Monroe, A. v. CBH20, LP

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2022 PA Super 197AISHA MONROE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CBH20, LP, D/B/A CAMELBACK SKI :
RESORT D/B/A CAMELBACK SKI :
CORPORATION : No. 1862 EDA 2019
Appeal from the Order Dated May 16, 2019
In the Court of Common Pleas of Monroe County Civil Division at No(s):
8184-CV-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE,
J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.
OPINION PER CURIAM: FILED NOVEMBER 21, 2022
Aisha Monroe appeals from the May 16, 2019 order that granted the
motion for judgment on the pleadings and supplemental motion for summary
judgment filed by Camelback Ski Corporation (“Camelback”). As we find that
Camelback was not entitled to judgment as a matter of law pursuant to either
Pa.R.C.P. 1034 (judgment on the pleadings) or Pa.R.C.P. 1035.1-1035.3
(summary judgment), we reverse the order and remand the case for further
proceedings.
____________________________________________
We present our decision in this case as a per curiam opinion because it is the
product of the efforts of more than one member of this panel. Specifically,
Part III(A) of our opinion is attributable to Judge Kunselman. The remainder
of the opinion was authored by Judge Bowes.
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I. Facts and Procedural History
Aisha Monroe initiated this action against Camelback by a complaint that
was transferred to Monroe County from Philadelphia County upon the
stipulation of the parties. The initial complaint contained a single count of
negligence, alleging that Ms. Monroe was injured as the result of Camelback’s,
inter alia, failure “to use reasonable prudence and care to take care of the
customers’ safety complaints” and its “[a]cting in disregard of the rights of
safety of [Ms. Monroe] and others similarly situated[.]” Complaint, 7/27/16,
at ¶ 21(c), (e). Camelback filed preliminary objections to strike the above-
quoted allegations as “improper, broad and vague.” Preliminary Objections,
12/19/16, at ¶ 3. Although the complaint alleged in several places that
Camelback acted recklessly and with a conscious disregard of Ms. Monroe’s
safety, Camelback did not raise preliminary objections in the nature of a more
specific pleading regarding the factual underpinnings of the allegations of
recklessness. Nor did it object in the nature of a demurrer by contending that
the allegations of recklessness were legally insufficient.
Ms. Monroe mooted Camelback’s preliminary objections by filing an
amended complaint again raising a single count of negligence.1 Therein, she
repeated the averment, to which Camelback had stated no prior objection,
____________________________________________
1 The amended complaint named the defendant as is represented in the
caption of this appeal, namely “CBH20, LP, d/b/a Camelback Ski Resort d/b/a
Camelback Ski Corporation.”
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that Camelback “kn[ew] that there was a high risk of injur[y] during the
landing process,” and that her injury was “a direct and proximate result of
[Camelback] consciously disregarding [her] safety[.]” Amended Complaint,
1/25/17, at ¶¶ 12, 17. Ms. Monroe amended the offending paragraph to state
that Camelback’s “recklessness, carelessness and negligence” included, inter
alia:
a. Failing to properly monitor the speed of the zip-line, in
disregard of the safety of [Ms. Monroe];
b. Failing to use reasonable prudence and care by leaving
[Ms. Monroe] to land with no help, in disregard of the safety of
[Ms. Monroe];
c. [Left blank]
d. Failing to use reasonable prudence and care to respond to
[Ms. Monroe]’s safety concerns during the zip[-]lining, specifically
when [Ms. Monroe] as[ked Camelback] to slow down the zip[-
]lining machine, in disregard of the safety of Ms. Monroe; and,
e. Failing to inspect and/or properly monitor the zip[-]lining
machine engine, in disregard of the safety of [Ms. Monroe].
Id. at ¶ 21.
Camelback again did not object to the specificity or legal sufficiency of
Ms. Monroe’s allegations of reckless conduct, opting instead to file an answer,
new matter, and counterclaim, contending, inter alia, that Ms. Monroe’s claim
was barred by the Activity Release and Agreement Not to Sue (“Release”) that
it attached to its pleading. That document indicated that Ms. Monroe
acknowledged that she assumed those risks “of which the ordinary prudent
person is or should be aware” created by Camelback’s amusement activities,
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including “injury or even death.” Answer, 3/29/17, at Exhibit A. The Release
further reflected that, in consideration for the privilege of being allowed to use
Camelback’s facilities, Ms. Monroe agreed not to sue Camelback for any injury
sustained, “even if [she] contend[ed] that such injuries [were] the result of
negligence, gross negligence, or any other improper conduct for which a
release is not contrary to public policy.” Id. (capitalization omitted). In its
counterclaim, Camelback alleged that it was entitled to damages based upon
Ms. Monroe’s breach of the release agreement. Id. at ¶¶ 47-49.
After Ms. Monroe filed her reply and answer, the trial court entered a
case management order (“CMO”) establishing pre-trial deadlines. Pursuant to
the CMO, counsel were attached for trial during the two-week trial term
beginning May 7, 2018. Discovery was to be completed and Ms. Monroe was
to serve Camelback with expert reports by November 7, 2017. Camelback
was to serve its expert reports and file any dispositive motions by January 8,
2018, which was four months before the earliest trial date.
Camelback did not ask the trial court to rule on the legal sufficiency of
Ms. Monroe’s complaint by filing a motion for judgment on the pleadings on
or before the due date for dispositive motions. Rather, Camelback filed a
motion for summary judgment contending only that the Activity Release that
Ms. Monroe signed was a complete bar to her negligence claim. See Motion
for Summary Judgment, 1/8/18, at ¶ 18. The certified record reflects that on
March 12, 2018, Ms. Monroe filed both a paragraph-by-paragraph response to
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Camelback’s summary judgment motion and a memorandum of law in
opposition thereto. Ms. Monroe filed of record her evidence demonstrating
material issues of fact by attaching exhibits to her memorandum of law, not
to the response. See Memorandum of Law, 3/12/18, at Exhibits A-C.
The substance of Ms. Monroe’s opposition to Camelback’s motion was
that Camelback’s release did not immunize it from reckless conduct, as our
Supreme Court ruled in Tayar v. Camelback Ski Corp., 47 A.3d 1190, 1203
(Pa. 2012) (“[E]ven in this voluntarily recreational setting involving private
parties, there is a dominant public policy against allowing exculpatory releases
of reckless behavior, which encourages parties to adhere to minimal standards
of care and safety.”). See Response in Opposition to Motion for Summary
Judgment, 3/12/18, at ¶ 13. In her brief in opposition, Ms. Monroe discussed
the evidence, appended to the brief, which she contended supported a finding
of recklessness. Specifically, she attached her medical records and the
depositions of two Camelback employees who witnessed her injury. See
generally Memorandum of Law, 3/12/18, at Exhibits A-C. That evidence
collectively indicated the following.
There were two similar zip-lines next to each other at Camelback’s
facility, one with a weight limit of 175 pounds and the other of 250 or 265
pounds. Approximately two to four times each day, depending on the weight
of the person using the zip-line, the line would ripple rather than stay level,
lifting the rider up and down. In such instances, the heavier rider would have
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to pick his or her feet up to avoid slamming into the landing area. The weight
limit purported to address the physical limitations which would affect the
rider’s ability to pick his or her feet up at the end. On the date in question,
Ms. Monroe weighed just over 200 pounds. She utilized the zip-line with the
higher weight limit, and thus was no more than eighty percent of the
maximum capacity. Nonetheless, the zip-line lifted Ms. Monroe up and
slammed her into the landing area, causing a broken tibia and fibula requiring
substantial medical procedures and expenses, including physical therapy.
Before the trial court ruled on Camelback’s motion, it entered an order
scheduling a pretrial conference for April 12, 2018, and jury selection for
May 8, 2018. Ms. Monroe filed an uncontested motion to vacate the trial
listing, indicating that trial was premature given the pendency of Camelback’s
motion for summary judgment as well as noting counsel’s attachment for an
Allegheny County trial. The trial court vacated the trial listing and remanded
the case for non-binding arbitration.
While arbitration was pending, the trial court issued an order on
June 13, 2018, denying Camelback’s motion. The trial court explained its
ruling as follows:
Plaintiff’s Complaint alleges recklessness on behalf of the
Defendant. Pennsylvania law holds that an exculpatory clause in
a contract does not release a defendant from liability arising out
of recklessness. Tayar v. Camelback Ski Corp., 47 A.3d 1190(Pa. 2012). Accepting the facts alleged in Plaintiff’s Complaint as
true, summary judgment is improper at this time.
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Order, 6/13/18.2
The parties proceeded to arbitration on October 17, 2018, which
resulted in an award in favor of Camelback on Ms. Monroe’s negligence claim
and in favor of Ms. Monroe on Camelback’s counterclaim for breach of the
Release. Ms. Monroe filed a timely appeal, and the trial court directed the
prothonotary to place the case on the April 2019 trial list and the parties to
file pretrial statements in accordance with Pa.R.C.P. 212.1 (providing the
plaintiff and defendant shall respectively file pretrial statements sixty and
thirty days prior to the earliest trial date). See Order, 11/19/18.
On January 14, 2019, Camelback filed a motion in limine seeking to
preclude Ms. Monroe “from pursuing her claims in negligence or even
referencing negligence at time of trial” since she released those claims. Motion
in Limine, 1/14/19, at unnumbered 6. Raising for the first time in the certified
record a contention that Ms. Monroe “failed to establish any evidence of record
____________________________________________
2 While the propriety of this ruling is not before us in this appeal, we observe
that the trial court patently applied the standard applicable to judgment on
the pleadings, rather than the one pertinent to summary judgment, in ruling
on Camelback’s motion seeking the latter. Compare Front St. Dev.
Associates, L.P. v. Conestoga Bank, 161 A.3d 302, 307 (Pa.Super. 2017)
(observing that a court adjudicating a motion for judgment on the pleadings
must accept as true all well-pleaded facts); with Cigna Corp. v. Executive
Risk Indem., Inc., 111 A.3d 204, 210 (Pa.Super. 2015) (explaining that a
party may not rest on the pleadings in opposing summary judgment but must
proffer evidence to establish issues on which he bears the burden of proof at
trial). Pertinent to our analysis infra, this order could not but cause
Ms. Monroe to believe that her complaint was legally sufficient to allege
recklessness such that taking corrective action, by seeking leave to amend
the complaint, was unnecessary.
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to pursue a claim for ‘recklessness’ or ‘reckless conduct,’” Camelback
nonetheless indicated that the “case should proceed to trial, if at all, only on
Plaintiff’s theory of ‘recklessness.’” Id. at ¶¶ 19-20. Although Camelback’s
motion, to the extent that it suggested that Ms. Monroe had insufficient
evidence to warrant a trial, was an untimely dispositive motion rather than
one seeking a mere evidentiary ruling, the trial court declined to entertain it
prior to the trial which was, at the time, still three months away. The trial
court instead ordered that the motion was taken under advisement and would
“be decided at the time of trial.” Order, 1/15/19.
By order entered January 28, 2019, the trial court scheduled a pre-trial
conference for March 20, 2019, and jury selection to take place on April 2,
2019. The parties filed their pretrial statements accordingly.
The next docket entry is an order entered memorializing as follows the
positions taken at the off-the-record pretrial conference:
[A]fter pretrial conference with counsel for the parties at which
time Plaintiff has indicated that the Defendant’s Motion in Limine
is unopposed, it is ordered that the Motion in Limine is granted.
It is further ordered that this matter is stricken from the April 2019
trial term. Counsel for Defendant is given thirty (30) days in which
to file a Motion for Summary Judgment on the issue of
recklessness.
Order, 3/28/19.
On April 16, 2019, which was more than a year after Ms. Monroe
opposed Camelback’s initial motion for summary judgment with allegations of
recklessness, ten months after the trial court ruled that the allegations in
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Ms. Monroe’s complaint sufficiently established recklessness, and two weeks
after the parties had been scheduled to select their jury, Camelback filed a
“Motion for Judgment on the Pleadings and Supplemental Motion for Summary
Judgment.” Therein, Camelback for the first time claimed that Ms. Monroe
failed to plead facts that sufficiently describe how Camelback was reckless
when she filed the operative complaint, without objection as to specificity,
nearly two years prior. See Motion for Judgment on the Pleadings and
Supplemental Motion for Summary Judgment, 4/16/19, at ¶ 20. Camelback
also argued, for the first time of record, that Ms. Monroe’s evidence of
recklessness was insufficient because the subject matter of Ms. Monroe’s claim
required expert testimony to establish the pertinent duty of care and how
Camelback grossly deviated therefrom. Id. at ¶¶ 33-38.
Ms. Monroe submitted a Response in Opposition to Camelback’s motion
and a Memorandum of Law in support of her response to which were appended
Exhibits A through G, which included the report of Steve Wolf, an expert in
the construction and operation of zip-lines. On May 16, 2019, the
prothonotary docketed those documents as a single filing which became part
of the record subsequently certified to this Court. Therein, Ms. Monroe
contended that it would be a miscarriage of justice to grant Camelback’s
motion for judgment on the pleadings because application of the pertinent
legal principles to the developed factual record did not reveal that it was
certain that no recovery was possible. See Memorandum of Law in Support of
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Response in Opposition to Motion for Judgment on the Pleadings and
Supplemental Motion for Summary Judgment, 5/16/19, at unnumbered 8-9.
Ms. Monroe further contended that the record revealed a jury question as to
whether Camelback acted recklessly, referencing Mr. Wolf’s report in addition
to the evidence proffered in opposition to Camelback’s timely dispositive
motion. See id. at 7-8, Exhibit A.
Mr. Wolf opined that the zip-line had a landing platform with a face that
“protrudes sharply and vertically from the ground around it, at a 90 degree
angle to the ground,” making the landing deck “perfectly positioned to cause
an injury.” Id., Exhibit A at 4.3 Mr. Wolf’s report stated that Camelback could
have alleviated that obstacle by “lowering the face of the landing deck to
____________________________________________
3 Mr. Wolf included the following diagram in his report:
Memorandum of Law in Support of Response in Opposition to Motion for
Judgment on the Pleadings and Supplemental Motion for Summary Judgment,
5/16/19, Exhibit A at 4.
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ground level or filling in the gap between the ground and the face of the
landing deck with an aggregate material” such as dirt or sand. Id. Mr. Wolf
further opined that the staff knew of the danger as evidenced by the fact that
they covered the protrusion with a piece of carpeting. However, Mr. Wolf
maintained that the carpeting merely concealed the danger rather than
remedying it. He concluded: “[T]he injuries sustained by Ms. Monroe are
attributable directly to [the] failure of Camelback to act to prevent injury, and
the intentional disregard for safety taken by Camelback in their decision to
conceal rather than to remove an obvious threat to the safety of their trusting
clients.” Id. at 5.
On May 16, 2019, the trial court entered an order stating that, “upon
consideration of the Motion for Judgment on the Pleadings/Motion for
Summary Judgment filed by [Camelback], it is hereby ORDERED that said
Motion is GRANTED, and all claims against Defendant are DISMISSED, with
prejudice.” Order, 5/16/19. Thereafter, Ms. Monroe filed a timely notice of
appeal, and both she and the trial court complied with Pa.R.A.P. 1925.
On October 22, 2020, a divided panel of this Court affirmed the trial
court. The Majority concluded that the trial court properly entered judgment
on the pleadings in favor of Camelback because Ms. Monroe’s complaint
contained insufficient factual averments to support a finding of recklessness.
Thus, the Majority did not need to reach the propriety of the entry of summary
judgment. However, the Majority noted that, if it had ruled that judgment on
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the pleadings had been improper, it would affirm the grant of summary
judgment for the reasons stated in the trial court’s opinion. The dissent opined
that judgment on the pleadings was not properly granted, and that the
evidence of record, which properly included Mr. Wolf’s expert report, revealed
issues of fact that precluded the entry of summary judgment.
Ms. Monroe filed an application for reargument en banc, which this Court
granted by order of January 6, 2021. The parties filed substituted briefs and
this en banc panel of the Court heard oral argument on November 30, 2021.
Thereafter, authorship of the Majority opinion was assigned and reassigned,
ultimately resulting in this per curiam disposition.
Ms. Monroe has presented the following questions for our determination:
(1) Upon judgment on the pleadings, the trial court held
appellant’s first amended complaint failed to set forth a
claim of “recklessness.” [Camelback] had not filed
preliminary objections to the first amended complaint. The
complaint pleads recklessness. Sua sponte vacating the
trial listing upon the eve of trial at the final pre-trial
conference, and directing a motion for summary judgment,
did the trial court commit an error of law in granting a
motion for judgment on the pleadings—therein the court
contending the operative complaint did not plead
recklessness (secondary to an underlying ski resort
release).
Did the trial court err in dismissing the action on the
pleadings?
(2) At the final pre-trial conference on the eve of trial, the court
of common pleas sua sponte vacated the trial listing.
Likewise, the court sua sponte directed [Camelback]’s
renewed motion for summary judgment. At the conference,
the trial court held that an expert report was required. In
response to [Camelback]’s renewed motion for summary
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judgment, [Ms. Monroe] supplied an expert report.
[Camelback] did not object to this expert report.
Did the court of common pleas commit an error of law in
disregarding Appellant’s unobjected to expert report that
the trial court itself directed?
(3) Does the record as a whole warrant the denial of summary
judgment as creating an issue of fact as to “recklessness”
(upon a ski resort release)?
(4) Did the court of common pleas commit an error of law in
sua sponte striking the trial listing on the eve of trial,
directing [Camelback]’s motion for summary judgment,
directing [Ms. Monroe]’s expert report, and then granting
the trial[-]court[-]directed summary judgment (on the
same date as the response in opposition)?
Ms. Monroe’s substituted brief at 15-16.
II. Applicable Law
Rather than address Ms. Monroe’s issues seriatim, we find it most
expedient to consider them together.4 Ms. Monroe argues that the trial court
“erred as a matter of law in dismissing the complaint for failure to plead
recklessness upon the renewed sua sponte late-directed motion for judgment
on the pleadings, on the eve of trial, following the denial of summary judgment
____________________________________________
4 Ms. Monroe’s appellate brief is not a paradigm of appellate advocacy. It is
more akin to a bullet-point list than to a fully-developed writing. However,
the brief sufficiently presents her issues and supports her claims of error with
citation to pertinent authority such that our review is unhampered. Therefore,
we conclude no sanction is warranted. Cf. In re W.H., 25 A.3d 330, 339 n.3
(Pa.Super. 2011) (“Where an appellate brief fails to provide any discussion of
a claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.” (cleaned
up)).
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as to that precise issue—regardless that the complaint did plead and the
evidence did show recklessness.” Ms. Monroe’s substituted brief at 26-27
(cleaned up). She likewise contends that leave to file the late, renewed motion
for summary judgment was improperly granted to Camelback under these
circumstances. Id. at 32. Ms. Monroe further maintains that summary
judgment was not warranted because the evidence of record, which included
Mr. Wolf’s expert report, “evidenced an issue of fact of recklessness for the
jury,” as the trial court had ruled when denying Camelback’s original motion.
Id. at 31.
We commence with a review of the pertinent legal principles. Motions
for judgment on the pleadings are in the nature of a demurrer and are
governed by Pa.R.C.P. 1034. That rule states as follows: “(a) After the
relevant pleadings are closed, but within such time as not to unreasonably
delay the trial, any party may move for judgment on the pleadings. (b) The
court shall enter such judgment or order as shall be proper on the pleadings.”
Pa.R.C.P. 1034. “Judgment on the pleadings may be entered when there are
no disputed issues of fact and the moving party is entitled to judgment as a
matter of law.” Baumbach v. Lafayette Coll., 272 A.3d 83, 88 (Pa.Super.
2022) (cleaned up).
This Court’s scope and standard of review of an appeal from
the grant of judgment on the pleadings is plenary, and we must
determine whether the action of the court below was based on a
clear error of law or whether there were facts disclosed by the
pleadings which should properly go to the jury. Our review,
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therefore, is limited to determining whether the trial court abused
its discretion or committed an error law.
City of Coatesville v. Jarvis, 902 A.2d 1249, 1251 (Pa.Super. 2006)
(cleaned up).
Rule 1035.2, which governs motions for summary judgment, provides
as follows:
After the relevant pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for summary
judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or defense
which could be established by additional discovery or expert
report, or
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of
action or defense which in a jury trial would require the
issues to be submitted to a jury.
Pa.R.C.P. 1035.2. In sum, before a court is permitted to enter judgment as a
matter of law rather than allow the jury to decide the case, it must be clear
and free from doubt that there is no combination of facts to be gleaned from
the evidence that would support a finding for the non-moving party. See,
e.g., Braswell v. Wollard, 243 A.3d 973, 977 n.3 (Pa.Super. 2020)
(“Summary judgment will be granted only in those cases which are free and
clear from doubt. Where the facts can support conflicting inferences, it cannot
be said that the case is free from doubt and thus ripe for summary judgment.”
(cleaned up)).
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An appellate court “may disturb the order of the trial court [granting
summary judgment] only where it determines that the court committed an
error of law or abused its discretion.” Valles v. Albert Einstein Med. Ctr.,
805 A.2d 1232, 1236 n.7 (Pa. 2002). In doing so, we “apply the same
standard as the trial court, reviewing all the evidence of record to determine
whether there exists a genuine issue of material fact.” Criswell v. Atl.
Richfield Co., 115 A.3d 906, 908–09 (Pa.Super. 2015). “A trial court abuses
its discretion by making a manifestly unreasonable, arbitrary, or capricious
decision; by failing to apply the law; or by allowing prejudice, bias, or ill will
to influence its decision.” Calisto v. Rodgers, 271 A.3d 877, 884-85
(Pa.Super. Feb. 25, 2022) (en banc).
III. Analysis
Mindful of the above principles, we turn to the trial court’s rulings in the
instant case. The trial court’s opinion offered the following rationale for its
decision to grant Camelback’s motion filed pursuant to both Rule 1034 and
Rule 1035.2. The trial court eventually came to believe, after addressing
Camelback’s motion in limine, that Ms. Monroe did not plead sufficient
allegations of recklessness. See Trial Court Opinion, 8/16/19, at 8-9. If the
trial court had understood Camelback’s position clearly at the time it ruled on
Camelback’s initial motion for summary judgment, which did not address the
allegations of recklessness, the trial court would have granted the initial
dispositive motion rather than, out of “an abundance of caution,” allowing the
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case to proceed. Id. at 10. However, the court candidly admitted that,
coming as it did “well after the parties had already undergone arbitration,
Plaintiff appealed, and the matter had been rescheduled for a new trial date,”
Camelback’s second dispositive motion may have at that “point be[en]
considered untimely.” Id.
Therefore, the trial court alternatively explained why it believed
Ms. Monroe’s claim was properly dismissed with prejudice via summary
judgment. The court made it clear that, in examining the evidence to discern
a question of material fact, it “could not and did not consider” the expert report
of Mr. Wolf. Id. at 11. Although the trial court “did not dispute” that Pa.R.C.P.
1035.3(b) granted Ms. Monroe the right to supplement the record with an
expert report in response to Camelback’s motion for summary judgment, it
determined that she “did not do so properly.” Id. Specifically, the court
concluded that, because the report was attached to Ms. Monroe’s brief in
opposition to Camelback’s motion, and “‘briefs are not a part of the official
record,’” Mr. Wolf’s expert report did not become part of the evidence which
could defeat summary judgment. Id. (quoting Scopel v. Donegal Mut. Ins.
Co., 698 A.2d 602, 606 (Pa.Super. 1997)). Finally, the court determined that
an examination of “the entirety of the record before [it],” revealed “insufficient
evidence in the record showing Camelback acted with conscious action or
inaction that created a substantial risk of harm to [Ms. Monroe].” Id. at 14
(cleaned up).
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For the following reasons, we hold that the trial court’s adjudication of
Camelback’s dispositive motion is the product of multiple errors of law that
require reversal.
A. Camelback’s Motion for Judgment on the Pleadings was
Improperly Granted
We first conclude that the trial court committed an error of law when it
reversed its initial determination that Ms. Monroe’s complaint properly alleged
recklessness and opted to grant Camelback’s motion for judgment on the
pleadings. Rule 1019 of the Pennsylvania Rules of Civil Procedure governs our
analysis. That Rule provides in relevant part:
Rule 1019. Contents of Pleadings. General and Specific
Averments
(a) The material facts on which a cause of action or defense is
based shall be stated in a concise and summary form.
(b) Averments of fraud or mistake shall be averred with
particularity. Malice, intent, knowledge, and other conditions of
mind may be averred generally.
Pa.R.C.P. 1019. The plain language of this Rule thus indicates that, while a
party must plead the material facts that support a cause of action, a party
may generally aver knowledge, intent, and state of mind. Thus, the question
in the instant case is whether recklessness constitutes a state of mind or a
material fact upon which a cause of action is based.
To answer that question, we begin with a general discussion of tort
liability. In their learned treatise, PROSSER AND KEATON ON TORTS (5th ed.
1984), the authors observed that “The fundamental basis of tort liability may
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first be divided into three parts . . . because every case in which such liability
has been imposed has rested upon one of three, and only three, grounds for
imposing it. These are: 1) [Intentional torts]. 2) Negligence. 3) Strict
liability.” Id. at § 7 at 32. Each of these types of torts constitutes a separate
cause of action. Notably, gross negligence and recklessness have not
historically been identified as independent causes of action. Instead, they are
aggravated forms of negligence. See id. at § 34 at 208-14. The level of care
required is in proportion to the apparent risk involved; the greater the danger,
the greater the level of care required by the actor. See id.
Gross negligence and recklessness have been described as follows:
Gross negligence. As it originally appeared, this was very great
negligence, or the want of even slight or scant care. It has been
described as a failure to exercise even that care which a careless
person would use . . . [M]ost courts consider that “gross
negligence” falls short of a reckless disregard of the
consequences, and differs from ordinary negligence only in degree
and not in kind . . .
Willful, Wanton, and Reckless. A different approach, at least
in theory, looks to the actor’s real or supposed state of mind.
Lying between the intent to do harm, . . . and the mere
unreasonable risk of harm to another involved in ordinary
negligence, there is a penumbra of what has been called “quasi-
intent.” To this area, the words “willful,” “wanton,” or “reckless”
are customarily applied; and sometimes in a single sentence, all
three . . . They have been grouped together as an aggravated
form of negligence, differing in quality rather than in degree from
ordinary lack of care . . . They apply to conduct which is still, at
essence, negligent, rather than actually intended to do harm, but
which is so far from a proper state of mind that it is treated in
many respects as if it were so intended. Thus, it is held to justify
an award of punitive damages, . . . and it will avoid the defense
of ordinary negligence on the part of the plaintiff.
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The usual meaning assigned to [these words] is that the actor has
intentionally done an act of unreasonable character in disregard
of a known or obvious risk that was so great as to make it highly
probable that harm would follow, and which thus is usually
accompanied by a conscious indifference to the consequences.
Since, however, it is almost never admitted and can be proven
only by the conduct and circumstances, an objective standard
must of necessity in practice be applied. The “willful” requirement
breaks down . . . where is it clear from the facts that the
defendant, whatever his state of mind, has proceeded in disregard
of a high and excessive degree of danger, either known to him or
apparent to a reasonable person in his position.
. . . [T]here is often no clear distinction at all between [this]
conduct and “gross negligence” and the two have tended to merge
and take on the same meaning, an aggravated form of negligence,
differing in quality rather that in degree from ordinary lack of care.
It is at least clear that such aggravated negligence must be more
than any mere mistake resulting from inexperience, excitement,
or confusion, and more than mere thoughtlessness or
inadvertence or simple inattention. . . .
Id. at 211-14.
In other words, gross negligence and recklessness are states of mind;
they are forms of negligence, not independent causes of action. Thus, our
procedural rules allow the plaintiff to plead gross negligence and recklessness
generally. See Rule 1019(b).
This Court affirmed that recklessness could be averred generally in
Archibald v. Kemble, 971 A.2d 513 (Pa.Super. 2009). There, an injured
player in an adult “no check” ice hockey league sought damages from another
player who checked him in violation of the league rules. Initially, we
determined that the defendant hockey player must have engaged in reckless
conduct to be subject to liability. We then explained, “even though we hold
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the plaintiff must prove the defendant acted recklessly, the cause of action
remains sounding in negligence.” Id. at 519. “Therefore, merely determining
the degree of care is recklessness does not give rise to a separate tort that
must have been pled within the applicable statute of limitations.” Id. Thus,
we concluded that the plaintiff’s cause of action was subsumed within the
negligence count pled in the complaint.5
We then looked to whether the plaintiff had produced sufficient evidence
of recklessness to determine whether summary judgment was appropriate.
As we observed:
Archibald has produced evidence that he and Kemble played in a
league where Kemble knew he had a responsibility to Archibald
not to engage in certain conduct including checking. Thus,
Archibald has produced evidence that Kemble owed a duty of care
to Archibald.
Archibald described the action as being intentional. [A h]ockey
expert . . . explained if the incident occurred as Archibald
explained that it was a “deliberate action.” [The expert] explained
Kemble’s action could cause serious injury. Kemble explained he
had been skating for fourteen years, that he understood the term
“check” to mean knocking a person down, and that he understood
slew-footing was prohibited by league rules. Thus, Archibald has
produced evidence that Kemble breached his duty of care by
acting recklessly.
____________________________________________
5 We agree with the Dissent that Rule 1019(b) requires a plaintiff to at least
make a general averment of recklessness. See Dissenting Opinion at 16. It
is not clear from the Archibald opinion whether such a general averment
appeared in the complaint in that case. However, to the extent clarification is
necessary, it is not enough to plead only negligence and proceed with a claim
for recklessness; recklessness and gross negligence must be pled in the
Complaint. Here, Ms. Monroe did make an express general averment of
recklessness.
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Id. at 520.
Archibald recognizes the important distinction between the pleadings
stage of the case and the summary judgment stage of the case. At the
pleadings stage, the rules allow a plaintiff to make a general averment of gross
negligence or recklessness. When initially filing a complaint, a plaintiff may
not be fully aware of the defendant’s state of mind. Only through discovery
can the plaintiff ascertain what the defendant knew or should have known
about the risk involved. It would place an undue burden on the plaintiff to
plead specific facts about a defendant’s state of mind at the time a lawsuit is
initiated.
Discovery gives the plaintiff an opportunity to learn this information.
Through interrogatories, depositions, and requests for admission, a plaintiff
can learn whether a defendant had notice of a dangerous condition before the
plaintiff was injured. A plaintiff can discover information about the defendant’s
training and experience to see if the defendant knew or should have known
about the risk involved that lead to plaintiff’s injuries. The discovery phase of
the case also gives the plaintiff time to hire an expert to investigate and opine
on the standard of care and whether it was breached, not only in terms of
ordinary negligence, but whether there were gross or reckless deviations from
the standard of care.
Once discovery is complete, then a plaintiff can be required to produce
evidence of recklessness. If a plaintiff fails to produce the evidence, Rule
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1035.3 provides that summary judgment should be entered for the defendant
on the plaintiff’s claims. That is exactly what happened in Archibald, supra.
The plaintiff alleged a cause of action in negligence, allegations of recklessness
were subsumed in this claim, and then the plaintiff produced evidence of
recklessness to overcome the motion for summary judgment.
Here, we reach the same conclusion. Ms. Monroe has generally averred
recklessness and specifically averred facts of negligence to support her claim.
She alleged in her amended complaint:
[Camelback’s] recklessness, carelessness and negligence
included, but was not limited to:
a. Failing to properly monitor the speed of the zip-
line, in disregard of the safety of [Ms. Monroe];
b. Failing to use reasonable prudence and care by
leaving [Ms. Monroe] to land with no help, in disregard
of the safety of [Ms. Monroe];
c. [Left blank]
d. Failing to use reasonable prudence and care to
respond to [Ms. Monroe]’s safety concerns during the
zip[-]lining, specifically when [Ms. Monroe] as[ked
Camelback] to slow down the zip[-]lining machine, in
disregard of the safety of Ms. Monroe; and,
e. Failing to inspect and/or properly monitor the
zip[-]lining machine engine, in disregard of the safety
of [Ms. Monroe].
Amended Complaint, 1/25/17, at ¶ 21.
These specific allegations of negligence and general allegations of
recklessness are sufficient to meet the requirements of Rule 1019(a) and (b).
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Therefore, we hold that the trial court erred as a matter of law in concluding
otherwise.6 Camelback’s motion for judgment on the pleadings should have
been denied.
B. Camelback’s Motion for Summary Judgment was
Improperly Granted
____________________________________________
6 The Dissent would affirm on the basis that Ms. Monroe failed to plead specific
facts of recklessness. See Dissenting Opinion at 19-21. As our discussion
above makes plain, this is a misapplication of Rule 1019, which only requires
that the basis of a cause of action be pled with specific facts, while conditions
of the mind may be pled generally. As the Dissent notes, the question of
whether a complaint sufficiently pleads recklessness (and often an
accompanying claim for punitive damages) has produced inconsistent rulings
in the trial courts and understandable confusion among litigants. See Daniel
E. Cummins, “Pleading for Clarity: Appellate Guidance Needed to Settle the
Issue of the Proper Pleading of Recklessness in Personal Injury Matters,” 93
Pa. B.A.Q. 32 (Jan.2022).
This confusion appears to be due to some trial courts misapplying Rule 1019
in the same manner as advocated by the Dissent. See, e.g., Green v. Kline,
16 Pa. D.&C. 5th 144 (Monroe Co. 2010); Brace v. Shears, 12 Pa. D.&.C.
5th 166 (Centre Co. 2010); Debo v. Buckley, 44 Pa. D.&.C. 4th 325 (Snyder
Co. 1999). Cf. Koloras v. Dollar Tree Stores, Inc., 21 CV 2700, 2022 WL
1529191 (Lacka. Co. April 19, 2022) (“[T]he plain language of Rule 1019(a)
only requires ‘material facts’ to ‘be stated in a concise and summary form’ in
support of ‘a cause of action or defense.’ . . . [Plaintiffs’] averments of
recklessness may be averred generally under Rule 1019(b) as a condition of
mind.”). These and all other trial court decisions that have sustained
preliminary objections or granted judgment on the pleadings based upon
demands for heightened factual averments to support a claim of willful,
wanton, or reckless conduct did not accurately apply the law. Our ruling today
removes any doubt that, so long as a plaintiff’s complaint (1) specifically
alleges facts to state a prima facie claim for the tort of negligence, and (2)
also alleges that the defendant acted recklessly, the latter state-of-mind issue
may only be resolved as a matter of law after discovery has closed.
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Recognizing that its decision to grant judgment on the pleadings was
problematic, albeit for a different reason,7 the trial court alternatively opined
that it should be affirmed because Camelback was entitled to summary
judgment pursuant to Rule 1035.2. Accordingly, we consider the propriety of
____________________________________________
7 As we noted above, the trial court all but conceded in its opinion that
Camelback’s motion for judgment on the pleadings was untimely. See Trial
Court Opinion, 8/16/19, at 10. We agree with that assessment.
If not from day one when Ms. Monroe filed a complaint alleging that
Camelback consciously disregarded her safety and recklessly caused her
injuries, then no later than June 13, 2018, when the trial court entered an
order denying Camelback’s timely motion for summary judgment for the
specific reason of the recklessness allegations, Camelback was on notice that
Ms. Monroe’s case was based on the claim that her injury was sustained as a
result of conduct by Camelback which rose to the level of recklessness.
However, at no time in the following ten months did Camelback seek judgment
based upon a pleading deficiency. Instead, it filed a dispositive motion
masquerading as a motion in limine raising the issue on the eve of trial, and
the trial court reacted by striking the case from the trial list to give Camelback
an additional thirty days to seek summary judgment. See Order, 3/28/19.
Camelback instead filed a motion seeking judgment pursuant to either
Pa.R.C.P. 1034 or 1035.2, fifteen months past the CMO deadline for filing
dispositive motions.
In light of this history, Camelback’s motions, raised unnecessarily and
without justification after the time the case was set to be tried, were presented
at such a time to unreasonably delay trial. Plainly, Camelback was fully aware
of the evolution of Ms. Monroe’s claim during the course of the litigation, and
its post-discovery attempt to obtain judgment based upon the pre-discovery
allegations of fact was mere gamesmanship. Nonetheless, while Ms. Monroe
forwards on appeal an argument that Camelback’s Rule 1034 motion should
have been denied based upon its untimeliness, the certified record does not
indicate that she made a precise objection concerning the timing of the motion
in the trial court. Therefore, we do not reverse the trial court on that basis.
See, e.g., In re S. C., 421 A.2d 853, 856 (Pa.Super. 1980) (“It is well
established that a party must preserve a specific point for appellate review by
raising it first in the lower court; a different theory of relief may not be
successfully advanced for the first time on appeal.”).
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the trial court’s summary judgment ruling by “reviewing all the evidence of
record to determine whether there exists a genuine issue of material fact.” 8
Criswell, supra at 908–09. Specifically, we must examine the record to
discern whether Ms. Monroe developed facts to support her allegations that
she was injured as a result of Camelback’s reckless conduct.
The initial step in that analysis is to determine what evidence was and
was not part of the record. As detailed above, the trial court opined that the
expert report Ms. Monroe produced in opposing Camelback’s motion for
summary judgment was not part of the official record because it was appended
to her brief. See Trial Court Opinion, 8/16/19, at 11. That ruling is legally
erroneous.
First, our Supreme Court has determined that, for purposes of ruling on
a motion for summary judgment, the “record” includes any and all “(1)
pleadings, (2) depositions, answers to interrogatories, admissions and
affidavits, and (3) reports signed by an expert witness that would, if filed,
comply with Rule 4003.5(a)(1), whether or not the reports have been
____________________________________________
8 Arguably, Camelback’s second bid for summary judgment, which
unquestionably delayed trial, could be considered improperly entertained for
that reason alone. However, since such a motion at least examines the facts
as they had been developed for trial, rather than as a snapshot taken when
the complaint was filed years earlier, we find the lateness of the summary
judgment motion is less outrageous. In any event, as we have noted, the
certified record does not indicate that Ms. Monroe objected to the untimeliness
of the motion with sufficient specificity to permit us to reverse on that basis.
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produced in response to interrogatories.”9 Pa.R.C.P. 1035.1 (emphasis
added). The foregoing language suggests that expert reports need only be
submitted, not filed, in order to be considered in ruling on the motion for
summary judgment. Ms. Monroe’s expert report is signed by Steve Wolf,
contains the substance of his facts and opinions and the basis for those
opinions, and substantially conforms with Rule 4003.5(a)(1). Thus, the expert
report was included in the “record” for purposes of Rule 1035.1 and summary
judgment, regardless of whether it was filed in the official record.
____________________________________________
9 That Rule provides:
Discovery of facts known and opinions held by an expert,
otherwise discoverable under the provisions of Rule 4003.1 and
acquired or developed in anticipation of litigation or for trial, may
be obtained as follows:
(1) A party may through interrogatories require
(A) any other party to identify each person whom the
other party expects to call as an expert witness at trial
and to state the subject matter on which the expert is
expected to testify and
(B) subject to the provisions of subdivision (a)(4), the
other party to have each expert so identified state the
substance of the facts and opinions to which the
expert is expected to testify and a summary of the
grounds for each opinion. The party answering the
interrogatories may file as his or her answer a report
of the expert or have the interrogatories answered by
the expert. The answer or separate report shall be
signed by the expert.
Pa.R.C.P. 4003.5(a).
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Second, and more obvious, the certified record before us reveals that
Ms. Monroe’s Response in Opposition, Brief, and expert report marked as
Exhibit A, along with the rest of the exhibits appended to her brief, were filed
in the official certified record and docketed as one document. The trial
court’s belief that the expert report was not made part of the record because
it was attached to the brief was based on a misunderstanding of our decision
in Scopel, supra. The issue in Scopel was whether depositions attached to
the brief in opposition to summary judgment were part of the record when
the brief and depositions were not actually filed. See Scopel, supra at
604 (“These depositions . . . were never filed and made a part of the official
record.”). Therefore, the court ruled it could not consider them, and this Court
affirmed. Accord Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.Super.
2006) (“[A]ny document which is not part of the officially certified record is
deemed non-existent—a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in the reproduced
record.”).
Where, as here, the expert report was filed with the prothonotary as
part of the summary judgment response, it and the rest of the exhibits were
properly part of the record before the trial court in deciding the summary
judgment motion. See Pa.R.A.P. 1921 (providing that the official record
includes “[t]he original papers and exhibits filed in the lower court” and “paper
copies of legal papers filed with the prothonotary by means of electronic
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filing”). Therefore, the trial court erred as a matter of law in disregarding
Mr. Wolf’s report in determining whether there was a material issue of fact as
to recklessness by Camelback.10
Camelback alternatively argues, with no apparent sense of irony, that
Mr. Wolf’s expert report was properly excluded because it was not produced
in accordance with the CMO deadline, but instead in response to the
dispositive motion that it filed fifteen months after the CMO deadline. Citing
Kurian ex rel. Kurian v. Anisman, 851 A.2d 152 (Pa.Super.2004), and
Wolloch v. Aiken, 815 A.2d 594, 596 (Pa. 2002), Camelback suggests that
the trial court had the discretion to exclude the late-produced expert report.
See Camelback’s brief at 24-30.
The certified record does not reflect that Camelback objected to the late
production of the report or moved for its exclusion. More importantly, the trial
court did not cite the lateness of the report’s production as its basis for
ignoring it, but instead the erroneous belief that it was not part of the record
because it was stapled behind the wrong part of Ms. Monroe’s filing. On the
contrary, the trial court rejected the notion that the report was untimely,
____________________________________________
10 The only other case Camelback offers to support the trial court’s ruling on
this issue is an unpublished memorandum filed in 2017. See Camelback’s
brief at 22. However, with exceptions not applicable here, “[a]n unpublished
memorandum decision filed prior to May 2, 2019, shall not be relied upon
or cited by a Court or a party in any other action or proceeding[.]” 210
Pa.Code § 65.37 (emphasis added). Consequently, we must reject
Camelback’s attempt to persuade us that the expert report was not properly
before the trial court by invoking a decision that is not properly before us.
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expressly stating that it did not dispute Ms. Monroe’s right to supplement the
record with an expert report pursuant to Pa.R.C.P. 1035.3(b), even after the
close of discovery.11 See Trial Court Opinion, 8/16/19, at 11.
We agree with the trial court that Rule 1035.3(b) entitled Ms. Monroe to
supplement the record in response to Camelback’s motion. As our Supreme
Court noted in Gerrow v. John Royle & Sons, 813 A.2d 778, 781-82 (Pa.
2002) (plurality), “the intent of the motion for summary judgment is not to
eliminate meritorious claims that could be established by additional discovery
or expert reports.” Thus, “it is consistent with that intent to permit
supplementation of the record under Rule 1035.3(b) to allow the record to be
enlarged by the addition of such expert reports.” Id. Accordingly, although
the plaintiff had failed to produce expert reports within the time constraints of
the CMO, and the trial court refused to consider them “as an impermissible
attempt to circumvent the deadline,” the Court ruled that the reports were
properly filed pursuant to Rule 1035.3(b). Id. at 780.
While Gerrow was a plurality decision, this Court sitting en banc relied
upon it in concluding, without qualification, as follows: “There is no doubt that
Rule 1035.3 permits a party to supplement the record when it files a motion
in opposition to the entry of summary judgment.” Burger v. Owens Illinois,
____________________________________________
11 That rule states: “An adverse party may supplement the record or set forth
the reasons why the party cannot present evidence essential to justify
opposition to the motion and any action proposed to be taken by the party to
present such evidence.” Pa.R.C.P. 1035.3(b).
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Inc., 966 A.2d 611, 618 (Pa.Super. 2009) (en banc). Hence, at this point it
is well-settled that, pursuant to Rules 1035.1 and 1035.3, affidavits and
expert reports may be used by the non-moving party to create an issue of
material fact to defeat a motion for summary judgment, and supplementary
expert reports are timely if submitted within thirty days of the motion for
summary judgment. See Pa.R.C.P. 1035.3(b).
The Wolloch and Kurian cases cited by Camelback do not compel a
different result. Camelback correctly indicates that the holding of Wolloch
was “that expert reports submitted after the entry of summary judgment
were properly excluded and that permitting such late amendments would
undermine judicial efficiency and case management orders[.]” Camelback’s
brief at 28 (emphasis added). The plaintiff in that case did not utilize Rule
1035.5(b) to supplement the record in opposing summary judgment, but
rather “waited until after summary judgment had been entered, then
submitted the expert reports in such indolent fashion that the trial court had
no time to consider them before the lapse of [the] allowable time to appeal
from summary judgment.” Wolloch, supra at 596–97. When the plaintiff
on appeal attempted to invoke Rule 1035.3(b) as authority for her actions,
the High Court, citing Gerrow, observed: “This is a curious argument. [The
plaintiff] did not file a timely response to the motion for summary judgment
supplemented with her expert reports, though Rule 1035.3(b) permits it.”
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Id. at 596 (emphasis added). As such, Wolloch hurts, rather than helps,
Camelback’s position.
In Kurian, this Court examined the interplay between Rule 1035.3(b)’s
allowance of production of expert reports within thirty days of the filing of a
motion for summary judgment, and Rule 4003.5(b), which allows a court to
prohibit a late-identified expert witness from testifying at trial. 12 We
concluded that, reading the rules in harmony, Rule 1035.3(b) did not override
the trial court’s authority to exclude an untimely expert, for requiring that an
“expert report be admitted just as long as it was filed within thirty days of the
summary judgment motion would take away the very discretion Rule
4003.5(b) gives to the trial court and make a mockery of court orders and
court-imposed deadlines.” Id. at 161. Therefore, we held that, “when a party
makes a timely response to a summary judgment motion and attempts to
supplement the record with otherwise untimely expert reports, the court may,
on its own motion, determine whether this is allowed under Rule 4003.5(b).”
____________________________________________
12 The full text of Rule 4003.5(b) is as follows:
An expert witness whose identity is not disclosed in compliance
with subdivision (a)(1) of this rule shall not be permitted to testify
on behalf of the defaulting party at the trial of the action.
However, if the failure to disclose the identity of the witness is the
result of extenuating circumstances beyond the control of the
defaulting party, the court may grant a continuance or other
appropriate relief.
Pa.R.C.P. 4003.5(b). As quoted supra at note 9, subdivision (a)(1) governs
what expert witness information is discoverable through interrogatories.
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Id. at 159. However, we were clear that, in doing so, “the court must apply
the long-standing prejudice standard found in the caselaw construing Rule
4003.5(b).” Id. at 159-60. That prejudice standard acknowledges that the
“preclusion of testimony is a drastic sanction, and it should be done only where
the facts of the case make it necessary; the prejudice may not be assumed.”
Id. at 162 (cleaned up). In particular:
Assuming that a party has not acted in bad faith and has not
misrepresented the existence of an expert expected to be called
at trial, no sanction should be imposed unless the complaining
party shows that he has been prejudiced from properly preparing
his case for trial as a result of the dilatory disclosure.
Id. (cleaned up).
Applying this ruling to the facts of that case, we affirmed the trial court’s
preclusion of the expert in that case. Contrasting Gerrow, in which the
opposing party suffered no prejudice, we highlighted the fact that the trial
court excluded the expert in Kurian based upon the findings that “1)
appellants continually violated court ordered deadlines, and 2) the acceptance
of this expert witness report on the day the parties were supposed to go to
trial would cause appellees unfair surprise and prejudice.” Id.
Camelback argues that this case is in alignment with Kurian rather than
Gerrow. It highlights the times in the procedural history of the case in which
Ms. Monroe did not produce an expert report and observes that it was not until
“eighteen (18) months after the report was due, and two months after her
pre-trial report was submitted, that [Ms. Monroe], with trial looming, produced
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a surprise expert report after agreeing to dismiss her negligence case.” Id.
at 29.
Camelback’s argument, in addition to being legally unsound, is made
with an impressive level of indignation given how it utterly disregarded the
CMO deadlines and Rules 1034 and 1035.2 by first raising its challenge to the
sufficiency of Ms. Monroe’s allegations and evidence of recklessness in a
manner that delayed trial, fifteen months after the deadline for dispositive
motions. In particular, the trial court in this case not only failed to make the
requisite finding of prejudice, but indicated that it would have allowed
Mr. Wolf’s report had Ms. Monroe filed it properly.13 Precluding the report as
a discovery sanction without finding prejudice is cause for reversal. See
Reeves v. Middletown Ath. Ass’n., 866 A.2d 1115, 1127 (Pa.Super. 2004)
(finding abuse of discretion where trial court refused to consider expert reports
supplementing the record without first determining whether there was
prejudice).
Nor do we discern evidence in the certified record that would support a
finding of prejudice in this case. Unlike the plaintiffs in Kurian, there is no
evidence that Ms. Monroe acted in bad faith, misrepresented the existence of
an expert, or showed contempt for court deadlines. Further, if Camelback had
raised its challenge to the recklessness allegations in accordance with the
____________________________________________
13 She did. See pages 28-29, supra.
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CMO, Ms. Monroe’s response would have been produced three months before
the earliest trial date, not on the day of trial as in Kurian. The trial court
itself at the pretrial conference clearly opted to disregard the CMO deadlines
and trial schedule and allow Camelback to file a motion out of time. Not
extending the similar benefit to Ms. Monroe would have been unreasonable.
Any prejudice resulting from the surprise to Camelback was easily remedied
by giving it time to amend its pretrial statement and produce an expert if it so
desired. Plainly, at that point, neither the trial court nor Camelback was
concerned about delaying trial.
As such, Ms. Monroe properly supplemented the official record with Mr.
Wolf’s expert report. Therefore, we shall examine that record, including
Ms. Monroe’s expert report, to discover whether Ms. Monroe produced
sufficient evidence to establish the factual predicate for a finding of
recklessness. For if she did, summary judgment should have been denied.
Before we examine the evidence, we review the substantive law
applicable to Ms. Monroe’s claim that she was injured as a result of
Camelback’s reckless conduct. While Ms. Monroe was required to prove,
based upon her waiver of negligence claims against Camelback, that
Camelback acted recklessly, there is no “recklessness” tort in this
Commonwealth separate and apart from a cause of action sounding in
negligence. Rather, to recover for her injuries despite her execution of the
Activity Release, Ms. Monroe must prove the elements of the tort of
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negligence, namely “duty, breach, causation and damages,”14 and additionally
prove that Camelback’s deviation from the standard of care was more
egregious than garden-variety negligence. See, e.g., Tayar, supra at 1200;
Archibald, supra at 519; Ammlung v. City of Chester, 302 A.2d 491(Pa.Super. 1973). For, “[r]ecklessness is distinguishable from negligence on
the basis that recklessness requires conscious action or inaction which creates
a substantial risk of harm to others, whereas negligence suggests unconscious
inadvertence.” Tayar, supra at 1200.
As our Supreme Court explained in Tayar, to satisfy this burden
Ms. Monroe must establish that Camelback did an act or intentionally failed to
do an act which it was its duty to Ms. Monroe to do, knowing or having reason
to know of facts which would lead a reasonable person to realize, not only that
Camelback’s conduct created an unreasonable risk of physical harm to her,
but also that such risk was substantially greater than that which was
necessary to make its conduct negligent. Id. at 1200-01 (citing Restatement
(2d) of Torts § 500). See also Restatement (2d) of Torts § 501(1) (“[T]he
rules which determine the actor’s liability to another for reckless disregard of
the other’s safety are the same as those which determine his liability for
negligent misconduct.”).
____________________________________________
14 Wittrien v. Burkholder, 965 A.2d 1229, 1232 (Pa.Super. 2009).
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Viewing the evidence collectively and in the light most favorable to
Ms. Monroe as the non-moving party, we conclude that she produced sufficient
evidence to enable a fact-finder to conclude that Camelback consciously
engaged in conduct that created an unreasonable risk of physical harm to her
that was substantially greater than mere negligence. Specifically,
Ms. Monroe’s proffered evidence was capable of proving the following.15
Mr. Wolf explained that the construction of a zip-line is “such that no part of
a rider is intended to collide with any hard surface until the rider reaches the
end of the zip[-]line.” Memorandum of Law in Support of Response in
Opposition to Motion for Judgment on the Pleadings and Supplemental Motion
for Summary Judgment, 5/16/19, Exhibit A at 2. However, the height of
Camelback’s line was “low enough that a rider’s legs may contact the ground
before the pulley carriage contacts the breaking device” at the end of the ride.
Id. “If the ground is free of surface imperfections, a rider’s feet will drag
smoothly along the ground, up a wooden platform, causing a reduction in
speed, and then the rider’s forward movement will be arrested by a
combination of manual braking by physical engagement of an employee, and
____________________________________________
15 We reiterate that, in an appeal from the grant of summary judgment, this
Court must “apply the same standard as the trial court, reviewing all the
evidence of record to determine whether there exists a genuine issue of
material fact.” Criswell v. Atl. Richfield Co., 115 A.3d 906, 908–09
(Pa.Super. 2015) (emphasis added). Thus, although as noted above
Ms. Monroe’s appellate brief is substandard and does not present the evidence
as fully and as efficiently as we might like, we conclude that waiver is
inappropriate.
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a mechanical impact attenuation device at the end of the line.” Id. at 2-3.
Yet no smooth landing in an area free from surface imperfections was offered
by Camelback.
Specifically, while it would have been dangerous enough to have
patrons’ feet sliding along the ground if they were unable to comply with the
directions of Camelback’s staff to lift up their legs, Camelback created an even
graver danger by using a wooden landing deck whose lead edge protruded at
a ninety-degree angle from the ground. This hard obstruction was capable of
causing injury “at the impact site on the rider’s body, and anywhere else where
that energy is delivered to the body.” Id. This danger “must have been noted
by one or more members of the Camelback staff, because the condition was
‘remedied’ by covering the protrusion with a piece of carpeting.” Id.
However, this “remedy” in actuality “concealed, rather than removed, the
risk.” Id. Mr. Wolf explained:
That there was risk in the design by virtue of needing rider
compliance with a strenuous physical task was itself an
unnecessary danger that was permitted in routine operation of the
zip[-]line, unwittingly reveal[ing] . . . a willingness to allow
participants to be subjected to unnecessary and preventable
danger.
That there were physical dangers that had come to the attention
of the staff, and that these known dangers were not remedied but
rather were intentionally masked, or in this case, literally swept
under the rug, shows a conscious disregard for safety that could
not manifest other than in an accident, given sufficient time.
Id. at 5.
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Enter Ms. Monroe, approaching the end of the ride not in a smooth,
straight trajectory, but rippling up and down, something that Camelback knew
happened multiple times each day for patrons who were toward the higher
end of the zip-line’s weight limit. Id., Exhibit C at 11-16. There was no
gradual skid up a platform, but a collision with the landing platform that was
“perfectly positioned to cause an injury.” Id., Exhibit A at 4. Two collisions
occurred to be exact: despite holding her legs up as she approached the
landing area, Ms. Monroe first struck her leg against the landing platform,
making an impact with the mats Camelback had positioned to conceal the face
of the platform, swung up, came back down, spun around, and made a second
impact with the platform when she hit the deck to land. See id., Exhibit B at
52-53, 84-85 (Ms. Monroe describing swinging up, spinning, and landing); id.
Exhibit C at 11 (Camelback employee Brett Dunphy describing two impacts at
the landing platform); Memorandum of Law, 3/12/18, at Exhibit B (Pocono
Medical Center report of history and physical examination indicating that Ms.
Monroe’s right foot struck the platform when she landed, then felt severe pain
when she tried to stand on it; discharge summary indicating that she first
struck her leg “up against the landing platform”).
Camelback could have readily alleviated the danger by having the
patrons land at ground level or by filling in the danger zone with dirt or sand.
See Memorandum of Law in Support of Response in Opposition to Motion for
Judgment on the Pleadings and Supplemental Motion for Summary Judgment,
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5/16/19, at Exhibit A. Although Camelback advertised to its patrons in the
Release it had them sign that its amusements were capable of causing injury
or death, it instead opted to conceal the known, obvious threat by masking it
with a piece of carpeting, actively preventing Ms. Monroe from appreciating
the danger to her person. Id., Exhibit A at 4-5.
Those facts do not suggest mere negligence. These allegations, viewed
in the light most favorable to Ms. Monroe, sufficiently contend that Camelback
engaged in intentional acts, knowing or having reason to know facts which
would lead a reasonable person to realize that it thereby created an
unreasonable risk of physical harm that was substantially greater than
incompetence or unskillfulness. Accord Bourgeois v. Snow Time, Inc., 242
A.3d 637, 657–58 (Pa. 2020) (holding that, summary judgment on a claim of
injury caused by recklessness was improper because, viewing expert reports
in the light most favorable to the plaintiff, the ski resort defendant had a duty
to bring snow-tubing patrons to a safe stop, failed to protect against
unreasonable risks, and “instead increased the risk of harm to its patrons
through a number of conscious acts, including using folded deceleration mats
in an inadequate run-out area under fast conditions”). Therefore, given the
evidence of record, the trial court erred in entering summary judgment in
favor of Camelback.
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IV. Conclusion
In sum, Ms. Monroe’s complaint sufficiently pled the state of mind of
recklessness to defeat Camelback’s motion for judgment on the pleadings,
and the evidence of record created genuine issues of material fact precluding
the entry of summary judgment. As such, the trial court’s decision to grant
Camelback’s motion was in error. Therefore, we reverse the trial court’s
May 16, 2019 order and remand the case for trial to take place after
Camelback has had a fair opportunity to supply its own expert report if it so
chooses.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
P.J. Panella and Judges Kunselman, King and McCaffery join this Opinion
Per Curiam and Judge Nichols concurs in the result.
P.J.E. Bender files a Dissenting Opinion in which Judge Olson joins and
Judge Stabile concurs in the result.
Judge Stabile files a Dissenting Opinion in which P.J.E. Bender and Judge
Olson concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2022
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