Monroe, A. v. CBH20, LP

2022 Pa. Super. 197

Opinion

J-E03001-21

2022 PA Super 197

AISHA 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. J-E03001-21

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

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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];

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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