the court denied summary judgment in a personal injury case involving a plaintiff who was injured in at a well site in the oil and gas industry.

The court noted that the Defendant’s indemnification agreement excluded liability for “gross negligence.”

Chief Judge Brann noted that the Pennsylvania Supreme Court has never precisely defined the term of “gross negligence.”

The Court found the question before it to involve the issue of whether "gross negligence" requires a finding of recklessness on the part of the defendant.  In the end, Judge Brann ruled that "gross negligence" does not required a finding of recklessness.

Judge Brann noted that the difficulty in defining gross negligence arises from the fact that the terms origin is in statutory law rather than common law, which does not recognize degrees of negligence.

Chief Judge Brann stated that gross negligence does not require the intentional indifference or conscious disregard of risks that defines recklessness.

Accordingly, gross negligence was found to require evidence that an actor’s conduct was an extreme departure from the relevant standard of care. However, evidence that the actor acted recklessly is not required for a finding of gross negligence.

The court denied summary judgment in this case given the issues of fact presented on and found that summary judgment was not appropriate on the issue of whether or not the Defendant was grossly negligent under the circumstances presented.

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 Reed Smith law firm in Philadelphia for bringing this case to my attention.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Dangers of Store Checkout Lines

In the case of Kovalev v. Wal-Mart, Inc., No. 2:2022-CV-1217 (E.D. Pa. Oct. 11, 2022 Quinones Alejandro, J.), the court granted a F.R.C.P. 12(b)(6)Motion to Dismiss in part and denied it in part in a premises liability case.

According to the Opinion, the Plaintiff was allegedly injured when he was standing in a checkout line and a customer behind him started hitting the Plaintiff with her shopping cart while shouting "move the line."  The Plaintiff alleged, in part, that, even though security personnel had the ability to observe the incident via real-time surveillance in a security room several feet away, no one came to the aid of the Plaintiff at the time of the incident.    

After suit was initiated, the Defendant store filed a Rule 12(b)(6) Motion to Dismiss on various grounds.

The Plaintiff's claims against Wal-Mart for assault and battery were dismissed given the lack of any facts to support any allegations that the store intentionally harmed the Plaintiff.  Nor were there any facts to support an allegation that Wal-Mart was liable for the intentional acts of another patron in the store.

The court found that the Plaintiff’s claim that the store was negligent in failing to have sufficient security to prevent its customers from assaulting other customers did state a valid cause of action.  Here, the Plaintiff alleged that he was a business invitee of the store and that the store was negligent in protecting him from the intentional or criminal acts of a third person within the store.

However, the court also found that a negligence duty to provide security within a commercial establishment does not create a special relationship that would support a separate claim for negligent infliction of emotional distress. The court noted that such relationships exist only in extremely limited circumstances.

The court dismissed the Plaintiff's separate claim for "gross negligence" after finding that there is no separate cause of action for gross negligence recognized under Pennsylvania law.  

The court additionally found that negligence per se is not an independent cause of action.

In contrast, the court in this matter additionally ruled that there is civil cause of action recognized in Pennsylvania for recklessn endangerment. 

The court also ruled that, absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act. The court also found that a negligence claim is not an intentional or criminal act that could support a separate civil conspiracy claim.

Lastly, the court also found that physical and emotional injuries do not support a cause of action under the Unfair Trade Practices & Consumer Protection Law, as that cause of action is limited to losses of money or property.

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

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).

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