Summary Judgment; Standard of care; Recklessness and/or Gross Negligence

Bourgeois v. Snow Time, Inc et al., 2018 WL 3868670 (Pa. Super. 2018), allocatur granted June 25, 2019, appeal docket 50 MAP 2019.

The Supreme Court granted review of Superior Court’s affirmance of a York County Court of Common Pleas order granting Defendants Snow Time, Inc. and Ski Roundtop’s Motion for Summary Judgment finding that Bourgeois (inclusive of Appellants Ray Bourgeois and his wife) signed a valid waiver relieving Defendants from claims of negligence. Bourgeois was seriously injured while snow tubing when his tube hit rubber kitchen mats that Defendants placed in the deceleration area of the snow tubing run. Superior Court also affirmed common pleas’ finding that the record did not contain any genuine issue of material fact to show that Defendants were grossly negligent or reckless. Bourgeois’ theory of the case was that Defendants “acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.” Superior Court affirmed common pleas conclusion that Bourgeois failed to establish that Defendants had a duty to him and, thus, acted recklessly or were grossly negligent in placing deceleration mats at the end of the tubing run. Slip Op. at 2-3. Judge Dubow wrote the majority opinion joined by Judge Ott. Senior Judge Strasburger dissented.

Bourgeois challenged common pleas’ conclusion that he could not establish a claim for recklessness or gross negligence because “[Bourgeois’] experts had not articulated the standard of care that [Defendants] failed to meet [and] a factfinder could not conclude that [Defendants] were aware of that standard of care and disregarded it.”  Id. at 5. In affirming that decision, Superior Court held that Bourgeois failed to provide an expert report that articulated a relevant standard of care establishing that Defendants had a duty to him. Id. at 1-2. Thus, the court held that Bourgeois were unable to show that Defendants acted recklessly or was grossly negligent by placing deceleration mats at the end of a snow-tubing run.

 Bourgeois presented three issues for review that are germane to the grant of allocatur. In the first two issues Bourgeois argued that common pleas erred in granting summary judgment by disregarding the conclusions of their liability experts that Defendants’ conduct was reckless and grossly negligent, as well as disregarding genuine issues of material fact showing recklessness and/or gross negligence. Id. 2-3. Bourgeois alleged that the facts that show recklessness and/or gross negligence include that the manufacturer of the inner tube warned against placing objects in the path of tubing participants; that Defendants knew that the mats used would cause participants to stop abruptly; that Defendants had knowledge of similar accidents involving the deceleration mats prior to Bourgeois’s accident; that Defendants knew that the tubing-runs posed a risk of grievous injury or death; and that the risk of harm from the deceleration mats was obvious to a reasonable person. Id. at 3. In the third issue, Bourgeois argued that the trial court erred in concluding that Defendants were not aware of the risk of harm posed by using mats in the deceleration areas. Id.

Superior Court began its analysis by noting that a defendant is reckless when:

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.

Id. at 6, citing Tayar v. Camelback Ski Corp., 47 A.3d 1190, 1200 (Pa. 2012), citing Restatement (Second) of Torts § 500 (emphasis added).  The court further noted that this failure “must be an intentional failure” and that a plaintiff must show “that a defendant consciously acted or failed to act”  and stated that “it is for the jury to determine whether a party acted grossly negligent” but that a court “may decide this question as a matter of law where the case is entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence.”  Id. at 6-7.  The court also noted that “[e]xpert testimony is often required to opine a defendant’s duty to the plaintiff.” Id. Bourgeois presented two expert reports that “concluded that [Defendants] engaged in reckless and grossly negligent conduct” but the court agreed with common pleas that neither expert set forth a relevant standard of care, that Defendants did not have a duty that they failed to meet, and that summary judgment was granted properly. Id. at 8-10. 

Judge Strassburger filed a dissenting memorandum and stated that he “believe[s] a reasonable jury could find that the facts constitute gross negligence and/or recklessness.” Dissent at 2.  He further noted that common pleas’ discussion of Bourgeois’ expert opinions was “noticeably absent” and that “[a]t the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party.”  Id. at 8.  In Judge Strassburger’s view, both of Bourgeois’ experts helped establish that Defendants were grossly negligent and reckless, but that “[t]he Majority simply ignores the trial court’s failure to consider [Bourgeois’] expert reports and undergoes its own analysis of the reports.” Id. at 9.

The Supreme Court granted Bourgeois’s allocatur petition on the following issues as stated by Bourgeois:

(1) Did the majority panel opinion conflict with existing law by failing to address the trial court’s disregard of Petitioners’ expert reports when granting summary judgment?

(2) Did the majority panel opinion conflict with existing law requiring it to review Petitioners’ expert reports in the light most favorable to the non-moving party by, inter alia, (a) improperly requiring Petitioners’ experts to establish the legal duty that Respondents breached, (b) dismissing their opinions as conclusory, and (c) overlooking numerous opinions throughout their reports which supported Petitioners’ prima facie case against Respondents?

(3) Did the majority panel opinion conflict with existing law when it held that Petitioners did not establish the duties Respondents owed to Petitioners, when the duty of a snow tubing facility to protect its patrons from unreasonable risks of harm has already been established by the Supreme Court in Tayar v. Camelback [616 Pa. 385, 47 A.3d 1190 (2012)]?

(4) Did the majority panel opinion conflict with existing law by requiring that a violation of industry standards be demonstrated for Petitioners to sustain a recklessness or gross negligence cause of action against Respondents?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.