J-A18028-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARK RICHMOND, JILL RICHMOND IN IN THE SUPERIOR COURT OF
THEIR OWN RIGHT AND AS PARENTS PENNSYLVANIA
AND NATURAL GUARDIAN OF KYLE
RICHMOND A MINOR
Appellants
v.
WILD RIVER WATERPARK, INC. AND
LAKE RAYSTOWN RESORT, LLC D/B/A
LAKE RAYSTOWN RESORT, AND R.R.P.
RECREATION, A PA LIMITED
PARTNERSHIP, AND P. JULES PATT IN
HIS OWN RIGHT AND AS A GENERAL
PARTNER OF R.R.P. RECREATION, A PA
LIMITED PARTNERSHIP
Appellees No. 1972 MDA 2013
Appeal from the Order of October 11, 2013,
In the Court of Common Pleas of Huntingdon County
Civil Division at No.: 2008-1283
BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED OCTOBER 06, 2014
Mark Richmond and Jill Richmond, in their own rights and as parents
Rich
judgment in favor of Wild River Waterpark, Inc., Lake Raystown Resort, LLC
d/b/a Lake Raystown Resort, R.R.P. Recreation, LP, and P. Jules Patt in his
own right and as a general partner of R.R
J-A18028-14
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ability to state a claim for negligence against Wild River Waterpark after Kyle
Richmond sustained injuries on a waterslide. We affirm.
The trial court set forth the facts of this case as follows:
There is no dispute that Kyle Richmond was injured on August
19, 2006, while riding an inner tube down a waterslide at Wild
River Water Park. Kyle was fifteen (15) at the time of the
accident. In the complaint it was alleged that Kyle was riding an
inner tube down a waterslide when he unexpectedly was turned
around and was thrown out of the inner tube striking his face on
the bottom of t
front teeth were knocked out, he received a laceration to the
deep tissues of his upper lip and other injuries all of which
required surgical intervention and resulted in scarring and the
permanent loss of the teeth.
-3 (quotation marks and
record citations omitted).
The Richmonds filed a writ of summons on August 8, 2008, and
eventually filed a complaint on June 18, 2012, raising four counts of
negligence against the collective defendants. On April 29, 2013, the parties
deposed Kyle Richmond and Joshua Patt, the assistant general manager of
Wild River Waterpark, Inc. Wild River Waterpark filed a motion for summary
judgment on June 24, 2013, arguing that the -
amusement applied, which would preclude the Richmonds from proving the
duty or breach of duty elements in their negligence claims as a matter of
law. After hearing oral argument on the motion for summary judgment, the
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court granted summary judgment to Wild River Waterpark in its October 11,
2013 order and opinion. The Richmonds timely appealed.1
The Richmonds raise the following four questions for our review:
1. Did the [c]ourt below commit an error of law and/or abuse
its di
-
2. Did the [c]ourt below commit an error of law and/or abuse
its discretion in finding that there was no genuine issue of
material fact, by disregarding the critical, material facts that Kyle
Richmond was supplied with the incorrect type of inner tube,
instead of the open-bottomed tube that was required for safe
operation of the water slide?
3. Did the [c]ourt below commit an error of law and/or abuse
summary judgment when it failed to view the evidence in the
light most favorable to the nonmoving party?
4. Did the [c]ourt below commit an error of law and/or abuse
its discretion when the [c]ourt disregarded the importance of the
contradictory oral testimony of Kyle Richmond and the
representative of [Wild River Waterpark] regarding the inner
tube at issue in this case?
Rich
judgment is well-settled:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law
or abused its discretion. As with all questions of law, our review
is plenary.
____________________________________________
1
The Richmonds timely filed a concise statement of errors and the trial
court entered a supplemental opinion on December 10, 2013. See Pa.R.A.P.
1925(a), (b).
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judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
may be entered. Where the non-moving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a
non-moving party to adduce sufficient evidence on an issue
essential to his case and on which it bears the burden of proof
. . . establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will view the record in the light
most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa.
2001) (case citations omitted).
[T]he issue as to whether there are no genuine issues as to any
material fact presents a question of law, and therefore, on that
question our standard of review is de novo. This means we need
not defer to the determinations made by the lower tribunals. To
the extent that this Court must resolve a question of law, we
shall review the grant of summary judgment in the context of
the entire record.
Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)
(citati
negligence: a duty of care, a breach of that duty, a causal connection
Zeidman v. Fisher, 980 A.2d 637, 639 (Pa. Super. 2009).
was improper because the [c]ourt below improperly applied the no-duty rule
to the instant case because the injuries suffered by Kyle Richmond, as a
result of being supplied with the incorrect inner tube[,] were not common,
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Brief at 7. We disagree.
The no-duty rule is a longstanding principle which applies to cases
involving a place of amusement for which admission is charged.
An operator of such an establishment is not an insurer of his
patrons. Rather, he will be liable for injuries to his patrons only
where he fails to use reasonable care in the construction,
maintenance, and management of [the facility], having regard to
the character of the exhibitions given and the customary conduct
of patrons invited.
Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546, 549 (Pa. 1978)
(citations omitted).
The rule provides that a defendant owes no duty of care to warn,
Jones, 394 A.2d at
551. If it is determined the no-duty rule is applicable to a
negligence claim, a plaintiff will be unable to set forth a prima
facie case of liability.
, 951 A.2d 372, 375-76 (Pa.
adequate evidence that the amusement facility in which he was injured
deviated in some relevant respect from established custom will it be proper
- Id. at 378.
Here, the Richmonds have failed to establish that coming off the inner
,
Jones
landing and severity of his facial impact and injury were not inherent risks,
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[and] therefore [were] not covered by the no-
at 10. However, the severity of injury is irrelevant as to whether the no-
duty rule applies. See Craig
confuses the concepts of risk and result. The risk at issue in this matter is
being struck by an errant softball; the risk is not the injuries that resulted
Upon review of the record, we agree with the trial court that the
Richmonds have failed to establish that coming off the inner tube is not a
risk inherent in riding a waterslide. See Rule 1925(a) Opinion, 12/10/2013,
at 4. In fact, the Richmonds conceded in their response to Wild River
-duty
er it is a common, frequent and expected part
wever,
they have pointed to no evidence of record to settle this inquiry in their
favor.
Thus, the trial court did not err in applying the no-duty rule to the
instant case, and the Richmonds cannot state a prima facie claim against
Wild River Waterpark. Summers, 997 A.2d at 1159; Craig, 951 A.2d at
type of inner tube was supplied to Kyle Richmond is a genuine issue of
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material fact in the instant case based on the oral testimony of a
Specifically, they contend that, because Kyle Richmond stated that the inner
tube he rode had a covered bottom, and Joshua Patt stated that the inner
differ as to the outcome of the instant case depending on the credibility of
Id. at 12-13. We disagree.
and prevents the entering of a summary judgment. But if plaintiff fails to
establish a prima facie case, the mere fact that his proof is oral does not
Thompson Coal Co. v.
Pike Coal Co., 412 A.2d 466, 474 (Pa. 1979).
Here, Joshua Patt, representative of Wild River Waterpark, stated that
They do have two handles, but they are open- Deposition of Joshua
Patt, 4/29/2013, at 37.2 The only evidence that Kyle rode in a tube with a
bottom cover comes from his own deposition. See Deposition of Kyle
Richards, 4/29/2013, at 13. The Richmonds have failed to support this
contention with expert reports, an inspection of Wild River Waterpark, or any
____________________________________________
2
Mr. Patt did not state that an inner tube with a bottom cover would be
unsafe; he simply testified that the inner tubes provided for the waterslide
on which Kyle Richmond was injured were open-bottom. See Deposition of
Joshua Patt, at 35-39.
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other proof that Kyle actually rode a covered-bottom tube or any tube not
approved or suitable for use on the waterslide. Moreover, nowhere does the
record show a causal connection (through expert testimony or otherwise) to
See
Zeidman, 980 A.2d 637 at 639.
As previously discussed, the trial court properly concluded that the no-
duty rule precluded the Richmonds from stating a prima facie claim of
negligence against Wild River Waterpark. Craig, 951 A.2d at 375-76. Thus,
Thompson,
relief.
to grant a motion for summary judgment the court must view the evidence
in the light most favorable to the non-moving p
where a material fact could be supported by the acquisition of an expert
summa
the record of the instant case showing that the type of inner tube was a
Id. at 13-14. We disagree.
Pennsylvania Rule of Civil Procedure 1035.2 provides:
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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.
[O]ur responsibility as an appellate court is to determine
whether the record either establishes that the material facts are
undisputed or contains insufficient evidence of facts to make out
a prima facie cause of action, such that there is no issue to be
decided by the fact-finder. If there is evidence that would allow
a fact-finder to render a verdict in favor of the non-moving
party, then summary judgment should be denied.
Harris v. NGK N. Am., Inc., 19 A.3d 1053, 1063 (Pa. Super. 2011).
Here, as previously established, the Richmonds acknowledged in their
question is whether it is a common, frequent and expected part of riding a
wer at 6. Absent any
pursuant to the no- prima facie
case. Craig, 951 A.2d at 375-76; see also Harris, 19 A.3d at 1063. At no
point did the Richmonds state they had not completed discovery, nor did
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they suggest that the court prevented them from supplementing the record.
Thus, the trial court properly granted Wild
1035.2(2).
Furthermore, viewing the evidence in the light most favorable to the
Richmonds as the non-moving party, the Richmonds failed to establish the
causal connection that the type of inner tube Kyle Richmond used
contributed to his injury. See Deposition of Joshua Patt, at 35-39. A
dispute over whether the inner tube had a covered bottom does not make it
1035.2.
Rather, the Richmonds were required in the first instance to offer some
evidentiary basis upon which a jury reasonably could conclude that an
unsuitable inner tube existed in the park and caused Kyle Richmond to
sustain his injuries. Accordingly, the trial court did not err in granting
summary judgment to Wild River Waterpark. See Summers, 997 A.2d at
1159. This issue does not merit relief.
-
standing rule articulated in Nanty-Glo [v. Am. Surety Co., 163 A. 523 (Pa.
1932)], a motion for summary judgment cannot be decided on oral
test
depositions of Kyle Richmond and Wild River Waterpark representative
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Joshua Patt differ with respect to whether the inner tube Richmond used had
Id. at 15. We disagree.
The Nanty-Glo
insufficient to establish the absence of material fact necessary for the entry
Checchio v. Frankford Hosp. Torresdale Div.,
717 A.2d 1058, 1062 (Pa. Super. 1998).
Initially, it must be determined whether the plaintiff has alleged
facts sufficient to establish a prima facie case. If so, the second
step is to determine whether there is any discrepancy as to any
facts material to the case. Finally, it must be determined
whether, in granting summary judgment, the trial court has
usurped improperly the role of the jury by resolving any material
issues of fact.
Dudley v. USX Corp., 606 A.2d 916, 920 (Pa. Super. 1992).
Here, as previously established, the Richmonds failed to establish that
coming off an inner tube and landing in the slide is not a common, frequent
and expected part of riding a waterslide. See Jones, 394 A.2d at 551. As a
result, the Richmonds could not establish a prima facie case for negligence
pursuant to the no-duty rule. See Craig, 951 A.2d at 375-76. Thus, we
er there is any discrepancy as to any facts
Dudley, 606 A.2d at 920. Accordingly, the trial court
did not violate the Nanty-Glo rule or rely on oral testimony to establish the
absence of a material fact. See Checchio, 717 A.2d at 1062. The
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2014
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