The opinion of the court was delivered by: Padova, J.
Skirmish, U.S.A., Inc. ("Skirmish") asks that we reconsider a portion of our June 15, 2009 Memorandum and Order granting in part and denying in part Skirmish's Motion for Summary Judgment.*fn1 Skirmish contends that we erred in denying its Motion for Summary Judgment as to Plaintiff's claim for gross negligence and Plaintiff's request for punitive damages. Skirmish also requests, in the alternative, that we certify for immediate appellate review the question of whether Pennsylvania law recognizes a claim for gross negligence. Both Skirmish's request for reconsideration and its request for certification for immediate appeal are denied.
"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985).
A motion for reconsideration will only be granted if the moving party establishes: (1) the existence of newly available evidence; (2) an intervening change in the controlling law; or (3) a need to correct a clear error of law or prevent manifest injustice. Pub. Interest Research Group of N.J. v. Magnesium Elektron, 123 F.3d 111, 116-17 (3d Cir. 1997). "Reconsideration of a previous order is an extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources." Moyer v. Italwork, Civ. A. No. 95-2264, 1997 WL 312178, at *3 (E.D. Pa. June 3, 1997) (internal quotation omitted). We confine our review to the third ground, as Skirmish seeks reconsideration only on the basis that our denial of its Motion for Summary Judgment with respect to Plaintiff's claim for gross negligence and request for punitive damages was a clear error of law.
Plaintiff asserted claims against Skirmish for both negligence and gross negligence. We granted summary judgment to Skirmish with respect to Plaintiff's claim for negligence because that claim was waived by a Waiver & Release that Plaintiff had executed prior to engaging in paintball activities at Skirmish's facility. Martinez v. Skirmish, U.S.A., Inc., Civ. A. No. 07-5003, 2009 WL 1676144, at *12 (E.D. Pa. June 15, 2009). However, we denied Skirmish's Motion for Summary Judgment as to Plaintiff's gross negligence claim, because the Waiver & Release did not explicitly and clearly convey that Martinez had surrendered his right to compensation for Skirmish's gross negligence. Id. at *11. Skirmish now asks us to reconsider our decision on the ground that Pennsylvania does not recognize a cause of action for gross negligence. Skirmish relies on Ferrick Excavating & Grading Co. v. Senger Trucking Co., 484 A.2d 744, 749 (Pa. 1984) (noting that, while "there are no degrees of negligence in Pennsylvania[,]" Pennsylvania does recognize "differing standards of care . . ."); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 462 (3d Cir. 1990) (stating that "degrees of negligence are not generally recognized under Pennsylvania common law" (citing Ferrick, 484 A.2d at 749)); and Floyd v. Brown & Williamson Tobacco Corp., 159 F. Supp. 2d 823, 828 (E.D. Pa. 2001) ("Under Pennsylvania law, degrees of negligence are not generally recognized. Rather the term 'gross negligence' refers to a standard of care, rather than to a separate claim." (citing Ferrick, 484 A.2d at 749)).
Although degrees of negligence may not be recognized under Pennsylvania common law, Pennsylvania does apply differing standards of care for ordinary negligence and gross negligence. See In re Scheidmantel, 868 A.2d 464, 485 (Pa. Super. Ct. 2005). "Pennsylvania law has employed the concept [of gross negligence] since the early days of the Commonwealth." Id. at 484 (citing Eddowes v. Niell, 4 Dall. 133, 1 L.Ed. 772 (Pa. 1793); Hood's Executors v. Nesbit, 2 Dall. 137, 1 L.Ed. 321 (Pa. 1792) and Purviance v. Angus, 1 Dall. 180, 1 L.Ed. 90 (Pa. 1786)). Consequently, the issue before us on Skirmish's Motion for Summary Judgment was whether an exculpatory agreement that specifically releases only ordinary negligence also releases negligence claims premised on the standard of care for gross negligence. The many courts that have examined this issue have found that "if . . . an exculpatory clause . . . excludes or limits only negligent conduct and is not broad enough to cover conduct that may be described as grossly negligent, willful or wanton, liability is neither excluded nor limited if the conduct alleged is found to be grossly negligent, willful or wanton." Neuchatel Ins. v. ADT Sec. Sys., Inc., Civ. A. No. 96-5396, 1998 WL 966080, at *7 n.4 (E.D. Pa. Nov. 5, 1998); see also Tayar v. Camelback Ski Corp., 957 A.2d 281, 287 (Pa. Super. Ct. 2008) (finding that an exculpatory agreement that released ordinary negligence claims did not release a claim based upon reckless or grossly negligent conduct); Royal Indem. Co. v. Sec. Guards, Inc., 255 F. Supp. 2d 497, 503 (E.D. Pa. 2003) (citing Neuchatel, 1998 WL 966080, at *7 n.4); Nicholson v. Mount Airy Lodge, Inc., Civ. A. No. 96-5381, 1997 WL 811935, at *4 (E.D. Pa. Dec. 29, 1997) (permitting plaintiff to go forward to trial with a claim for gross negligence that was not waived by his exculpatory agreement with defendant, despite defendant's argument that Pennsylvania does not recognize degrees of negligence, because "[t]he express language of the agreement reserves plaintiff's right to assert a claim against defendant for any conduct that amounts to gross negligence"). Consequently, "whether gross negligence is considered a standard of care violated under a negligence theory, or whether it is a separate cause of action, is a distinction with no practical relevance because Pennsylvania consistently has recognized that limitation of liability clauses which merely mention 'negligence,' . . . do not limit damages arising out of gross negligence." Royal Indem., 255 F. Supp. 2d at 505-06. We conclude, accordingly, that our denial of Skirmish's Motion for Summary Judgment as to Plaintiff's claim for gross negligence was not clear error.
Skirmish also asks us to reconsider our denial of its Motion for Summary Judgment as to Plaintiff's claim for gross negligence because there is no evidence on the record to support a claim for gross negligence. We fully considered this argument in connection with Skirmish's Motion for Summary Judgment. Martinez, 2009 WL 1676144, at *16. "A motion for reconsideration is not an opportunity for an unsuccessful party to rehash arguments previously considered by the Court." Gen. Elec. Capital Corp. v. Stone, Civ. A. No. 04-1691, 2005 WL 746420, at *1 n.1 (E.D. Pa. Mar. 29, 2005) (citing Keyes v. Nat'l R.R. Passenger Corp., 766 F. Supp. 277, 280 (E.D. Pa. 1991)). Skirmish has not presented any new facts or arguments in support of its position. Consequently, we find that our previous decision was not a clear error of law. Skirmish's Motion for Reconsideration is, accordingly, denied as to Plaintiff's claim for gross negligence.
Skirmish also argues that we committed clear error by denying its Motion for Summary Judgment with respect to Plaintiff's request for punitive damages. In denying Skirmish's Motion as to this issue, we equated Plaintiff's burden of proof as to gross negligence with his burden of proof as to punitive damages: "[a]s we have found that there are genuine issues of material fact as to Martinez's claim for gross negligence, we also find that there are genuine issues of material fact as to whether the facts of this case could support an award of punitive damages." Martinez, 2009 WL 1676144, at *16. This was, indeed, incorrect, as the standards are not identical.
"A showing of mere negligence, or even gross negligence, will not suffice to establish that punitive damages should be imposed." Phillips v. Cricket Lighters, 883 A.2d 439, 445 (Pa. 2005) (footnote omitted) (citing SHV Coal, Inc. v. Cont'l Grain Co., 587 A.2d 702, 705 (Pa. 1991). Consequently, in order to establish entitlement to punitive damages, "plaintiff must adduce evidence which goes beyond a showing of negligence, evidence sufficient to establish that the defendant's acts amounted to 'intentional, willful, wanton or reckless conduct . . . .'" Id. (quoting SHV Coal, 587 A.2d at 704). "A defendant acts recklessly when 'his conduct creates an unreasonable risk of physical harm to another [and] such risk is substantially greater than that which is necessary to make his conduct negligent.'" Id. (quoting Hutchison v. Luddy, 870 A.2d 766, 771 (Pa. 2005)). The question of whether a defendant's conduct is so reckless or outrageous as to justify the imposition of punitive damages is generally for the finder of fact. Soufflas v. Zimmer, Inc., 474 F. Supp. 2d 737, 756 (E.D. Pa. 2007) (citing SHV Coal, 587 A.2d at 705). Consequently, we "decide the viability of a punitive damages claim under Pennsylvania law 'only when no reasonable inference from the facts alleged supports a punitive award.'" Id. (quoting Anderson v. Nationwide Ins. Enter., 187 F. Supp. 2d 447, 460 (W.D. Pa. 2002) and citing Eagle Traffic Control v. Addco, 889 F. Supp. 200, 201 (E.D. Pa. 1995)).
There is evidence on the record of this action that Skirmish rented goggles to Plaintiff that were old, in poor condition, and fit loosely on Plaintiff, and that no one from Skirmish showed Plaintiff how to tighten his goggles. (Martinez Dep. at 60-61, 69, 113, 198-99.) There is also evidence that Plaintiff tried to inform a referee that his goggles were loose, but the referee just waved him back to the game and did not listen to his concerns. (Id. at 115-16.) There is also evidence on the record before us that the VForce Armor Rental Field Black Goggles Skirmish rented to Plaintiff were defectively designed in that they did not contain a vertical restraint that would prevent them from moving vertically on the wearer's face. (12/8/08 Trident Rpt. at 7 ¶ f.) The design thus allowed the goggles to slip during circumstances common to participation in paintball. (Id.) There is additional evidence that the goggles Skirmish rented to Plaintiff were defectively maintained in that the rear strap was old and worn at the time it was used by Plaintiff, leading to slippage. (Id. at 7 ¶ e.) Finally, there is evidence that alternative goggle designs existed at the time of Plaintiff's injury that would have cured the ...