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Archibald v. Kemble

April 23, 2009

ROBERT ARCHIBALD AND KRISTA ARCHIBALD, APPELLANTS
v.
CODY KEMBLE, APPELLEE



Appeal from the Order entered December 7, 2007. In the Court of Common Pleas of Dauphin County Civil Division, at No. 2005-CV-2079-CV.

The opinion of the court was delivered by: Cleland, J.

BEFORE: PANELLA, CLELAND, JJ. and MCEWEN, P.J.E.

OPINION

¶ 1 Appellants, Robert and Krista Archibald (Archibald or Archibalds), appeal the December 6, 2007 Order granting Appellee Cody Kemble's (Kemble) Motion for Summary Judgment. The crux of this case is the standard of care to be applied when a player in an adult "no-check" ice hockey league checks and injures another player in violation of the league rules. Because we conclude the applicable standard of care is recklessness and because the Archibalds were not required to specifically plead recklessness in their Complaint and because they produced evidence of recklessness in their discovery, we vacate and remand.

¶ 2 Archibalds' Complaint alleges:

1. Robert Archibald and Krista Archibald have been married as husband and wife at all times relevant hereto and currently and at all times relevant hereto have resided at 9 Shoff Court, Mechanicsburg, Cumberland County, Pennsylvania, 17055.

2. Defendant, Cody Kemble, is an adult individual and at all times relevant hereto has resided at 353 Sarhelm Road, Harrisburg, Dauphin County, Pennsylvania.

3. The events hereinafter took place on or about June 2, 2003 at the Twin Ponds East skating facility in Lower Paxton Township, Dauphin County, Pennsylvania.

4. At the aforementioned time and place, the Plaintiff, Robert Archibald, and Defendant were participating in an adult non-checking ice hockey league game.

5. At the aforementioned time and place, the Plaintiff, Robert Archibald, was playing the position of right wing and in a corner of the ice rink and playing the puck when he was, without provocation or warning, checked by the Defendant into the boards of the ice hockey rink.

6. The check into the boards resulted in . . . Robert Archibald's body hitting the side of the ice rink, causing injuries set forth below.

7. At the aforesaid time and place, the Plaintiff, Robert Archibald, was exercising due care at all times and participating in the non-checking adult ice hockey league.

8. As a result of the aforesaid check into the boards, the Plaintiff, Robert Archibald, suffered serious and what may be permanent injuries that include, but are not limited to the following:

a. comminuted femur fracture;

b. stiff knee;

c. scarring;

d. multiple surgeries requiring the placement of screws and other ...


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