Sell, K. & W. v. Wellsboro Hotel

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHERINE M. & WILLIAM SELL : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
WELLSBORO HOTEL COMPANY : No. 483 MDA 2018
Appeal from the Order Entered February 20, 2018
In the Court of Common Pleas of Tioga County Civil Division at No(s):
701 CV 2016
BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 17, 2019
Katherine M. and William Sell appeal from the order denying their
motion for reconsideration of the order granting summary judgment in favor
of Wellsboro Hotel Company (“Wellsboro”). For the reasons that follow, we
affirm.
Wellsboro owns the Penn Wells Hotel and Lodge, which includes a
Fitness Center of which the Sells are members. On September 24, 2015, Ms.
Sell used the swimming pool and hot tub at the Fitness Center. Afterwards,
she walked barefoot from the pool area down the tiled hallway toward the
locker rooms. The hallway to the locker rooms connects to the lobby of the
hotel, and is a common area used by both members of the Fitness Center and
hotel guests. Ms. Sell slipped in water, fell, and fractured her right femur.
The Sells filed a complaint against Wellsboro on September 19, 2016,
pleading claims of negligence and loss of consortium. Wellsboro filed an
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answer and new matter, and attached a copy of the membership application
and agreement (“Membership Agreement” or “Agreement”) signed by the
Sells. The second paragraph of the Agreement is titled “LIABILITY AND
WAIVER OF LIABILITY,” and states:
It is expressly agreed that all exercises and use of the facilities
shall be undertaken at member’s own risk. The Penn Wells and
mangers, officers and directors shall not be liable for any claims,
demand, injuries, damages, actions or causes of action for
personal injury or property damage incurred by member,
member’s family, or guests while on premises.
Membership Agreement at ¶ 2. We hereinafter refer to this paragraph as “the
exculpatory clause.”
The third paragraph of the Agreement is titled “RULES OF CONDUCT,”
and includes general rules, including:
No wet bathing suits or wet towels are permitted in the exercise
room or lobby area.
...
Because floors can be slippery, in consideration of other members
and guests, please towel off after exiting the pool before entering
the corridor to the locker room.
Please be aware that the locker rooms are also the public
restrooms for the lobby and breakfast area.
Id. at ¶ 3.
Wellsboro deposed the Sells during discovery. The Sells each testified
during their depositions that they had read the Membership Agreement and
signed it voluntarily. Ms. Sell testified that it was normal for the hallway to be
wet. N.T. (Deposition of Katherine M. Sell), 1/11/17, at 51. She also stated
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she had informed an employee of the slipperiness at some point before her
injury. Id. at 52-54. Mr. Sell testified that he and Ms. Sell had previously
discussed that the hallway to the locker room was slippery. N.T. (Deposition
of William Sell), 1/11/17, at 13-14.
The Sells deposed Shawn Bryant, the CEO and corporate designee for
Wellsboro. Bryant testified that the tile on which Ms. Sell slipped was laid in
2012. N.T. (Deposition of Shawn Bryant), 1/11/17, at 12. Part of the hallway
was covered by a carpet placed there in order to absorb some of the water,
but there was no carpet in the portion of the hallway in which Ms. Sell slipped.
Id. at 15. Bryant denied that the purpose of the carpet was to prevent
slippage. Id. at 16. He asserted that he was not aware of any other slips and
falls that occurred inside the hotel. Id. at 29. Bryant also stated that after the
accident, housekeeping began placing yellow caution signs in the hallway after
it was mopped, or if there had been an increase in traffic from the pool area.
Id. at 29, 31.
Ann Callihan, Amber Hull, and Elizabeth Gordon—other members of the
fitness center—submitted statements in support of the Sells, each stating that
the stone tiles in the area were always very wet and slippery, and that this
was well known to the people who regularly used the pool and Fitness Center.
At the close of pleadings and discovery, Wellsboro filed a motion for
summary judgment, arguing that the exculpatory clause relieved them of
liability for the Sells’ claim of negligence. The court held a hearing and granted
the motion on November 14, 2017. The Sells filed a motion for
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reconsideration. The court issued an order vacating the summary judgment
and scheduling a hearing on the motion for reconsideration.1 The court denied
the motion for reconsideration on February 20, 2018, and the Sells appealed.2
The Sells raise the following issues:
1. Whether the lower court abused its discretion or committed an
error of law in denying [the Sells]’ Motion for Reconsideration,
because the exculpatory clause at issue does not relieve
[Wellsboro] from its own acts of negligence?
2. Whether the lower court abused its discretion or committed an
error of law in denying [the Sells’] Motion for Reconsideration,
because [Wellsboro]’s actions constitute “recklessness”?
3. Whether the lower court abused its discretion or committed an
error of law in denying [the Sells’] Motion for Reconsideration,
because the release refers to the fitness center and [Ms. Sell’s]
injuries occurred outside of the fitness center?
Sells’ Br. at 4.
The entry of summary judgment is appropriate “where the record
demonstrates that there remain no genuine issues of material fact, and . . .
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1 Before the court vacated summary judgment and scheduled the
reconsideration hearing, the Sells filed a notice of appeal to this Court. After
the court vacated summary judgment and scheduled the hearing, the appeal
was stricken as premature pursuant to Pa.R.A.P. 1701(b)(3).
2 Ordinarily, an appeal may not lie from an order denying a motion for
reconsideration. See Oliver v. Irvello, 165 A.3d 981, 983 n.1 (Pa.Super.
2017). Here, however, the trial court de facto granted the motion for
reconsideration when it vacated summary judgment and scheduled a
reconsideration hearing. This action tolled the appeal period until the court’s
disposition. See Pa.R.A.P. 1701(b)(3), and note 1, supra. Therefore while the
court’s February 20, 2018 order purportedly denies reconsideration, it is more
aptly construed as an order reinstating summary judgment in favor of
Wellsboro. Thus, it was final and appealable.
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the moving party is entitled to judgment as a matter of law.” Chepkevich v.
Hidden Valley Resort, L.P., 2 A.3d 1174, 1182 (Pa. 2010). As review of
summary judgment presents a question of law, our standard of review is de
novo and the scope of review is plenary. Id.I. The Exculpatory Clause
The Sells argue that the exculpatory clause in the Membership
Agreement does not absolve Wellsboro from its negligence in this case. The
Sells contend that the clause does not apply to an injury caused by slipping
en route to the locker room, as this activity was ancillary to the fitness
activities contemplated by the Membership Agreement. Sells’ Br. at 13-19
(citing, inter alia, Brown v. Racquetball Centers, Inc., 534 A.2d 842(Pa.Super. 1987)). The Sells also argue that we should not interpret the
exculpatory clause as releasing Wellsboro from liability for its own negligent
acts, as it does not specifically mention either negligence or negligence by
Wellsboro. Sells’ Reply Br. at 13-17 (citing Dilks v. Flohr Chevrolet, Inc.,
192 A.2d 682 (Pa. 1963)).
An otherwise valid exculpatory clause 3 is 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 (quoting Topp Copy
Prod., Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993)). In interpreting
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3 The Sells do not argue that the clause contravenes public policy, is not
between private entities governing their own affairs, or is a contract of
adhesion. See Chepkevich, 2 A.3d at 1189 (listing preliminary requirements
for a valid exculpatory clause).
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whether a liability waiver meets this standard, we construe the language
strictly and, when ambiguous, “against the party seeking immunity from
liability.” Id. The clause “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.” Id.
In Brown, the plaintiff signed a membership application with a
racquetball club, stating that he assumed “all risks of injury to [his] person
and property that may be sustained in connection with the stated and
associated activities in and about [the] premises” and that he released the
club from “all claims . . . for injury sustained to [his] person and/or property
during [his] presence on the premises and my participation in those activities
due to negligence or any other fault.” 534 A.2d at 843 (emphasis added). We
held that the release did not bar a claim by the plaintiff based on injuries he
sustained when he exited the shower facilities and slipped on the wet tile floor.
Id. at 843-44. We came to this conclusion because the release only relieved
the defendant of liability for injuries the plaintiff sustained “while participating
in certain activities of the [c]lub,” which did not include use of the shower
facilities. Id. at 833.
Here, unlike in Brown, the language of the exculpatory clause does not
limit the waiver of liability to the certain activities. Rather, it unambiguously
states that the members assume risk of “all exercises and use of the
facilities” and that Wellsboro is not liable for “any claims [or] injuries”
sustained by members “while on [the] premises.” Membership Agreement
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at ¶ 2 (emphasis added). The language therefore applies to the Sells’
negligence claim, which arose from Ms. Sell’s use of the facilities while on the
premises. Moreover, other language in the contract warns that guests who
exit the pool must dry off “before entering the corridor to the locker room,”
“[b]ecause floors can be slippery.” Id. at ¶ 3. Therefore, in addition to the
broad language employed in the exculpatory clause applying it to any activity
on the premises, the Agreement as a whole explicitly contemplated the activity
at issue here: walking in the wet corridor to the locker room after using the
pool. As the activity which caused Ms. Sell’s injuries was contemplated by the
contract, the Sells’ argument that the exculpatory clause does not apply to
her claim is meritless.4
We are equally unpersuaded by the Sells’ argument that the exculpatory
clause was not intended to bar claims arising from Wellsboro’s negligence. An
exculpatory clause need not specifically mention “negligence” in order to bar
negligence suits. Chepkevich, 2 A.3d at 1192-93. For example, our Supreme
Court has acknowledged that language providing a party is not liable “for any
injury” to the other is an explicit statement releasing the party from
negligence claims. Id. at 1193 & n.21 (discussing Nissley v. Candytown
Motorcycle Club Inc., 913 A.2d 887 (Pa.Super. 2006)); see also Zimmer
v. Mitchell and Ness, 385 A.2d 437, 439-40 (Pa.Super. 1978) (holding
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4 We shall not discuss the cases cited by the Sells on this point which are not
controlling authority, but note that we found none of them persuasive to our
disposition.
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common sense interpretation of exculpatory clause not containing word
“negligence” but releasing defendant of “any liability” was not ambiguous and
included negligence claims), aff’d, 416 A.2d 1010 (Pa. 1980)). Here, the
Agreement stated that Wellsboro would “not be liable for any claims, demand,
injuries, damages, actions, or causes of action for personal injury or property
damage incurred by member . . . .” Membership Agreement at ¶ 2 (emphasis
added). This obviously included a bar against suits arising from Wellsboro’s
own negligence.5
II. The Recklessness Claim
In their second issue, the Sells argue that the court erred in granting
summary judgment for Wellsboro because Ms. Sell’s injuries were caused by
Wellsboro’s recklessness, which was not waived by the exculpatory clause.
According to the Sells, Wellsboro owed a duty to Ms. Sell, as a business
invitee, to “protect [her] from foreseeable harm,” meaning circumstances that
Wellsboro either knew of or would have discovered through the exercise of
reasonable care, and which created an unreasonable risk of harm. Sells’ Br.
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5 Dilks is inapposite. In that case, the Supreme Court was charged with
constructing a contract stating that the defendant, Chevrolet, was to keep the
premises it was leasing from the plaintiff in good order and repair, but that it
assumed no liability for “reasonable wear and tear and damage by accidental
fire or other casualty not occurring through the negligence of [Chevrolet].”
Dilks, 192 A.2d at 429 (brackets in original). The Court examined the use of
the word “or,” and held that the release did not clearly bar the claim of damage
following a fire caused by the negligence of Chevrolet. Id. at 436. Here, the
wording of the exculpatory clause is not so ambiguous, and we are not faced
with interpreting whether it only barred actions negligence actions arising from
certain enumerated injuries.
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at 23-24 (citing Estate of Swift, 690 A.2d 710 (Pa.Super. 1997)). The Sells
also posit that Section 343 of Restatement (Second) of Torts (1965),
employed in Toro v. Fitness Int'l LLC., 150 A.3d 968 (Pa.Super. 2016),
requires a plaintiff to prove that the defendant either helped create the
harmful condition, or had actual or constructive notice of the condition. Sells’
Br. at 24. The Sells argue that, unlike the plaintiff in Toro, who slipped in
soapy water on the floor of an exercise gym, they set forth evidence that
Wellsboro knew that the floor was dangerously slippery, and therefore the
question of whether the evidence proved that Wellsboro was reckless should
have been decided by a fact-finder.
Toro and Swift explained the duty owed to invitees and a breach of
that duty within the context of a negligence claim. See Toro, 150 A.3d at
977; Swift, 690 A.2d at 722. The instant claim is appropriately analyzed
under the definition of “reckless disregard” from Section 500 of Restatement
(Second) of Torts (1965). See Hinkal v. Pardoe, 133 A.3d 738, 746
(Pa.Super. 2016) (citing Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190(Pa. 2012)). Section 500 states:
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).
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In other words, whereas negligence consists of “mere inadvertence,
incompetence, unskillfulness, or a failure to take precautions to enable the
actor adequately to cope with a possible or probable future emergency,”
recklessness requires “a conscious choice of a course of action,” and must
“involve an easily perceptible danger of death or substantial physical harm,
and the probability that it will so result must be substantially greater than is
required for ordinary negligence.” Id. at cmt. a, g. The general examples of
reckless conduct given by the comment to the section include driving through
heavy traffic at a high rate of speed; rendering imperfect surgical aid when
professional assistance is available; and intentionally driving through a
highway in defiance of a stop sign if a stream of vehicles is approaching. Id.
at cmt. a, b.
Here, the Sells allege that Wellsboro knew that water was being
constantly deposited on the tile floor outside of the women’s locker room, and
that this created a slippery condition. However, as a matter of law, these facts
sustain a claim of negligence, not recklessness. As the trial court stated, “no
reasonable jury could find [Wellsboro] intentionally failed to dry the floor not
only having reason to know it created an unreasonable risk of harm to [Ms.
Sell] but also that such risk is greater than that which would make its conduct
negligent.” Trial Court Opinion, filed May 8, 2016, at 6-7. We agree. The Sells
focus on whether Wellsboro had notice that the floor was slippery when wet,
and fail to acknowledge that the circumstances here do not involve “an easily
perceptible danger of substantial physical harm” with a substantially greater
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probability of occurring than that of negligence. The courts of our
Commonwealth have consistently analyzed slip-and-fall claims such as this
one within the parameters of a negligence action.6 While we do not imply that
a slip and fall case can never prevail under a theory of recklessness, the facts
here do not meet the standard for recklessness. This issue merits no relief.
III. The Hallway
In their final issue, the Sells argue that because the exculpatory clause
should be construed narrowly, and against Wellsboro, see Section I, supra, it
should not be construed to apply to the hallway where the injury occurred, as
this was not part of the facilities belonging to the Fitness Center. According to
the Sells, the Membership Agreement refers to the Fitness Center facilities as
the exercise room and the swimming pool, and specifies that the hallway and
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6 See, e.g. Katz v. John Wanamaker Philadelphia, Inc., 112 A.2d 65, 68
(Pa. 1955) (holding whether slip and fall on wet, slippery marble staircase was
negligence was question for jury); Sheridan v. Horn & Hardart Baking Co.,
77 A.2d 362, 362 (Pa. 1951) (finding defendant had no notice of the conditions
and plaintiff was contributorily negligent in negligence claim for slip and fall in
wet, slushy revolving door of restaurant); Flora v. Great Atl. & Pac. Tea
Co., 198 A. 663, 665 (Pa. 1938) (holding store owner negligent for failing to
dry wet, slippery linoleum floor in slip-and-fall case); Toro, 150 A.3d at 977-
78 (finding plaintiff could not prevail on slip and fall in men’s locker room of
exercise club where plaintiff put forth no evidence of notice); Rodriguez v.
Kravco Simon Co., 111 A.3d 1191, 1194 (Pa.Super. 2015) (determining
plaintiff in slip and fall case failed to prove defendant shopping mall was
negligent); Estate of Swift v. Ne. Hosp. of Philadelphia, 690 A.2d 719,
722-23 (Pa.Super. 1997) (examining negligence claim based on slip and fall
on wet bathroom floor).
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locker room, in contrast, are common areas for public use. Therefore, the
hallway is not encompassed by the exculpatory clause.7
The exculpatory clause relieves Wellsboro from negligence claims arising
from injuries sustained by members both during “use of the facilities” and
“while on [the] premises.” Membership Agreement at ¶ 2. Neither the
“facilities” or “premises” are specifically defined by the Agreement, but the
rules listed in the Agreement indicate that Fitness Center membership allows
for use of the “pool,” “pool area,” “pool facilities,” “exercise room,” “exercise
rooms,” “cardio and weight room,” “lobby area,” “corridor to the locker
room,” and “locker rooms.” Id. at ¶ 3 (emphasis added). Thus, we conclude
that the corridor to the locker room, where Ms. Sell was injured, is included in
the “facilities” and “premises” of the Fitness Center for purposes of the
Membership Agreement. The Sells advance no colorable reason why the
corridor cannot be considered both a part of the Fitness Center for which they
have waived Wellsboro’s liability, and an area open to the public.
Having found no reason to vacate summary judgment, we affirm.
Order affirmed.
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7 As the facts of this case do not necessitate we determine whether the
entirety of the hotel is included in the “premises” of the Fitness Center, we do
not address the Sells’ argument on this point.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/17/2019
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