Feleccia, A. v. Lackawanna College

J-A25024-16
2017 PA Super 44AUGUSTUS FELECCIA AND JUSTIN T. IN THE SUPERIOR COURT OF
RESCH, PENNSYLVANIA
Appellants
v.
LACKAWANNA COLLEGE A/K/A
LACKAWANNA JUNIOR COLLEGE, KIM A.
MECCA, MARK D. DUDA, WILLIAM E.
REISS, DANIEL A. LAMAGNA, KAITLIN M.
COYNE AND ALEXIS D. BONISESE,
Appellees No. 385 MDA 2016
Appeal from the Judgment Entered February 2, 2016
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 12-CV-1960
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*
OPINION BY SHOGAN, J.: FILED FEBRUARY 24, 2017
Student athletes Augustus Feleccia (“Gus”) and Justin T. Resch
(“Justin”) appeal from the entry of summary judgment in favor of
Lackawanna College a/k/a Lackawanna Junior College (“the College”),
Athletic Director Kim A. Mecca (“AD Mecca”), Mark D. Duda (“Coach Duda”),
William E. Reiss (“Coach Reiss”), Daniel A. Lamagna (“Coach Lamagna”),
Kaitlin M. Coyne, and Alexis D. Bonisese (collectively “Lackawanna”).
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Because genuine issues of material fact remain for resolution by a jury, we
reverse the entry of summary judgment and remand for trial.
This case involves personal injuries suffered by Gus and Justin on
March 29, 2010, while they were participating in a tackling drill during the
first day of spring contact football practice at the College. Complaint,
5/4/12, at ¶¶ 46, 48, 49, 65, 72, 76. The College is a non-profit junior
college in northeastern Pennsylvania and a member of the National Junior
College Athletic Association (“NJCAA”). Id. at ¶¶ 3, 18. Traditionally, the
College employed two athletic trainers to support the football program. In
June and July of 2009, respectively, athletic trainers Daniel Dolphin and
Scott Summers tendered their resignations to the College. Answer to Motion
for Summary Judgment, 10/16/15, at Exhibits 29 (AD Mecca Deposition,
1/14/14, at 100), 52, 56. When AD Mecca1 advertised the job openings, Ms.
Coyne and Ms. Bonisese applied for the positions. Answer to Motion for
Summary Judgment, 10/16/15, at Exhibits 32 (Coyne Deposition, 12/9/14,
____________________________________________
1
AD Mecca was hired by the College on September 17, 1999, as a part-time
Alumni Relations Coordinator. AD Mecca’s Responses to Plaintiffs’ Request
for Admissions, 7/25/14, at Response 1. Raymond S. Angeli, President of
the College, appointed AD Mecca as the full-time Director of Intramurals and
Assistant Athletic Director on May 31, 2006; she accepted the position on
June 1, 2006. Id. at Responses 2, 3. Shortly thereafter, when the College’s
athletic director resigned, AD Mecca was offered the position and accepted it
on July 1, 2006. Id. at Responses 4, 5; Answer to Motion for Summary
Judgment, 10/16/15, at Exhibit 29 (AD Mecca at 10). AD Mecca’s
experience included running a golf tournament for ten years and coaching
one year of college softball. Answer to Motion for Summary Judgment,
10/16/15, at Exhibit 29 (AD Mecca Deposition at 11, 12, 17).
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at 147), 33 (Bonisese Deposition, 12/3/14, at 27), 59, 62. Following phone
interviews with Ms. Coyne and Ms. Bonisese conducted by AD Mecca, the
College hired them in August of 2009. Answer to Motion for Summary
Judgment, 10/20/15, at Exhibits 58, 61. Ms. Coyne and Ms. Bonisese were
hired “with the intent to have them serve as Certified Athletic Trainers.”
Lackawanna’s Brief at 5. Upon hiring, Ms. Coyne and Ms. Bonisese each
signed an athletic-trainer job description. Id. at Exhibits 60, 63.
Although they had earned their Bachelor of Science degrees in athletic
training in the spring of 2009 from Marywood College, neither Ms. Coyne nor
Ms. Bonisese was certified or licensed at any time relevant to the underlying
action. Answer to Motion for Summary Judgment, 10/16/15, at Exhibits 32
(Coyne at 11–12) and 33 (Bonisese at 10, 55). In August of 2009, Ms.
Coyne and Ms. Bonisese learned that they had not passed the Board of
Certification, Inc. (“BOC”) examination, and they informed AD Mecca. Id. at
Exhibit 32 (Coyne at 55) and 33 (Bonisese at 16, 53–54).2 In response, AD
Mecca retitled Ms. Coyne and Ms. Bonisese as “First Responders.” Id. at
Exhibits 32 (Coyne at 55–56), 33 (Bonisese at 30, 110), and 70. Upon
being retitled as first responders, neither Ms. Coyne nor Ms. Bonisese
____________________________________________
2
Ms. Coyne and Ms. Bonisese eventually passed the BOC examination. The
Commonwealth of Pennsylvania issued each of them a license to practice as
an athletic trainer on July 30, 2010, and September 14, 2010, respectively.
Answer to Motion for Summary Judgment, 10/16/15, at Exhibits 32 (Coyne
at 86), 33 (Bonisese at 16), and 71.
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completed a new or amended job description, despite the inaccuracy about
their qualifications on the original job description. Id. at Exhibit 32 (Coyne
at 55–56) and 33 (Bonisese at 53). In September of 2009, the College hired
a certified part-time trainer, Maureen Burke, but she did not attend football
practices during the 2009–2010 academic year. Id. at Exhibits 32 (Coyne at
44), 64. All three women’s job descriptions were identical. Id. at Exhibits
60, 63, 64.
In September of 2009, Shelby Yeager, a former professor of Ms. Coyne
and Ms. Bonisese at Marywood College, expressed her concern to Ms. Coyne
that Ms. Coyne and Ms. Bonisese were impermissibly providing athletic
training services. Answer to Motion for Summary Judgment, 10/16/15, at
Exhibits 32 (Coyne at 149–151), 67. In an affidavit, Ms. Yeager stated that
Ms. Coyne was “ill-equipped to handle the rigors of a contact sport (like
football) as an athletic trainer on her own regardless of whether she
managed to pass [the certification] exam and obtain her state license.” Id.
at Exhibit 69 (Yeager Affidavit, 9/29/15 at ¶¶ 13, 16–19, 28–31). AD Mecca
learned of Ms. Yeager’s concerns regarding the qualifications of Ms. Coyne
and Ms. Bonisese. Id. at Exhibit 68 (Email from Ms. Coyne to AD Mecca
forwarding email from Chris O’Brien: Hey, Chris!, 9/2/09). Similarly, Bryan
Laurie, head athletic trainer at SUNY New Paltz, provided an affidavit.
Therein he stated that he had supervised Ms. Bonisese as a student, that her
performance was “below average/poor,” and that she was not qualified to
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act as a trainer in March of 2010. Answer to Motion for Summary Judgment,
10/20/15, at Exhibit 74 (Laurie Affidavit, 9/20/15, at ¶¶ 9, 10, 12, 15, 17,
19).
Ms. Coyne and Ms. Bonisese were the only training staff working with
the football players on March 29, 2010; the College had no certified athletic
trainers on the practice field that day. Lackawanna’s Statement of Material
Facts, 12/2/15, at Exhibit O ¶ 89; Answer to Motion for Summary Judgment
at Exhibit 33 (Bonisese at 54–55). A football teammate, Christopher Yoo,
testified that Ms. Coyne and Ms. Bonisese were the trainers and the only
trainers in the program as of the spring of 2010. Answer to Motion for
Summary Judgment, 10/20/15, at Exhibit 44 (Yoo Deposition, 1/7/15, at
105). Similarly, teammate Anthony Carillo testified that Ms. Coyne and Ms.
Bonisese represented themselves as trainers and that the coaching staff
propagated that representation. Id. at Exhibit 45 (Carillo Deposition,
1/7/15, at 40–44).
The trial court summarized additional facts underlying this case, as
follows:
A. Plaintiff Justin T. Resch
[Justin] began playing football at the age of six. He
continued playing football through high school and was
instructed, on numerous occasions, that making a proper tackle
involves keeping one’s head up. Along the way, [Justin] broke
his arm, injured his ankle, broke his collarbone, and experienced
a “stinger, burner, or pinched nerve” while playing football. He
graduated from Piu[s] X High School in 2008, applied to
Defendant Lackawanna College a/k/a Lackawanna Junior College
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(hereinafter “Lackawanna”) in Scranton, was accepted, and
sought to continue playing football. Though he met with
Lackawanna’s head football coach, Defendant Mark D. Duda,
prior to arriving for classes, [Justin] was not offered an athletic
scholarship to play football.
In the fall of 2008, [Justin] tried out for the Lackawanna
football team. Again, he was instructed to make tackles with his
head up. During tryouts, [Justin] was aware that Lackawanna
was using a variation of the tackling drill called the “Man Maker,”
“One-on-One,” or “Oklahoma” drill (hereinafter the “Oklahoma
Drill”). Shortly thereafter, [Justin] was placed on academic
probation for bad grades. Despite this, Lackawanna allowed him
to enroll in the spring semester. In the spring of 2009, he again
tried out for the football team, but failed to make the squad.
This fact notwithstanding, [Justin] was academically ineligible to
play football through the 2008-2009 academic year. After
returning to Lackawanna in mid-January of 2010 to begin spring
semester classes, [Justin] began running and weight training in
preparation for football tryouts.
B. Plaintiff Augustus Feleccia
[Gus] began playing football at the age of ten. He
continued playing football through high school and was
instructed, on numerous occasions, that making a proper tackle
involves keeping one’s head up. In 2003, [Gus] injured his
lower back playing football. He graduated from Lansdale
Catholic High School in 2008. Despite being recruited by
Defendant Duda to play football at Lackawanna, [Gus] was not
offered an athletic scholarship to play football.
In the fall of 2008, [Gus] tried out for the Lackawanna
football team. Again, he was instructed to make tackles with his
head up. During tryouts, [Gus] was aware that Lackawanna was
using a variation of the Oklahoma Drill. Though he tried out,
[Gus] did not make the team, was redshirted, and was allowed
to practice with the team during the fall of 2008. During that
time, he tore the labrum in his left shoulder during a scrimmage
and, later, underwent reparative surgery. Shortly thereafter,
[Gus] was placed on academic probation. He withdrew from
Lackawanna after the fall of 2008 semester and, in the spring of
2009, enrolled in the Montgomery County Community College.
He reenrolled at Lackawanna for the spring semester of 2010.
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After returning to Lackawanna in mid-January of 2010 to begin
spring semester classes, [Gus] began running and weight
training in preparation for football tryouts.
C. The Waiver
In anticipation of spring football tryouts in 2010, [Gus and
Justin] were presented with, “skimmed,” and signed, on March
22, 2010, a document titled “Lackawanna College Waiver of
Liability and Hold Harmless Agreement” (hereinafter “the
Waiver”).[3] The Waiver, in [relevant part], provides:
* * *
1. In consideration for my participation in (sport),
I hereby release, waive, discharge, and covenant not
to sue Lackawanna College, its trustees, officers,
agents, and employees from any and all liability,
claims, demands, actions, and causes of action
whatsoever arising out of or related to any loss,
damage, or injury, including death, that may be
sustained by me, or to any property belonging to
me, while participating in such athletic activity.
* * *
4. It is my express intent that this Release and
Hold Harmless Agreement shall bind my family, if I
am alive, and my heirs, assigns, and personal
representative, if I am deceased, and shall be
deemed as a release, waiver, discharge, and
covenant not to sue Lackawanna College, its
trustees, officers, agents, and employees. I hereby
further agree that this Waiver of Liability and Hold
Harmless Agreement shall be construed in
accordance with the laws of the Commonwealth of
Pennsylvania.
* * *
____________________________________________
3
Both Gus and Justin indicated on the Waiver that they were participating
in football. Lackawanna’s Statement of Material Facts, 12/2/15, at Exhibit E.
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Both [Gus and Justin] admitted to knowing that by signing the
Waiver, they had agreed not to sue Lackawanna or its agents for
any injuries incurred while playing football at Lackawanna.
D. The Oklahoma Drill[4]
On March 29, 2010, both [Gus and Justin] participated in a
variation of the Oklahoma Drill at Lackawanna’s first fully
padded, full contact tryout practice of the season. [Gus and
Justin’s] expert neither defines the drill nor acknowledges its use
in the sport of football. [Lackawanna’s] expert explains that the
Oklahoma Drill is “a live contact drill that is usually performed in
a confined space.” He opines that “there are many variations of
the Oklahoma Drill,” including those used at Texas A&M
University and Virginia Tech University, described as follows:
A. Texas A&M Oklahoma Drill (“Tunnel of Truth”)
(Procedure)
1. Create a shoot approximately 10 yards in
length and about 4–5 yards wide.
2. Have either a Running Back tie up with a
Linebacker, or a Defensive Back tie up with a Wide
Receiver. An offensive player will then receive the
ball and try to read the block in front of him and
evade the free defender waiting in the shoot.
(Coaching Points)
1. The defender in the tie up will demonstrate
proper block shedding technique while the offensive
player will demonstrate proper stalk blocking
technique.
2. The ball carrier must read the block and make
the appropriate cut with proper pad level and ball
security. The free defender must stay square, work
downhill towards the ball carrier, and deliver a good,
hard, fundamental tackle.
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4
The record suggests that the drill was actually a variation of the
“Oklahoma Drill” that Coach Reiss referred to as the “Man-Maker Drill.”
Answer to Motion for Summary Judgment, 10/16/15, at Exhibit 45 (Carillo at
52).
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...
B. Virginia Tech Oklahoma Drill
(Procedure)
1. This is a one-on-one tackling drill (Defensive
Backs/Linebackers vs. Running Backs/Wide
Receivers)
2. The shoot is approximately 10 yards in length,
and two cones create a width of approximately 2
yards.
3. The two players come down the shoot and
engage at the cones.
(Coaching Points)
1. The defender must demonstrate proper
tackling technique.
2. The ball carrier must demonstrate proper pad
level and ball security.
* * *
Significantly, both [Gus and Justin] had previously
participated in a variation of the Oklahoma Drill either in high
school or at Lackawanna. When [Justin] signed the Waiver on
March 22, 2010, he understood that a variation of the Oklahoma
Drill might be used at future Lackawanna football practices and
that he could be injured while participating in such drills.
Similarly, when [Gus] signed the Waiver on March 22, 2010, he
understood that the Oklahoma Drill would be run at
Lackawanna’s first football practice using only a running back,
linebacker, and maybe a quarterback.
While participating in the drill, [Justin] attempted to make
a tackle with his head down and suffered a T-7 vertebral
fracture. As [Gus] describes it, [Justin] “put his head down, hit
him with his head and just went limp on the ground and kind of
rolled over.” [Gus] went on to admit that [Justin’s] tackle was
improper because “his head was down and he led with the top of
his head.” [Justin] recalls that while lying on the ground in pain,
he was attended to by “one of the first responders,” namely
Defendant Kaitlin M. Coyne, before being transported to the
hospital in an ambulance.
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Despite [Justin’s] injury, the Oklahoma Drill continued.
When [Gus] attempted his first tackle, he endured a “stinger” to
his right shoulder, an injury he understood as “when your arm
tingles.” He described his injury as feeling “tingly and numb”
and that he “couldn’t really move his right shoulder as well.”
Following his injury, [Gus] sought guidance from Defendant
Alexis D. Bonisese, the other first responder employed by
Lackawanna to monitor football practices. [Gus] testified that
Bonisese told him he could return to practice “if he was feeling
better,” and that he was “feeling a little better” when he
returned to practice, even though his pain had “not totally” gone
away. He then participated in the Oklahoma Drill again, made a
tackle with his right shoulder, and suffered a traumatic brachial
plexus avulsion on his right side.
Trial Court Opinion, 2/2/16, at 1–7 (internal citations, brackets, and
footnotes omitted).
Gus and Justin initiated the underlying lawsuit by writ of summons on
March 28, 2012. They filed a complaint on May 4, 2012, advancing claims of
negligence and negligence per se and requesting punitive damages.
Lackawanna filed preliminary objections asserting that Gus and Justin failed
to allege legally sufficient negligence claims against Lackawanna and that
the punitive-damage claims do not constitute an independent cause of action
under Pennsylvania law; therefore, Lackawanna argued, the complaint
should be dismissed as legally insufficient. The trial court overruled the
preliminary objections on September 4, 2012, thus declining to find any of
the claims legally insufficient or to dismiss them as a matter of law.
Lackawanna filed an answer with new matter on October 5, 2012, raising,
inter alia, the Waiver and assumption of the risk as defenses.
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At the close of discovery, Lackawanna filed a motion for summary
judgment, relying primarily on the Waiver and an assumption-of-the-risk
defense. Motion for Summary Judgment, 7/31/15, at ¶¶ 9, 10. Lackawanna
also claimed that Ms. Coyne and Ms. Bonisese were immune from liability
under the Pennsylvania Good Samaritan Act; that Gus and Justin could not
maintain a cause of action for negligence per se under the Medical Practice
Act of 1985 because there was no private cause of action under that act;
and that Gus and Justin failed to set forth a prima facie case of negligence
per se against Ms. Coyne and Ms. Bonisese because they were not subject to
the regulations of licensed athletic trainers. Id. at ¶¶ 11, 12, 13, 14.
Gus and Justin argued in response that the College “ran its Athletic
Training Department in a manner demonstrating a total disregard for the
safety of its student-athletes or the laws of the Commonwealth of
Pennsylvania.” Memorandum in Opposition to Motion for Summary
Judgment, 10/20/15, at 1. Relying on expert opinion, Gus and Justin
claimed that the “coaches should have insisted that the College provide
competent medical coverage and all of them failed to do that.” Id. at 12.
Moreover, Gus and Justin asserted that the College failed to provide qualified
athletic trainers who could have directed an end to or a modification of the
improperly conducted drill in the interest of the student athlete’s safety, and
who would have been able to properly assess Gus’ “stinger” and advise him
against returning to the drill. Id. at 16–20.
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Following oral argument on November 19, 2015, the trial court
granted Lackawanna summary judgment based on the Waiver and,
alternatively, on assumption of the risk. Order, 2/2/16.5 Gus and Justin
timely appealed. They and the trial court complied with Pa.R.A.P. 1925.
On appeal, Gus and Justin raise the following issues for our review:
Did the trial court abuse its discretion or err as a matter of
law by granting [Defendants’] Motion for Summary Judgment,
when:
 The trial court failed to analyze the record in the
light most favorable to [Gus and Justin];
 The trial court erred by failing to consider whether
[Defendants’] conduct constituted recklessness or
gross negligence, as alleged in the Complaint;
 [Defendants] limited their defense to assumption of
the risk;
 [Lackawanna’s] Waiver of Liability and Hold
Harmless Agreement (“Waiver”)/exculpatory clause
did not expressly state in a clear and unambiguous
manner that it was a waiver of [Lackawanna’s] own
negligence;
 The trial court erred by finding that the Waiver,
which contravened public policy, barred [Gus’ and
Justin’s] claims and was void; and, therefore
 The Court erred by failing to submit the disputed
factual questions to a jury?
Gus and Justin’s Brief at 4.
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5
Recently, this Court opined that a liability waiver constitutes an express
assumption of the risk. Valentino v. Philadelphia Triathlon, LLC., 150
A.3d 483, 2016 PA Super 248 at *13 (Pa. Super. filed November 15, 2016).
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“The overarching question of whether summary judgment is
appropriate is a question of law, and thus our standard of review is de novo
and the scope of review is plenary.” Chepkevich v. Hidden Valley
Resort, L.P., 2 A.3d 1174, 1182 (Pa. 2010) (internal citation omitted).
Furthermore:
[i]n reviewing the grant of summary judgment, the following
principles apply. [S]ummary judgment is appropriate only in
those cases where the record clearly demonstrates that there is
no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law. When considering a
motion for summary judgment, the trial court must take all facts
of record and reasonable inferences therefrom in a light most
favorable to the non-moving party. In so doing, the trial court
must resolve all doubts as to the existence of a genuine issue of
material fact against the moving party, and, thus, may only
grant summary judgment where the right to such judgment is
clear and free from all doubt. On appellate review, then, an
appellate court may reverse a grant of summary judgment if
there has been an error of law or an abuse of discretion. But the
issue as to whether there are no genuine issues as to any
material fact presents a question of law, and therefore, on that
question our standard of review is de novo. This means we need
not defer to the determinations made by the lower tribunals. To
the extent that this Court must resolve a question of law, we
shall review the grant of summary judgment in the context of
the entire record.
Kennedy v. Robert Morris Univ., 133 A.3d 38, 41 (Pa. Super. 2016),
appeal denied, 145 A.3d 166 (Pa. 2016) (quoting Summers v. Certainteed
Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal quotations and citations
omitted)).
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The Waiver
In granting summary judgment to Lackawanna, the trial court relied
primarily on the Waiver. It is generally accepted that a waiver, or
exculpatory clause, is valid where three conditions are met. First, the clause
must not contravene public policy. Chepkevich, 2 A.3d at 1189; Topp
Copy Products, Inc. v. Singletary, 626 A.2d 98 (Pa. 1993); Employers
Liab. Assu. Corp. v. Greenville Business Men’s Ass’n, 224 A.2d 620 (Pa.
1966). “Contracts against liability, although not favored by courts, violate
public policy only when they involve a matter of interest to the public or the
state. Such matters of interest to the public or the state include the
employer-employee relationship, public service, public utilities, common
carrier, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 582 A.2d
1380, 1382 (Pa. Super. 1990). “Secondly, the contract must be between
persons relating entirely to their own private affairs and thirdly, each party
must be a free bargaining agent to the agreement so that the contract is not
one of adhesion.” Chepkevich, 2 A.3d at 1189 (citations omitted); see also
Toro v. Fitness International, LLC., 150 A.3d 968, 2016 PA Super 243(Pa. Super. filed November 10, 2016) (applying Chepkevich to a waiver
raised as a defense to a negligence claim in a slip-and-fall case); McDonald
v. Whitewater Challengers, Inc., 116 A.3d 99 (Pa. Super. 2015), appeal
denied, 130 A.3d 1291 (Pa. 2015) (applying Chepkevich to a waiver signed
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by a New York resident and raised as a defense to a negligence claim in a
whitewater rafting case).
[O]nce an exculpatory clause is determined to be valid, it will,
nevertheless, still be unenforceable unless the language of the
parties is clear that a person is being relieved of liability for
[their] own acts of negligence. In interpreting such clauses we
listed as guiding standards that: 1) the contract language must
be construed strictly, since exculpatory language is not favored
by the law; 2) the contract must state the intention of the
parties with the greatest particularity, beyond doubt, by express
stipulation, and no inference from words of general import can
establish the intent of the parties; 3) the language of the
contract must be construed, in cases of ambiguity, against the
party seeking immunity from liability; and 4) the burden of
establishing the immunity is upon the party invoking protection
under the clauses.
Chepkevich, 2 A.3d at 1189 (citations omitted).
On appeal, Gus and Justin first argue that summary judgment was
improper because the trial court erred in not allowing a jury “to decide
whether the scope of [the College’s] conduct exceeded the Waiver.” Gus
and Justin’s Brief at 25. Gus and Justin acknowledge that the Waiver
“released [Lackawanna] from negligence claims[.]” Id. at 23. According to
Gus and Justin, however, “by requiring athletes to waive their right to sue,”
the College had a duty “to assure that [it] hired qualified personnel to assess
and treat foreseeable injuries,” that “its staff was adequately trained” and
certified, and that “it took reasonable measures to assure the safety of its
student athletes.” Id. at 25. Therefore, Gus and Justin contend, the
question of “whether [the College’s] failure to hire qualified personnel
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constitutes negligence, gross negligence or recklessness . . . should be left
to the jury.” Id. at 27.
In support of their position that the Waiver cannot be used as a shield
against claims of gross negligence or recklessness, Gus and Justin rely on
Tayar v. Camelback Ski Corp., 47 A.3d 1190 (Pa. 2012). Gus and Justin’s
Brief at 27–29. Therein, Barbara Tayar and her family elected to use the
family tubing slopes at Camelback Ski Resort. They completed four
successful runs down the mountain, with appellant Brian Monaghan, a
Camelback employee, releasing them from the summit safely each time. Id.
at 1193. On the fifth run, when Barbara Tayar reached the receiving area at
the bottom of the slope:
she exited her snow tube and was immediately struck by another
snow tuber coming down the family tubing slope. Camelback
employees rushed to assist Tayar out of the receiving area,
when yet another snow tuber narrowly missed striking her. At
this point, several Camelback employees were yelling and
gesturing up the mountain to Monaghan to stop sending snow
tubers down the slope until they could safely remove Tayar from
the receiving area. As a result of the collision, Tayar suffered
multiple comminuted fractures of her right leg, for which she
underwent surgery and required two metal plates and 14 screws
to stabilize her ankle.
Id.
Tayar was a case of first impression in which our Supreme Court
addressed the public policy question of whether recklessness can be released
in a pre-injury exculpatory clause. The Tayar Court first considered where
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recklessness falls on the spectrum of tortious conduct—closer to waivable
common negligence or to non-waivable intentional conduct:
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
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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.
* * *
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. As a result, we are inclined to apply the
same prohibition on releasing reckless conduct as we do for
intentional conduct.
Tayar, 47 A.3d at 1200–1201. The Tayar Court then concluded:
[W]ere we to sanction releases for reckless conduct, parties
would escape liability for consciously disregarding substantial
risks of harm to others; indeed, liability would be waivable for all
conduct except where the actor specifically intended harm to
occur. There is near unanimity across jurisdictions that such
releases are unenforceable, as such releases would jeopardize
the health, safety, and welfare of the people by removing any
incentive for parties to adhere to minimal standards of safe
conduct. We therefore conclude that, even in this voluntarily
[sic] 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.
Tayar, 47 A.3d at 1203 (internal citation omitted). In sum, the Tayar Court
held that recklessness cannot be released in a pre-injury exculpatory clause.
Ultimately, the Supreme Court affirmed our en banc order reversing
the entry of summary judgment and remanding for a determination of
whether the defendants’ conduct was reckless or intentional and whether
such conduct was the cause of the ski patron’s injuries. Tayar, 42 A.3d at
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1203. Cf. Valentino v. Philadelphia Triathlon, LLC., 150 A.3d 483, 2016
PA Super 248 (Pa. Super. filed November 15, 2016) (affirming the entry of
summary judgment based on a signed waiver where the trial court struck all
references in the plaintiff’s amended complaint to gross negligence,
recklessness, and punitive damages).
Lackawanna argues, “The Waiver’s clear language demonstrates the
intent of the Students to release Lackawanna of all liability by express
stipulation.” Lackawanna’s Brief at 39. Additionally, Lackawanna contends
that the gross negligence and recklessness claims were raised in counts for
punitive damages, not in substantive counts; therefore, they do not provide
independent grounds for recovery. Id. at 42–43. Thus, Lackawanna avers,
Tayar is not applicable “in this appeal as [it] did not involve allegations of
reckless [sic] pleaded in an independent cause of action for punitive
damages.” Id. at 43.
While recognizing that our courts have yet to address waivers of
liability in collegiate football, the trial court relied on “the standards
governing the validity of exculpatory clauses” set forth in Chepkevich and
Topp Copy. Trial Court Opinion, 2/2/16, at 10. In doing so, the trial court
initially concluded that the Waiver met the requirements for validity: (1) it
did not violate public policy because football is an inherently dangerous
sport, id. at 11–14; (2) it related entirely to the private affairs of Gus,
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Justin, and the College, id. at 14–15; and (3) it was not a contract of
adhesion, id. at 15–18.
Next, the trial court addressed the Waiver’s enforceability, applying
the standards also set forth in Chepkevich and Topp Copy. Trial Court
Opinion, 2/2/16, at 18. Focusing solely on Gus and Justin’s averments of
negligence, the trial court concluded that the Waiver was enforceable
because the College met its burden of proving that, when strictly construed,
the Waiver’s language was sufficiently particular and unambiguous to
provide immunity. Id. at 18–22. The trial court also recognized that the
Oklahoma Drill has been criticized in the wake of the NFL Concussion
Litigation, but it discounted the significance of the criticism in light of the
types of injures that Gus and Justin experienced. Id. at 21.
Upon review, we conclude that, as in other inherently dangerous
activities, the Waiver is valid. Like the trial court, we agree that the Waiver
does not violate public policy, relates to the private affairs of the parties, and
is not a contract of adhesion. Indeed, Gus and Justin do not specifically
challenge the trial court’s analysis of the second and third requirements for
the validity of the Waiver. Nevertheless, we disagree with the trial court
that the Waiver is enforceable under the facts of this case for multiple
reasons. First, the language of the Waiver is not sufficiently particular and
without ambiguity as to preclude liability. We have explained, “[O]nce an
exculpatory clause is determined to be valid, it will, nevertheless, still be
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unenforceable unless the language of the parties is clear that a person
is being relieved of liability for his own acts of negligence.”
Chepkevich, 2 A.3d at 1189 (emphasis supplied). Although valid, the
Waiver’s language does not indicate that Lackawanna was being relieved of
liability for its own acts of negligence.
Second, as noted above, in addition to averring negligence, Gus and
Justin raised issues of gross negligence and recklessness. Complaint,
5/9/12, at ¶¶ 80, 82, 93, 102, 103, 119. In its summary judgment
memorandum, the trial court did not address the averments of gross
negligence and recklessness or whether such conduct rendered the Waiver
unenforceable. Instead, the trial court discounted these allegations within a
footnote that stated punitive damages do not exist as a separate claim under
Pennsylvania law. Trial Court Opinion, 2/2/16, at 27, n.13. We do not find
such a statement dispositive of whether there were sufficient allegations of
recklessness or gross negligence for purposes of the enforceability of the
Waiver. Indeed, we find that this omission resulted in an incomplete
analysis by the trial court and, ultimately, led it to reach an incorrect
conclusion.
Summary judgment requires the trial court to review the “(1)
pleadings, discovery materials, i.e., depositions, answers to interrogatories,
admissions and affidavits, and reports signed by an expert witness. ...”
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Pa.R.C.P. 1035.1 cmt (internal quotation marks omitted). In their
complaint, Gus and Justin averred:
 gross negligence and recklessness against Lackawanna College at
¶¶ 82(a)–(i);
 gross negligence and recklessness against Coach Duda at ¶¶ 97(h),
(l), (m)–(r), 98(l)–(r);
 gross negligence and recklessness against Assistant Coaches Reiss
and Lamagna at ¶¶ 102(j), 103(j).
Complaint, 5/4/12. Additionally, Gus and Justin raised issues of gross
negligence and recklessness in their Reply to Preliminary Objections,
7/16/12, at ¶¶ 2, 3, 14, 21; in their Memorandum of Law in Reply to
Preliminary Objections, 7/26/12, at unnumbered 6–8; and in their
Memorandum of Law in Opposition to Motion for Summary Judgment,
10/20/15, at 29, 32, 37, 41, and 44.
Moreover, fellow student athletes identified Ms. Coyne and Ms.
Bonisese as the College’s athletic trainers in the spring of 2010. Answer to
Motion for Summary Judgment, 10/20/15, at Exhibits 44 (Yoo at 105) and
45 (Carillo at 40–44). Also, experts M. Scott Zema, Associate Athletic
Director, Stevenson University, and Betsy Mitchell, Director of Athletics,
California Institute of Technology, opined that the College’s conduct in hiring
Ms. Coyne and Ms. Bonisese as athletic trainers fell below the applicable
standard of care. Id. at Exhibits 95 (Report of M. Scott Zema, 4/9/15, at
unnumbered 12–13) and 94 (Report of Betsy Mitchell, 4/14/15, at 4–5).
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Additionally, expert Richard C. Slocum, former Texas A&M University
head football coach for fourteen years, stated:
In all my years of being involved in football, I cannot recall
seeing a football drill as oblivious to the safety of its players as
the one that I watched on video at Lackawanna College during
the Spring of 2010. In fact I have I have [sic] never seen the
drill run as it was at Lackawanna. It was conducted in a way
that had very little application to playing the game of football
and that elevated the possibility of serious injury. In addition,
there was little, or no consideration given in the event a player
sustained a serious injury.
* * *
After reviewing numerous documents, many depositions
and deposition exhibits, there is no question in my mind that
what happened to Gus Feleccia and Justin Resch on March 29,
2010 was the end result of overall systemic failure on the part of
the College, its Athletic Department and, in particular, those
persons responsible for the Football Program. Simply put, none
of the defendants demonstrated any appreciable concern for the
safety of the student-athletes.
Answer to Motion for Summary Judgment, 10/16/15, at Exhibit 93 (Report of
Richard C. Slocum, 4/13/15, at 3–4).
Notably, the College’s coaching staff “had never heard” the term “first
responder” prior to this incident and assumed it meant “being the first to
respond.” Memorandum of Law in Opposition to Motion for Summary
Judgment, 10/20/15, at 8 (citing Answer to Motion for Summary Judgment,
10/16/15, at Exhibits 34, 35, 37). Yet, Lackawanna’s expert, Dr. William
Dempsey, testified that Ms. Coyne and Ms. Bonisese were first responders
who acted according to the applicable standard of care. Answer to Motion
for Summary Judgment, 10/16/15, at Exhibit 48 (Dr. William Dempsey
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Report, 7/14/15, at ¶¶ IV, VI). Moreover, Dr. Ray Angeli, President of the
College, indicated that he was not willing to pay the salary that athletic
trainers requested because it was higher than a first year professor’s salary.
Id. at Exhibit 28 (Dr. Angeli Deposition, 7/25/13, at 90–93). Lastly,
consulting economist, Andrew Verzilli, reviewed the 2001–2002 through
2009–2010 athletic department budgets and concluded that the department
“had sufficient funds available to hire a full-time Athletic Trainer” for the
2009–2010 academic year. Id. at Exhibit 96 (Letter Report of Andrew
Verzilli, 4/15/15). In light of this record, the trial court erred in determining
that the Waiver was enforceable without considering the scope of the Waiver
with regard to claims of gross negligence and reckless conduct.
Our third and most important reason for rejecting the trial court’s
analysis is that a genuine issue of material fact exists as to whether the
College’s failure to have qualified medical personnel at the March 29, 2010
practice constitutes gross negligence or recklessness, the latter of which,
pursuant to Tayar, cannot be waived in a pre-injury exculpatory release.
We analyze whether the College’s failure to have qualified medical personnel
at the March 29, 2010 practice constitutes gross negligence or recklessness
through the lens of Kleinknecht v. Gettysburg College, 989 F.2d 1360(3rd Cir. 1993).6 Therein, the Third Circuit Court of Appeals addressed the
____________________________________________
6
We acknowledge that:
(Footnote Continued Next Page)
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provision of medical assistance in the context of collegiate sports. Drew
Kleinknecht, a sophomore lacrosse player, suffered a cardiac arrest during a
fall practice. No athletic trainers were present at the practice, and “despite
repeated resuscitation efforts, Drew could not be revived.” Id. at 1364.
Drew’s parents filed suit against Gettysburg College, arguing that, given
Drew’s status as a student athlete, the college owed “a duty to its
intercollegiate athletes to provide preventative measures in the event of a
medical emergency.” Id. at 1366. In resolving the duty issue, the
Kleinknecht Court explained that Drew “was participating in a scheduled
athletic practice for an intercollegiate team sponsored by the [c]ollege under
the supervision of [c]ollege employees.” Id. at 1367. On these facts, the
Third Circuit Court of Appeals predicted “that the Supreme Court of
Pennsylvania would hold that a special relationship existed between the
[c]ollege and Drew that was sufficient to impose a duty of reasonable care
_______________________
(Footnote Continued)
federal court decisions do not control the determinations of the
Superior Court. Our law clearly states that, absent a United
States Supreme Court pronouncement, the decisions of federal
courts are not binding on Pennsylvania state courts, even when
a federal question is involved.... [However, w]henever possible,
Pennsylvania state courts follow the Third Circuit so that litigants
do not improperly “walk across the street” to achieve a different
result in federal court than would be obtained in state court.
McDonald, 116 A.3d at 106 n.13 (quoting NASDAQ OMX PHLX, Inc. v.
PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012) (citations omitted)).
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on the [c]ollege. Other states have similarly concluded that a duty exists
based on such a relationship.” Id. (citing Indiana and Florida cases).
Additionally, the Kleinknecht Court agreed with Drew’s parents
regarding the foreseeability of student athletes sustaining severe and even
life-threatening injuries while engaged in athletic activity, and the
unreasonableness of a college’s failure to protect against such a risk.
Kleinknecht, 989 F.2d at 1369–1370. The Third Circuit Court of Appeals
predicted “that the Supreme Court of Pennsylvania would hold that a college
also has a duty to be reasonably prepared for handling medical emergencies
that foreseeably arise during a student’s participation in an intercollegiate
contact sport.” Id. at 1371.
We consider the Kleinknecht decision persuasive. Like Drew, Gus
and Justin were injured while participating in a scheduled practice for an
intercollegiate athletic team sponsored by the College while on the College’s
property and under the supervision of the College’s employees. Cf.
Kennedy, 133 A.3d 38 (affirming grant of summary judgment to the
university because it owed no duty to a student cheerleader who was injured
at a cheerleading camp held off campus and directed by an independent
contractor). Accordingly, we hold that the College owed Gus and Justin a
duty of care in their capacity as intercollegiate athletes engaged in a school-
sponsored and supervised intercollegiate athletic activity. Kleinknecht, 989
F.2d at 1369. We further hold that the College’s duty of care to its
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intercollegiate student athletes required it to have qualified medical
personnel available at the football tryout on March 29, 2010, and to provide
adequate treatment in the event that an intercollegiate student athlete
suffered a medical emergency. Id. at 1369–1370.7 Lastly, we hold that the
determinations of whether the College breached this duty to Gus and Justin
and whether that breach caused the student athletes’ damages are
questions of fact for the jury. Id. at 1371. Thus, the trial court erred in
determining that the Waiver was enforceable without considering whether
the College’s conduct in failing to provide qualified medical personnel at the
March 29, 2010 practice was grossly negligent or reckless.
Upon review of the record and Tayar, and in light of our holdings
based on Kleinknecht, we conclude that the trial court’s analysis was
incomplete and incorrect. It erred in finding that the Waiver was
enforceable because the Waiver would not release Lackawanna from, at
least, its own reckless conduct as a matter of law. Tayar. Moreover, Gus
and Justin sufficiently pled gross negligence and recklessness in their
complaint with regard to the College’s failure to provide qualified trainers.
Kleinknecht. Additionally, Gus and Justin proffered sufficient evidence in
the form of testimony from fellow student athletes and experts in athletics
and athletic training to raise a genuine issue of material fact regarding the
____________________________________________
7
As this case involved the use of a waiver in the athletic program of a
junior college, we limit our holdings to intercollegiate sports.
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scope of the Waiver and whether Lackawanna was grossly negligent or
reckless. Thus, the trial court erred in entering summary judgment.
Gus and Justin further argue on appeal that the Waiver “cannot relieve
a party of liability for violating the law.”8 Gus and Justin’s Brief at 30.
According to Gus and Justin, Lackawanna violated Pennsylvania law by
employing Ms. Coyne and Ms. Bonisese on March 29, 2010, because they
were not qualified athletic trainers and because Ms. Bonisese made a “return
to play” decision. Id. (citing 63 P.S. § 422.51a).9 Thus, they conclude,
____________________________________________
8
We interpret Gus and Justin’s position as invoking the concept of
negligence per se, which:
establishes both duty and the required breach of duty where an
individual violates an applicable statute, ordinance or regulation
designed to prevent a public harm. A plaintiff, however, having
proven negligence per se, cannot recover unless it can be proven
that such negligence was the proximate cause of the injury.
J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582,
585 (Pa. Super. 1997).
Cabiroy v. Scipione, 767 A.2d 1078, 1079 (Pa. Super. 2001).
9
Section 422.51a of the Medical Practice Act, 63 P.S. §§ 422.1–422.51a is
the statutory authority regarding athletic trainers. Gus and Justin also cite
49 Pa. Code § 18.503. Gus and Justin’s Brief at 7. Title 49 section 18.50 of
the Pennsylvania Code regulates the conduct of athletic trainers, in relevant
part, as follows:
(a) A person may not use the title “athletic trainer” or “licensed
athletic trainer” or use any abbreviation including “A.T.,” “A.T.L.”
or “L.A.T.” or any similar designation to indicate that the person
is an athletic trainer unless that person has been licensed by the
Board.
(Footnote Continued Next Page)
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“[T]he trial court should have allowed the jury to decide whether the Waiver
was valid and whether [Lackawanna’s] conduct was so egregious as to
render the [W]aiver unenforceable.” Id. at 34.
Lackawanna responds that the laws related to athletic trainers are not
applicable to this case because Ms. Coyne and Ms. Bonisese were first
responders; additionally, Lackawanna asserts that Ms. Coyne and Ms.
Bonisese have statutory immunity as Good Samaritans.10 Lackawanna’s
_______________________
(Footnote Continued)
(b) Except as otherwise provided in this subsection, a person
may not perform the duties of an athletic trainer unless that
person is licensed by the Board….
49 Pa. Code § 18.50(a), (b).
10
The Medical Good Samaritan civil immunity statute provides as follows:
(a) General rule.—Any physician or other practitioner of the
healing arts or any registered nurse, licensed by any state, who
happens by chance upon the scene of an emergency or who
arrives on the scene of an emergency by reason of serving on an
emergency call panel or similar committee of a county medical
society, or who is called to the scene of an emergency by the
police or other duly constituted officers of a government unit, or
who is present when an emergency occurs and who, in good
faith, renders emergency care at the scene of the emergency,
shall not be liable for any civil damages as a result of any acts or
omissions by such physician or practitioner or registered nurse in
rendering the emergency care, except any acts or omissions
intentionally designed to harm or any grossly negligent acts or
omissions which result in harm to the person receiving
emergency care.
(b) Definition.—As used in this section ‘good faith’ shall
include, but is not limited to, a reasonable opinion that the
(Footnote Continued Next Page)
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Brief at 10, 12, 29. Lackawanna further contends that negligence per se is
not an available basis for recovery because “there was no legal requirement
in Pennsylvania or standard in the NJCAA requiring a Certified Athletic
Trainer to be on the college practice field.” Id. at 12. According to
Lackawanna, therefore, it had no duty to have qualified trainers as a matter
of law. Id. at 11.
Again, the trial court did not address Gus and Justin’s averments of
negligence per se. Moreover, we consider Lackawanna’s First Responder and
Good Samaritan arguments disingenuous and inapplicable. When viewed in
the light most favorable to Gus and Justin, the record reveals that Ms. Coyne
and Ms. Bonisese were hired as medical providers. On March 29, 2010, they
were acting within the scope of their employment in the College’s athletic
training department. They each signed an athletic-trainer job description,
and student athletes understood them to be athletic trainers. Furthermore,
the record contains conflicting testimony which, when viewed in a light most
favorable to Gus and Justin, suggests that Ms. Bonisese made an
unauthorized return-to-play decision about Gus by telling him he should wait
until his arm felt better and then he could return to the drill. Answer to
Motion for Summary Judgment, 10/16/15, at Exhibit 33 (Bonisese at 37,
_______________________
(Footnote Continued)
immediacy of the situation is such that the rendering of care
should not be postponed until the patient is hospitalized.
42 Pa.C.S. § 8331(a), (b).
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40), Exhibit 46 (Gus Deposition, 3/7/14, at 79). Based on the record at
hand, therefore, we conclude that a jury must determine if Ms. Coyne and
Ms. Bonisese were acting as athletic trainers and if the College’s
employment of them at the practice was negligence per se and resulted in
harm to Gus and Justin. 42 Pa.C.S. § 8331.
Assumption of the Risk
In granting summary judgment to Lackawanna, the trial court relied
alternatively on Lackawanna’s assumption-of-the-risk defense. Trial Court
Opinion, 2/2/16, at 22–26. Regarding assumption of the risk, this Court has
held that:
the assumption of the risk doctrine is a “function of the duty
analysis” required in any negligence action . . . . [Montagazzi v.
Crisci, 994 A.2d 626, 636 (Pa.Super. 2010)]. Under this
formulation of the doctrine, a person relieves another of any
duty to alleviate dangers when he voluntarily proceeds “to
encounter a known or obvious danger.” [Carrender v. Fitterer,
469 A.2d 120, 125 (Pa. 1983)]. Accordingly, in Montagazzi we
reiterated that “the question of assumption of the risk typically
remains for the jury,” and that “only where the evidence reveals
a scenario so clear as to void all questions of material fact
concerning the plaintiff’s own conduct can the court enter
summary judgment.” Montagazzi, 994 A.2d at 636.
Thompson v. Ginkel, 95 A.3d 900, 906–907 (Pa. Super. 2014), appeal
denied, 108 A.3d 36 (Pa. 2015). “[T]he court may determine that no duty
exists only if reasonable minds could not disagree that the plaintiff
deliberately and with awareness of specific risks inherent in the activity
nonetheless engaged in the activity that produced his injury.” Howell v.
Clyde, 620 A.2d 1107, 1112–1113 (Pa. 1993) (plurality).
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Gus and Justin challenge the trial court’s entry of summary judgment
on the basis that they assumed the risk of playing football. Gus and Justin’s
Brief at 35. Gus and Justin argue that they did not assume the amplified
risks of the College providing unqualified personnel at the full-contact tryout.
Id. at 38–39.
Lackawanna responds, “The issue in this appeal . . . is not whether
Lackawanna breached the standard of care. The actual issue on appeal is
whether Lackawanna has any duty at all when [Gus and Justin] knowingly
and voluntarily assumed the risk of injury playing football.” Lackawanna’s
Brief at 21 n.18 (emphasis in original). According to Lackawanna, whether
Gus and Justin assumed the risk of participating in football is a “duty”
question to be decided by the trial court. Id. at 21. Lackawanna asserts
that it “had no duty as a factual matter to protect [Gus and Justin] from
their knowing and voluntary” participation in the football practice, and,
therefore, it cannot be deemed to have been negligence. Id. at 10.
Without addressing the lack of qualified athletic trainers, the trial court
analyzed the assumption-of-the-risk defense as follows:
Here, . . . both [Gus and Justin] were “experienced ball-
players,” [Justin] having played football since he was six-years-
old and [Gus] having played since he was ten. Both [Gus and
Justin] understood the dangers of the sport, as both had been
injured previously while playing football. Both had previously
participated in a variation of the Oklahoma Drill either in high
school or college, and both knew that Lackawanna used the drill.
Both had the opportunity to observe the drill several times on
March 29, 2010 before participating in it. Neither [Gus nor
Justin] testified that they discussed the drill with Lackawanna’s
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coaches prior to their participation. Additionally, contrary to
[Gus and Justin’s] contentions in their Memorandum of Law in
Opposition to Defendants’ Motion for Summary Judgment,
neither [Gus nor Justin] testified that their coaches told them
they would not be able to play football if they did not participate
in the Oklahoma Drill. Therefore, we find that [Gus and Justin]
voluntarily faced the risk presented.
From the facts discussed above, we conclude that [Gus and
Justin] voluntarily and knowingly proceeded in the face of an
obvious and dangerous condition and, therefore, we find that
Lackawanna owed no duty to [Gus and Justin]. With no genuine
issue of material fact in dispute and, because [Gus and Justin]
have failed to produce evidence of facts essential to their causes
of action requiring a jury trial, we will, in the alternative . . .
grant Lackawanna’s Motion for Summary Judgment on the basis
of the assumption of risk doctrine and enter judgment in favor of
Defendants.
Trial Court Opinion, 2/2/16, at 25–26.
According to Gus and Justin, the trial court’s reasoning
“misapprehends the issue before the Court.” Gus and Justin’s Brief at 35.
Specifically, Gus and Justin state:
This case presents facts and factual disputes that remove
it from the definition of assumption of the risk. If [the College]
had hired qualified and certified athletic trainers, and [Gus and
Justin] relied upon their advice, then their decision would be
knowing and voluntary. But in this case, [the College] chose to
hire two persons who were not qualified to be athletic trainers
and to allow them to examine and advise students on the
football team, who—as here—reasonably assumed that the
advice they received was from a person upon whom they could
rely.
Id. at 39.
We acknowledge that Gus and Justin had prior experience with the drill
and had an understanding of the dangers associated with the drill. Answer
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to Motion for Summary Judgment, 10/16/15, at Exhibits 46 (Gus at 177,
201–203) and 47 (Justin Deposition, 3/6/15, at 99, 124–125). However, as
Gus and Justin posit, although they were aware of the general risks inherent
in the sport of football, they were unaware of Lackawanna’s failure to take
reasonable measures to assure their safety by providing qualified trainers
during the drill. Gus and Justin’s Brief at 42. See Kleinknecht, 989 F.2d
1360 (college has a duty to provide qualified medical personnel to attend
student athletes). Hence, we reject Lackawanna’s defense. Reasonable
minds could disagree as to whether Gus or Justin “deliberately and with the
awareness of specific risks inherent in the activity nonetheless engaged in
the activity that produced” their injuries, where they signed the Waiver
unaware that the College’s athletic department did not include qualified
athletic trainers. Howell, 620 A.2d at 1112–1113; Kleinknecht, 989 F.2d
at 1369–1370. Thus, we conclude it is for the jury to decide whether the
College’s employment of unqualified personnel increased the risk of harm to
its student athletes, and, if so, whether Gus and Justin assumed a known or
obvious danger, i.e., the risk of injury caused by the College’s conduct.
Kleinknecht, 989 F.2d at 1371.
As a final matter, we address the risks inherent in the sport of football.
See Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 343 (Pa. 2000)
(“[C]ases involving injuries to the plaintiffs who were . . . participating at
sporting events . . . have tended to speak in terms of whether the injury
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suffered resulted from a risk ‘inherent’ in the activity in question; if it did,
then the defendant was under no duty to the plaintiff, and the suit could not
go forward.”). In the case at hand, Gus and Justin’s collegiate football
expert, Richard Slocum, opined that the drill had little application to playing
football. Answer to Motion for Summary Judgment, 10/16/15, at Exhibit 93
(Report of Richard Slocum, 4/13/15, at 3). Contrarily, Lackawanna’s football
expert opined, “[The drill] precisely replicated realistic game conditions, and
was therefore a valuable and productive drill for players.” Lackawanna’s
Statement of Material Facts, 12/2/15, at Exhibit I (Chester L. Parlavecchio
Report, 7/15/15, at § IV). Thus, we discern an additional genuine issue of
material fact to be resolved by a jury: Is the tackling drill at issue in this
case part of the game of football, so that an injury resulting from
participation in the drill at the tryout is an inherent risk of football?
Aside from the concern about this practice drill being considered an
inherent risk of football, we are concerned with a release being used to
excuse a college from having qualified medical personnel readily available to
its student athletes. Colleges are expected to put a priority on the health
and safety of their students, especially student athletes engaged in
dangerous sports.11 Many colleges profit significantly from student athletes’
____________________________________________
11
Indeed, “[t]he purpose of the athletic training program at Lackawanna
College is to provide the utmost quality medical care to the student athletes
of the school’s intercollegiate athletic programs.” Answer to Motion for
(Footnote Continued Next Page)
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participation in these sports. Enforcing a release and granting summary
judgment in a situation where the availability of qualified medical personnel
is called into question would jeopardize the health and safety of such student
athletes by removing at least one incentive for colleges “to adhere to
minimal standards of care and safety.” Tayar, 47 A.3d at 1203.
In sum, genuine issues of material fact exist. Thus, the trial court
erred in granting summary judgment to Lackawanna. Accordingly, we
reverse the entry of summary judgment and remand for trial.
Summary judgment reversed. Case remanded for trial. Jurisdiction
relinquished.
P.J.E. Stevens did not participate in the decision of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2017
_______________________
(Footnote Continued)
Summary Judgment, 10/16/15, at Exhibit 29 (AD Mecca at 69 and Exhibit
5).
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