Hill, J. v. Slippery Rock University , 2016 Pa. Super. 96 ( 2016 )

J-A04034-16
2016 PA Super 96JACK HILL, SR. AND CHERYL HILL, IN THE SUPERIOR COURT OF
INDIVIDUALLY, AND AS CO- PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
JACK HILL, JR., DECEASED,
Appellants
v.
SLIPPERY ROCK UNIVERSITY; SLIPPERY
ROCK UNIVERSITY MCLACHLAN
STUDENT HEALTH CENTER; LAURA A.
BATEMAN, CRNP; THE NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION
“N.C.A.A.,”
Appellees No. 180 WDA 2015
Appeal from the Order January 20, 2015
In the Court of Common Pleas of Butler County
Civil Division at No(s): AD-14-10570
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.
OPINION BY SHOGAN, J.: FILED MAY 03, 2016
Jack Hill, Sr. and Cheryl Hill, individually and as co-administrators of
the estate of Jack Hill, Jr. (“Mr. Hill”), deceased, (collectively “Appellants”),
appeal from the order entered on January 20, 2015. The January 20, 2015
order made final a portion of the order entered on December 22, 2014, that
granted the preliminary objection in the nature of a demurrer filed by the
National Collegiate Athletic Association (“the NCAA”) and dismissed with
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prejudice Appellants’ claims against the NCAA.1 Appellants contend that the
trial court erred in granting the NCAA’s preliminary objection. More
specifically, Appellants argue that the trial court erred in concluding that an
increased risk of harm, as required by Section 323(a) of the Restatement
(Second) of Torts, can be based only on an affirmative act. For the reasons
that follow, we reverse and remand for further proceedings.
The trial court set forth the relevant background of this matter as
follows:
[Appellants], parents and Administrators of the Estate of
Jack Hill, Jr., Deceased, allege that, on September 9, 2011, Jack
Hill, Jr. was participating in a late-night, high-intensity basketball
practice, when he complained of feeling ill and collapsed to the
floor, unresponsive. [Appellants] allege that neither the coaches
nor the training staff offered Mr. Hill immediate medical care,
such as CPR. [Appellants] allege that Mr. Hill was eventually
transported to the Grove City Medical Center, where he was
found to be in respiratory and cardiac arrest, and where he
subsequently passed away. [Appellants] allege that an autopsy
revealed marked red blood cell sickling in Mr. Hill’s lungs and
liver, and that hemoglobin electrophoresis disclosed the
presence of Sickle Cell Trait (“SCT”). [Appellants] allege that
[Slippery Rock University], the [Slippery Rock University] Health
Center, and Nurse Bateman were negligent for not testing for or
requiring testing on Mr. Hill or other athletes for SCT prior to
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1
The trial court specifically stated that portion of the order was deemed final
pursuant to Pa.R.A.P. 341(c) and that “an immediate appeal will facilitate
resolution of this entire case.” Order, 1/20/15, at unnumbered 2. The
December 22, 2014 order also granted in part and denied in part the
preliminary objections filed by Slippery Rock University, Slippery Rock
University McLachlan Student Health Center, and Laura A. Bateman,
[Certified Registered Nurse Practitioner (“CRNP”)] (collectively “the Slippery
Rock Defendants”). The Slippery Rock Defendants are not a part of this
appeal.
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allowing him/them to participate in athletic activities, and for
failing to educate Mr. Hill and other athletes about the dangers
of SCT. [Appellants] allege said parties were negligent for failing
to respond to Mr. Hill’s collapse by providing immediate medical
care, and for failing to adequately train and supervise its staff on
proper CPR administration, AED use, and other emergency first
aid procedures. [Appellants] also allege that the N.C.A.A. was
negligent for failing to require Division II schools, such as
[Slippery Rock University], to screen its athletes for SCT prior to
their participation in athletic activities.
[Appellants] filed their initial Complaint on September 6,
2013, then they filed three subsequent Amended Complaints,
ending with their Fourth Amended Complaint (“Complaint”), filed
on March 17, 2014. [Appellants] assert, against each Defendant,
one count each for negligence, wrongful death, and survival
action. On April 25, 2014, Judge Folino, of the Allegheny County
Court of Common Pleas, transferred the case to Butler County.
On September 5, 2014, the N.C.A.A. filed its Preliminary
Objections to [Appellants’] Fourth Amended Complaint and its
Brief in Support. In said objections, the N.C.A.A. demurs, and
argues that [Appellants] fail to allege that the Defendant[s]
owed Mr. Hill any legally recognized duty. The N.C.A.A. further
argues that the Complaint lacks specificity as regards the source
of any duty that it allegedly owed to him. Finally, the N.C.A.A.
argues that the “no-duty” rule precludes any basis for liability
between the N.C.A.A. and the [Appellants].
On September 9, 2014, the Slippery Rock Defendants filed
their Preliminary Objections to [Appellants’] Fourth Amended
Complaint and their Brief in Support, incorporating by reference
their Preliminary Objections to [Appellants’] original Complaint.
Said Defendants argue that [Appellants’] claims for corporate
negligence and negligent supervision, hiring, and training,
against the University and the Health Center, are barred by
sovereign immunity. The Slippery Rock Defendants further argue
that [Appellants’] allegations of negligence, based upon said
Defendants’ failure to test, to require testing, or to educate
students about the risks of SCT, are based upon corporate
policies and are thus barred by sovereign immunity. Said
Defendants argue that the allegations against Nurse Bateman,
for negligent hiring, training, and supervision, and for failing to
require SCT testing, are allegations of corporate negligence, and
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are barred. Finally, said Defendants argue that [Appellants’]
request for loss of parental consortium is not recognized in
Pennsylvania, and that funeral and estate administration
expenses are not recoverable against a state agency.
On October 31, 2014, [Appellants] filed their Responses
and Briefs in Support to each Defendants’ Preliminary
Objections. With regard to the Slippery Rock Defendants,
[Appellants] argue that the University’s negligence is based upon
the doctrine of respondeat superior, and is not based upon a
corporate negligence theory. With regard to the N.C.A.A.’s
preliminary objections, [Appellants] argue that their Fourth
Amended Complaint contains dozens of allegations regarding
N.C.A.A.’s alleged duty to Mr. Hill, which, when taken together,
sufficiently plead an N.C.A.A. duty owed to Jack Hill, Jr.
[Appellants] further argue that the “no-duty” rule does not apply
to this case, as the risk at issue, sickle cell complications, is not
an inherent risk of physical activity. On November 6, 2014, the
N.C.A.A. filed its Reply Memorandum of Law in Support of its
Preliminary Objections. Oral arguments were held on November
7, 2014.
Trial Court Opinion, 12/22/14, at 2-4.
As noted above, the trial court granted in part and denied in part the
preliminary objections filed by the Slippery Rock Defendants, and it granted
the preliminary objection in the nature of a demurrer filed by the NCAA and
dismissed the claims against the NCAA with prejudice. In dismissing the
claims against the NCAA, the trial court initially concluded that Appellants’
factual allegations did aver, with sufficient specificity, the assumption of a
legal duty by the NCAA to, and for the benefit of, Mr. Hill. However, the trial
court ultimately found that Appellants failed to sufficiently plead liability on
the part of the NCAA. This appeal followed. Both the trial court and
Appellants have complied with Pa.R.A.P. 1925.
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The issue on appeal is whether, under the circumstances presented in
the case at bar, Appellants possess a cognizable negligence claim against
the NCAA arising from Mr. Hill’s death. Appellants’ Brief at 4. Specifically,
Appellants aver that when a party owes a duty, an allegation that the party
failed to act in conformance with that duty can increase the risk of harm and
satisfy the elements of a claim of negligence pursuant to Section 323(a) of
the Restatement (Second) of Torts. Appellants’ Brief at 33. After review,
we agree with Appellants’ position that, at this stage of the proceedings, the
trial court erred in concluding that no recovery was possible.
Appeals from orders granting a preliminary objection in the nature of a
demurrer are reviewed under the following standard:
A preliminary objection in the nature of a demurrer is properly
granted where the contested pleading is legally insufficient.
Preliminary objections in the nature of a demurrer require the
court to resolve the issues solely on the basis of the pleadings;
no testimony or other evidence outside of the complaint may be
considered to dispose of the legal issues presented by the
demurrer. All material facts set forth in the pleading and all
inferences reasonably deducible therefrom must be admitted as
true.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine the
averments in the complaint, together with the documents and
exhibits attached thereto, in order to evaluate the sufficiency of
the facts averred. The impetus of our inquiry is to determine the
legal sufficiency of the complaint and whether the pleading
would permit recovery if ultimately proven. This Court will
reverse the trial court’s decision regarding preliminary objections
only where there has been an error of law or abuse of discretion.
When sustaining the trial court’s ruling will result in the denial of
claim or a dismissal of suit, preliminary objections will be
sustained only where the case is free and clear of doubt.
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Thus, the question presented by the demurrer is whether, on the
facts averred, the law says with certainty that no recovery is
possible. Where a doubt exists as to whether a demurrer should
be sustained, this doubt should be resolved in favor of overruling
it.
Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208-209 (Pa.
Super. 2012) (internal citations and quotation marks omitted).
In their fourth amended complaint, Appellants alleged the NCAA was
negligent. Fourth Amended Complaint, 3/17/14, at 20, Count III.
To establish a viable cause of action in negligence the
pleader must aver in his complaint “a duty, a breach of that
duty, a causal relationship between the breach and the resulting
injury, and actual loss.” Feeney v. Disston Manor Personal
Care Home, Inc., 849 A.2d 590, 594 (Pa. Super. 2004).
Appellant sought to establish negligence based upon section 323
of the Restatement (Second) of Torts, which provides as follows:
One who undertakes, gratuitously or for
consideration, to render services to another which he
should recognize as necessary for the protection of
the other’s person or things, is subject to liability to
the other for physical harm resulting from his failure
to exercise reasonable care to perform his
undertaking, if
(a) His failure to exercise such care
increases the risk of such harm, or
(b) The harm is suffered because of the
other’s reliance upon the undertaking.
RESTATEMENT (SECOND) OF TORTS § 323 (1965).3
3
Section 323 has been adopted as the law in
Pennsylvania. Feld v. Merriam, 506 Pa. 383, 485
A.2d 742, 746 (1984); Cooper v. Frankford Health
Care System, Inc., 960 A.2d 134, 145–45 (Pa.
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Super. 2008); Filter v. McCabe, 733 A.2d 1274 (Pa.
Super. 1999).
Unglo v. Zubik, 29 A.3d 810, 813 (Pa. Super. 2011).
In their Fourth Amended Complaint, Appellants pled: “At all times
material hereto, the N.C.A.A. had an irrevocable duty to [Mr. Hill] to
establish and enforce protocols relating to student athlete safety.” Fourth
Amended Complaint, 3/17/14, at 8, ¶ 64. Additionally, Appellants alleged
that the NCAA regulated, promulgated, and enforced protocols for the safety
of student athletes, and NCAA affiliated schools were mandated to comply
with NCAA medical condition testing. Id. at ¶¶ 66-71. If a school failed to
abide by the NCAA mandates for student athlete safety, that school would
face sanctions. Id. at ¶ 73. At all times relevant hereto, Slippery Rock
University was an NCAA member school. Id. at ¶ 78. Beginning in 2010,
the NCAA required SCT testing for Division I athletes, Fourth Amended
Complaint, 3/17/14, at 8, ¶ 90, but such testing was not implemented in
Division II schools until 2012 and Division III schools until 2013. Id. at ¶
92.
Initially, the trial court concluded that Appellants sufficiently alleged
that the NCAA assumed a duty, and pleaded facts that, if true, would
support a finding that the NCAA acted for the benefit of student athletes and
that Mr. Hill, at the time of his death, was within the class of individuals the
NCAA was to protect. Trial Court Opinion, 12/22/14, at 20-22. On that
basis, the trial court denied the NCAA’s preliminary objection wherein the
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NCAA averred that Appellants failed to plead a duty. Id. at 22. However,
the trial court then determined that Appellants failed to plead facts that
would allow for a finding that the NCAA increased Mr. Hill’s risk of harm, as
required under Section 323(a) of the Restatement.2 As support for its
position, the trial court cited Wissel v. Ohio High School Athletic
Association, 605 N.E. 2d 458 (Ohio Ct. App. 1992). The trial court
provided the following rationale:
As noted by the court in Wissel, supra, § 323(a), increased risk
of harm, applies
only when the defendant’s actions increased the risk
of harm to the plaintiff relative to the risk that would
have existed had the defendant never provided the
services initially. Put another way, the defendant’s
negligent performance must somehow put the
plaintiff in a worse situation than if the defendant
had never begun the performance. As we have noted
when interpreting § 324A(a), a companion provision
to § 323(a), to prevail under a theory of increased
risk of harm a plaintiff must ‘identify sins of
commission rather than omission.’
Id. at 465 (citing Patentas v. United States, 687 F.2d 707,
716 (3d Cir.1982) [quoting Turbe v. Government of Virgin
Islands, 938 F.2d 427, 428 (C.A.3 (Virgin Islands),1991)].
[Appellants] argue that, because the N.C.A.A. knew of the
dangers of SCT and yet failed to timely implement mandatory
SCT testing for Division II schools, Mr. Hill was not tested for or
diagnosed with SCT; therefore, his exertion levels were not
properly monitored during his basketball practice, and SCT-
related emergency resuscitation procedures were not employed
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2
The trial court also decided that there was insufficient pleading of reliance
for liability pursuant to Section 323(b) of the Restatement (Second) of Torts.
Appellants do not challenge that conclusion on appeal.
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by emergency personnel. [Appellants] argue that these actions
increased Mr. Hill’s risk of harm relative to the risk that he would
have faced had he been diagnosed with SCT and properly
monitored during practice. However, [Appellants] interpretation
of the risk of harm standard for liability is not provided for in the
case law. As explained in Wissel, the proper test for increased
risk of harm is whether the N.C.A.A., by undertaking to provide
medical condition testing and sports participation protocols, put
Mr. Hill in a worse situation than if the N.C.A.A. had never
undertaken to perform said services. In this case, [Appellants]
do not plead facts that would support such an allegation; in
other words, contrary to the requirements set forth in Wissel,
[Appellants] allege sins of omission, rather than commission.
Therefore, [Appellants] do not sufficiently allege that the
N.C.A.A.’s actions increased Mr. Hill’s risk of harm, to establish a
legal duty under § 323.
Trial Court Opinion, 12/22/14, at 22-23.
First, we point out that neither Wissel nor the cases it cites, Turbe
and Patentas, is binding authority in this Court.3 Second, we cannot agree
with the trial court’s analysis.
Here, Appellants alleged the NCAA owed a duty of care to Mr. Hill
because he was a student at Slippery Rock University. Fourth Amended
Complaint, 3/17/14, at 4, ¶ 13. Mr. Hill completed a pre-participation
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3
See NASDAQ OMX PHLX, Inc. v. PennMont Securities, 52 A.3d 296,
303 (Pa. Super. 2012) (decisions of the federal courts of appeals are not
controlling authority); Gongloff Contracting, L.L.C. v. L. Robert Kimball
& Associates, Architects and Engineers, Inc., 119 A.3d 1070, 1078 (Pa.
Super. 2015) (stating that pronouncements of the lower federal courts have
only persuasive authority and are not controlling); see also Umbelina v.
Adams, 34 A.3d 151, 160 (Pa. Super. 2011) (stating that the decisions of
other states are not binding authority for this Court, although they may be
persuasive).
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athletic physical. Id. at ¶ 20. The medical questionnaire asked if Mr. Hill
had Sickle Cell Anemia (“SCA”) or SCT. Id. at ¶ 23. Mr. Hill was unaware
that he had SCT. Id. at ¶¶ 24-25. Appellants claimed that despite inquiring
as to whether Mr. Hill had SCA or SCT, at no point did anyone require or
request a blood test to check for these diseases. Id. at ¶ 26. Appellants
asserted that despite the pre-participation physical questionnaire, no one
informed Mr. Hill of the dangers of SCA or SCT. Id. at ¶ 27.
Furthermore, Appellants averred that the NCAA regulates athletic
participation rules for its student athletes. Fourth Amended Complaint,
3/17/14, at 4, ¶ 69. Appellants specifically stated that a 2007 NCAA
Consensus Statement recommended testing for SCT in all student athletes.
Id. at ¶ 87. Appellants also pled that the NCAA mandated SCT testing for
athletes at Division I schools in August of 2010, id. at ¶ 90, but it failed to
require SCT testing for Division II schools such as Slippery Rock until August
of 2012. Id. at ¶¶ 91-92. The SCT testing at Division II schools, therefore,
was not implemented until after Mr. Hill’s death.
Thus, relevant to our standard of review, the complaint asserted that
the Slippery Rock Defendants and the NCAA initiated medical and physical
evaluations, but provided no SCT testing and permitted Mr. Hill to participate
in the workout that led to his demise. The incomplete medical clearance
may have led Mr. Hill to believe that he was physically fit for basketball.
Therefore, Appellants sufficiently alleged that the initiation of medical and
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physical evaluations, which did not include SCT testing for Division II
schools, increased Mr. Hill’s risk of harm.
We conclude that Appellants’ Fourth Amended Complaint succinctly
averred that the then-existing NCAA Division II participation protocols
allowed a young man with SCT to participate in a high-intensity workout.
Had the NCAA’s protocols tested for SCT at Division II schools, Mr. Hill may
not have suffered the event that caused his death. Thus, Appellants claimed
that the inadequate pre-participation physical, which allowed Mr. Hill to play
basketball, increased his risk of harm. Appellants alleged that this increased
risk of harm could have been prevented if the NCAA discharged its duty and
required SCT testing.
Herein, the trial court’s reliance on Wissel for the proposition that an
increased risk of harm can be established through only “sins of commission”
was incorrect. In Pennsylvania, an increased risk of harm can occur through
a failure to act, or a “sin of omission.” Indeed, in addressing increased risk
of harm under Section 323 of the Restatement, the Pennsylvania Supreme
Court stated as follows:
[O]nce a plaintiff has demonstrated that defendant’s acts or
omissions, in a situation to which Section 323(a) applies, have
increased the risk of harm to another, such evidence furnishes a
basis for the fact-finder to go further and find that such
increased risk was in turn a substantial factor in bringing about
the resultant harm; the necessary proximate cause will have
been made out if the jury sees fit to find cause in fact.
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Hamil v. Bashline, 392 A.2d 1280, 1288 (Pa. 1978) (footnote omitted)
(emphasis added). Moreover, in Hamil, the Court noted the effect of
Section 323(a) was to relax the degree of certainty ordinarily required of a
plaintiff’s evidence in order to make a case for the jury. Id.; see also
Feeney, 849 A.2d at 595 (applying the standard announced in Hamil to a
motion to remove a compulsory nonsuit).4
In this case, Appellants pled that the NCAA had a duty to protect its
student athletes from SCT, and it is evident that Appellants also pled that
the NCAA, in failing to discharge that duty, increased the risk of harm to Mr.
Hill. Fourth Amended Complaint, 3/17/14, at ¶¶ 114-116. Ultimately, the
factfinder could reasonably conclude that the NCAA’s decision to test for SCT
at Division I schools as part of its protocols, while forgoing such testing
at Division II schools, was an error of omission and a failure in its duty,
thereby increasing the risk of harm to Mr. Hill.
After review of the pleadings, at this juncture of the proceedings and
pursuant to our standard of review, we cannot conclude that there is a
certainty that no recovery is possible. Weiley, 51 A.3d at 208-209. Simply
stated, Appellants’ allegations are sufficient to survive preliminary
objections. Accordingly, we conclude that the trial court erred in its
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4
While Feeney addressed Section 323 in connection with a motion to
remove a compulsory nonsuit, its discussion of Section 323 and its
application to acts of commission and omission is particularly apt.
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application of the law, and we reverse that part of the order granting the
NCAA’s preliminary objection in the nature of a demurrer.
Order reversed in part. Case remanded for further proceedings
consistent with this Opinion. Jurisdiction relinquished.
P.J.E. Ford Elliott joins the Opinion.
P.J.E. Bender Notes Dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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