swimming and fishing by acquaintances of the Bunnells and by neighborhood children. The Bunnells have never charged a fee for the right to enter upon or utilize the premises.
On June 23, 1985, Robert Bunnell invited a group of his friends to the Bridgewater Township property for a picnic/swimming party. Present at the picnic were Robert Bunnell, plaintiff Carl Capriotti, Joe Mulcarowitz, Tina Sherick and Cheryl Eckenrod. This group, with the possible exception of Cheryl Eckenrod, arrived at the pond between 11 a.m. and noon.
No fee was charged for attending the party or for using the land or pond.
At this point, Robert Bunnell's recollection begins to differ dramatically from Carl Capriotti's version of events. Bunnell testified during his deposition that he, Capriotti and Mulcarowitz swam intermittently during the afternoon prior to 4:30 p.m. when Capriotti left temporarily to pick up Cheryl Eckenrod from her place of employment in order to bring her to the picnic (dep. tr. at 13). Bunnell stated that on the day of the picnic, the top of the rock in the pond protruded an inch-and-a-half to two inches above the water level and was plainly visible (dep. tr. at 21). Further, Bunnell maintained that he cautioned Capriotti and the others about the presence of the rock at least three times throughout the afternoon and that Capriotti acknowledged his warnings on at least one occasion (dep. tr. at 19-21 and 46-50).
In contrast, Capriotti testified in his deposition that he did not enter the water until approximately 5:00 p.m., at which time the accident in question occurred (dep. tr. at 27). He also indicated that he never left the pond area following his arrival there at midday and that Cheryl Eckenrod had accompanied him from the outset of the picnic (dep. tr. at 23-24, 27). Moreover, he asserted that prior to diving into the pond he visually inspected the water surface, and according to Capriotti, the rock did not protrude above the water surface and was not visible (dep. tr. at 26, 32). Capriotti was not asked during his deposition whether he had any reason to suspect, because of warnings from Robert Bunnell or otherwise, the existence and location of the rock, but the clear inference from his deposition testimony is that he would deny any knowledge of the rock prior to the time he dove into the pond.
It is undisputed from the deposition testimony of Robert Bunnell and Carl Capriotti that between 5:00 p.m. and 5:30 p.m. on June 23, 1985, Capriotti dove into the pond and injured his head, presumably on the above-described rock. He suffered contusions and abrasions and was taken to a nearby hospital. No deposition testimony or affidavits from any of the other individuals at the picnic has been submitted to the court.
Plaintiff commenced this action on June 19, 1987, alleging that defendants were negligent by, inter alia, failing to warn of or alleviate a dangerous condition. Plaintiff claims that as a result of his head injury, he experienced a concussion and seizures and continues to periodically experience headaches, numbness in his head and pain in his ears, eyes and neck.
Defendants moved for summary judgment on December 31, 1987, arguing that they are entitled to judgment as a matter of law under the Recreational Use of Land and Water Act, 68 P.S. § 477-1 et seq. Defendants filed their supporting brief on January 7, 1988. They also submitted transcripts of the deposition testimony of plaintiff and of each of the three defendants, with accompanying exhibits attached thereto. Plaintiff filed a response and a brief in opposition on February 12, 1988.
No further documents have been forwarded to the court, and defendants' motion for summary judgment is now ripe for disposition.
When faced with a summary judgment motion, a district court must determine whether "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if the evidence is such that a reasonable jury could find for the party opposing the motion. Equimark Commercial Finance Co. v. C.I.T. Financial Services Corp., 812 F.2d 141, 144 (3d Cir. 1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986)). The court must view all facts in the light most favorable to the party opposing the motion. Betz Laboratories, Inc. v. Hines, 647 F.2d 402, 404 (3d Cir. 1981).
The substantive law of Pennsylvania applies to this diversity case. Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). The Recreational Use of Land and Water Act was passed by the Pennsylvania legislature in 1966 "to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." 68 P.S. § 477-1. The Act limits traditional landowner liability as follows:
Except as specifically recognized or provided in section 6 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.
68 P.S. § 477-3. The Act sets forth a slightly different formulation of the immunity standard for landowners who by some means invite or permit recreational activity on their land:
Except as specifically recognized by or provided in section 6 of this act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby: