The opinion of the court was delivered by: Judge Caputo
Before the Court is Defendant Wallenpaupack Lake Estates ("WLE") Property Owners Association's motion for summary judgment. Ms. Bolyard is suing WLE for negligence for injuries she sustained while tubing on a hill located on its property. In its motion, WLE raises four arguments: (1) it satisfied the standard of care it owed Ms. Bolyard as either a trespasser or licensee on the WLE property; (2) its actions were not the proximate cause of her injuries; (3) it is immune from suit under Pennsylvania's Recreational Use of Land and Water Act (RULWA); and (4) Ms. Bolyard assumed the risk by knowingly and voluntarily tubing down the hill. The Court finds that Ms. Bolyard's status on the property and the proximate cause of her injuries are questions of fact for a jury. The Court further finds that the hill in question was not "land" under the RULWA and that the assumption of risk doctrine does not apply. Therefore, the summary judgment motion will be denied.
On January 19, 2008, Ms. Bolyard was visiting her boyfriend, Michael Dohn, who owned a home at WLE. WLE is a multi-acre community located in Wayne County, Pennsylvania containing over 1,300 residences and large swaths of undeveloped land. The couple decided to take their children snow tubing on an old ski slope. They did not tell any WLE personnel they were going tubing or ask permission. Both Mr. Dohn and his neighbor, Doug Bagnall, a WLE employee, testified that the slope was periodically used for sledding. Mr. Dohn also testified that there were no signs on the hill indicating that access to it was forbidden as there were for other parts of the property that were off limits. WLE's chief of public safety, Norman Kizer, however, testified that the ski slope was not used for any winter activities in the twenty-five years he worked on the property. At the time, Ms. Bolyard had not been snow tubing for a number of years. She proceeded down the hill, hit some sort of bump or rut, and went into a tree, suffering serious injuries. Ms. Bolyard then filed her complaint for negligence against WLE and it has now moved for summary judgment. The motion has been fully briefed and is ripe for review.
Summary judgment is appropriate 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 a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57.
The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
I. Ms. Bolyard's legal status on the WLE property
Pennsylvania law has long held that the duty a land possessor owes to a person who enters his land is to be determined based on whether the entrant is a trespasser, an invitee or a licensee. Palange v. City of Philadelphia, 433 Pa.Super. 373, 640 A.2d 1305, 1308 (Pa.Super.Ct.1994). The Restatement (Second) of Torts defines a trespasser as a person who enters or remains upon land in the possession of another without a privilege to do so. Id. The Restatement defines a licensee as "a person who is privileged to enter or remain on land only by virtue of the possessor's consent." Id. In Pennsylvania, a trespasser may recover for injuries sustained on land only if the possessor of land was guilty of wanton or willful negligence or misconduct. Rossino v. Kovacs, 553 Pa. 168, 172 (1998). A license to enter land does not extend beyond the area to which the permission applies. Porreca v. Atlantic Refining Co., 403 Pa. 171, 174 (1961). "A trespasser is one who enters the land of another without any right to do so or who goes beyond the rights and privileges which he or she has been granted by license or invitation." Oswald v. Hausman, 378 Pa. Super. 245, 253 (1988) (emphasis added). Finally, Pennsylvania courts have repeatedly held that "generally, the determination of whether an individual is an invitee, licensee, or trespasser is one of fact for the jury." Palange, 640 A.2d at 1307.
Here, WLE claims that even if Mr. Bolyard was rightfully on WLE's property as a guest of Mr. Dohn, she became a trespasser when she went tubing on the ski slope without permission. But Mr. Dohn testified that he saw people sledding on the hill over the years. He also testified were no signs posted prohibiting use of the slope as there were at other locations on the property that were off limits. The determination of Ms. Bolyard's legal status on the slope is one that should be decided by a jury.
II. The standard of care owed Ms. Bolyard as a licensee
The Restatement (Second) of Torts § 342 describes the duty of care owed to ...