Opinion
1862 EDA 2019 J-E03001-21
11-21-2022
AISHA MONROE, Appellant v. CBH20, LP, D/B/A CAMELBACK SKI RESORT D/B/A CAMELBACK SKI CORPORATION
Joseph D. Seletyn, Esq.
Appeal from the Order Dated May 16, 2019 In the Court of Common Pleas of Monroe County Civil Division at No(s): 8184-CV-2016
Joseph D. Seletyn, Esq.
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE, J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.
OPINION
PER CURIAM:[*]
Aisha Monroe appeals from the May 16, 2019 order that granted the motion for judgment on the pleadings and supplemental motion for summary judgment filed by Camelback Ski Corporation ("Camelback"). As we find that Camelback was not entitled to judgment as a matter of law pursuant to either Pa.R.C.P. 1034 (judgment on the pleadings) or Pa.R.C.P. 1035.1-1035.3 (summary judgment), we reverse the order and remand the case for further proceedings.
I. Facts and Procedural History
Aisha Monroe initiated this action against Camelback by a complaint that was transferred to Monroe County from Philadelphia County upon the stipulation of the parties. The initial complaint contained a single count of negligence, alleging that Ms. Monroe was injured as the result of Camelback's, inter alia, failure "to use reasonable prudence and care to take care of the customers' safety complaints" and its "[a]cting in disregard of the rights of safety of [Ms. Monroe] and others similarly situated[.]" Complaint, 7/27/16, at ¶ 21(c), (e). Camelback filed preliminary objections to strike the above-quoted allegations as "improper, broad and vague." Preliminary Objections, 12/19/16, at ¶ 3. Although the complaint alleged in several places that Camelback acted recklessly and with a conscious disregard of Ms. Monroe's safety, Camelback did not raise preliminary objections in the nature of a more specific pleading regarding the factual underpinnings of the allegations of recklessness. Nor did it object in the nature of a demurrer by contending that the allegations of recklessness were legally insufficient.
Ms. Monroe mooted Camelback's preliminary objections by filing an amended complaint again raising a single count of negligence. Therein, she repeated the averment, to which Camelback had stated no prior objection, that Camelback "kn[ew] that there was a high risk of injur[y] during the landing process," and that her injury was "a direct and proximate result of [Camelback] consciously disregarding [her] safety[.]" Amended Complaint, 1/25/17, at ¶¶ 12, 17. Ms. Monroe amended the offending paragraph to state that Camelback's "recklessness, carelessness and negligence" included, inter alia:
The amended complaint named the defendant as is represented in the caption of this appeal, namely "CBH20, LP, d/b/a Camelback Ski Resort d/b/a Camelback Ski Corporation."
a. Failing to properly monitor the speed of the zip-line, in disregard of the safety of [Ms. Monroe];
b. Failing to use reasonable prudence and care by leaving [Ms. Monroe] to land with no help, in disregard of the safety of [Ms. Monroe];
c. [Left blank]
d. Failing to use reasonable prudence and care to respond to [Ms. Monroe]'s safety concerns during the zip[-]lining, specifically when [Ms. Monroe] as[ked Camelback] to slow down the zip[-]lining machine, in disregard of the safety of Ms. Monroe; and,
e. Failing to inspect and/or properly monitor the zip[-]lining machine engine, in disregard of the safety of [Ms. Monroe].Id. at ¶ 21.
Camelback again did not object to the specificity or legal sufficiency of Ms. Monroe's allegations of reckless conduct, opting instead to file an answer, new matter, and counterclaim, contending, inter alia, that Ms. Monroe's claim was barred by the Activity Release and Agreement Not to Sue ("Release") that it attached to its pleading. That document indicated that Ms. Monroe acknowledged that she assumed those risks "of which the ordinary prudent person is or should be aware" created by Camelback's amusement activities, including "injury or even death." Answer, 3/29/17, at Exhibit A. The Release further reflected that, in consideration for the privilege of being allowed to use Camelback's facilities, Ms. Monroe agreed not to sue Camelback for any injury sustained, "even if [she] contend[ed] that such injuries [were] the result of negligence, gross negligence, or any other improper conduct for which a release is not contrary to public policy." Id. (capitalization omitted). In its counterclaim, Camelback alleged that it was entitled to damages based upon Ms. Monroe's breach of the release agreement. Id. at ¶¶ 47-49.
After Ms. Monroe filed her reply and answer, the trial court entered a case management order ("CMO") establishing pre-trial deadlines. Pursuant to the CMO, counsel were attached for trial during the two-week trial term beginning May 7, 2018. Discovery was to be completed and Ms. Monroe was to serve Camelback with expert reports by November 7, 2017. Camelback was to serve its expert reports and file any dispositive motions by January 8, 2018, which was four months before the earliest trial date.
Camelback did not ask the trial court to rule on the legal sufficiency of Ms. Monroe's complaint by filing a motion for judgment on the pleadings on or before the due date for dispositive motions. Rather, Camelback filed a motion for summary judgment contending only that the Activity Release that Ms. Monroe signed was a complete bar to her negligence claim. See Motion for Summary Judgment, 1/8/18, at ¶ 18. The certified record reflects that on March 12, 2018, Ms. Monroe filed both a paragraph-by-paragraph response to Camelback's summary judgment motion and a memorandum of law in opposition thereto. Ms. Monroe filed of record her evidence demonstrating material issues of fact by attaching exhibits to her memorandum of law, not to the response. See Memorandum of Law, 3/12/18, at Exhibits A-C.
The substance of Ms. Monroe's opposition to Camelback's motion was that Camelback's release did not immunize it from reckless conduct, as our Supreme Court ruled in Tayar v. Camelback Ski Corp., 47 A.3d 1190, 1203 (Pa. 2012) ("[E]ven in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety."). See Response in Opposition to Motion for Summary Judgment, 3/12/18, at ¶ 13. In her brief in opposition, Ms. Monroe discussed the evidence, appended to the brief, which she contended supported a finding of recklessness. Specifically, she attached her medical records and the depositions of two Camelback employees who witnessed her injury. See generally Memorandum of Law, 3/12/18, at Exhibits A-C. That evidence collectively indicated the following.
There were two similar zip-lines next to each other at Camelback's facility, one with a weight limit of 175 pounds and the other of 250 or 265 pounds. Approximately two to four times each day, depending on the weight of the person using the zip-line, the line would ripple rather than stay level, lifting the rider up and down. In such instances, the heavier rider would have to pick his or her feet up to avoid slamming into the landing area. The weight limit purported to address the physical limitations which would affect the rider's ability to pick his or her feet up at the end. On the date in question, Ms. Monroe weighed just over 200 pounds. She utilized the zip-line with the higher weight limit, and thus was no more than eighty percent of the maximum capacity. Nonetheless, the zip-line lifted Ms. Monroe up and slammed her into the landing area, causing a broken tibia and fibula requiring substantial medical procedures and expenses, including physical therapy.
Before the trial court ruled on Camelback's motion, it entered an order scheduling a pretrial conference for April 12, 2018, and jury selection for May 8, 2018. Ms. Monroe filed an uncontested motion to vacate the trial listing, indicating that trial was premature given the pendency of Camelback's motion for summary judgment as well as noting counsel's attachment for an Allegheny County trial. The trial court vacated the trial listing and remanded the case for non-binding arbitration.
While arbitration was pending, the trial court issued an order on June 13, 2018, denying Camelback's motion. The trial court explained its ruling as follows:
Plaintiff's Complaint alleges recklessness on behalf of the Defendant. Pennsylvania law holds that an exculpatory clause in a contract does not release a defendant from liability arising out of recklessness. Tayar v. Camelback Ski Corp., 47 A.3d 1190 (Pa. 2012). Accepting the facts alleged in Plaintiff's Complaint as true, summary judgment is improper at this time.Order, 6/13/18.
While the propriety of this ruling is not before us in this appeal, we observe that the trial court patently applied the standard applicable to judgment on the pleadings, rather than the one pertinent to summary judgment, in ruling on Camelback's motion seeking the latter. Compare Front St. Dev. Associates, L.P. v. Conestoga Bank, 161 A.3d 302, 307 (Pa.Super. 2017) (observing that a court adjudicating a motion for judgment on the pleadings must accept as true all well-pleaded facts); with Cigna Corp. v. Executive Risk Indem., Inc., 111 A.3d 204, 210 (Pa.Super. 2015) (explaining that a party may not rest on the pleadings in opposing summary judgment but must proffer evidence to establish issues on which he bears the burden of proof at trial). Pertinent to our analysis infra, this order could not but cause Ms. Monroe to believe that her complaint was legally sufficient to allege recklessness such that taking corrective action, by seeking leave to amend the complaint, was unnecessary.
The parties proceeded to arbitration on October 17, 2018, which resulted in an award in favor of Camelback on Ms. Monroe's negligence claim and in favor of Ms. Monroe on Camelback's counterclaim for breach of the Release. Ms. Monroe filed a timely appeal, and the trial court directed the prothonotary to place the case on the April 2019 trial list and the parties to file pretrial statements in accordance with Pa.R.C.P. 212.1 (providing the plaintiff and defendant shall respectively file pretrial statements sixty and thirty days prior to the earliest trial date). See Order, 11/19/18.
On January 14, 2019, Camelback filed a motion in limine seeking to preclude Ms. Monroe "from pursuing her claims in negligence or even referencing negligence at time of trial" since she released those claims. Motion in Limine, 1/14/19, at unnumbered 6. Raising for the first time in the certified record a contention that Ms. Monroe "failed to establish any evidence of record to pursue a claim for 'recklessness' or 'reckless conduct,'" Camelback nonetheless indicated that the "case should proceed to trial, if at all, only on Plaintiff's theory of 'recklessness.'" Id. at ¶¶ 19-20. Although Camelback's motion, to the extent that it suggested that Ms. Monroe had insufficient evidence to warrant a trial, was an untimely dispositive motion rather than one seeking a mere evidentiary ruling, the trial court declined to entertain it prior to the trial which was, at the time, still three months away. The trial court instead ordered that the motion was taken under advisement and would "be decided at the time of trial." Order, 1/15/19.
By order entered January 28, 2019, the trial court scheduled a pre-trial conference for March 20, 2019, and jury selection to take place on April 2, 2019. The parties filed their pretrial statements accordingly.
The next docket entry is an order entered memorializing as follows the positions taken at the off-the-record pretrial conference:
[A]fter pretrial conference with counsel for the parties at which time Plaintiff has indicated that the Defendant's Motion in Limine is unopposed, it is ordered that the Motion in Limine is granted. It is further ordered that this matter is stricken from the April 2019 trial term. Counsel for Defendant is given thirty (30) days in which to file a Motion for Summary Judgment on the issue of recklessness.Order, 3/28/19.
On April 16, 2019, which was more than a year after Ms. Monroe opposed Camelback's initial motion for summary judgment with allegations of recklessness, ten months after the trial court ruled that the allegations in Ms. Monroe's complaint sufficiently established recklessness, and two weeks after the parties had been scheduled to select their jury, Camelback filed a "Motion for Judgment on the Pleadings and Supplemental Motion for Summary Judgment." Therein, Camelback for the first time claimed that Ms. Monroe failed to plead facts that sufficiently describe how Camelback was reckless when she filed the operative complaint, without objection as to specificity, nearly two years prior. See Motion for Judgment on the Pleadings and Supplemental Motion for Summary Judgment, 4/16/19, at ¶ 20. Camelback also argued, for the first time of record, that Ms. Monroe's evidence of recklessness was insufficient because the subject matter of Ms. Monroe's claim required expert testimony to establish the pertinent duty of care and how Camelback grossly deviated therefrom. Id. at ¶¶ 33-38.
Ms. Monroe submitted a Response in Opposition to Camelback's motion and a Memorandum of Law in support of her response to which were appended Exhibits A through G, which included the report of Steve Wolf, an expert in the construction and operation of zip-lines. On May 16, 2019, the prothonotary docketed those documents as a single filing which became part of the record subsequently certified to this Court. Therein, Ms. Monroe contended that it would be a miscarriage of justice to grant Camelback's motion for judgment on the pleadings because application of the pertinent legal principles to the developed factual record did not reveal that it was certain that no recovery was possible. See Memorandum of Law in Support of Response in Opposition to Motion for Judgment on the Pleadings and Supplemental Motion for Summary Judgment, 5/16/19, at unnumbered 8-9. Ms. Monroe further contended that the record revealed a jury question as to whether Camelback acted recklessly, referencing Mr. Wolf's report in addition to the evidence proffered in opposition to Camelback's timely dispositive motion. See id. at 7-8, Exhibit A.
Mr. Wolf opined that the zip-line had a landing platform with a face that "protrudes sharply and vertically from the ground around it, at a 90 degree angle to the ground," making the landing deck "perfectly positioned to cause an injury." Id., Exhibit A at 4. Mr. Wolf's report stated that Camelback could have alleviated that obstacle by "lowering the face of the landing deck to ground level or filling in the gap between the ground and the face of the landing deck with an aggregate material" such as dirt or sand. Id. Mr. Wolf further opined that the staff knew of the danger as evidenced by the fact that they covered the protrusion with a piece of carpeting. However, Mr. Wolf maintained that the carpeting merely concealed the danger rather than remedying it. He concluded: "[T]he injuries sustained by Ms. Monroe are attributable directly to [the] failure of Camelback to act to prevent injury, and the intentional disregard for safety taken by Camelback in their decision to conceal rather than to remove an obvious threat to the safety of their trusting clients." Id. at 5.
Mr. Wolf included the following diagram in his report:
Memorandum of Law in Support of Response in Opposition to Motion for Judgment on the Pleadings and Supplemental Motion for Summary Judgment, 5/16/19, Exhibit A at 4.
On May 16, 2019, the trial court entered an order stating that, "upon consideration of the Motion for Judgment on the Pleadings/Motion for Summary Judgment filed by [Camelback], it is hereby ORDERED that said Motion is GRANTED, and all claims against Defendant are DISMISSED, with prejudice." Order, 5/16/19. Thereafter, Ms. Monroe filed a timely notice of appeal, and both she and the trial court complied with Pa.R.A.P. 1925.
On October 22, 2020, a divided panel of this Court affirmed the trial court. The Majority concluded that the trial court properly entered judgment on the pleadings in favor of Camelback because Ms. Monroe's complaint contained insufficient factual averments to support a finding of recklessness. Thus, the Majority did not need to reach the propriety of the entry of summary judgment. However, the Majority noted that, if it had ruled that judgment on the pleadings had been improper, it would affirm the grant of summary judgment for the reasons stated in the trial court's opinion. The dissent opined that judgment on the pleadings was not properly granted, and that the evidence of record, which properly included Mr. Wolf's expert report, revealed issues of fact that precluded the entry of summary judgment.
Ms. Monroe filed an application for reargument en banc, which this Court granted by order of January 6, 2021. The parties filed substituted briefs and this en banc panel of the Court heard oral argument on November 30, 2021. Thereafter, authorship of the Majority opinion was assigned and reassigned, ultimately resulting in this per curiam disposition.
Ms. Monroe has presented the following questions for our determination:
(1) Upon judgment on the pleadings, the trial court held appellant's first amended complaint failed to set forth a claim of "recklessness." [Camelback] had not filed preliminary objections to the first amended complaint. The complaint pleads recklessness. Sua sponte vacating the trial listing upon the eve of trial at the final pre-trial conference, and directing a motion for summary judgment, did the trial court commit an error of law in granting a motion for judgment on the pleadings-therein the court contending the operative complaint did not plead recklessness (secondary to an underlying ski resort release). Did the trial court err in dismissing the action on the pleadings?
(2) At the final pre-trial conference on the eve of trial, the court of common pleas sua sponte vacated the trial listing. Likewise, the court sua sponte directed [Camelback]'s renewed motion for summary judgment. At the conference, the trial court held that an expert report was required. In response to [Camelback]'s renewed motion for summary
judgment, [Ms. Monroe] supplied an expert report. [Camelback] did not object to this expert report. Did the court of common pleas commit an error of law in disregarding Appellant's unobjected to expert report that the trial court itself directed?
(3) Does the record as a whole warrant the denial of summary judgment as creating an issue of fact as to "recklessness" (upon a ski resort release)?
(4) Did the court of common pleas commit an error of law in sua sponte striking the trial listing on the eve of trial, directing [Camelback]'s motion for summary judgment, directing [Ms. Monroe]'s expert report, and then granting the trial[-]court[-]directed summary judgment (on the same date as the response in opposition)?Ms. Monroe's substituted brief at 15-16.
II. Applicable Law
Rather than address Ms. Monroe's issues seriatim, we find it most expedient to consider them together. Ms. Monroe argues that the trial court "erred as a matter of law in dismissing the complaint for failure to plead recklessness upon the renewed sua sponte late-directed motion for judgment on the pleadings, on the eve of trial, following the denial of summary judgment as to that precise issue-regardless that the complaint did plead and the evidence did show recklessness." Ms. Monroe's substituted brief at 26-27 (cleaned up). She likewise contends that leave to file the late, renewed motion for summary judgment was improperly granted to Camelback under these circumstances. Id. at 32. Ms. Monroe further maintains that summary judgment was not warranted because the evidence of record, which included Mr. Wolf's expert report, "evidenced an issue of fact of recklessness for the jury," as the trial court had ruled when denying Camelback's original motion. Id. at 31.
Ms. Monroe's appellate brief is not a paradigm of appellate advocacy. It is more akin to a bullet-point list than to a fully-developed writing. However, the brief sufficiently presents her issues and supports her claims of error with citation to pertinent authority such that our review is unhampered. Therefore, we conclude no sanction is warranted. Cf. In re W.H., 25 A.3d 330, 339 n.3 (Pa.Super. 2011) ("Where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." (cleaned up)).
We commence with a review of the pertinent legal principles. Motions for judgment on the pleadings are in the nature of a demurrer and are governed by Pa.R.C.P. 1034. That rule states as follows: "(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings. (b) The court shall enter such judgment or order as shall be proper on the pleadings." Pa.R.C.P. 1034. "Judgment on the pleadings may be entered when there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law." Baumbach v. Lafayette Coll., 272 A.3d 83, 88 (Pa.Super. 2022) (cleaned up).
This Court's scope and standard of review of an appeal from the grant of judgment on the pleadings is plenary, and we must determine whether the action of the court below was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury. Our review,
therefore, is limited to determining whether the trial court abused its discretion or committed an error law.City of Coatesville v. Jarvis, 902 A.2d 1249, 1251 (Pa.Super. 2006) (cleaned up).
Rule 1035.2, which governs motions for summary judgment, provides as follows:
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1)whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.Pa.R.C.P. 1035.2. In sum, before a court is permitted to enter judgment as a matter of law rather than allow the jury to decide the case, it must be clear and free from doubt that there is no combination of facts to be gleaned from the evidence that would support a finding for the non-moving party. See, e.g., Braswell v. Wollard, 243 A.3d 973, 977 n.3 (Pa.Super. 2020) ("Summary judgment will be granted only in those cases which are free and clear from doubt. Where the facts can support conflicting inferences, it cannot be said that the case is free from doubt and thus ripe for summary judgment." (cleaned up)).
An appellate court "may disturb the order of the trial court [granting summary judgment] only where it determines that the court committed an error of law or abused its discretion." Valles v. Albert Einstein Med. Ctr., 805 A.2d 1232, 1236 n.7 (Pa. 2002). In doing so, we "apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact." Criswell v. Atl. Richfield Co., 115 A.3d 906, 908-09 (Pa.Super. 2015). "A trial court abuses its discretion by making a manifestly unreasonable, arbitrary, or capricious decision; by failing to apply the law; or by allowing prejudice, bias, or ill will to influence its decision." Calisto v. Rodgers, 271 A.3d 877, 884-85 (Pa.Super. Feb. 25, 2022) (en banc).
III. Analysis
Mindful of the above principles, we turn to the trial court's rulings in the instant case. The trial court's opinion offered the following rationale for its decision to grant Camelback's motion filed pursuant to both Rule 1034 and Rule 1035.2. The trial court eventually came to believe, after addressing Camelback's motion in limine, that Ms. Monroe did not plead sufficient allegations of recklessness. See Trial Court Opinion, 8/16/19, at 8-9. If the trial court had understood Camelback's position clearly at the time it ruled on Camelback's initial motion for summary judgment, which did not address the allegations of recklessness, the trial court would have granted the initial dispositive motion rather than, out of "an abundance of caution," allowing the case to proceed. Id. at 10. However, the court candidly admitted that, coming as it did "well after the parties had already undergone arbitration, Plaintiff appealed, and the matter had been rescheduled for a new trial date," Camelback's second dispositive motion may have at that "point be[en] considered untimely." Id.
Therefore, the trial court alternatively explained why it believed Ms. Monroe's claim was properly dismissed with prejudice via summary judgment. The court made it clear that, in examining the evidence to discern a question of material fact, it "could not and did not consider" the expert report of Mr. Wolf. Id. at 11. Although the trial court "did not dispute" that Pa.R.C.P. 1035.3(b) granted Ms. Monroe the right to supplement the record with an expert report in response to Camelback's motion for summary judgment, it determined that she "did not do so properly." Id. Specifically, the court concluded that, because the report was attached to Ms. Monroe's brief in opposition to Camelback's motion, and "'briefs are not a part of the official record,'" Mr. Wolf's expert report did not become part of the evidence which could defeat summary judgment. Id. (quoting Scopel v. Donegal Mut. Ins. Co., 698 A.2d 602, 606 (Pa.Super. 1997)). Finally, the court determined that an examination of "the entirety of the record before [it]," revealed "insufficient evidence in the record showing Camelback acted with conscious action or inaction that created a substantial risk of harm to [Ms. Monroe]." Id. at 14 (cleaned up).
For the following reasons, we hold that the trial court's adjudication of Camelback's dispositive motion is the product of multiple errors of law that require reversal.
A. Camelback's Motion for Judgment on the Pleadings was Improperly Granted
We first conclude that the trial court committed an error of law when it reversed its initial determination that Ms. Monroe's complaint properly alleged recklessness and opted to grant Camelback's motion for judgment on the pleadings. Rule 1019 of the Pennsylvania Rules of Civil Procedure governs our analysis. That Rule provides in relevant part:
Rule 1019. Contents of Pleadings. General and Specific Averments
(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.
(b) Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.Pa.R.C.P. 1019. The plain language of this Rule thus indicates that, while a party must plead the material facts that support a cause of action, a party may generally aver knowledge, intent, and state of mind. Thus, the question in the instant case is whether recklessness constitutes a state of mind or a material fact upon which a cause of action is based.
To answer that question, we begin with a general discussion of tort liability. In their learned treatise, PROSSER AND KEATON ON TORTS (5th ed. 1984), the authors observed that "The fundamental basis of tort liability may first be divided into three parts . . . because every case in which such liability has been imposed has rested upon one of three, and only three, grounds for imposing it. These are: 1) [Intentional torts]. 2) Negligence. 3) Strict liability." Id. at § 7 at 32. Each of these types of torts constitutes a separate cause of action. Notably, gross negligence and recklessness have not historically been identified as independent causes of action. Instead, they are aggravated forms of negligence. See id. at § 34 at 208-14. The level of care required is in proportion to the apparent risk involved; the greater the danger, the greater the level of care required by the actor. See id.
Gross negligence and recklessness have been described as follows:
Gross negligence. As it originally appeared, this was very great negligence, or the want of even slight or scant care. It has been described as a failure to exercise even that care which a careless person would use . . . [M]ost courts consider that "gross negligence" falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree and not in kind . . .
Willful, Wanton, and Reckless. A different approach, at least in theory, looks to the actor's real or supposed state of mind. Lying between the intent to do harm, . . . and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called "quasi-intent." To this area, the words "willful," "wanton," or "reckless" are customarily applied; and sometimes in a single sentence, all three . . . They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care . . . They apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended. Thus, it is held to justify an award of punitive damages, . . . and it will avoid the defense of ordinary negligence on the part of the plaintiff.
The usual meaning assigned to [these words] is that the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Since, however, it is almost never admitted and can be proven only by the conduct and circumstances, an objective standard must of necessity in practice be applied. The "willful" requirement breaks down . . . where is it clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a reasonable person in his position.
. . . [T]here is often no clear distinction at all between [this] conduct and "gross negligence" and the two have tended to merge and take on the same meaning, an aggravated form of negligence, differing in quality rather that in degree from ordinary lack of care. It is at least clear that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence or simple inattention. . . .Id. at 211-14.
In other words, gross negligence and recklessness are states of mind; they are forms of negligence, not independent causes of action. Thus, our procedural rules allow the plaintiff to plead gross negligence and recklessness generally. See Rule 1019(b).
This Court affirmed that recklessness could be averred generally in Archibald v. Kemble, 971 A.2d 513 (Pa.Super. 2009). There, an injured player in an adult "no check" ice hockey league sought damages from another player who checked him in violation of the league rules. Initially, we determined that the defendant hockey player must have engaged in reckless conduct to be subject to liability. We then explained, "even though we hold the plaintiff must prove the defendant acted recklessly, the cause of action remains sounding in negligence." Id. at 519. "Therefore, merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations." Id. Thus, we concluded that the plaintiff's cause of action was subsumed within the negligence count pled in the complaint.
We agree with the Dissent that Rule 1019(b) requires a plaintiff to at least make a general averment of recklessness. See Dissenting Opinion at 16. It is not clear from the Archibald opinion whether such a general averment appeared in the complaint in that case. However, to the extent clarification is necessary, it is not enough to plead only negligence and proceed with a claim for recklessness; recklessness and gross negligence must be pled in the Complaint. Here, Ms. Monroe did make an express general averment of recklessness.
We then looked to whether the plaintiff had produced sufficient evidence of recklessness to determine whether summary judgment was appropriate. As we observed:
Archibald has produced evidence that he and Kemble played in a league where Kemble knew he had a responsibility to Archibald not to engage in certain conduct including checking. Thus, Archibald has produced evidence that Kemble owed a duty of care to Archibald.
Archibald described the action as being intentional. [A h]ockey expert . . . explained if the incident occurred as Archibald explained that it was a "deliberate action." [The expert] explained Kemble's action could cause serious injury. Kemble explained he had been skating for fourteen years, that he understood the term "check" to mean knocking a person down, and that he understood slew-footing was prohibited by league rules. Thus, Archibald has produced evidence that Kemble breached his duty of care by acting recklessly.Id. at 520.
Archibald recognizes the important distinction between the pleadings stage of the case and the summary judgment stage of the case. At the pleadings stage, the rules allow a plaintiff to make a general averment of gross negligence or recklessness. When initially filing a complaint, a plaintiff may not be fully aware of the defendant's state of mind. Only through discovery can the plaintiff ascertain what the defendant knew or should have known about the risk involved. It would place an undue burden on the plaintiff to plead specific facts about a defendant's state of mind at the time a lawsuit is initiated.
Discovery gives the plaintiff an opportunity to learn this information. Through interrogatories, depositions, and requests for admission, a plaintiff can learn whether a defendant had notice of a dangerous condition before the plaintiff was injured. A plaintiff can discover information about the defendant's training and experience to see if the defendant knew or should have known about the risk involved that lead to plaintiff's injuries. The discovery phase of the case also gives the plaintiff time to hire an expert to investigate and opine on the standard of care and whether it was breached, not only in terms of ordinary negligence, but whether there were gross or reckless deviations from the standard of care.
Once discovery is complete, then a plaintiff can be required to produce evidence of recklessness. If a plaintiff fails to produce the evidence, Rule 1035.3 provides that summary judgment should be entered for the defendant on the plaintiff's claims. That is exactly what happened in Archibald, supra. The plaintiff alleged a cause of action in negligence, allegations of recklessness were subsumed in this claim, and then the plaintiff produced evidence of recklessness to overcome the motion for summary judgment.
Here, we reach the same conclusion. Ms. Monroe has generally averred recklessness and specifically averred facts of negligence to support her claim. She alleged in her amended complaint:
[Camelback's] recklessness, carelessness and negligence included, but was not limited to:
a. Failing to properly monitor the speed of the zip-line, in disregard of the safety of [Ms. Monroe];
b. Failing to use reasonable prudence and care by leaving [Ms. Monroe] to land with no help, in disregard of the safety of [Ms. Monroe];
c. [Left blank]
d. Failing to use reasonable prudence and care to respond to [Ms. Monroe]'s safety concerns during the zip[-]lining, specifically when [Ms. Monroe] as[ked Camelback] to slow down the zip[-]lining machine, in disregard of the safety of Ms. Monroe; and,
e. Failing to inspect and/or properly monitor the zip[-]lining machine engine, in disregard of the safety of [Ms. Monroe].Amended Complaint, 1/25/17, at ¶ 21.
These specific allegations of negligence and general allegations of recklessness are sufficient to meet the requirements of Rule 1019(a) and (b). Therefore, we hold that the trial court erred as a matter of law in concluding otherwise. Camelback's motion for judgment on the pleadings should have been denied.
The Dissent would affirm on the basis that Ms. Monroe failed to plead specific facts of recklessness. See Dissenting Opinion at 19-21. As our discussion above makes plain, this is a misapplication of Rule 1019, which only requires that the basis of a cause of action be pled with specific facts, while conditions of the mind may be pled generally. As the Dissent notes, the question of whether a complaint sufficiently pleads recklessness (and often an accompanying claim for punitive damages) has produced inconsistent rulings in the trial courts and understandable confusion among litigants. See Daniel E. Cummins, "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). This confusion appears to be due to some trial courts misapplying Rule 1019 in the same manner as advocated by the Dissent. See, e.g., Green v. Kline, 16 Pa. D.&C. 5th 144 (Monroe Co. 2010); Brace v. Shears, 12 Pa. D.&.C. 5th 166 (Centre Co. 2010); Debo v. Buckley, 44 Pa. D.&.C. 4th 325 (Snyder Co. 1999). Cf. Koloras v. Dollar Tree Stores, Inc., 21 CV 2700, 2022 WL 1529191 (Lacka. Co. April 19, 2022) ("[T]he plain language of Rule 1019(a) only requires 'material facts' to 'be stated in a concise and summary form' in support of 'a cause of action or defense.' . . . [Plaintiffs'] averments of recklessness may be averred generally under Rule 1019(b) as a condition of mind."). These and all other trial court decisions that have sustained preliminary objections or granted judgment on the pleadings based upon demands for heightened factual averments to support a claim of willful, wanton, or reckless conduct did not accurately apply the law. Our ruling today removes 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.
B. Camelback's Motion for Summary Judgment was Improperly Granted
Recognizing that its decision to grant judgment on the pleadings was problematic, albeit for a different reason, the trial court alternatively opined that it should be affirmed because Camelback was entitled to summary judgment pursuant to Rule 1035.2. Accordingly, we consider the propriety of the trial court's summary judgment ruling by "reviewing all the evidence of record to determine whether there exists a genuine issue of material fact." Criswell, supra at 908-09. Specifically, we must examine the record to discern whether Ms. Monroe developed facts to support her allegations that she was injured as a result of Camelback's reckless conduct.
As we noted above, the trial court all but conceded in its opinion that Camelback's motion for judgment on the pleadings was untimely. See Trial Court Opinion, 8/16/19, at 10. We agree with that assessment. If not from day one when Ms. Monroe filed a complaint alleging that Camelback consciously disregarded her safety and recklessly caused her injuries, then no later than June 13, 2018, when the trial court entered an order denying Camelback's timely motion for summary judgment for the specific reason of the recklessness allegations, Camelback was on notice that Ms. Monroe's case was based on the claim that her injury was sustained as a result of conduct by Camelback which rose to the level of recklessness. However, at no time in the following ten months did Camelback seek judgment based upon a pleading deficiency. Instead, it filed a dispositive motion masquerading as a motion in limine raising the issue on the eve of trial, and the trial court reacted by striking the case from the trial list to give Camelback an additional thirty days to seek summary judgment. See Order, 3/28/19. Camelback instead filed a motion seeking judgment pursuant to either Pa.R.C.P. 1034 or 1035.2, fifteen months past the CMO deadline for filing dispositive motions. In light of this history, Camelback's motions, raised unnecessarily and without justification after the time the case was set to be tried, were presented at such a time to unreasonably delay trial. Plainly, Camelback was fully aware of the evolution of Ms. Monroe's claim during the course of the litigation, and its post-discovery attempt to obtain judgment based upon the pre-discovery allegations of fact was mere gamesmanship. Nonetheless, while Ms. Monroe forwards on appeal an argument that Camelback's Rule 1034 motion should have been denied based upon its untimeliness, the certified record does not indicate that she made a precise objection concerning the timing of the motion in the trial court. Therefore, we do not reverse the trial court on that basis. See, e.g., In re S. C., 421 A.2d 853, 856 (Pa.Super. 1980) ("It is well established that a party must preserve a specific point for appellate review by raising it first in the lower court; a different theory of relief may not be successfully advanced for the first time on appeal.").
Arguably, Camelback's second bid for summary judgment, which unquestionably delayed trial, could be considered improperly entertained for that reason alone. However, since such a motion at least examines the facts as they had been developed for trial, rather than as a snapshot taken when the complaint was filed years earlier, we find the lateness of the summary judgment motion is less outrageous. In any event, as we have noted, the certified record does not indicate that Ms. Monroe objected to the untimeliness of the motion with sufficient specificity to permit us to reverse on that basis.
The initial step in that analysis is to determine what evidence was and was not part of the record. As detailed above, the trial court opined that the expert report Ms. Monroe produced in opposing Camelback's motion for summary judgment was not part of the official record because it was appended to her brief. See Trial Court Opinion, 8/16/19, at 11. That ruling is legally erroneous.
First, our Supreme Court has determined that, for purposes of ruling on a motion for summary judgment, the "record" includes any and all "(1) pleadings, (2) depositions, answers to interrogatories, admissions and affidavits, and (3) reports signed by an expert witness that would, if filed, comply with Rule 4003.5(a)(1), whether or not the reports have been produced in response to interrogatories." Pa.R.C.P. 1035.1 (emphasis added). The foregoing language suggests that expert reports need only be submitted, not filed, in order to be considered in ruling on the motion for summary judgment. Ms. Monroe's expert report is signed by Steve Wolf, contains the substance of his facts and opinions and the basis for those opinions, and substantially conforms with Rule 4003.5(a)(1). Thus, the expert report was included in the "record" for purposes of Rule 1035.1 and summary judgment, regardless of whether it was filed in the official record.
That Rule provides:
Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
(1) A party may through interrogatories require
(A) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
(B) subject to the provisions of subdivision (a)(4), the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert.Pa.R.C.P. 4003.5(a).
Second, and more obvious, the certified record before us reveals that Ms. Monroe's Response in Opposition, Brief, and expert report marked as Exhibit A, along with the rest of the exhibits appended to her brief, were filed in the official certified record and docketed as one document. The trial court's belief that the expert report was not made part of the record because it was attached to the brief was based on a misunderstanding of our decision in Scopel, supra. The issue in Scopel was whether depositions attached to the brief in opposition to summary judgment were part of the record when the brief and depositions were not actually filed. See Scopel, supra at 604 ("These depositions . . . were never filed and made a part of the official record."). Therefore, the court ruled it could not consider them, and this Court affirmed. Accord Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super. 2006) ("[A]ny document which is not part of the officially certified record is deemed non-existent-a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record.").
Where, as here, the expert report was filed with the prothonotary as part of the summary judgment response, it and the rest of the exhibits were properly part of the record before the trial court in deciding the summary judgment motion. See Pa.R.A.P. 1921 (providing that the official record includes "[t]he original papers and exhibits filed in the lower court" and "paper copies of legal papers filed with the prothonotary by means of electronic filing"). Therefore, the trial court erred as a matter of law in disregarding Mr. Wolf's report in determining whether there was a material issue of fact as to recklessness by Camelback.
The only other case Camelback offers to support the trial court's ruling on this issue is an unpublished memorandum filed in 2017. See Camelback's brief at 22. However, with exceptions not applicable here, "[a]n unpublished memorandum decision filed prior to May 2, 2019, shall not be relied upon or cited by a Court or a party in any other action or proceeding[.]" 210 Pa.Code § 65.37 (emphasis added). Consequently, we must reject Camelback's attempt to persuade us that the expert report was not properly before the trial court by invoking a decision that is not properly before us.
Camelback alternatively argues, with no apparent sense of irony, that Mr. Wolf's expert report was properly excluded because it was not produced in accordance with the CMO deadline, but instead in response to the dispositive motion that it filed fifteen months after the CMO deadline. Citing Kurian ex rel. Kurian v. Anisman, 851 A.2d 152 (Pa.Super.2004), and Wolloch v. Aiken, 815 A.2d 594, 596 (Pa. 2002), Camelback suggests that the trial court had the discretion to exclude the late-produced expert report. See Camelback's brief at 24-30.
The certified record does not reflect that Camelback objected to the late production of the report or moved for its exclusion. More importantly, the trial court did not cite the lateness of the report's production as its basis for ignoring it, but instead the erroneous belief that it was not part of the record because it was stapled behind the wrong part of Ms. Monroe's filing. On the contrary, the trial court rejected the notion that the report was untimely, expressly stating that it did not dispute Ms. Monroe's right to supplement the record with an expert report pursuant to Pa.R.C.P. 1035.3(b), even after the close of discovery. See Trial Court Opinion, 8/16/19, at 11.
That rule states: "An adverse party may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence." Pa.R.C.P. 1035.3(b).
We agree with the trial court that Rule 1035.3(b) entitled Ms. Monroe to supplement the record in response to Camelback's motion. As our Supreme Court noted in Gerrow v. John Royle & Sons, 813 A.2d 778, 781-82 (Pa. 2002) (plurality), "the intent of the motion for summary judgment is not to eliminate meritorious claims that could be established by additional discovery or expert reports." Thus, "it is consistent with that intent to permit supplementation of the record under Rule 1035.3(b) to allow the record to be enlarged by the addition of such expert reports." Id. Accordingly, although the plaintiff had failed to produce expert reports within the time constraints of the CMO, and the trial court refused to consider them "as an impermissible attempt to circumvent the deadline," the Court ruled that the reports were properly filed pursuant to Rule 1035.3(b). Id. at 780.
While Gerrow was a plurality decision, this Court sitting en banc relied upon it in concluding, without qualification, as follows: "There is no doubt that Rule 1035.3 permits a party to supplement the record when it files a motion in opposition to the entry of summary judgment." Burger v. Owens Illinois, Inc., 966 A.2d 611, 618 (Pa.Super. 2009) (en banc). Hence, at this point it is well-settled that, pursuant to Rules 1035.1 and 1035.3, affidavits and expert reports may be used by the non-moving party to create an issue of material fact to defeat a motion for summary judgment, and supplementary expert reports are timely if submitted within thirty days of the motion for summary judgment. See Pa.R.C.P. 1035.3(b).
The Wolloch and Kurian cases cited by Camelback do not compel a different result. Camelback correctly indicates that the holding of Wolloch was "that expert reports submitted after the entry of summary judgment were properly excluded and that permitting such late amendments would undermine judicial efficiency and case management orders[.]" Camelback's brief at 28 (emphasis added). The plaintiff in that case did not utilize Rule 1035.5(b) to supplement the record in opposing summary judgment, but rather "waited until after summary judgment had been entered, then submitted the expert reports in such indolent fashion that the trial court had no time to consider them before the lapse of [the] allowable time to appeal from summary judgment." Wolloch, supra at 596-97. When the plaintiff on appeal attempted to invoke Rule 1035.3(b) as authority for her actions, the High Court, citing Gerrow, observed: "This is a curious argument. [The plaintiff] did not file a timely response to the motion for summary judgment supplemented with her expert reports, though Rule 1035.3(b) permits it." Id. at 596 (emphasis added). As such, Wolloch hurts, rather than helps, Camelback's position.
In Kurian, this Court examined the interplay between Rule 1035.3(b)'s allowance of production of expert reports within thirty days of the filing of a motion for summary judgment, and Rule 4003.5(b), which allows a court to prohibit a late-identified expert witness from testifying at trial. We concluded that, reading the rules in harmony, Rule 1035.3(b) did not override the trial court's authority to exclude an untimely expert, for requiring that an "expert report be admitted just as long as it was filed within thirty days of the summary judgment motion would take away the very discretion Rule 4003.5(b) gives to the trial court and make a mockery of court orders and court-imposed deadlines." Id. at 161. Therefore, we held that, "when a party makes a timely response to a summary judgment motion and attempts to supplement the record with otherwise untimely expert reports, the court may, on its own motion, determine whether this is allowed under Rule 4003.5(b)." Id. at 159. However, we were clear that, in doing so, "the court must apply the long-standing prejudice standard found in the caselaw construing Rule 4003.5(b)." Id. at 159-60. That prejudice standard acknowledges that the "preclusion of testimony is a drastic sanction, and it should be done only where the facts of the case make it necessary; the prejudice may not be assumed." Id. at 162 (cleaned up). In particular:
The full text of Rule 4003.5(b) is as follows:
An expert witness whose identity is not disclosed in compliance with subdivision (a)(1) of this rule shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.Pa.R.C.P. 4003.5(b). As quoted supra at note 9, subdivision (a)(1) governs what expert witness information is discoverable through interrogatories.
Assuming that a party has not acted in bad faith and has not misrepresented the existence of an expert expected to be called at trial, no sanction should be imposed unless the complaining party shows that he has been prejudiced from properly preparing his case for trial as a result of the dilatory disclosure.Id. (cleaned up).
Applying this ruling to the facts of that case, we affirmed the trial court's preclusion of the expert in that case. Contrasting Gerrow, in which the opposing party suffered no prejudice, we highlighted the fact that the trial court excluded the expert in Kurian based upon the findings that "1) appellants continually violated court ordered deadlines, and 2) the acceptance of this expert witness report on the day the parties were supposed to go to trial would cause appellees unfair surprise and prejudice." Id.
Camelback argues that this case is in alignment with Kurian rather than Gerrow. It highlights the times in the procedural history of the case in which Ms. Monroe did not produce an expert report and observes that it was not until "eighteen (18) months after the report was due, and two months after her pre-trial report was submitted, that [Ms. Monroe], with trial looming, produced a surprise expert report after agreeing to dismiss her negligence case." Id. at 29.
Camelback's argument, in addition to being legally unsound, is made with an impressive level of indignation given how it utterly disregarded the CMO deadlines and Rules 1034 and 1035.2 by first raising its challenge to the sufficiency of Ms. Monroe's allegations and evidence of recklessness in a manner that delayed trial, fifteen months after the deadline for dispositive motions. In particular, the trial court in this case not only failed to make the requisite finding of prejudice, but indicated that it would have allowed Mr. Wolf's report had Ms. Monroe filed it properly. Precluding the report as a discovery sanction without finding prejudice is cause for reversal. See Reeves v. Middletown Ath. Ass'n., 866 A.2d 1115, 1127 (Pa.Super. 2004) (finding abuse of discretion where trial court refused to consider expert reports supplementing the record without first determining whether there was prejudice).
She did. See pages 28-29, supra.
Nor do we discern evidence in the certified record that would support a finding of prejudice in this case. Unlike the plaintiffs in Kurian, there is no evidence that Ms. Monroe acted in bad faith, misrepresented the existence of an expert, or showed contempt for court deadlines. Further, if Camelback had raised its challenge to the recklessness allegations in accordance with the CMO, Ms. Monroe's response would have been produced three months before the earliest trial date, not on the day of trial as in Kurian. The trial court itself at the pretrial conference clearly opted to disregard the CMO deadlines and trial schedule and allow Camelback to file a motion out of time. Not extending the similar benefit to Ms. Monroe would have been unreasonable. Any prejudice resulting from the surprise to Camelback was easily remedied by giving it time to amend its pretrial statement and produce an expert if it so desired. Plainly, at that point, neither the trial court nor Camelback was concerned about delaying trial.
As such, Ms. Monroe properly supplemented the official record with Mr. Wolf's expert report. Therefore, we shall examine that record, including Ms. Monroe's expert report, to discover whether Ms. Monroe produced sufficient evidence to establish the factual predicate for a finding of recklessness. For if she did, summary judgment should have been denied.
Before we examine the evidence, we review the substantive law applicable to Ms. Monroe's claim that she was injured as a result of Camelback's reckless conduct. While Ms. Monroe was required to prove, based upon her waiver of negligence claims against Camelback, that Camelback acted recklessly, there is no "recklessness" tort in this Commonwealth separate and apart from a cause of action sounding in negligence. Rather, to recover for her injuries despite her execution of the Activity Release, Ms. Monroe must prove the elements of the tort of negligence, namely "duty, breach, causation and damages," and additionally prove that Camelback's deviation from the standard of care was more egregious than garden-variety negligence. See, e.g., Tayar, supra at 1200; Archibald, supra at 519; Ammlung v. City of Chester, 302 A.2d 491 (Pa.Super. 1973). For, "[r]ecklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence." Tayar, supra at 1200.
Wittrien v. Burkholder, 965 A.2d 1229, 1232 (Pa.Super. 2009).
As our Supreme Court explained in Tayar, to satisfy this burden Ms. Monroe must establish that Camelback did an act or intentionally failed to do an act which it was its duty to Ms. Monroe to do, knowing or having reason to know of facts which would lead a reasonable person to realize, not only that Camelback's conduct created an unreasonable risk of physical harm to her, but also that such risk was substantially greater than that which was necessary to make its conduct negligent. Id. at 1200-01 (citing Restatement (2d) of Torts § 500). See also Restatement (2d) of Torts § 501(1) ("[T]he rules which determine the actor's liability to another for reckless disregard of the other's safety are the same as those which determine his liability for negligent misconduct.").
Viewing the evidence collectively and in the light most favorable to Ms. Monroe as the non-moving party, we conclude that she produced sufficient evidence to enable a fact-finder to conclude that Camelback consciously engaged in conduct that created an unreasonable risk of physical harm to her that was substantially greater than mere negligence. Specifically, Ms. Monroe's proffered evidence was capable of proving the following. Mr. Wolf explained that the construction of a zip-line is "such that no part of a rider is intended to collide with any hard surface until the rider reaches the end of the zip[-]line." Memorandum of Law in Support of Response in Opposition to Motion for Judgment on the Pleadings and Supplemental Motion for Summary Judgment, 5/16/19, Exhibit A at 2. However, the height of Camelback's line was "low enough that a rider's legs may contact the ground before the pulley carriage contacts the breaking device" at the end of the ride. Id. "If the ground is free of surface imperfections, a rider's feet will drag smoothly along the ground, up a wooden platform, causing a reduction in speed, and then the rider's forward movement will be arrested by a combination of manual braking by physical engagement of an employee, and a mechanical impact attenuation device at the end of the line." Id. at 2-3. Yet no smooth landing in an area free from surface imperfections was offered by Camelback.
We reiterate that, in an appeal from the grant of summary judgment, this Court must "apply the same standard as the trial court, reviewing all the evidence of record to determine whether there exists a genuine issue of material fact." Criswell v. Atl. Richfield Co., 115 A.3d 906, 908-09 (Pa.Super. 2015) (emphasis added). Thus, although as noted above Ms. Monroe's appellate brief is substandard and does not present the evidence as fully and as efficiently as we might like, we conclude that waiver is inappropriate.
Specifically, while it would have been dangerous enough to have patrons' feet sliding along the ground if they were unable to comply with the directions of Camelback's staff to lift up their legs, Camelback created an even graver danger by using a wooden landing deck whose lead edge protruded at a ninety-degree angle from the ground. This hard obstruction was capable of causing injury "at the impact site on the rider's body, and anywhere else where that energy is delivered to the body." Id. This danger "must have been noted by one or more members of the Camelback staff, because the condition was 'remedied' by covering the protrusion with a piece of carpeting." Id. However, this "remedy" in actuality "concealed, rather than removed, the risk." Id. Mr. Wolf explained:
That there was risk in the design by virtue of needing rider compliance with a strenuous physical task was itself an unnecessary danger that was permitted in routine operation of the zip[-]line, unwittingly reveal[ing] . . . a willingness to allow participants to be subjected to unnecessary and preventable danger.
That there were physical dangers that had come to the attention of the staff, and that these known dangers were not remedied but rather were intentionally masked, or in this case, literally swept under the rug, shows a conscious disregard for safety that could not manifest other than in an accident, given sufficient time.Id. at 5.
Enter Ms. Monroe, approaching the end of the ride not in a smooth, straight trajectory, but rippling up and down, something that Camelback knew happened multiple times each day for patrons who were toward the higher end of the zip-line's weight limit. Id., Exhibit C at 11-16. There was no gradual skid up a platform, but a collision with the landing platform that was "perfectly positioned to cause an injury." Id., Exhibit A at 4. Two collisions occurred to be exact: despite holding her legs up as she approached the landing area, Ms. Monroe first struck her leg against the landing platform, making an impact with the mats Camelback had positioned to conceal the face of the platform, swung up, came back down, spun around, and made a second impact with the platform when she hit the deck to land. See id., Exhibit B at 52-53, 84-85 (Ms. Monroe describing swinging up, spinning, and landing); id. Exhibit C at 11 (Camelback employee Brett Dunphy describing two impacts at the landing platform); Memorandum of Law, 3/12/18, at Exhibit B (Pocono Medical Center report of history and physical examination indicating that Ms. Monroe's right foot struck the platform when she landed, then felt severe pain when she tried to stand on it; discharge summary indicating that she first struck her leg "up against the landing platform").
Camelback could have readily alleviated the danger by having the patrons land at ground level or by filling in the danger zone with dirt or sand. See Memorandum of Law in Support of Response in Opposition to Motion for Judgment on the Pleadings and Supplemental Motion for Summary Judgment, 5/16/19, at Exhibit A. Although Camelback advertised to its patrons in the Release it had them sign that its amusements were capable of causing injury or death, it instead opted to conceal the known, obvious threat by masking it with a piece of carpeting, actively preventing Ms. Monroe from appreciating the danger to her person. Id., Exhibit A at 4-5.
Those facts do not suggest mere negligence. These allegations, viewed in the light most favorable to Ms. Monroe, sufficiently contend that Camelback engaged in intentional acts, knowing or having reason to know facts which would lead a reasonable person to realize that it thereby created an unreasonable risk of physical harm that was substantially greater than incompetence or unskillfulness. Accord Bourgeois v. Snow Time, Inc., 242 A.3d 637, 657-58 (Pa. 2020) (holding that, summary judgment on a claim of injury caused by recklessness was improper because, viewing expert reports in the light most favorable to the plaintiff, the ski resort defendant had a duty to bring snow-tubing patrons to a safe stop, failed to protect against unreasonable risks, and "instead increased the risk of harm to its patrons through a number of conscious acts, including using folded deceleration mats in an inadequate run-out area under fast conditions"). Therefore, given the evidence of record, the trial court erred in entering summary judgment in favor of Camelback.
IV. Conclusion
In sum, Ms. Monroe's complaint sufficiently pled the state of mind of recklessness to defeat Camelback's motion for judgment on the pleadings, and the evidence of record created genuine issues of material fact precluding the entry of summary judgment. As such, the trial court's decision to grant Camelback's motion was in error. Therefore, we reverse the trial court's May 16, 2019 order and remand the case for trial to take place after Camelback has had a fair opportunity to supply its own expert report if it so chooses.
Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.
P.J. Panella and Judges Kunselman, King and McCaffery join this Opinion Per Curiam and Judge Nichols concurs in the result.
P.J.E. Bender files a Dissenting Opinion in which Judge Olson joins and Judge Stabile concurs in the result.
Judge Stabile files a Dissenting Opinion in which P.J.E. Bender and Judge Olson concur in the result.
Judgment Entered.
DISSENTING OPINION
STABILE, J.:
I respectfully dissent from my learned colleagues. I would affirm the trial court's grant of judgment on the pleadings, or alternatively grant summary judgment, in favor of the Appellee CBH20, LP ("Camelback") and against Appellant Aisha Moore ("Appellant" or "Plaintiff"), as requested in Camelback's motion for judgment on the pleadings, and its supplemental motion for summary judgment ("the "Motion"). In my opinion, the Majority fails to consider a crucial part of the pleadings in its review of the motion for judgment on the pleadings and relies upon facts not supported by the record in its review of summary judgment.
A. The Motion for Judgment on the Pleadings
Plaintiff filed a claim for negligence to which Camelback asserted as a defense in its answer and new matter, inter alia, that the action was barred by Plaintiff's execution of an "Activity Release and Agreement Not To Sue" ("the "Activity Release"). The issue to be decided was whether Plaintiff pled or sufficiently pled that Camelback engaged in "reckless" conduct so that the fact of the Activity Release would not bar a potential recovery. The trial court, like the Majority, identified only paragraph 21 in Plaintiff's amended complaint that averred "recklessness" for examination. The trial court granted Camelback's motion for judgment on the pleadings concluding that while Plaintiff used the term "recklessness" in this sole paragraph, none of the allegations in support of that term approach the type of conduct necessary to prove or plead a claim for reckless conduct. Trial Court's Pa.R.A.P. 1925(a) Statement (the "Statement"), 8/16/19, at 9. Paragraph 21, which I reproduce again for ease of reference, provided as follows:
21. [Camelback's] recklessness, carelessness and negligence included, but was not limited to:
a. Failing to properly monitor the speed of the zipline, in disregard of the safety of [Ms. Monroe];
b. Failing to use reasonable prudence and care by leaving [Ms. Monroe] to land with no help, in disregard of the safety of [Ms. Monroe];
c. [Left blank]
d. Failing to use reasonable prudence and care to respond to [Ms. Monroe]'s safety concerns during the zip[-]lining, specifically when [Ms. Monroe] as[ked Camelback] to slow down the zip[-]lining machine, in disregard of the safety of Ms. Monroe; and,
e. Failing to inspect and/or properly monitor the zip[-]lining machine engine, in disregard of the safety of [Ms. Monroe].Amended Complaint, 1/25/17, at ¶ 21. The court concluded that Plaintiff's list of alleged wrongs included within this paragraph such as "properly" and "reasonable prudence" and the omission of terms reserved for recklessness, such as "conscious disregard" or "reckless disregard" or "extreme departure from ordinary care" were insufficient to support a recklessness claim. The Statement at 9.
The Majority finds error with the trial court concluding instead that the pleading requirements under Pa.R.Civ.P. 1019 do not render Plaintiff's amended complaint insufficient. Rule 1019 provides in relevant part:
Rule 1019. Contents of Pleadings. General and Specific Averments
(a) The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.
(b) Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.Pa.R.Civ.P. 1019. The Majority interprets the plain language of this Rule to instruct that while a party must plead the material facts that support a cause of action, a party may generally aver knowledge, intent, and state of mind. Majority Opinion at 18. The Majority thus frames the question, not as one of pleading sufficiency, but whether recklessness constitutes a state of mind or a material fact upon which a cause of action is based, id., impliedly signaling that a general allegation of recklessness alone is sufficient to defeat Camelback's motion. The Majority concludes that the specific allegations of negligence and general allegations of recklessness are sufficient to meet the requirements of Rule 1019(a) and (b), and hence, judgment on the pleadings should not have been granted. Id. at 23. While the trial court and the Majority reach differing conclusions on whether judgment on the pleadings should be granted, I believe both failed to recognize how and when "recklessness" should have been pled in this case and hence, how that should have affected the outcome of the Motion.
Rule 1034 governs motions for judgment on the pleadings and provides in relevant part:
(a) After the relevant pleadings are closed, but within such time as not to unreasonably delayed the trial, any party may move for judgment on the pleadings.
(b) The court shall enter such judgment or order as shall be proper on the pleadings.Pa.R.Civ.P. 1034. Pleadings allowed are limited to a complaint and answer, a reply if the answer contains new matter, a counterclaim or cross-claim, a counter-reply if the reply to a counterclaim or cross-claim contains new matter, and a preliminary objection and a response thereto. Pa.R.Civ.P. 1017. In my opinion, the Majority, like the trial court, improperly focused solely upon the allegations of the amended complaint, to decide if judgment on the pleadings should have been granted. Both fail to recognize that the issue of recklessness was introduced into this case by virtue of Camelback pleading the Activity Release as an affirmative defense in its new matter to the amended complaint. It is in this context that the sufficiency of the pleadings with respect to the issue of "recklessness" had to be considered.
The Majority correctly notes that gross negligence and recklessness have not historically been identified as independent causes of action. Instead, they are aggravated forms of negligence. Majority Opinion at 19, citing PROSSER AND KEATON ON TORTS (5th ed. 1984) at § 34, 208-14. I agree. Plaintiff asserted a single cause of action for negligence. She was not required to separately plead a cause of action for "recklessness". In fact, she did not even have to plead recklessness in her count for negligence for that cause of action to survive. Her amended complaint sufficiently sets forth a cause of action for negligence and could not be dismissed for failure to state a cause of action.
Camelback however, in its answer, by way of asserting new matter, pled the Activity Release executed by Plaintiff as a bar to her claim, as she expressly agreed to release Camelback and not sue for any alleged negligence, including gross negligence, or any other improper conduct. Camelback's Answer, New Matter and Counterclaim at ¶¶ 41, 42. Camelback's pleading of the Activity Release constituted an affirmative defense raised as new matter to Plaintiff's amended complaint. See Pa.R.Civ.P. 1030. Camelback was obligated to raise the issue of the release as new matter otherwise that affirmative defense would be considered waived. Pa.R.Civ.P. 1032. With the release pled as an affirmative defense, Plaintiff in turn, at that pleading juncture, was obligated to meet this affirmative defense with an appropriate response, i.e., that the release does not bar reckless conduct by pleading specifically that conduct by Camelback was reckless conduct. In her reply to this new matter, Plaintiff responded identically to both paragraphs 41and 42 with "Denied. This is a conclusion of law to which no response is required; nonetheless, such averment is denied and strict proof thereof is demanded." Plaintiff did not aver that the Activity Release could not bar reckless conduct, nor did she aver further facts to demonstrate that Camelback's conduct was reckless. It was at this point in the pleadings that the issue of recklessness became relevant and Plaintiff, if not before, needed to plead the manner in which Camelback's conduct was "reckless", since an exculpatory clause in a contract does not release a defendant from liability arising out of recklessness. See Tayar v. Camelback Ski Corp. Inc., 47 A.3d 1190, 1203 (Pa. 2012). Plaintiff was not required to plead reckless conduct to sustain a cause of action for negligence, but was obligated to assert recklessness as a defense to Camelback's affirmative defense that her action was barred by execution of the Activity Release.
This pleading dynamic was explained in Goldman v. McShain, 247 A.2d 455 (Pa. 1968) as follows:
[T]o say that a possible affirmative defense exists to a complaint is not to say that such a complaint is legally insufficient on its face. It may still state a claim upon which relief can be granted, even though the relief itself will eventually be denied should defendant prove his affirmative defense. Surely, for example, we would not hold that a complaint in trespass failed to state a claim upon
which relief could be granted simply because the defendant's new matter raised the defense of contributory negligence. To prevail, defendant would still have to prove that defense at trial or somehow succeed in having plaintiff admit it in his own pleadings.Id. at 461 (emphasis added). Instantly, no one challenges that Plaintiff stated a cause of action for negligence. Neither the trial court nor the Majority recognize that it was by virtue of Camelback's new matter and Plaintiff's response thereto that the issue of "recklessness" became material to this action. Both limited their examination to the averments of the amended complaint under which recklessness was not an essential element to Plaintiff's negligence action. Plaintiff in her brief argues that she did not have to plead "recklessness" because it is a conclusion of law. Appellant's Brief at 26. Regardless, once the release became an issue as an affirmative defense, Plaintiff was obligated to respond in a legally sufficient manner in her reply to new matter and no longer could rest in the belief that her cause of action for negligence did not have to plead recklessness to survive a sufficiency challenge. She did not do so.
A defendant is entitled to judgment on the pleadings when a plaintiff's reply to new matter is insufficient as a matter of law. Pisiechko v. Diaddorio, 326 A.2d 608, 611-12 (Pa. Super. 1974). Moreover, a defendant is entitled to judgment on the pleadings when a plaintiff fails to reply sufficiently to new matter raising an affirmative defense. Wimbish v. School District of Penn Hills, 430 A.2d 710, 711-12 (Pa. Cmwlth. 1981). Averments in a pleading to which a responsive pleading is required are admitted when not denied specifically or by necessary implication. Pa.R.Civ.P. 1029(b). Further, a general denial or a demand for proof shall have the effect of an admission. Id. Here, Camelback averred at paragraphs 41 and 42 of its new matter:
41. Plaintiff's claims are barred by the terms of the "ACTIVITY RELEASE AND AGREEMENT NOT TO SUE." (See a true and correct copy of the "ACTIVITY RELEASE AND AGREEMENT NOT TO SUE" incorporated herein, attached hereto and marked as Exhibit "A.")
42. Plaintiff's claims are barred by the "ACTIVITY RELEASE AND AGREEMENT NOT TO SUE" where Plaintiff specifically released defendant Camelback from suit for any alleged negligence, including gross negligence, of defendant Camelback:
I agree that I will not sue camelback resort, its operating divisions, owners and operators and their officers, directors, agents, servants and employees… and will release camelback from any and all liability if I am or ever was injured… while using any of Camelback's facilities or while present on Camelback's property, even if I contend that such injuries are the result of negligence, including gross negligence, or any other improper conduct… I further agree that I will indemnify and hold harmless Camelback from any loss, liability damages or costs of any kind that may occur as the result of any injury to myself or to any persons for whom I am signing this agreement, even if I contend that such injuries are the result of negligence, including gross negligence, or any improper conduct…Answer, New Matter and Counterclaim at ¶¶ 41, 42. As stated, Plaintiff responded to both these paragraphs with the identical response - "Denied. This is a conclusion of law to which no response is required; nonetheless, such averment is denied and strict proof thereof is demanded." To the extent Plaintiff was required to admit or deny each averment of fact under paragraphs 41 and 42, the responses given were insufficient, as the responses simply denied the averments and demanded proof. These responses constituted an admission of facts pled by Camelback in these two paragraphs. Pa.R.Civ.P. 1029(b). Consequently, Camelback was entitled to have the factual averments in these paragraphs admitted. The facts deemed admitted would include the authenticity of the release and that Plaintiff specifically agreed to release Camelback from suit for any alleged negligence, including gross negligence.
Determining whether averments constitute facts or conclusions of law is not always an easy exercise. See Gotwalt v. Dellinger, 577 A.2d 623, 626-27 (Pa. Super. 1990) (in evaluating whether an averment contained in a new matter requires a response, courts must consider whether the averments are fact-based or are merely conclusions of law. As a component of this analysis, courts consider complex and abstract legal principles and utilize a large degree of discretion).
More importantly, to avoid the application of the release, Plaintiff was obligated to respond in some manner that the release did not bar her action because of Camelback's reckless conduct. Plaintiff did not do so and consequently, recklessness was not averred as a defense to the release. In essence, Plaintiff failed to respond sufficiently to Camelback's assertion of the Activity Release as a bar to her action.
Plaintiff's amended complaint could not be dismissed for failure to state a cause of action. Judgment on the pleadings could have been granted however, if Plaintiff failed to respond or sufficiently respond to new matter allegations that would defeat her action. Neither the trial court nor the Majority examined the issue of recklessness in the proper pleading context it had to be considered, focusing instead only upon the amended complaint and ignoring that the issue of recklessness was a product of new matter and that it only became relevant in that context.
Nonetheless, Rule 1034 requires that a court review all the relevant pleadings in a case when deciding whether to grant a motion for judgment on the pleadings. Despite Plaintiff's failure to adequately plead recklessness in response to the Activity Release raised as new matter, Rule 1034 still requires a comprehensive review of all the pleadings to determine whether Plaintiff pled recklessness elsewhere even though pleading recklessness was not required to assert a negligence cause of action. This returns us to paragraph 21 of Plaintiff's amended complaint, the only paragraph where "recklessness" was averred. While I end by examining the amended complaint, the point where the Majority begins its analysis, this is not merely form over substance. The question is not whether recklessness is a state of mind that may be generally pled in a complaint as framed by the Majority. Rather, the question is whether the pleadings sufficiently allege reckless conduct as a response to Camelback's affirmative defense that Plaintiff's action is barred by the Activity Release. I conclude the pleadings are not sufficient to overcome the affirmative defense of the Activity Release.
In Tayar, our Supreme Court discussed at length the difference between negligent and reckless conduct that I find to be more on point than the Majority's resort to treatise that attempts to explain recklessness in the context of comparing "willful, wanton, and reckless" conduct. See Majority Opinion at 18-20.
Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. In Fitsko v. Gaughenbaugh, [] 69 A.2d 76 ([Pa.] 1949) we cited with approval the Restatement (Second) of Torts definition of "reckless disregard" and its explanation of the distinction between ordinary negligence and recklessness. Specifically, the Restatement (Second) of Torts defines "reckless disregard" as follows:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that "[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent." Id., cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:
Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose
this danger to any reasonable man.... The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.
Id., cmt. g; see also AMJUR Negligence § 274 ("Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, an indifference whether or not wrong is done, and an indifference to the rights of others"). Our criminal laws similarly distinguish recklessness and negligence on the basis of the consciousness of the action or inaction. See 18 Pa.C.S.A. § 302(b)(3), (4) (providing that a person acts recklessly when he "consciously disregards a substantial and unjustifiable risk," while a person acts negligently when he "should be aware of a substantial and unjustifiable risk").
This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct.Tayar, 47 A.3d at 1200-1203 (emphasis added). Distilled to a few simple concepts, reckless conduct may be characterized as conduct falling just short of intentional conduct where there is conscious action by an actor with knowledge that their conduct may pose an unreasonable risk of harm or a serious danger to others. In other words, an actor must know that their conduct presents an unreasonable risk or serious harm to another, but the actor decides nonetheless, to continue in their conduct despite knowing of the risk and potential serious injury to another. To fully appreciate the level of culpability that must be pled to demonstrate reckless conduct, one need only consider that recklessness is conduct that demonstrates such an indifference to the rights of others that, in an appropriate case, punitive damages may be awarded. See Feld v. Merriam, 485 A.2d 742 (Pa. 1984) (punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. Punitive damages must be based on conduct which is malicious, wanton, reckless, willful, or oppressive). Paragraph 21 of Plaintiff's amended complaint falls far short of averring egregious conduct that may be considered as reckless.
Plaintiff averred Camelback was reckless, careless, and negligent for failing to monitor the speed of the zip line, it left Plaintiff to land without help, did not respond to Plaintiff's request to slow down the zip lining machine, and failed to monitor the zip lining machine engine. Absent from all these averments, individually or collectively, is any suggestion that Camelback was consciously aware that its conduct would pose a serious risk of injury to Plaintiff and that it decided nonetheless to proceed in its conduct. Despite attaching the label of "recklessness" to her averments, Plaintiff only has averred facts, if proven, that may establish inadvertence or negligence. In my opinion, judgment on the pleadings was properly entered by the trial court in Camelback's favor.
I believe it also is important to recognize that, when considering whether reckless conduct is present, the nature of the venture must be placed in context. Some sports are inherently dangerous, i.e., sky diving, car racing, downhill skiing, scuba diving, etc. Zip lining also is a sport sought after by thrill seekers that presents inherent dangers. A person, properly equipped with protective equipment, voluntarily agrees to launch themselves from the top of a platform falling at whatever speed gravity dictates over some distance on a length of line to arrive at a distant point where a landing is required. These environs present inherent risks. While precautions must be taken, a charge of reckless conduct cannot be made out in a vacuum ignoring the risk of injury inherent in the sport. Falling at whatever speed gravity dictates and perfecting a safe landing present risks voluntarily assumed by a participant. Even the exercise of all reasonable care by an operator cannot rule out the possibility of sustaining some injury when performing those tasks.
See https://www.robsonforensic.com/articles/zip-line-safety-expert. "According to a 2015 study by the American Journal of Emergency Medicine, the number of zip line injuries in the United States reached 3,600 in 2012, 11.64 per 1 million population. This compares with 0.0127/1 million population for amusement park rides (2015). Reported injuries included broken bones (46%), bruises (15.2%), strains/sprains (15.1%), and concussions/closed head injuries (7%). Ohio State University researchers found that approximately 12% of zip line injuries resulted in hospitalization. Between 2006 and 2016 there were 16 zip line fatalities reported in the United States, predominantly from falls (77%), material failures, collisions, and entanglements."
Given its interpretation of Rule 1019, the Majority emphatically states that its ruling removes 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. Majority Opinion at n. 6. Respectfully, I strongly disagree and find this statement of principles not to be supported by our case law.
When relevant, Rule 1019(b) allows a condition of mind to be averred generally, but this does not eliminate the requirement of pleading factual circumstances giving rise to an inference as to the state of an actor's mind. See Goodrich Amram 2d § 1019(b)(11). To this end, I am in full agreement with the dissent of my colleague Judge Bender wherein he documents cases extending back almost 50 years through the near present establishing the requirement that while recklessness may be averred generally, the material facts constituting the conduct that demonstrate recklessness also must be pleaded. See Dissent, Judge Bender at 3-10, citing Ammlung v. City of Chester, 302 A.2d 491 (Pa. Super. 1973) and related cases. The Majority's logic divorces the conduct that must be alleged to support a claim of recklessness from the conclusion of recklessness that it suggests can be asserted by label alone to survive a sufficiency challenge. While some liberality may be tolerated in our rules, see Pa.R.Civ.P. 126, the Majority's proposed interpretation of pleading states of mind generally under Rule 1019 would make pleading states of mind farcical. Under the Majority's logic, any complaint that alleges mere negligence can be converted into a claim alleging recklessness by merely averring that state of mind, even in the most obvious of cases where only mere inadvertence is alleged or can be inferred.
The Majority also, without citation to authority, would permit a party to remedy defective pleadings by engaging in discovery as a fishing expedition to see if any facts could be discovered to support the claim, even when a pleading is insufficient to permit such inquiry. See Majority Opinion at 22-23. Our case law does not permit this practice. See Berkeyheiser v. A-Plus Investigations, 936 A.2d 1117, 1127 (Pa. Super. 2007) (the court must ensure appellee's discovery requests are tailored to her specific negligence cause of action and not permit a mere "fishing expedition); McNeil v. Jordan, 894 A.2d 1260 (Pa. 2006) (under no circumstance should a plaintiff be allowed to embark upon a "fishing expedition," or otherwise rely on an amorphous discovery process to detect a cause of action he lacks probable cause to anticipate prior to pre-complaint discovery); Cooper v. Frankford Health Care System, 960 A.2d 134 (Pa. Super. 2008) (citing McNeil); Land v. State Farm Mut. Ins. Co., 600 A.2d 605 (Pa. Super. 1991) (while discovery should be liberally allowed, "fishing expeditions" are not to be countenanced under the guise of discovery). While Rule 1019(b) permits averring states of mind generally, Rule 1019(a) also requires that the material facts supporting an action or defense be pled as well. Averring states of mind generally is by necessity, see Ammlung, supra, but facts also must be alleged from which a state of mind may be inferred. Only in this manner can subdivisions (a) and (b) of Rule 1019 be given effect and reconciled together.
Our analysis on the issue of granting judgment on the pleadings however, does not end here. At the time Camelback filed its Motion, all discovery was completed and the matter was set for trial. If a defect appeared in Plaintiff's amended complaint that could be cured by amendment, the court should not have granted the Motion without granting Plaintiff an opportunity to amend her pleadings. Williams By and Through Williams v. Lewis, 466 A.2d 682 (Pa. Super. 1983). However, where there is no apparent possibility that a plaintiff will be able to set forth a better case by amendment, there is no abuse of a court's discretion in refusing an opportunity to amend. Id.; Wimbish, supra. With the record fully developed in this case and aided by the parties' summary judgment submissions, the court was well informed to determine whether Plaintiff would be able to amend her pleadings to sufficiently plead recklessness. The trial court's review of the record demonstrates she could not. Leave to amend need not have been considered, and but for the trial court exercising caution respecting the appropriateness of the timing of the motion for judgment on the pleadings, it would not have been necessary to decide summary judgment.
B. The Motion for Summary Judgment
On April 16, 2019, Camelback filed its Motion. By its order of March 20, 2019, the court expressly granted permission for Camelback to file a motion for summary judgment. In its Motion, Camelback went beyond that expressly permitted by the court by also requesting judgment on the pleadings. It was in the alternative that it sought summary judgment if the court determined Plaintiff sufficiently pled recklessness in her amended complaint. The court granted Camelback's motion for judgment on the pleadings, but out of caution, considering that judgment on the pleadings may be considered untimely, decided the summary judgment motion as well. With both a motion for judgment on the pleadings and a motion for summary judgment before the court, presented after all discovery was complete and the case ready for trial, the court would have been within its rights to simply consider the matter as one for summary judgment. See Demmler v. Smithkline, 671 A.2d 1151 (Pa. Super. 1996) (a trial court's order dismissing a case prior to trial is properly characterized as either a summary judgment or a judgment on the pleadings. Since discovery was fully conducted the order entered was treated as one for summary judgment.). Regardless, the court agreed Plaintiff failed to establish evidence on the record sufficient to support a claim for reckless conduct. The Statement at 14. In granting summary judgment, the court held:
Citing the procedural history of this case, the Majority is highly critical of Camelback filing a motion for judgment on the pleadings which it deemed to be unnecessary and without justification at a time to unnecessarily delay trial. Majority opinion at n.7. Respectfully, I do not believe this criticism to be warranted, because the trial court expressly exercised its discretion to allow the filing of a summary judgment motion. The landscape of this case changed significantly when, on March 20, 2019, the court granted Camelback's unopposed motion to preclude evidence of negligence in light of the fact that Plaintiff could succeed only if she could prove recklessness. With the triable issues substantially narrowed, it was within the court's discretion to decide whether considering a motion for summary judgment would further facilitate disposition of this case. Although the trial court did not grant permission to file a motion for judgment on the pleadings, I can discern no prejudice in doing so, since it also found merit to Camelback's motion for summary judgment.
According to Tayar . . . "recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to
others whereas negligence suggests unconscious inadvertence." . . . Zip-lining is highly regulated and the operation and maintenance of a zip-line requires regular inspections and corresponding permits. There is nothing in the record to support or suggest Camelback failed to exercise reasonable care in the maintenance and operation of the zip-line on the day of Plaintiff's accident. There is nothing of record to establish that any manufacturing or industry specification, standard or regulation was violated or breached by Camelback. Moreover, Plaintiff has not established any evidence to show Camelback (1) engaged in conduct that involved a risk of harm to Plaintiff substantially in excess of that necessary to make it negligent, (2) intentionally did an act or intentionally failed to do an act in reckless disregard for Plaintiff's safety, or (3) engaged in conduct that constituted an extreme departure from ordinary care.Id. (citations omitted). As Judge Bender in his dissent sadly recognizes, Appellant's brief does not advance its case well, as it lacks any cogent discussion of the record under the standard governing summary judgment. The Majority was at the same disadvantage. Without development by Appellant in her brief, the Majority takes on the task of providing its own detailed review of the record, focusing principally upon Plaintiff's expert report, submitted for the first time in response to Camelback's Motion, to analyze whether Plaintiff set forth sufficient proof of recklessness to survive dismissal of her action.
I believe Judge Bender has analyzed and corrected the record misrepresentations in this case well to demonstrate that recklessness has not been sufficiently established to allow this case to survive summary judgment. I join completely in his analysis. However, I too wish to add several observations in support of my opinion that the trial court did not err in granting summary judgment in favor of Camelback.
Plaintiff's shifting theories of harm have complicated review of the record and the determination as to what precisely is Plaintiff's theory of reckless harm. As we already recognized, paragraph 21 of the amended complaint constitutes the only reference to reckless conduct in all of the Plaintiff's pleadings. Under that paragraph, Plaintiff claimed harm as a result of Camelback not monitoring the speed of the zip line, leaving her to land with no help, failing to slow down the zip lining machine, and failing to inspect the zip lining machine engine. In her March 14, 2019 pretrial statement, Plaintiff presented a different picture. She stated that due to her weight, a ripple effect was created in the zip line which then slammed her into the ground resulting in significant physical harm. She claimed Camelback's former employees testified they were aware of the ripple effect when heavy individuals ride the line. She further claimed they were aware of this so that when Plaintiff approached the end of the line she was not able to lift her feet high enough to avoid injury. Plaintiff concluded Camelback recklessly allowed a greater weight limit than appropriate. See Plaintiff's Pre-Trial Statement, 3/14/19 at 1-2 (unpaginated). A completely different picture then surfaced in Plaintiff's response to Camelback's Motion where Plaintiff for the first time, some 16 months beyond the court's case management deadline of January 8, 2018, and as a last resort, produced the May 13, 2019 expert report of Stephen Wolf that set forth different theories to demonstrate reckless harm.
Plaintiff's Memorandum of Law in Opposition to Camelback's Motion for Judgment on then Pleadings/Supplemental Motion for Summary Judgment, 5/16/19.
The Wolf report represented that Plaintiff was unable to sufficiently pick up her feet due to her weight and that her body impacted the landing deck twice. First, when her feet impacted the mats/carpets that were in front of the landing deck that concealed the front face of the deck, and then after her body swung and spun due to the first impact after which she then impacted the deck a second time. Wolf claims Camelback was aware of potential harm due to impacting the front of the landing deck by virtue of placing a sign stating "Lift your feet" at the bottom of the zip line. Camelback further instructed its employees to yell "pick up your feet" as the customer was speeding down the zip line. The Wolf report states that Camelback thus was aware a customer could impact the face of the landing deck that protrudes significantly above ground level as it was aware customers may not be able to lift their feet. The report then describes the landing platform as having a face that protrudes sharply and vertically from the ground making the deck perfectly positioned to cause an injury. Wolf concludes that Camelback recklessly ignored the gross risks of the face of the landing deck protruding above ground level and actually attempted to conceal the risk by placing soft mats/carpeting over the face of the landing. Id. at 1-4 (unpaginated).
Fortunately, when deciding a motion for summary judgment, a court is bound to examine what is actually reflected in the record. Here, the record dispels much of counsel's evolving theories as to how the harm occurred in this case and many of the factual assumptions underlying the Wolf report. Unfortunately, the Majority seems to accept at face value the Wolf report without examining whether the facts assumed in that report have support in the record for purposes of deciding summary judgment. It would have been of great assistance to this Court had Plaintiff taken the laboring oar to accurately set forth the material record facts for us to consider under this appeal.
To begin, there is no zip lining "machine" or "engine" that controls the speed a person runs the zip line as admitted by Plaintiff in her deposition and contrary to what was stated in her amended complaint. N.T., Plaintiff's
Deposition, 10/12/17, at 79. Instead, as described by Camelback employee Brett Dunphy, a zip line attendant, the ride begins when a person is clipped to a trolley that attaches to the zip line. N.T., Dunphy Deposition, 12/20/17, at 7-8. From that point forward, the ride down the line is governed only by gravity. Id. Near the end of the ride there is a braking system that slows the rider down until they come to a stop. Id. This was confirmed by Camelback employee, Clinton Frantz, a supervisor of all adventure park rides that includes the zip lines. N.T., Clinton Frantz Deposition, 10/9/17, at 12. The zip line is a gravity zip line that uses a braking system at the end of the ride to slow the rider down near the end of the ride. Id. at 971-72. The braking mechanism, known as a zipSTOP braking system, is made by Head Rush Technologies. Id. It slows the rider down progressively near the end of the ride when a bumper on the line is contacted. Id. The system then brings the rider to a complete stop once the rider is upon the landing deck. Id. The zipSTOP system is not a powered system, i.e., run by gas or electricity. Id. at 993. Nothing in the record contradicts the description of the zip line or its braking system as testified to by Camelback employees Dunphy and Frantz. Nor is there any testimony, lay, expert or otherwise, to support a claim that the speed of the zip line was governed by anything other than gravity or that there was any malfunction in the braking system. These factual realities effectively negate three of the four bases pled in Plaintiff's amended complaint: that Camelback failed to monitor the speed of the zip line, it failed to slow down the "zip lining machine," and failed to properly monitor the zip lining "machine engine." See Plaintiff's Amended Complaint, 1/25/17, at ¶ 21(a), (d), and (e). This leaves only one basis in the amended complaint upon which liability is asserted. Subparagraph (b) asserts Camelback failed to use reasonable care by leaving Plaintiff to land with no help. This last claim requires that we examine the record to see how this accident occurred.
Plaintiff's amended complaint at paragraph 21 contains 5 subparts (a) through (e), but subpart (c) is blank leaving only 4 subparts with averments respecting liability.
Plaintiff testified that, while coming down the line and while she already was over the top of the landing deck, she asked the attendant if he could slow it down. N.T., Plaintiff's Deposition 10/12/17, at 50-51. His only response was that it was almost done. Id. She then very clearly testified that she was over the top of the landing deck at the bottom when she was pushed back a little, came backwards a little, her body pivoted, spun around, and then her leg dropped onto the landing deck whereupon she felt a crunch. Id. at 51-53. Up until that point, her foot had not struck anything and she had not done anything with her foot. Id. at 52. She specifically testified that it was when her leg landed on top of the landing deck that she heard the crunch. Id. at 53. Plaintiff testified that she kept her legs up at the beginning of the ride as she was told, and that at no time were her feet dragging on the ground prior to landing on top of the deck and that she made sure to have her legs up. Id. at 52, 54.
Plaintiff's recollection of her accident, with minor exception, was corroborated by Dunphy, the zip line attendant. He observed how Plaintiff hit her leg when she landed. He testified that her feet first kind of dragged along the anti-fatigue mats and then the impact came when she stopped, swung up, and hit the deck to land. N.T., Dunphy Deposition 12/20/17, at 886. Her leg broke when it hit the landing deck. Id. He recalls telling Plaintiff to lift up her feet, that she attempted to do so, but due to her weight her feet dragged along the mats. Id. at 15-16. She, however, was within the weight limits of the zip line. Id. Each rider is weighed at the top of the ride before sending them down the line. Id. at 16. At counsel's suggestion, Plaintiff's feet dragging was referred to as the "first" impact and the landing on top of the deck as the "second". Id. at 11. It was the second that caused Plaintiff's injury. Id.
The combination of Plaintiff's, Dunphy's, and Frantz's testimony do not lend support to Plaintiff's remaining averment in her amended complaint that Camelback failed to use reasonable care by leaving Plaintiff to land with no help. To the contrary, the ride was monitored from beginning to end, with the zip line attendant reminding Plaintiff to lift her feet and monitoring her until the ride came to a complete stop. In her pretrial statement, Plaintiff's counsel introduced the theory that heavy people cause the zip line to ripple up and down so that at the end of the ride people are not able to lift their feet high enough to avoid injury and that Camelback allowed a greater weight limit than appropriate. Certainly, Plaintiff's testimony lends no factual credence to this theory, as it was her testimony she held her feet up and that her injury did not occur until she was over the landing deck. Nor does the record support any claim that Plaintiff was over the weight limit for her line. Not surprisingly, Plaintiff finally resorts to her late-filed Wolf report to construct another theory of liability to argue that Camelback acted recklessly.
Expert testimony is proper only if the facts upon which the testimony is based are of record. Commonwealth v. Rounds, 542 A.2d 997 (Pa. 1988).
It is clear . . . that expert opinion testimony is proper if the facts upon which it is based are of record. This requirement for admissibility of opinion testimony is crucial. The purpose of expert testimony is to assist the factfinder in understanding issues which are complex or go beyond common knowledge. An expert's function is to assist the jury in understanding the problem so that the jury can make the ultimate determination. If a jury disbelieves the facts upon which the opinion is based, the jury undoubtedly will disregard the expert's opinion. Likewise, if a jury accepts the veracity of the
facts which the expert relies upon, it is more likely that the jury will accept the expert's opinion. At the heart of any analysis is the veracity of the facts upon which the conclusion is based. Without the facts, a jury cannot make any determination as to validity of the expert's opinion. To hold otherwise would result in a total and complete usurpation of the jury's function in our system of justice.Id. at 999 (emphasis added; case references omitted). The Majority errs by accepting the Wolf report without questioning whether the facts underlying his report respecting Plaintiff's injury have any support in the record.
The Wolf report posited that Camelback's zip line was low enough that a rider's legs might have contacted the ground before the pulley carriage contacted the braking device. Wolf Report, 5/13/19, at 2. If the ground was free of imperfections, a rider's feet would drag smoothly up a wooden platform causing a reduction in speed with the rider's forward movement arrested by a combination of manual braking by physical engagement of an employee and a mechanical impact attenuation device at the end of the line. Id. at 2-3. Wolf contended that, because of the risk of injury, all employees instructed participants to raise their legs so their legs did not touch the ground until they had been brought to a stop. Id. at 3. Wolf concluded it was not reasonable for a participant's safety to be contingent on being able to perform a physical feat, such as raising legs or being able to listen and follow directions, when experiencing an adrenaline inducing thrill ride. Id. The fact Camelback required its staff to yell at participants to raise their legs reveals they were aware that contacting the ground was a potential cause of injury. Id. at 4. Wolf stated that what was more dangerous than sliding one's feet along the ground was having them hit something hard. Id. He then criticized the leading edge of the wooden deck that he claimed protruded sharply and vertically at a 90° angle to the ground, as being perfectly positioned to cause an injury. Id. He surmised that Camelback must have known of this condition, because it covered the protruding edge with a piece of carpet that concealed rather than removed this risk. Id. He also opined that there was risk in the design by requiring a rider to comply with a strenuous physical task and willingly allowing participants to be subject to an unnecessary and preventable danger. Id. at 5. He stated that gross risks were intentionally hidden under a carpet. Id. He thus opined, within a reasonable degree of certainty, that the injury sustained by Plaintiff was directly attributable to the failure of Camelback to prevent injury by its intentional disregard for safety by concealing rather than removing an obvious threat to the safety of their clients. Id.
Wolf's conclusion is without any factual basis in the record. Wolf leveled criticism at the design of the landing platform that may permit a rider to collide with the face of the landing platform. Regardless of whether this may constitute a design defect, there is absolutely no evidence of record that Plaintiff collided with the 90° angle of the face of the platform. To the contrary, the record only supports facts that either Plaintiff held her legs up until she reached a stop, or once upon the landing platform, dragged her foot or feet before coming to a stop and traveling backwards. In this latter scenario, Wolf contradicted himself as he found no fault with foot dragging, as he indicated in his report that foot dragging was part of the way in which a rider could cause a reduction in speed before stopping. Id. at 2.
Furthermore, there is no support in the record that covering the face of the platform with carpeting concealed the vertical face of the platform. I find this particularly curious because there is no indication in the record that Plaintiff, or anyone else, was unaware of the platform's location. Even if concealed, the observation is completely irrelevant because there is no testimony Plaintiff collided with the face of the platform. Likewise, I fail to see how requiring participants to lift their feet when engaging on this thrill ride to land constitutes reckless conduct. This especially is so where Plaintiff indicated she did so at all times and was instructed to do so by Camelback numerous times before landing, measures obviously designed to assure a safe ride. It is unclear to me how requiring someone to lift their legs when approaching a landing is an unreasonably strenuous task presenting a threat of serious harm considering the sport being engaged in as suggested by Wolf in his report. Regardless, even if Plaintiff dragged her feet (something she disputes) before coming to a stop and then traveling backwards, there is no indication in the record that this had any effect on her leg hitting the platform with such force to cause her injury so that requiring a rider to raise their legs demonstrates reckless conduct by Camelback. Even if Wolf's report could support triable negligence issues, it is completely lacking in record support to demonstrate that Camelback engaged in conscious action knowing that its conduct would or may pose an unreasonable risk of harm or a serious danger to Plaintiff.
The material facts as to how Plaintiff sustained her injury are largely uncontradicted. Upon arriving on the landing deck during the braking process, she rose up to a stop, spun around, traveled backwards, and then her leg forcefully contacted the landing deck causing her injury. The record is completely devoid of any evidence that a condition of the zip line was known to Camelback that would cause serious injury to a rider, notwithstanding any inherent risks in the sport, but that it allowed its customers to ride the zip line knowing that to do so would expose them to an unreasonable or serious risk of injury. Wolf's report that opined Camelback acted intentionally to conceal a condition that caused Plaintiff's injury is without any factual foundation in the record. In summary, I agree with the trial court when it stated: "Plaintiff has not established any evidence to show Camelback (1) engaged in conduct that involved a risk of harm to Plaintiff substantially in excess of that necessary to make it negligent, (2) intentionally did an act or intentionally failed to do an act in reckless disregard for Plaintiff's safety, or (3) engaged in conduct that constituted an extreme departure from ordinary care." The Statement at 14. The record quite simply is bare of any evidence that Camelback acted recklessly. In my opinion, the trial court did not err in granting summary judgment in Camelback's favor.
For the foregoing reasons, I respectfully dissent from the Majority's Opinion, and would affirm judgment in favor of Camelback.
President Judge Emeritus Bender and Judge Olson concur in the result.
Judgment Entered.
DISSENTING OPINION
BENDER, P.J.E.:
I respectfully dissent. Though I agree that Ms. Monroe waived any argument that Camelback's motion for judgment on the pleadings/motion for summary judgment was untimely or otherwise improper, unlike the Opinion Per Curiam, I would conclude that Ms. Monroe failed to adequately plead recklessness in her complaint. As such, I would determine that the trial court properly entered judgment on the pleadings in favor of Camelback and correctly dismissed Ms. Monroe's claims with prejudice. Moreover, even if judgment on the pleadings was inappropriate, I would affirm the trial court's entry of summary judgment in favor of Camelback, as I disagree that Ms. Monroe produced sufficient evidence to enable a fact-finder to conclude that Camelback acted recklessly in this matter. I address each of these points further in turn.
I.
Upon examining whether Ms. Monroe adequately pleaded recklessness in her complaint, I would ascertain that she did not do so, such that Camelback's motion for judgment on the pleadings should have been granted. I recognize that an apparent split in authority as to the proper pleading of recklessness has developed, which has led to inconsistent rulings in the trial courts and understandable confusion amongst litigants. See Daniel E. Cummins, PLEADING FOR CLARITY: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters, Vol. XCIII, No. 1 P.B.A. Quarterly 32 (Jan. 2022). Due to this controversy, I think it useful to briefly review the current state of the law on this issue.
I am mindful that, when ruling on a motion for judgment on the pleadings, this Court may only consider the pleadings and any documents properly attached to them. See Commonwealth v. All that Certain Lot or Parcel of Land Located at 4714 Morann Avenue, Houtzdale, Clearfield County, 261 A.3d 554, 559-60 (Pa. Super. 2021); see also Pa.R.Civ.P. 1017(a). Accordingly, I do not consider Mr. Wolf's expert report in my analysis, as his expert report was not attached to a pleading, but instead was produced by Ms. Monroe in opposition to Camelback's motion for judgment on the pleadings/motion for summary judgment.
As the Opinion Per Curiam acknowledges, Pennsylvania Rule of Civil Procedure 1019 addresses the contents of pleadings and the specificity required for factual averments. Pertinent to this matter, Rule 1019(a) provides that "[t]he material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Pa.R.Civ.P. 1019(a). Additionally, Rule 1019(b) sets forth that "[a]verments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally." Pa.R.Civ.P. 1019(b). Thus, although Pennsylvania is a fact-pleading jurisdiction, our Rules of Civil Procedure permit parties to aver conditions of the mind generally.
Nearly fifty years ago, this Court confronted the issue of how to properly plead a condition of the mind in Ammlung v. City of Chester, 302 A.2d 491 (Pa. Super. 1973). In that case, the plaintiff pleaded the following in her complaint:
At about 11:00 p.m. on January 24, 1970, Russell G. Ammlung, Jr., an 18-year-old[] of whose estate [the] plaintiff is administratrix, was discovered out of doors in subfreezing weather, semi-clothed and only partly conscious. He was arrested by an officer of the Chester City Police Department, defendant Lawrence Platt, for being drunk and disorderly in spite of the fact that he was, and appeared to be, simply ill.
Mr. Ammlung was removed to the Chester City Police Station by Officer Platt and Officers Joseph Friel and Michael Brown of the Chester Police Department, also defendants, and there confined to a cell. No medical examination was afforded him; no effort was made to ascertain his identity or to notify his relatives. He died the following morning, sometime after 10 o'clock, in his cell.
In the interim, he remained in a chilled state and without adequate clothing; he was unattended until 8:45 of the morning following his arrest. A[t] some point, water was thrown upon, or otherwise applied to, him in an effort to revive [him]; the water caused him to contract pneumonia. At 8:45 of the morning following his arrest, he was observed to be still unconscious by Sergeant Paul L. Morgan of the Chester Police Department, a defendant, who heard a gurgling sound in his throat. The incident was not reported.
Shortly before his death, mucus was seen coming from his mouth.
Death resulted from the 'grossly negligent and wanton' treatment of the defendants, who were acting within the scope of their employment and who included Captain John Welc, in
charge of the police station, and Roy Dixon, an employee of the police department in whose custody the decedent was while confined.Id. at 493-94 (emphasis added).
The defendants filed preliminary objections in the nature of a demurrer to the plaintiff's complaint, which the trial court sustained. Id. at 492. In sustaining the defendants' preliminary objections, the trial court determined that "the defendants named in the complaint would not be liable in the absence of 'intentional, wanton, [or] malicious conduct' and that such conduct had not been sufficiently alleged." Id. at 494 (footnote omitted).
The plaintiff appealed, and we reversed the trial court's decision, explaining:
Under Pa.R.C[iv].P. … 1019(b), '(m)alice, intent, knowledge, and other conditions of mind may be averred generally.' Wantonness, being in principle a state of mind, has been regarded as included within the rule. The permissibility of pleading a condition of the mind generally, in a fact[-]pleading state, is, of course, founded upon necessity. The allowance of such pleading was not meant, however, to dispense with the requirement that material facts constituting the conduct of a defendant also be pleaded.
The plaintiff has alleged that the decedent was in the custody of the defendants, that he was ill and semiconscious, that he was allowed to lie in that state a full night, without adequate clothing and without medical care, that he died the next morning in his cell, and that the defendants in so confining and treating him acted wantonly-i.e., with a realization of the danger he was in and with a reckless d[i]sregard of that danger. Although it may be that the
amended complaint lacks sufficient specificity, and is thus susceptible to the motion for a more specific pleading included in [the] defendants' preliminary objections, we do not believe that a demurrer should have been sustained and the amended complaint dismissed. A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless 'the law says with certainty that no recovery is possible.' Under the facts alleged, we are not prepared to say that no recovery is possible.Id. at 497-98 (citations and footnotes omitted; emphasis added).
"'(W)antonness,' in Pennsylvania, 'exists where the danger to the (injured party), though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.'" Ammlung, 302 A.2d at 497 (citation omitted).
Hence, following Ammlung, this Court has issued decisions determining that - even though conditions of mind may be pled generally - supporting factual allegations must also be pled. See Valentino v. Philadelphia Triathlon, LLC, 150 A.3d 483, 489 (Pa. Super. 2016) (en banc), aff'd by equally divided court, 209 A.3d 941 (Pa. 2019) (ascertaining that the plaintiff's allegations in her complaint "averred nothing more than ordinary negligence arising from inadvertence, mistake, or error in judgment; they do not support a claim involving outrageous behavior or a conscious disregard for risks confronted by [t]riathlon participants"); Toney v. Chester Cnty. Hosp., 961 A.2d 192, 203 (Pa. Super. 2008) (concluding that the complaint did not supply any factual allegations to support the legal conclusion of recklessness or intentional acts); Cable & Assocs. Ins. Agency, Inc. v. Commercial Nat'l Bank of PA, 875 A.2d 361, 365 (Pa. Super. 2005) ("Pennsylvania Rule of Civil Procedure 1019(b) provides that malice, intent, knowledge, and other conditions of mind may be averred generally, but this permissive pleading rule did not obviate the central requirement of our fact-pleading system, i.e., that the pleader must define the issues and every act or performance essential to that end must be set forth in the complaint.") (citations omitted); Waklet-Riker v. Sayre Area Educ. Ass'n, 656 A.2d 138, 141 (Pa. Super. 1995) ("[The a]ppellant insists that bad faith is a state of mind, and thus, may be pled generally. However, her failure to plead any material facts upon which a claim of bad faith could be based is fatal to her cause of action.") (citations omitted).
Despite this line of cases, confusion about how to properly plead recklessness began to emerge following this Court's decision in Archibald v. Kemble, 971 A.2d 513 (Pa. Super. 2009), appeal denied, 989 A.2d 914 (Pa. 2010). There, the plaintiff brought a negligence action against a fellow hockey player in his adult "no-check" ice hockey league after the fellow player allegedly checked the plaintiff in violation of the league's rules, causing injuries to the plaintiff. Id. at 515. The trial court granted summary judgment in favor of the defendant, noting that "[i]n order to recover the relief requested, recklessness or intentional conduct must be shown. Had the words 'reckless' or 'intentional conduct' even appeared within [the plaintiff's c]omplaint, [the d]efendant's position that [the plaintiff has] failed to state a cause of action for which relief can be granted would be erroneous." Id. at 517 n.1.
The plaintiff appealed. Initially, we held that the defendant must have engaged in reckless conduct to be subject to liability for the injuries sustained by the plaintiff. Id. at 517. Next, we considered whether the plaintiff was required to specifically plead recklessness in his complaint, which he had not done, instead pleading only negligence. See id. at 515-16, 519. We explained:
The Restatement provides:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
…
Special Note: The conduct described in this Section is often called "wanton or willful misconduct" both in statutes and judicial opinions. On the other hand, this phrase is sometimes used by courts to refer to conduct intended to cause harm to another.Restatement (Second) of Torts § 500 (1965).
Recklessness, or willfulness, or wantonness refers to a degree of care Prosser describes as "aggravated negligence." Nevertheless, "[t]hey apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is to be treated in many respects as if it were so intended." W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS § 34 (5th ed. 1984). In this case, even though we hold [the plaintiff] must prove [the defendant] acted recklessly, the cause of action remains sounding in negligence. Cf. Stubbs v. Frazer, … 454 A.2d 119 ([Pa. Super.] 1982). Therefore, merely determining the degree of care is recklessness does not give rise to a separate tort that must have been pled within the applicable statute of limitations. The trial judge was correct in ruling the degree of care is recklessness. He erred in concluding that [the plaintiff's] cause of action was not subsumed within the negligence count pled in [his] Complaint.
Pennsylvania Rule of Civil Procedure 1019(b) provides: "Malice, intent, knowledge, and other conditions of the mind may be averred generally." An example of a condition of the mind that may be averred generally is wanton conduct. See Ammlung…, … 302 A.2d [at] 497 … (citations and quotation marks omitted) (explaining "[u]nder Pa.R.C[iv].P. … 1019(b), (m)alice, intent, knowledge, and other conditions of mind may be averred generally. Wantonness, being in principle a state of mind, has been regarded as included in this rule[]"). Because recklessness is also known as "wanton and willful misconduct," "recklessness" is a condition of the mind that may be averred generally.
In acknowledging the burden is recklessness, [the plaintiff's] Complaint is not being changed at all[,] let alone being changed to add new facts or new parties. [The defendant] suffers no prejudice because he is already aware of the facts. The heightened burden from simple negligence to recklessness hinders [the plaintiff], not [the defendant]. Lastly, [the defendant] is not prejudiced considering in his Answer and New Matter [he] provided: "[The defendant] was not negligent, reckless or careless with respect to any conduct regarding the injuries and damages alleged by [the p]laintiff…."Id. at 519-20 (footnote and citation omitted; emphasis in original).
As I discuss further infra, in addition to the lesser degree of risk involved, negligence differs from recklessness in that negligence suggests "unconscious inadvertence" or "mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency[.]" Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1200 (Pa. 2012); see also id. ("Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence."); Pa. Suggested Standard Civil Jury Instructions 13.60 ("Reckless conduct is significantly worse than negligent conduct. The risk that harm will be caused by conduct that is reckless is higher than the risk that harm will be caused by conduct that is negligent."); Subcommittee Note to Pa. Suggested Standard Civil Jury Instructions 13.60 ("Pennsylvania decisions clearly differentiate between ordinary negligence and recklessness, not only in degree but also in kind, with the emphasis on the knowledge and intent of the perpetrator with respect to the risk of substantial physical harm.").
Having concluded that the standard of care was recklessness, and that the plaintiff's negligence count subsumed his recklessness claim, we then examined the record and discerned that the plaintiff had produced evidence to support each element of his cause of action. Id. at 520-21. Accordingly, we vacated the trial court's order granting summary judgment in favor of the defendant and remanded the case for further proceedings. Id. at 521.
Since Archibald, it has been advanced that negligence actions encompass recklessness claims, such that recklessness and the material facts supporting a defendant's recklessness need not be pled. I disagree and, to the extent Archibald stands for this proposition, I think it should be overruled. See Commonwealth v. Morris, 958 A.2d 569, 580 n.2 (Pa. Super. 2008) ("It is well-settled that this Court, sitting en banc, may overrule the decision of a three-judge panel of this Court.") (citation omitted).
I disagree with Archibald for the following reasons. First, Archibald's suggestion that recklessness need not be pled conflicts with Rule 1019(b). Although Rule 1019(b) allows for conditions of the mind to be averred generally, such conditions must nevertheless be averred. See Pa.R.Civ.P. 1019(b) ("Malice, intent, knowledge, and other conditions of mind may be averred generally."); see also Valentino, 150 A.3d at 489 (noting that a complaint must, inter alia, "give the defendant notice of what the plaintiff's claim is") (citation omitted). While I do not espouse that any certain magic words must be used to plead recklessness, I do not think that it should be enough to plead only negligence and say that those allegations inherently incorporate claims of recklessness.
Second, I believe a plaintiff must plead facts supporting a defendant's reckless state of mind. As this Court declared nearly fifty years ago, "[t]he permissibility of pleading a condition of the mind generally, in a fact[-]pleading state, is, of course, founded upon necessity. The allowance of such pleading was not meant, however, to dispense with the requirement that material facts constituting the conduct of a defendant also be pleaded." Ammlung, 302 A.2d at 497-98 (citation and footnotes omitted). Therefore, contrary to Archibald, I opine that a complaint sounding only in negligence does not sufficiently plead recklessness. Instead, a plaintiff should have to supply factual allegations to support recklessness claims. Accord Valentino, supra; Toney, supra; Cable & Assocs. Ins. Agency, Inc., supra; Waklet-Riker, supra; Ammlung, supra.
Thus, based on the foregoing, I would determine that a plaintiff must plead recklessness, and the material facts supporting a defendant's reckless state of mind, in the complaint. In my opinion, if the facts alleged do not support a claim for recklessness, the recklessness claim should not be permitted to proceed.
In contrast, under the Opinion Per Curiam's position, a plaintiff would be able to plead recklessness in any negligence case, regardless of the facts underlying the matter.
Having reached that conclusion, I turn now to Ms. Monroe's complaint to evaluate if she sufficiently pled recklessness. Our Supreme Court has explained the difference between recklessness and negligence as follows:
Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence. In Fitsko v. Gaughenbaugh, … 69 A.2d 76 ([Pa.] 1949), we cited with approval the Restatement ([First]) of Torts definition of "reckless disregard" and its explanation of the distinction between ordinary negligence and recklessness. Specifically, the Restatement (Second) of Torts defines "reckless disregard" as follows:
The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.
Restatement (Second) of Torts § 500 (1965). The Commentary to this Section emphasizes that "[recklessness] must not only be unreasonable, but it must involve a risk of harm to others substantially in excess of that necessary to make the conduct negligent." Id., cmt. a. Further, as relied on in Fitsko, the Commentary contrasts negligence and recklessness:
Reckless misconduct differs from negligence in several important particulars. It differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man…. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.
Id., cmt. g; see also AMJUR Negligence § 274 ("Recklessness is more than ordinary negligence and more than want of ordinary care; it is an extreme departure from ordinary care, a wanton or heedless indifference to consequences, an indifference whether or
not wrong is done, and an indifference to the rights of others[.]"). Our criminal laws similarly distinguish recklessness and negligence on the basis of the consciousness of the action or inaction. See 18 Pa.C.S.[] § 302(b)(3), (4) (providing that a person acts recklessly when he "consciously disregards a substantial and unjustifiable risk," while a person acts negligently when he "should be aware of a substantial and unjustifiable risk").
This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct.Tayar, 47 A.3d at 1200-01 (emphasis in original).
Here, Ms. Monroe alleged that Camelback acted recklessly by: failing to properly monitor the speed of the zip-line; failing to use reasonable prudence and care by leaving her to land with no help; failing to use reasonable prudence and care to respond to her safety concerns during the zip-lining, specifically when Ms. Monroe asked Camelback to slow down the zip-lining machine; and failing to inspect and/or properly monitor the zip-lining machine's engine. See First Amended Complaint, 1/25/17, at ¶ 21(a)-(e). She also averred that Camelback's employees - "knowing that there was a high risk of injuri[es] during the landing process" - failed to assist her in those ways and that, as a result of Camelback's "consciously disregarding" her safety, she suffered injuries. Id. at ¶¶ 12, 17.
While Ms. Monroe employed the terms 'recklessness,' 'knowing,' 'high risk,' and 'consciously disregarding' in her complaint (i.e., language typically associated with recklessness), the factual allegations she advanced therein do not amount to reckless conduct in my opinion. For example, she averred that, "[a]t the end of the [zip-lining] trip, [a] spotter is supposed to help customers land safely on a square wooden platform[,]" that Camelback left her "to land with no help[,]" and that as a result of Camelback's failing to assist her, she "severely hit her legs." Id. at ¶¶ 11, 12, 21(b). While Ms. Monroe vaguely claimed that Camelback knew that there was a 'high risk' of injury 'during the landing process,' she did not allege that Camelback knew, or had reason to know, that it needed a spotter to help riders land or riders would face a substantial risk of injury, and that it consciously withheld such help. In addition, she did not set forth how the spotter was supposed to help her land safely on the platform, what exactly the spotter did instead, and how such lack of assistance caused her injuries. Similarly, with respect to her request to slow down the zip-line, Ms. Monroe did not allege that Camelback knew, or had reason to know, that the zip-line was going so fast as to be dangerous and consciously elected to not slow down the zip-line. Instead, Ms. Monroe simply alleged that she noticed the zip-line was going faster than it was on her first ride and that she consequently made a request that it be slowed down. Therefore, to me, the facts alleged by Ms. Monroe do not support that Camelback exhibited a reckless state of mind at the time of her injuries.
Moreover, in my view, any of Camelback's purported lapses in properly monitoring the speed of the zip-line, prudently responding to Ms. Monroe's safety concerns, and using reasonable care in helping her land safely, without more, do not establish "an extreme departure from ordinary care, a wanton or heedless indifference to consequences, an indifference whether or not wrong is done, and an indifference to the rights of others." See Tayar, 47 A.3d at 1201 (citation omitted). Instead, based on Ms. Monroe's factual allegations, I would characterize Camelback's alleged conduct as constituting "mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency…." Id. (citation omitted). Accord Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 984-86 (Pa. Super. 2018) (concluding, on summary judgment, that the defendants did not engage in grossly negligent or reckless conduct as the defendants' employees were only careless in operating an ATV on a ski slope and creating the wheel ruts that caused the plaintiff's injuries); see also Valentino, 150 A.3d at 488-89 (determining that the trial court properly dismissed the plaintiff's allegations of outrageous and reckless conduct where the plaintiff alleged that a triathlon organizer "was inattentive to the needs of the contestants, failed to inspect or maintain the event course, failed to warn of or remove dangerous conditions, failed to properly plan or organize the event, failed to follow safety standards, and failed to properly train and supervise its employees"). Indeed, Ms. Monroe herself claims that Camelback's "negligence" - not recklessness - was "the proximate and sole cause of the injuries and damages to [her]…." First Amended Complaint at ¶ 22. Accordingly, I would determine that Ms. Monroe failed to plead recklessness and affirm the trial court's order granting Camelback's motion for judgment on the pleadings.
II.
Even if I had ascertained that judgment on the pleadings was improper, I would affirm the trial court's entry of summary judgment in favor of Camelback. With respect to the trial court's grant of summary judgment in favor of Camelback, Ms. Monroe argues that the trial court erred in finding that Mr. Wolf's expert report was impermissible because it was not properly attached to her response to Camelback's motion for summary judgment. See Ms. Monroe's Brief at 28-29. Interestingly, while she insists that the trial court should have considered Mr. Wolf's expert report, she includes no discussion of the content of Mr. Wolf's expert report in her appellate brief. Instead, Ms. Monroe argues that the record supports a finding of recklessness because:
[Ms.] Monroe was below the weight limit for the zip-line. The zip-line was known to bob up and down for heavier people.
[Ms.] Monroe requested the zip-line engine be slowed down by the first spotter.
The second spotter abandoned that spotter's job duty to help [Ms.] Monroe land safely.
Thereafter[, Ms.] Monroe land[ed] unsafely and suffered severe injury.
[Ms.] Monroe was refused medical attention - the employee ran off. See[] Morningstar v. Hoban, 55 Pa.D[.]& C[.] 4th 225 ([Allegheny Cty.] 2002) (post-accident callousness warranting punitive damages as reckless).
The operative Complaint (e.g., Motion for Judgment on the Pleadings), all record facts (e.g., Motion for Summary Judgment), in the light most favorable to [Ms.] Monroe (i.e., the operative standard), finds [Ms.] Monroe presented (a simple case of) [Camelback's] recklessness. Rubin v. CBS Broadcasting, Inc., 170 A.3d 560, 564 (Pa. Super. 2017) (citing Pa.R.C[iv].P. 1034); Com. by Shapiro[ v. Golden Gate Nat'l Senior Care LLC, 194 A.3d 1010, 1030 (Pa. 2018)] (citing Yac[o]ub [v. Lehigh Valley Med. Assocs., P.C.,
805 A.2d 579, 589 (Pa. Super. 2002) (en banc)]); Pa.R.C[iv].P. 1034 & 1035.
Even if not factually simple (i.e., not requiring an expert), [Ms.] Monroe supplied a trial court-directed expert: further amplifying her recklessness claim.
The complaint merged with the record facts - which the trial court originally held recklessness an issue of fact for the jury. See generally[] Sullivan v. City of Phila., 460 A.2d 1191, 1192 (Pa. Super. 1983) (citing Pa.R.C[iv].P. 1033)); see[] Bloom v. Dubois v. Reg'l Med. Ctr., 597 A.2d 671, 677 n.7 (Pa. Super. 1991).
Both the pleadings and the record evidence evidenced an issue of fact of recklessness for the jury - as was held upon the original dispositive motion (denied by the Court of Common Pleas).
The trial court committed an error of law in granting [Camelback's] renewed dispositive motion. Ms. Monroe's Brief at 30-31.
Examining the arguments advanced by Ms. Monroe, both on appeal and before the trial court, I would determine that the trial court did not err in granting summary judgment in favor of Camelback. Assuming arguendo that the trial court should have considered Mr. Wolf's expert report and other exhibits, Ms. Monroe does not discuss any of the substance of his report, explaining how it establishes Camelback's recklessness and connects to her injuries, in her appellate brief. See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) ("[I]t is an appellant's duty to present arguments that are sufficiently developed for our review. … This Court will not act as counsel and will not develop arguments on behalf of an appellant.") (citations omitted).
Further, in my view, even upon looking back in the record, the arguments Ms. Monroe made to the trial court with respect to Mr. Wolf's report also do not establish Camelback's recklessness in this matter. There, Ms.
Monroe claimed, in relevant part, that:
[Ms. Monroe] was injured on her second run down the zip[-]line. See Exhibit B, 37:1-37:6. On the second run, [Ms. Monroe] attempted to sufficiently pick-up her feet, but was unable to do so due to her weight. See Exhibit C, 15:18-15:24. [Ms. Monroe's] body impacted the landing deck twice. See Exhibit C, 11:14-11:19.
The first impact occurred when [Ms. Monroe's] feet impacted the mats/carpets that were placed in front of the landing deck to conceal the front face of the landing deck. See Exhibit C, 11:7-11:13. See also Exhibit D (photograph). See also Exhibit A. [Ms. Monroe's] body swung and spun, due to the first impact, when [Ms. Monroe] then impacted the landing deck a second time, resulting in significant physical injuries. See Exhibit C, 11:4-11:13.
[Camelback] is aware of the potential harm to a customer due to impacting the front of the landing deck. [Camelback] placed a sign, stating "Lift your fee[t]" at the bottom of the zip[-]line. See Exhibit C, 26:17-26:18. [Camelback] also instructs its employees to yell "Pick up your feet" as the customer is speeding down the zip-line. See Exhibit C, 15:4-15:5. See also Exhibit E, 17:22-18:1.
Further, [Camelback] is aware that a customer can impact the face of the landing deck, which protrudes above ground level significantly. In fact, [Camelback] placed mats/carpets on the front face of the landing deck. See Exhibit D (photograph).
However, [Camelback] admitted that the mats are not designed to prevent injury from a customer['s] hitting the face of the landing deck. See Exhibit F, 17:2-17:5. Finally, [Camelback] is aware that customers may not be able to lift their feet. See Exhibit C, 16:1-16:5.
[Ms. Monroe] has produced an expert report, authored by Steve Wolf. See Exhibit A. Expert Wolf has built and operated merous private, industrial, and commercial zip[-]lines and, in
fact, owns a recreational park that operates three zip[-]lines. Id. at 1.
Expert Wolf explained that a zip[-]line is constructed with the intention that no part of the rider is to collide with any hard surface until the rider comes to a stop at the bottom of the zip[-]line. Id. at 2. In fact, this is in line with [Camelback's] agent's testimony that the rider should come to a complete stop, after which the zip[-]line attendant walks the rider up the ramp to a point in which the zip[-]line attendant can unhook the rider from the zip[-]line. See Exhibit F, 51:22-54:24. However, the landing platform at Camelback had a face that "protrudes sharply and vertically from the ground around it, at a 90[-]degree angle to the ground"; making the landing deck "perfectly positioned to cause an injury[."] See Exhibit A, at 4.
Expert Wolf explained that:
Given that contact with the ground prior to reaching the end of the zip[-]line was likely to create injury, the solution to that problem should have been an engineered solution, rather than a solution requiring instruction and active compliance…. It's not reasonable to base a participant's safety on having them be able to perform a physical feat such as raising their legs, or to be able to reliably listen to and follow directions when in a heightened state of arousal from experiencing an adrenaline[-]rich experience, especially in cases where an engineered solution could have easily been implemented.
An engineered solution takes the ability to cause an accident, by virtue of an inability to execute a command, away from the rider, and builds the safety into the equipment. Id. at 3-4. [Camelback] could have engineered a solution simply by lowering the face of the landing deck to ground level or filling in the gap between the ground and the face of the landing deck with an aggregate material (dirt, sand, etc[.]). Id. at 4.
In fact, Expert Wolf determined that [Camelback] intentionally concealed the risk. Expert Wolf explained that:
This must have been noted by one or more members of the Camelback staff, because the condition was "remedied" by covering the protrusion with a piece of carpeting. But the
carpeting, being supple, conformed to the shape of the underlying danger, rather than fixing it. It concealed, rather than removed, the risk.
Id. Expert Wolf opined that [Camelback] recklessly ignored the gross risks as a result of the face of the landing deck protruding above ground level and actually attempted to conceal the risk by placing a soft mat/carpet over the face of the landing. Id. at 5. See also Exhibit D (photograph).Ms. Monroe's Memorandum of Law in Response to Camelback's Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment, 5/16/19, at 2-4 (unnumbered pages; emphasis in original).
Relying on Mr. Wolf's expert report, Ms. Monroe argued that, "[h]ad [Camelback] taken a reasonable course of conduct in addressing the risk of riders impacting the face of the landing pad, [she] would not have been injured." Id. at 9 (unnumbered pages; citation omitted). However, to support that her initial impact with the face of the landing deck caused her injuries, Ms. Monroe advanced the following argument:
[Ms. Monroe's] body impacted the landing deck twice. See Exhibit C, 11:14-11:19.
The first impact occurred when [Ms. Monroe's] feet impacted the mats/carpets that were placed in front of the landing deck to conceal the front face of the landing deck. See Exhibit C, 11:7-11:13. See also Exhibit D (photograph). See also Exhibit A. [Ms. Monroe's] body swung and spun, due to the first impact, when [Ms. Monroe] then impacted the landing deck a second time, resulting in significant physical injuries. See Exhibit C, 11:4-11:13.
Ms. Monroe's Memorandum of Law in Response to Camelback's Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at 2 (unnumbered pages; emphasis added).
The portion of Exhibit C referenced by Ms. Monroe in her above-stated argument sets forth the deposition testimony of Brett Dunphy, a former Camelback employee who was working on the day of Ms. Monroe's accident, describing how she hit her feet. Mr. Dunphy testified:
[Ms. Monroe's counsel:] Okay. Do you actually remember seeing [Ms.] Monroe hit her feet in some way?
[Mr. Dunphy:] When she landed. That was it. Only when she landed. And -- only when she landed really.
[Ms. Monroe's counsel:] I understand -- I have seen your statement. Can you just describe how [Ms. Monroe's] feet impacted whatever they hit?
[Mr. Dunphy:] So, first, they kind of dragged against the anti-fatigue mats. You saw that there. And then the impact really came when she stopped and she swung up and when she actually, like, hit the deck to land. Like, the actual landing part -- that's when her -- whatever it was broke.
[Ms. Monroe's counsel:] Okay. … I am glad you said that because that's what I am going to want you to clarify. So[,] there were two impacts. So, you are saying it was the second impact that was the rough impact?
[Mr. Dunphy:] Yes. See Dep. of Dunphy at 10:23-11:19.
Mr. Dunphy described the anti-fatigue mat as "a mat that … you would just walk on, kind of. It's mats at the bottom of the zip[-]line that we would pretty much just walk on." See Ms. Monroe's Response to Camelback's Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment, 5/16/19, at Exhibit C ("Dep. of Dunphy") at 19:8-19:11.
Despite Ms. Monroe's assertion, this testimony does not establish that her initial impact with the landing deck's mats caused her body to swing and spin, leading to the second impact where she says she sustained her injuries.
Instead, Mr. Dunphy said that her injuries occurred when she came to a stop, swung upward, and tried to land. Further, Mr. Dunphy testified that, upon braking at the end of the trip, every zip-line rider proceeds forward and pendulums up to a certain degree, and that he did not know if Ms. Monroe's dragging her feet on the mats would be a factor in causing her to pivot up at the end of the zip-line. Dep. of Dunphy at 30:1-31:1. Thus, Mr. Dunphy's testimony does not establish to me that Ms. Monroe's impact with the mats on the front face of the landing deck caused her body to swing and spin, or otherwise led to the second impact that she says resulted in her injuries.
See also Ms. Monroe's Brief at 18 (stating that Mr. Dunphy "testified that the incident occurred because the zip-line lifted up and slammed [Ms. Monroe] back to the ground (which broke her leg)") (citation omitted).
Moreover, my review of the record shows that Ms. Monroe herself denied at her deposition ever hitting the front face of the landing deck or otherwise dragging her feet. There, she testified:
[Camelback's attorney:] [Y]ou come to the end [of the zip-line] and stop, and now you're pushed backwards a little bit?
[Ms. Monroe:] Yes.
[Camelback's attorney:] Is that what happened?
[Ms. Monroe:] Yes.
[Camelback's attorney:] Before that point, had you hit your foot or struck your foot or done anything with your foot as you were coming in?
[Ms. Monroe:] No.
[Camelback's attorney:] Okay.
[Ms. Monroe:] The gentleman did tell me to lift my legs up at the beginning of it and I [did] that. I was holding them up.
[Camelback's attorney:] Okay. So[,] I don't want to jump ahead, but after you landed and -- we call it "landed" when you come into the bottom, and you come backwards a little bit, does your body pivot and your foot go up in the air, or does it go down and strike the platform? …
[Ms. Monroe:] … It [spun] around, and I thought I was going back, so my leg dropped, and I just felt a crunch. I can't remember if it was still moving back and forth or what happened. I just know it [spun] around and I felt my leg crunch when it landed.
[Camelback's attorney:] And when you say[,] "it landed," it landed on the top of the deck?
[Ms. Monroe:] Yes.
***
[Camelback's attorney:] Do you recall as you were coming down dragging your foot along the ground at any point in time before you were on the deck?
[Ms. Monroe:] I had both my legs up. I was holding them up. I made sure of that.
***
[Camelback's attorney:] Okay. … I'm trying to … picture in my mind, since I wasn't there. Did your leg go in an up[-]and[-]down motion and strike the deck, or did it catch the deck? What's your recollection of how that contact was made?
[Ms. Monroe:] I came down with my legs up, and when I spoke to the gentleman and he said, "It's almost over," it came down and jerked up and I [spun] back around and came back down, and the force of me coming down, my leg was broken. I heard the crunch.See Ms. Monroe's Response to Camelback's Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at Exhibit B ("Dep. of Monroe") at 52:8-53:20, 54:14-54:20, 84:8-84:22.
In Ms. Monroe's medical records, there are also various descriptions of how her injuries occurred, none of which mention that her initial impact with the front face of the landing deck caused her second impact with the landing deck. See Ms. Monroe's Response in Opposition to Camelback's First Motion for Summary Judgment, 3/12/18, at Exhibit B at 9 (stating that Ms. Monroe "was out zip[-]lining with her husband when she failed to break [sic] the line prior to arrival at a station within the trees and struck her leg up against the landing platform where she was noted to have suffered a significant injury…"); id. at 36 (providing that Ms. Monroe "did not break [sic] the zip[-]line in time and she was tossed around at the end of the cord with her extremities moving quite violently in multiple different directions. She states that during this time frame and that [sic] her right foot struck the platform while she was being whipped around"); id. at 40 ("According to EMS, [Ms. Monroe] was coming to the end of the [zip-]line when she didn't get her right leg up high enough and hit it against a board."); id. at 140 ("The patient was on a zip[-]line. She had difficulty at the end when she went back and forth and[,] at some point[,] she had her right leg caught. It was twisted and she felt a snap.").
Finally, Michael Baldaccini, another Camelback employee working on the day of the incident, testified:
[Ms. Monroe's attorney:] Okay. All right. Now, [Ms. Monroe and her companion] were both coming down, and just if you remember, tell me what happened.
[Mr. Baldaccini:] We were instructing them to lift their legs verbally and physically, which they did, so they followed our instructions. The braking system caught them, just like it always does. There was no visible malfunction with that whatsoever.
The braking system caught them, and it's up to the customer to land on their feet when they get to the bottom, which we instruct them at the top of the zip-line, we show them physically how to land on their feet.
She landed on her feet. I guess she must have landed awkwardly, because everything seemed to be normal when they came down and when they landed.
So[,] there was no malfunction from the employee's standpoint, there was no malfunction of the braking system, the customer[s] seemed to be pretty coherent with what we were saying to them, they followed our instructions of lifting their legs and preparing to be stopped by our braking system.
[Ms. Monroe's attorney:] So what happened, though?
[Mr. Baldaccini:] Braking system caught her, she landed on her feet just like she's supposed to, and apparently she injured her leg, which I'm not sure how she did it.
***
[Camelback's attorney:] So[,] let me read this typewritten statement [you gave with respect to this incident], and I'll read it slowly and then … I will have a couple questions about it.
It says, [a]t approximately 5:05 p.m., at the bottom deck of the 1,000-foot zip-line, a guest on our left zip-line cable, which we call lodge side, came in contact with our braking system, period.
Did this accident happen on the 1,000-foot zip-line?
[Mr. Baldaccini:] Yes.
[Camelback's attorney:] Okay. Let me continue on. As she did that, her left foot slightly hit the beginning of our bottom deck. When this occurred, her shoe came off.
Do you recall that or does that refresh your --
[Mr. Baldaccini:] Seeing it --
[Camelback's attorney:] Well, let me ask you --
[Mr. Baldaccini:] Seeing it myself, no. That's I was told [sic].
[Camelback's attorney:] Does that refresh your recollection at to this incident?
[Mr. Baldaccini:] If I know what incident we're talking about, yes.
[Camelback's attorney:] Okay. When this happened, our braking system did its normal procedure of braking and she swung up approximately three feet in a pendulum motion.
Do you recall seeing that?
[Mr. Baldaccini:] No.
[Camelback's attorney:] Okay.
[Mr. Baldaccini:] That is normal procedure, though. See Ms. Monroe's Response in Opposition to Camelback's First Motion for Summary Judgment at Exhibit C ("Dep. of Baldaccini") at 22:23-24:2, 32:24-34:7.
To me, none of the above-stated evidence supports Ms. Monroe's claim that her initial contact with the mats or the front face of the landing deck caused her to swing and spin, leading her to impact the landing deck a second time, sustaining injuries. Rather, even if Ms. Monroe's feet dragged on the mats or slightly hit the bottom of the landing deck, the deposition testimony of witnesses to the incident - including Ms. Monroe's own testimony - indicates that she was injured after the zip-line came to a stop at the end of the trip, at which point she swung and tried unsuccessfully to land on her feet. Moreover, Ms. Monroe proffered no evidence to suggest that her initial contact with the mats or landing deck caused her to swing more upon stopping, land with greater force, etc. Thus, based on the argument advanced by Ms. Monroe below, the evidence she cited in support, and my own review of the record, I discern no connection between Ms. Monroe's initial contact with the mats on the front face of the landing deck and her subsequent injuries that she said she sustained from her second impact with the landing deck.
Consequently, even if Mr. Wolf's report should have been considered, I do not see a factual basis for Mr. Wolf's opinion that "[t]he injuries sustained by Ms. Monroe are attributable directly to [the] failure of Camelback to act to prevent injury, and the intentional disregard for safety taken by Camelback in [its] decision to conceal rather than to remove an obvious threat to the safety of their trusting clients." Ms. Monroe's Memorandum of Law in Response to Camelback's Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at 8 (quoting Mr. Wolf's expert report) (unnumbered pages); see also id. at 9 (arguing that "the record is sufficient to support a jury finding that [Camelback's] reckless course of conduct in attempting to make the zip[-]line safe for riders caused [Ms.] Monroe's injuries. Had[ amelback] taken a reasonable course of conduct in addressing the risk to riders impacting the face of the landing pad, [she] would not have been injured") (citations omitted; unnumbered pages). As such, and contrary to the Opinion Per Curiam's conclusion, I do not think Mr. Wolf's report would help Ms. Monroe establish Camelback's recklessness in this matter, as she has not shown that her initial contact with the front face of the landing deck led to her second impact with the landing deck, which she explicitly claimed caused her injuries below.
Finally, in my view, the actual argument Ms. Monroe advances on appeal as to why the record supports a finding of recklessness also fails. See pages 15-16, supra (setting forth Ms. Monroe's argument). Initially, Ms. Monroe provides no citations to the record for many of the factual assertions in her argument. See Ms. Monroe's Brief at 30-31; see also Pa.R.A.P. 2119(c) ("If reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears…."); Pa.R.Civ.P. 1035.3(a)(2) ("[T]he adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying … evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced."); Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018) ("We shall not develop an argument for an appellant, nor shall we scour the record to find evidence to support an argument….") (citation omitted).
Even more troublesome, though, Ms. Monroe does not meaningfully discuss authority pertaining to what constitutes reckless conduct, and how the purported facts on which she relies establish Camelback's recklessness in connection to her injuries. See Coulter v. Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014) ("We need not reach the merits of this issue because the argument section of [the a]ppellant's brief merely consists of general statements unsupported by any discussion and analysis of relevant legal authority."); In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) ("[I]t is an appellant's duty to present arguments that are sufficiently developed for our review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities.") (citation omitted). Unlike the Opinion Per Curiam, I would decline to do such work for her. See Commonwealth v. Williams, 782 A.2d 517, 532 (Pa. 2001) (Castille, J., concurring) ("This Court is neither obliged, nor even particularly equipped, to develop an argument for a party. To do so places the Court in the conflicting roles of advocate and neutral arbiter. … The practice of fashioning arguments for a party is also unfair to the would-be responding party, which will only learn upon receipt of the Opinion that the Court perceived the argument, and thus will have been deprived of an opportunity to respond.").
Moreover, even if not waived for failure to develop an argument on appeal, I would deem meritless the argument concerning the weight limit that Ms. Monroe advanced below in opposition to Camelback's first motion for summary judgment. There, she contended that Camelback "knew there was a dangerous condition for heavy people on the zip[-]line, and knowingly ignored that condition. Specifically, the weight limit was not low enough. There was a known risk that the line would be rippling up and down for heavy people, so that when [Ms. Monroe] approached the end of the line[, she] would not be able to lift her feet high enough to avoid injury." See Ms. Monroe's Memorandum of Law in Opposition to Camelback's First Motion for Summary Judgment, 3/12/18, at 9 (unnumbered pages). I would reject this argument. First, as I have discussed supra, Ms. Monroe has not established that her feet's initial contact with the front face of the landing deck led to her second impact with the landing deck, which she claimed caused her injuries. Second, while Ms. Monroe averred that Camelback was reckless because Mr. Dunphy and Mr. Baldaccini knew that the zip-line regularly rippled and/or swung up for heavy people, posing a serious danger, my review of the record belies that assertion. See Dep. of Dunphy at 23:18-25:24 (Mr. Dunphy's stating that the zip-line did not regularly swing up for heavy people, but would regularly swing up for someone over the weight limit of 265 pounds); id. at 12:10-13:2, 23:10-23:17 (Mr. Dunphy's testifying that he only saw one other person get injured on the zip-line, and that injury took place a year after Ms. Monroe's incident); id. at 23:1-23:4 (Mr. Dunphy's recounting how surprised he was about Ms. Monroe's incident); Dep. of Baldaccini at 26:13-28:9 (Mr. Baldaccini's acknowledging that there can be a "ripple effect" from a heavy person going down the zip-line, but explaining that he has never seen anyone sustain injuries from the zip-line's "ripple effect" or be injured in the same way as Ms. Monroe); see also Ms. Monroe's Response to Camelback's Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at Exhibit E ("Dep. of Susan Wiley") at 13:14-15:16 (Ms. Wiley's - a Camelback employee - stating that she has never observed anyone else get injured on the zip-line in a way similar to Ms. Monroe); Ms. Monroe's Response to Camelback's Motion for Judgment on the Pleadings/Supplemental Motion for Summary Judgment at Exhibit F ("Dep. of Clinton Frantz") at 33:20-34:3 (Mr. Frantz's - a Camelback employee - testifying that he is aware of no other injuries on the zip-line other than Ms. Monroe's injuries). Further, if Camelback did not actually know of the danger posed to heavy people by the rippling/swinging, Ms. Monroe did not develop an argument as to why Camelback had reason to know that the rippling/swinging created a substantial risk of harm. See Pa.R.A.P. 302(a) ("Issues not raised in the trial court are waived and cannot be raised for the first time on appeal."). Thus, I would be unconvinced by Ms. Monroe's argument that Camelback knew that the rippling or swinging created a dangerous condition for heavy people, and that Camelback knowingly ignored that condition. See Kibler, 184 A.3d at 984-86 (determining, as a matter of law, that the record does not reflect gross negligence or reckless conduct on the part of the defendants, and affirming the entry of summary judgment in the defendants' favor).
Thus, even if judgment on the pleadings was improper, I would affirm the trial court's entry of summary judgment in favor of Camelback. It is well- established that the "[f]ailure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof … establishes the entitlement of the moving party to judgment as a matter of law." See Finder v. Crawford, 167 A.3d 40, 45 (Pa. Super. 2017) (citation omitted). Here, in my opinion, Ms. Monroe failed to demonstrate that Camelback acted recklessly in this matter, and therefore Camelback would be entitled to judgment as a matter of law. Accordingly, I dissent.
Judge Olson Joins.
Judge Stabile Concurs in the Result.
Judgment Entered. --------- Notes: [*] We present our decision in this case as a per curiam opinion because it is the product of the efforts of more than one member of this panel. Specifically, Part III(A) of our opinion is attributable to Judge Kunselman. The remainder of the opinion was authored by Judge Bowes.