Monroe v. CBH20, LP

286 A.3d 785

Aisha MONROE, Appellant

v.CBH20, LP, d/b/a Camelback Ski Resort d/b/a Camelback Ski Corporation

No. 1862 EDA 2019

Superior Court of Pennsylvania.

Argued November 30, 2021

Filed November 21, 2022

Matthew B. Weisberg, Morton, for appellant.

William M. Brennan, Blue Bell, for appellee.

Anthony W. Hinkle, Blue Bell, for appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., OLSON, J., STABILE, J., KUNSELMAN, J., NICHOLS, J., KING, J., and McCAFFERY, J.

OPINION PER CURIAM:^*

Aisha Monroe appeals from the May 16, 2019 order that granted the motion for judgment on the pleadings and supplemental motion for summary judgment filed by Camelback Ski Corporation ("Camelback"). As we find that Camelback was not entitled to judgment as a matter of law pursuant to either Pa.R.C.P. 1034 (judgment on the pleadings) or Pa.R.C.P. 1035.1 - 1035.3 (summary judgment), we reverse the order and remand the case for further proceedings.

I. Facts and Procedural History

Aisha Monroe initiated this action against Camelback by a complaint that was transferred to Monroe County from Philadelphia County upon the stipulation of the parties. The initial complaint contained a single count of negligence, alleging that Ms. Monroe was injured as the result of Camelback's, inter alia , failure "to use reasonable prudence and care to take care of the customers’ safety complaints" and its "[a]cting in disregard of the rights of safety of [Ms. Monroe] and others similarly situated[.]" Complaint, 7/27/16, at ¶ 21(c), (e). Camelback filed preliminary objections to strike the above-quoted allegations as "improper, broad and vague." Preliminary Objections, 12/19/16, at ¶ 3. Although the complaint alleged in several places that Camelback acted recklessly and with a conscious disregard of Ms. Monroe's safety, Camelback did not raise preliminary objections in the nature of a more specific pleading regarding the factual underpinnings of the allegations of recklessness. Nor did it object in the nature of a demurrer by contending that the allegations of recklessness were legally insufficient.

Ms. Monroe mooted Camelback's preliminary objections by filing an amended complaint again raising a single count of negligence.¹ Therein, she repeated the averment, to which Camelback had stated no prior objection, that Camelback "kn[ew] that there was a high risk of injur[y] during the landing process," and that her injury was "a direct and proximate result of [Camelback] consciously disregarding [her] safety[.]" Amended Complaint, 1/25/17, at ¶¶ 12, 17. Ms. Monroe amended the offending paragraph to state that Camelback's "recklessness, carelessness and negligence" included, inter alia :

a. Failing to properly monitor the speed of the zip-line, in disregard of the safety of [Ms. Monroe];

b. Failing to use reasonable prudence and care by leaving [Ms. Monroe] to land with no help, in disregard of the safety of [Ms. Monroe];

c. [Left blank]

d. Failing to use reasonable prudence and care to respond to [Ms. Monroe]’s safety concerns during the zip[-]lining, specifically when [Ms. Monroe] as[ked Camelback] to slow down the zip[ ]lining machine, in disregard of the safety of Ms. Monroe; and,

e. Failing to inspect and/or properly monitor the zip[-]lining machine engine, in disregard of the safety of [Ms. Monroe].

Id. at ¶ 21.

Camelback again did not object to the specificity or legal sufficiency of Ms. Monroe's allegations of reckless conduct, opting instead to file an answer, new matter, and counterclaim, contending, inter alia , that Ms. Monroe's claim was barred by the Activity Release and Agreement Not to Sue ("Release") that it attached to its pleading. That document indicated that Ms. Monroe acknowledged that she assumed those risks "of which the ordinary prudent person is or should be aware" created by Camelback's amusement activities, including "injury or even death." Answer, 3/29/17, at Exhibit A. The Release further reflected that, in consideration for the privilege of being allowed to use Camelback's facilities, Ms. Monroe agreed not to sue Camelback for any injury sustained, "even if [she] contend[ed] that such injuries [were] the result of negligence, gross negligence, or any other improper conduct for which a release is not contrary to public policy." Id. (capitalization omitted). In its counterclaim, Camelback alleged that it was entitled to damages based upon Ms. Monroe's breach of the release agreement. Id. at ¶¶ 47-49.

After Ms. Monroe filed her reply and answer, the trial court entered a case management order ("CMO") establishing pre-trial deadlines. Pursuant to the CMO, counsel were attached for trial during the two-week trial term beginning May 7, 2018. Discovery was to be completed and Ms. Monroe was to serve Camelback with expert reports by November 7, 2017. Camelback was to serve its expert reports and file any dispositive motions by January 8, 2018, which was four months before the earliest trial date.

Camelback did not ask the trial court to rule on the legal sufficiency of Ms. Monroe's complaint by filing a motion for judgment on the pleadings on or before the due date for dispositive motions. Rather, Camelback filed a motion for summary judgment contending only that the Activity Release that Ms. Monroe signed was a complete bar to her negligence claim. See Motion for Summary Judgment, 1/8/18, at ¶ 18. The certified record reflects that on March 12, 2018, Ms. Monroe filed both a paragraph-by-paragraph response to Camelback's summary judgment motion and a memorandum of law in opposition thereto. Ms. Monroe filed of record her evidence demonstrating material issues of fact by attaching exhibits to her memorandum of law, not to the response. See Memorandum of Law, 3/12/18, at Exhibits A-C.

The substance of Ms. Monroe's opposition to Camelback's motion was that Camelback's release did not immunize it from reckless conduct, as our Supreme Court ruled in Tayar v. Camelback Ski Corp. , 616 Pa. 385, 47 A.3d 1190, 1203 (2012) ("[E]ven in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety."). See Response in Opposition to Motion for Summary Judgment, 3/12/18, at ¶ 13. In her brief in opposition, Ms. Monroe discussed the evidence, appended to the brief, which she contended supported a finding of recklessness. Specifically, she attached her medical records and the depositions of two Camelback employees who witnessed her injury. See generally Memorandum of Law, 3/12/18, at Exhibits A-C. That evidence collectively indicated the following.

There were two similar zip-lines next to each other at Camelback's facility, one with a weight limit of 175 pounds and the other of 250 or 265 pounds. Approximately two to four times each day, depending on the weight of the person using the zip-line, the line would ripple rather than stay level, lifting the rider up and down. In such instances, the heavier rider would have to pick his or her feet up to avoid slamming into the landing area. The weight limit purported to address the physical limitations which would affect the rider's ability to pick his or her feet up at the end. On the date in question, Ms. Monroe weighed just over 200 pounds. She utilized the zip-line with the higher weight limit, and thus was no more than eighty percent of the maximum capacity. Nonetheless, the zip-line lifted Ms. Monroe up and slammed her into the landing area, causing a broken tibia and fibula requiring substantial medical procedures and expenses, including physical therapy.

Before the trial court ruled on Camelback's motion, it entered an order scheduling a pretrial conference for April 12, 2018, and jury selection for May 8, 2018. Ms. Monroe filed an uncontested motion to vacate the trial listing, indicating that trial was premature given the pendency of Camelback's motion for summary judgment as well as noting counsel's attachment for an Allegheny County trial. The trial court vacated the trial listing and remanded the case for non-binding arbitration.

While arbitration was pending, the trial court issued an order on June 13, 2018, denying Camelback's motion. The trial court explained its ruling as follows:

Plaintiff's Complaint alleges recklessness on behalf of the Defendant. Pennsylvania law holds that an exculpatory clause in a contract does not release a defendant from liability arising out of recklessness. Tayar v. Camelback Ski Corp. , 616 Pa. 385, 47 A.3d 1190 (2012). Accepting the facts alleged in Plaintiff's Complaint as true, summary judgment is improper at this time.

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 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,...