Fay v. Thiel College

55 Pa. D. & C.4th 353, 2001 Pa. Dist. & Cnty. Dec. LEXIS 214
CourtPennsylvania Court of Common Pleas, Mercer County
DecidedDecember 31, 2001
Docketno. 1998-2227
StatusPublished

This text of 55 Pa. D. & C.4th 353 (Fay v. Thiel College) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Mercer County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fay v. Thiel College, 55 Pa. D. & C.4th 353, 2001 Pa. Dist. & Cnty. Dec. LEXIS 214 (Pa. Super. Ct. 2001).

Opinion

WHERRY, J.,

This matter is before this court pursuant to defendants’ motion for summary judgment. For the reasons set forth below, this court shall deny defendants’ motion for summary judgment.

I. FACTUAL BACKGROUND

This lawsuit centers around injuries suffered by plaintiff Amy Fay while attending a study abroad trip to Peru sponsored by Thiel College. At the time that plaintiff participated in the Thiel-sponsored trip to Peru, plaintiff was a full-time college student at Thiel College. The trip was supervised by three faculty members-— Curtis Thompson, professor of religion; Brenda Brasher, professor of religion; and Barbara Heming, professor of [355]*355language (the faculty supervisors). The trip took place in May of 1996, after the completion of the spring semester of the 1995-1996 school year. The trip to Peru was offered and sponsored by Thiel College in conjunction with a class taught by Professor Thompson entitled “Liberation theology in a Peruvian context.” Most of the students who went on the trip to Peru, including plaintiff, were enrolled in Professor Thompson’s course. The purpose of the three-week trip to Peru was to see and experience first hand liberation theology in practice.

Prior to departing on the trip to Peru, plaintiff was required by Thiel College to sign certain documents germane to defendants’ motion for summary judgment, namely a “Waiver of Liability” form and a “Thiel College consent form.” The waiver of liability form was executed by plaintiff on April 18, 1996, and the consent form was executed by plaintiff on April 26, 1996. AH students attending the trip to Peru were required by Thiel College to execute both documents. It is undisputed that if a student would have refused to sign one or both of the documents, Thiel College would not have permitted that student to go on the trip to Peru.

During the trip plaintiff became ill. She was taken to a medical clinic located in the city of Cuzco, where she was eventually admitted. After plaintiff was admitted to the medical clinic, all of the faculty supervisors and all of the other students left on a prescheduled trip that was to last several days, leaving plaintiff alone at the clinic with only a Lutheran missionary by the name of Karen Helikson to act as plaintiff’s translator.1 Plaintiff had only [356]*356met Ms. Helikson while in Peru. Ms. Helikson was not in any way related to Thiel College and was not in any way acting as an agent and/or representative of Thiel College.

During plaintiff’s stay in the Peruvian medical clinic and during the absence of any of the faculty supervisors, plaintiff was subjected to the unnecessary surgical removal of her appendix. After plaintiff was informed, through translation by Ms. Helikson, that the doctor would be removing her appendix, plaintiff went through a list of alternatives — plaintiff asked if the surgery was absolutely necessary; plaintiff asked to be transferred to a hospital in Lima; plaintiff asked to fly home; plaintiff asked to call her parents in the United States prior to the surgery. After all of her requests were denied, plaintiff was then reluctantly prepared for surgery. The appendectomy was apparently authorized by Ms. Helikson— who, once again, was a Lutheran missionary who was not in any way related to Thiel College or acting as an agent and/or representative of Thiel College. Ms. Helikson requested to observe plaintiff’s surgical procedure from the viewing room, but was not permitted to do so. After her appendectomy was completed, plaintiff was sexually assaulted by the same surgeon who had performed the surgery and the same anesthesiologist who had administered the anesthesia — both of whom were men.2

[357]*357n. STANDARD OF REVIEW

The standard of review in deciding a motion for summary judgment is as follows:

“Summary judgment is properly granted where ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.’ Pa.R.C.P. 1035(b). ‘The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.’ ... Summary judgment may be entered only in those cases where the right is clear and free from doubt.” Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-45, 615 A.2d 303, 304 (1992). (citations omitted)

HI. DISCUSSION

A. The Exculpatory Clause Contained in the Waiver of Liability Form Is Not Valid

Defendants first contend that judgment should be entered in their favor because, by signing the waiver of liability form, plaintiff waived any and all claims against defendants arising out of or in connection with plaintiff’s participation in the study abroad trip to Peru. The relevant exculpatory language in the waiver of liability form is as follows:

“As a condition of my participation in the study or project, I understand and agree that I am hereby waiving [358]*358any and all claims arising out of or in connection with my travel to and from and/or my participation in this project or study that I, my family, my heirs or my assigns may otherwise have against Thiel College and/or its personnel.” See waiver of liability form, exhibit A to defendants’ brief in support of motion for summary judgment.

In Employers Liability Assurance Corp. v. Greenville Business Men’s Association, 423 Pa. 288, 224 A.2d 620 (1966), the Pennsylvania Supreme Court set forth the following standard for determining the validity and enforceability of an exculpatory clause:

“Generally speaking, an exculpatory clause is valid if: (a) ‘it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or State ....’; (b) ‘[the contract is] between persons relating entirely to their own private affairs’; (c) ‘each party is a free bargaining agent’ and the clause is not in effect ‘a mere contract of adhesion, whereby [one party] simply adheres to a document which he is powerless to alter, having no alternative other than to reject the transaction entirely.’
“Assuming . . . that the . . . exculpatory clause satisfies all three conditions and is valid, our case law requires that, even if valid, an exculpatory clause must meet certain standards. ‘Despite the general validity of exculpatory provisions, certain standards have been established which must be met before an exculpatory provision will be interpreted and construed to relieve a person of liability for his own or his servants’ acts of negligence.’
[359]

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Bluebook (online)
55 Pa. D. & C.4th 353, 2001 Pa. Dist. & Cnty. Dec. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fay-v-thiel-college-pactcomplmercer-2001.