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Brenda Louise Sheerer Individually and As Parent and v. W. G. Wade Shows

November 26, 2012

BRENDA LOUISE SHEERER INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF C.S., A MINOR, PLAINTIFF,
v.
W. G. WADE SHOWS, INC., : DEFENDANT.



The opinion of the court was delivered by: Judge Richard P. Conaboy

MEMORANDUM

I. Procedural and Factual Background.

We consider here both a Motion for Summary Judgment (Doc. 28) and a Motion in Limine (Doc. 30) filed by Defendant W. G. Wade Shows, Inc. ("Wade") on September 4, 2012. These motions have been fully briefed by the parties (Docs. 29, 31, 32, 34 and 38) and are ripe for disposition.

Plaintiff Brenda Louise Sheerer ("Plaintiff") is the mother of a son who suffered serious injuries to his arm while riding a mechanical contrivance called "Fright Night" at the Wayne County Fair near Honesdale, Pennsylvania on August 15, 2009. Plaintiff's son C. S., a minor who is both deaf and afflicted by Down's Syndrome, rode Fright Night on the date in question with his older brother, James Fox. Plaintiff alleges that, at some point during the ride, C. S.'s arm became caught between the passenger cart in which he and his brother were riding and a wall inside the trailer that housed the ride. C. S.'s injury was diagnosed as a displaced fracture of the right humerus.

As a result of the events of August 15, 2009, Plaintiff filed the instant lawsuit, a negligence action based upon diversity of citizenship, on August 12, 2011. (Doc. 1). Plaintiff's complaint alleges that the event of August 15, 2009 resulted in severe injuries to C.S. and "was caused by the carelessness, negligence, and reckless conduct of the Defendant, W. G. Wade Shows, Inc." (Doc.1, ¶ 15). *fn1 Plaintiff has provided greater detail as to its allegations of Wade's alleged negligence by way of an expert report prepared by Thomas P. Lacek, P.E. Lacek's findings include that Fright Night is hazardous due to a combination of tight clearances, a lack of restraints, and the risk of unpredictable movement by patrons. Lacek found further that, in his opinion, Wade's alleged negligence resided in its failure to eliminate these hazards or take other means to minimize the dangers to riders.

II. Defendant's Motion for Summary Judgment.

A. Summary Judgment Standard.

Summary judgment is appropriate when the movant demonstrates there is no "genuine issue as to any material fact." Fed. R. Civ. P. 56(a). "[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson, 477 U.S. at 248). In determining whether a genuine issue of fact exists, a court must resolve all factual doubts and draw all reasonable inferences in favor of the nonmoving party. Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004).

The initial burden is on the moving party to show an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986) (citations omitted). The moving party may meet this burden by "pointing out to the district court [] that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Id. at 325. The non-moving party may not rest on the bare allegations contained in his or her pleadings, but is required by Federal Rule of Civil Procedure 56 to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Id. at 324.

"In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when conflicting evidence must be weighed, a full trial is usually necessary.

B. Defendant's Argument that Plaintiff's Comparative Negligence Bars Recovery.

Defendant's comparative negligence argument is based partially upon its assertion that large signs were posted near the entrance to Fright Night advising patrons of the need to keep their appendages within the confines of the car. It is based also upon Plaintiff's deposition testimony to the effect that she understood the need to instruct C. S. to remain within the car and that both she and James Fox testified that they gave C. S. these instructions (Doc 29 at 6-7). On this basis, Defendant argues that, as a matter of law, Plaintiff's negligence in allowing C. S. to get on the ride exceeded any negligence that may be imputed to Wade and, thus, Plaintiff's allegedly greater degree of negligence bars any recovery for her son's injuries.

However, as Wade itself acknowledges, "it is generally within the province of the jury to determine whether a Plaintiff's negligence serves as a bar to recovery." (Doc. 29 at 7). This observation is in accord with relevant caselaw. See O'Brien v. Martin, 638 A.2d 247, 249 (Pa. Super. 1994). It has also been held that comparative negligence may not be found as a matter of law unless the facts so clearly reveal the plaintiff's negligence that reasonable minds could not disagree as to its existence. Gregorius v. Safeway Steel Scaffolds Co., 187 A.2d 646 (Pa. 1963). While it may well be that Plaintiff will have a plausible comparative negligence argument to develop at trial, we cannot conclude as a matter of law on the record as ...


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