this action, traveled by boat from the Tanglewood resort area to a rock near PP&L's Ledgedale Recreation Area. William's family owns a home in Tanglewood and docks its boat nearby. William drove the family boat to the rock, accompanied by his grandmother and two younger brothers. In the course of playing on and near the rock, William dove from it, struck something beneath the water and was rendered a quadriplegic. William and his parents subsequently brought this action against PP&L seeking damages for his injuries.
In its motion for summary judgment, the defendant has raised two legal theories, either of which, it contends, renders it immune from liability. If correct, defendant is entitled to summary judgment notwithstanding disputed factual issues in connection with the details of the accident.
PP&L first contends that Pennsylvania's Recreation Use of Land and Water Act, 68 Pa. Cons. Stat. Ann. § 477-1 -- 477-8 applies. Under that Act, landowners who make their premises available to the public free of charge for recreational purposes are under no duty to keep the premises safe or to warn of dangerous conditions, uses, structures of activities thereon. Similarly, the owner extends no assurance that the premises are safe, assumes no duty of care toward recreational users, and incurs no liability for negligent injury to such users. This statutory immunity does not apply if the owner levies a charge upon persons who enter the land for recreational purposes. Similarly, the owner is not relieved of liability for willful or malicious failure to warn or guard against a dangerous condition, use, structure or activity.
Second, PP&L contends that it cannot be held liable for an accident which occurred in the waters of the lake or the lake bed because ownership thereof is vested in the Commonwealth by virtue of the navigability of Lake Wallenpaupack.
To establish that Lake Wallenpaupack is navigable in fact, PP&L describes its length, depth, acreage, the substantial number of annual visitors it attracts, and the commercial activities it supports. Relying upon the case of Conneaut Lake Ice Company v. Quigley, 225 Pa. 605 (1909), defendant contends that its description of the lake supports the conclusion that the lake is navigable in fact and thus owned by the Commonwealth. In addition, PP&L buttresses its argument by noting that Wallenpaupack Creek had been legislatively declared a public highway in 1808. Presumably, by including this fact, PP&L is contending that the dammed portion of the Creek, now Lake Wallenpaupack, is ipso facto a public highway.
Although not cited by either party, the Court's research has revealed that the Conneaut case was explained fifty years later in Lakeside Park Co. v. Forsmark, 396 Pa. 389, 153 A.2d 486 (1959) which appears more applicable than Conneaut. The court in Lakeside first noted that the ". . . argument. . . that the lake is susceptible of navigation in fact and hence that it is navigable in law . . . is good law for rivers but must be accepted with caution for lakes", at 391. The court then elaborated on the concept of navigability:
Navigation and navigability are portentous words. They mean more than the flotation of buoyant vessels in water: if it were otherwise, any tarn capable of floating a canoe for which a charge could be made would make the water navigable. They mean more than some commercial use to which collected water is put: if this were not so, every spring-fed pool capable of being bottled and sold for drinking water would be navigable. No single factor can control. Lakeside at 394.