PROCEDURE-SUMMARY JUDGMENT-ZIP-LINING-RECKLESSNESS

December 1st, 2022 by Rieders Travis in Procedure

Monroe v. CBH20, LP, 2022 Pa. Super. LEXIS 459 (November 21, 2022).  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[.]”Camelback filed preliminary objections to strike the above-quoted allegations as “improper, broad and vague.” 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. We hold that the trial court’s adjudication of Camelback’s dispositive motion is the product of multiple errors of law that require reversal. 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, 2009 PA Super 79, 971 A.2d 513 (Pa.Super. 2009).  “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.” Thus, we concluded that the plaintiff’s cause of action was subsumed within the negligence count pled in the complaint. 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]. These specific allegations of negligence and general allegations of recklessness are sufficient to meet the requirements of Rule 1019(a) and (b). Therefore, we hold that the trial court erred as a matter of law in concluding otherwise. Camelback’s motion for judgment on the pleadings should have been denied. 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. 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. 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. 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. Precluding the report as a discovery sanction without finding prejudice is cause for reversal. See Reeves v. Middletown Ath. Ass’n., 2004 PA Super 475, 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 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. 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.

Attorney Cliff Rieders

Attorney Cliff RiedersCliff Rieders is a Nationally Board Certified Trial Lawyer practicing personal injury law. A large part of his practice involves multi-district litigation, including cases related to pharmaceuticals, vitamin supplements and medical devices. He is admitted in several state and federal courts, as well as the Supreme Court of the United States. Rieders is the past regional president of the Federal Bar Association and is a life member of the distinguished American Law Institute, which promulgates proposed rules adopted by many state courts. He is a past president of the Pennsylvania Association for Justice, formerly Pennsylvania Trial Lawyers Association. As a founder of the Pennsylvania Patient Safety Authority, he served on the Board for 15 years.

Not only has Rieders held many highly esteemed, leadership positions, he authored legislation related to the Patient Safety Authority and the Mcare Act, which governs medical and hospital liability actions in Pennsylvania. He authored texts upon which both practitioners and judges rely, including Pennsylvania Malpractice Laws and Forms, and Financial Responsibility Law Issues in Pennsylvania, the latter governing auto and truck collisions in Pennsylvania. In addition, he wrote several books on the practice of law in Pennsylvania regarding wrongful death and survivor actions, insurance bad faith, legal malpractice claims and worker rights, among others. Rieders also serves as a resource to practitioners as a regular speaker for Celesq, an arm of the world’s largest legal publisher, Thomson Reuters West Publishing.

As recognition of his wide range of contribution to his profession and of his dedication to protecting the rights of his clients, he received numerous awards, among them the George F. Douglas Amicus Curiae Award, the Milton D. Rosenberg Award, the B’nai B’rith Justice Award, and awards of recognition from the Pennsylvania Trial Lawyers. [ Attorney Bio ]

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