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FLOHR v. PENNSYLVANIA POWER & LIGHT CO.

March 5, 1993

Harry D. Flohr and Sharon G., Flohr, in their own right and as guardians of Erin E. Flohr, Jennifer Flohr and Douglas Flohr and Harry Flohr Administrator of the Estate of Dana Marie Flohr, Plaintiffs,
v.
Pennsylvania Power & Light Company, Defendant.



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 March 5, 1993

 This action arises as a result of an accident which killed Dana Marie Flohr on July 3, 1989 when she and her family were fishing at Otter Creek Recreational Area. Defendant Pennsylvania Power And Light Company now moves for summary judgment in its favor pursuant to Fed. R. Civ. P. 56. *fn1" Plaintiffs, Harry and Sharon Flohr, in their own right and as guardians of Erin, Jennifer and Douglas Flohr, and Harry Flohr as Administrator of the Estate of Dana Marie Flohr, oppose defendant's motion for summary judgment. For the reasons stated below, I shall grant defendant Pennsylvania Power And Light Company's motion.

 I. Introduction

 On or about July 3, 1989, plaintiffs ("the Flohr family") paid a fee to rent and use the facilities at the Otter Creek Recreational Area located in York County, Pennsylvania. The Otter Creek Recreational Area is owned by defendant Pennsylvania Power And Light Company ("PP&L"). On July 3, 1989, the Flohr family was fishing on the banks of the Otter Creek when a nearby tree fell across the creek and struck three members of the Flohr family. Sharon and Erin Flohr were both hit by the falling tree and sustained serious personal injuries. Dana Marie Flohr was hit directly by the tree and was killed. Harry Flohr was thrown into the Otter Creek by the impact of the falling tree. Plaintiffs allege that the tree that fell and caused these tragic events was in decaying and dangerous condition prior to falling across the Otter Creek.

 At the time of the accident, the Flohr family was fishing from a bank of the Otter Creek which was part of Otter Creek Recreational Area. The tree that struck them was located across the creek from plaintiffs' fishing spot on an area of wilderness that was also owned by PP&L. The tree fell across the Otter Creek to the bank where the Flohr family was fishing.

 Defendant now moves for summary judgment pursuant to Fed. R. Civ. P. 56 on the grounds that discovery did not reveal facts which would support the application of the "willful or malicious" exception contained in Section 477-6(1). Therefore, defendant argues, the immunity provided under the Recreation Act is applicable and summary judgment should be entered in its favor.

 Plaintiffs respond with several arguments which they urge preclude the entry of summary judgment. First, plaintiffs contend that defendant's failure to inspect and remove the obviously dangerous tree was a willful failure to guard or warn within the meaning of the Recreation Act. Second, plaintiffs request a reconsideration of the Court's Order of March 19, 1992, holding that the charge exception did not apply to defendant. Third, they argue that the land upon which the tree was located was not open to the public, thus the Recreation Act did not even apply. Finally, plaintiffs assert that those admissions that defendant failed to answer in a timely manner should be conclusively established as admissions for the purposes of a summary judgment motion, thereby precluding the entry of summary judgment. I shall address each of these arguments in order.

 II. Discussion

 A. Standard For Summary Judgment.

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). The Court does not resolve questions of disputed fact, but rather simply decides whether there is a genuine issue of fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Ettinger v. Johnson, 556 F.2d 692 (3d Cir. 1977).

 The facts must be viewed in the light most favorable to the non-moving party, and reasonable doubt as to the existence of a genuine issue of material fact is to be resolved against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). If the moving party succeeds in showing that there is no dispute as to any issue of material fact and that it is entitled to judgment as a matter of law, then the non-moving party must respond with information to the contrary, or it will lose. National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579 (3d Cir. 1992).

 B. Immunity Under The Recreation Use and Water Act -- The Willfulness Exception

 The Pennsylvania legislature enacted the Recreation Act "to encourage owners of land to make land and water available to the public for recreational purposes by limiting their liability towards persons ...


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