United States District Court, M.D. Pennsylvania
A.M., a minor, by and through her parent and natural guardian, GRETCHEN FORGIONE, and GRETCHEN FORGIONE in her own right, Plaintiffs
LANDSCAPE STRUCTURES, INC., Defendant/Third-Party Plaintiff
CHAMBERSBURG AREA SCHOOL DISTRICT, HAMILTON HEIGHTS ELEMENTARY SCHOOL, and GEORGE ELY ASSOCIATES, INC., Third-Party Defendants
William W. Caldwell United States District Judge
action arises from injuries sustained by a minor child while
playing on playground equipment during recess at her
elementary school. Plaintiff Gretchen Forgione is the adult
parent of minor Plaintiff A.M.,  who, on June 8, 2010, was
injured while playing on a playground structure called a
PlayBooster, specifically a component known as a Track Ride.
Defendant and Third-Party Plaintiff Landscape Structures,
Inc. (Landscape) manufactures playground structures for
children and manufactured the PlayBooster and Track Ride at
issue. Third-Party Defendant Chambersburg Area School
District (Chambersburg) is a public school district in
Franklin County, Pennsylvania that operates Third-Party
Defendant Hamilton Heights Elementary School (Hamilton
Heights), where A.M. was enrolled at the time she was
injured; both Chambersburg and Hamilton Heights
(collectively, “School Defendants”) purchased and
installed the Track Ride, and maintained the premises of the
elementary school playground where A.M. was injured. (Docs.
69, 79 & 81, School Defendants' SMF, ¶¶
1-5, admitted by Landscape); (Docs. 54 & 58, Landscape
SMF ¶¶ 8-9, admitted by Plaintiffs).
this court are two motions for summary judgment. First,
Landscape seeks summary judgment against Plaintiffs based on
Pennsylvania's statute of repose, 42 Pa. Cons. Stat.
§ 5536, arguing that the PlayBooster and Track Ride are
improvements to real property, that more than twelve years
has passed since they were furnished to the School
Defendants, and that Landscape is protected under the
statute. (Doc. 53 at 2-4). Second, the third-party School
Defendants seek summary judgment against Landscape, arguing
that they are entitled to judgment as a matter of law because
there is insufficient evidence to support Landscape's
claims against them. (Doc. 68 at 4-5). For the reasons that
follow, we find that the statute of repose extinguishes
Plaintiffs' claims and will therefore grant
Landscape's motion. Accordingly, we will dismiss as moot
the School Defendants' motion, which stems from
third-party claims for contribution and indemnity.
4, 2012, Plaintiffs filed a complaint in the Franklin County
Court of Common Pleas against Landscape, alleging claims of
strict products liability, negligence, and breach of
warranties. (Doc. 1-1 at 12-17). On July 17, 2014, Landscape
removed the case to this court based on diversity
jurisdiction, 28 U.S.C. § 1332; Plaintiffs are residents
of Pennsylvania and Landscape is a corporation with its
principal place of business in Minnesota. (Docs. 1 &
1-1). On January 29, 2015, Plaintiffs moved to join as a
defendant George Ely Associates, Inc. (Ely), a Pennsylvania
sole proprietorship that sold the Track Ride as an
independent contractor and manufacturer's representative
for Landscape. (Doc. 13); (Doc. 67-1, Ely Dep. 6:22-16:25,
Oct. 28, 2016 (“Ely Dep.”)). The following day,
Landscape moved for leave to file a third-party complaint
against the School Defendants based on their involvement in
purchasing, installing, and maintaining the PlayBooster and
Track Ride. (Doc. 14). Believing Plaintiffs' motion to
join Ely to be an attempt to destroy diversity of
citizenship, Landscape opposed the motion. (Doc. 15 at 1-2).
Plaintiffs then proposed that Landscape add Ely as a
third-party defendant. (Doc. 18 at 2). On March 30, 2015, we
held a conference call to discuss the parties' positions.
April 27, 2015, Landscape amended its motion for leave to
file a third-party complaint, which we granted. (Docs. 19
& 21). On May 1, 2015, Landscape filed a third-party
complaint against both Ely and the School Defendants, seeking
to hold each liable for contribution and indemnity. (Doc.
23). Although not named in that complaint, Plaintiffs filed
an answer asserting state law crossclaims against Ely and the
School Defendants. (Doc. 24). On June 30, 2015, the School
Defendants moved to dismiss Plaintiffs' crossclaims and
sections of Landscape's third-party complaint. (Docs. 28
& 29). We denied the motion as to Landscape's
third-party complaint, but granted the motion as to
Plaintiffs' crossclaims, which we dismissed for lack of
subject matter jurisdiction; we also sua sponte
dismissed Plaintiffs' crossclaims against Ely for lack of
subject matter jurisdiction. (Doc. 41 at 8-10); (Doc. 42).
After close of discovery, Ely was dismissed as a third-party
defendant following the filing of a stipulation of dismissal
signed by all parties pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(ii). (Doc. 73).
remaining claims are Plaintiffs' claims against Landscape
and Landscape's third-party claims against the School
Defendants. On October 11, 2016, Landscape filed its summary
judgment motion, arguing that Pennsylvania's statute of
repose extinguishes Plaintiffs' claims. (Doc. 53). On
December 9, 2016, the School Defendants filed a summary
judgment motion, arguing that there is insufficient evidence
to support Landscape's claims for contribution and
indemnity against them. (Doc. 68). The motions are ripe for
Standard of Review
Rule of Civil Procedure 56 permits a court to enter summary
judgment if the moving party “shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Material facts are those “that could affect the
outcome” of the proceeding, and “a dispute about
a material fact is ‘genuine' if the evidence is
sufficient to permit a reasonable jury to return a verdict
for the non-moving party.” Lamont v. New
Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
moving for summary judgment has the initial burden of stating
the basis for the motion and identifying those portions of
the record-depositions, documents, affidavits, admissions,
interrogatory answers, or other materials-that it believes
demonstrate an absence of a genuine dispute of material fact.
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364
F.3d 135, 145 (3d Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)); Fed.R.Civ.P.
56(c)(1)(A). “Although the initial burden is on the
summary judgment movant to show the absence of a genuine
issue of material fact, ‘the burden on the moving party
may be discharged by showing-that is, 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.”
Conoshenti, 364 F.3d at 140 (quoting Singletary
v. Pa. Dep't. of Corr., 266 F.3d 186, 192 n.2 (3d
Cir. 2001)). In assessing whether the moving party satisfied
its burden, “we do not engage in credibility
determinations, and we view the facts and draw all reasonable
inferences in the light most favorable to the
nonmovant.” Pearson v. Prison Health Serv.,
850 F.3d 526, 533 (3d Cir. 2017) (citations omitted).
“It is well settled that only evidence which is
admissible at trial may be considered in ruling on a motion
for summary judgment.” Countryside Oil Co., v.
Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995);
see also Fed.R.Civ.P. 56(c)(2).
the moving party shows an absence of evidence to support the
nonmoving party's claims, then the nonmoving party must
rebut the motion with facts in the record and cannot rest
solely on assertions in the pleadings. Berckeley Inv.
Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).
The nonmoving party must present affirmative evidence that
must be adequate as a matter of law to sustain a judgment in
its favor; the evidence must not be colorable, conclusory, or
speculative. Davis v. Pa. Tpk. Comm'n, 204
F.Supp.3d 793, 800 (M.D. Pa. 2016) (citing Anderson,
477 U.S. at 249-50). If the nonmoving party “fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden at trial, ” summary judgment
is appropriate. Celotex, 477 U.S. at 322.
against these legal guideposts, we review the facts and draw
all reasonable inferences in a light most favorable to the
nonmoving parties-Plaintiffs A.M. and Gretchen Forgione, and
Third-Party Plaintiff Landscape.
Transaction for Hamilton Heights' PlayBooster & Track
1988, the School Defendants, apparently through their
Parent-Teacher Association (PTA), sought to purchase a
PlayBooster from Landscape through Landscape's
manufacturer representative, George Ely, and his sole
proprietorship, Ely Associates, Inc. (Docs. 69, 79, & 81,
School Defendants' SMF, ¶¶ 7-9, partially
admitted by Landscape); (Doc. 53-2, Fitzpatrick Aff.
¶¶ 3-4); (Doc. 67-4, Peters, Jr. Dep. 14:6-17:2,
Oct. 17, 2016 (“Peters Dep.”)). A PlayBooster is
a “componentized metal play system” that combines
ground-level and climbing events with overhead activities,
and consists of mixing and matching combinations and
configurations of various pieces of playground equipment.
(Doc. 53-2 at 71-95); (Doc. 67-2, Fitzpatrick Dep.
103:24-104:13, Oct. 18, 2016 (“Fitzpatrick
Dep.”). A PlayBooster structure can include an array of
equipment components, such as swings, slides, tunnels,
bridges, ladders, triangular and rectangular platforms, or a
Track Ride, among other options. (Doc. 53-2 at 13-18, 20-49,
164-65). The components are held together by clamps,
connected by platforms, and cemented into the ground by
posts. (Doc. 53-2, 24-31); (Fitzpatrick Dep. 49:1-50:20,
103:24-104:13). PlayBoosters can be “designed to meet
any site or budget limitations, ” and, for each
component, a purchaser can choose from “a variety of
colors and materials for an individual[ized] look.”
(Doc. 53-2 at 80).
1988, the typical practice for ordering a PlayBooster, as
described by George Ely, was that interested buyers would
contact Ely, who would provide and review sales and product
information with the buyer about the various structures
manufactured by Landscape. (Ely Dep. 27:20-29:1);
(Fitzpatrick Dep. 12:2-15); (Doc. 53-2 at 71-170). Ely might
look at the playground site and meet with the buyers to
acquire more information about their specifications. (Ely
Dep. 28:5-14). Ely and the buyer would pick a structure, such
as the PlayBooster, develop a “wish list” that
included the types and materials of the structure's
components, and discuss the playground's site space
layout and the buyer's budget. (Ely Dep. 18:19-23:14,
26:12-28:22); (Fitzpatrick Dep. 9:20-10:4). Ely communicated
these specifications to Landscape, who then created a design
drawing and price quote for the proposed structure. (Ely Dep.
22:19-29:1, 49:1-50:20, & Ex. 1-2).
record reveals the following details regarding the School
Defendants' PlayBooster transaction. On or about May 16,
1988,  the School Defendants selected from a list
of available PlayBooster components offered by Landscape and
a quote was prepared, which documented their request for an
individualized PlayBooster with the following components: a
firepole, vertical ladder, tunnel slide, corkscrew climber,
several platforms and support posts, and a Track Ride. (Ely
Dep. 21:7-23:14 & Ex. 2-3); (Doc. 53-2 at 11-18);
(Fitzpatrick Dep. 18:14-20:13). On September 15, 1988, Ely
and the School Defendants executed a purchase order for the
PlayBooster. (Doc. 53-2 at 4-11); (Ely Dep. 29:8-35:21 &
Ex. 4); (Fitzpatrick Dep. 20:22-22:1). On September 29, 1988,
Landscape executed an order acknowledgement and created a
“Plan/Custom” design drawing (“site plan
drawing”) of Hamilton Heights' PlayBooster,
which set forth the dimensions and layout of each of the
structure's components. (Doc. 53-2 at 4, 12);
(Fitzpatrick Dep. 34:21-36:3). Although it was typical in the
transaction process, the record does not reveal discussions
between the School Defendants and Landscape or Ely regarding
the PlayBooster's specifications or its site space layout
in developing the site plan drawing. (Ely Dep. 18:16-29:1);
(Fitzpatrick Dep. 122:4-123:3).
October 1988, Landscape manufactured and shipped the
PlayBooster and its components to Hamilton Heights. (Doc.
53-2 at 6-9). The shipment included parts for each component,
the site plan drawing, a sales catalog, and construction,
installation, and maintenance guidelines (collectively
“guidelines”). (Fitzpatrick Dep. 34:21-36:19,
104:14-107:24). Landscape's guidelines set forth
eight-steps for purchasing, installing, and
maintaining playground equipment, and
eleven-steps for constructing the entire PlayBooster
structure. (Doc. 53-2 at 24-25 & 78-79);
(Fitzpatrick Aff. ¶¶ 5, 7). For each equipment
component, such as the Track Ride, the guidelines included a
list of parts, specifications, a pictorial assembly diagram,
and installation instructions. (Doc. 53-2 at 26-49). The
guidelines, which were periodically updated based on new
component designs, provided instructions for maintaining each
component and explained how to assemble and combine each
component using clamps, platforms, and posts to form the
entire PlayBooster structure. (53-2 at 24-70); (Fitzpatrick
around October 28, 1988, a common carrier delivered to
Hamilton Heights the PlayBooster's components and parts,
as well as Landscape's guidelines and site plan drawing.
(Doc. 53-2 at 4-8); (Fitzpatrick Dep. 16:4-17:18, 22:6-25:21,
34:21-36:19); (Docs. 69, 79, & 81, School Defendants'
SMF, ¶¶ 10-11, admitted by Landscape). Some time
following delivery, members of Hamilton Heights' PTA
constructed and installed the PlayBooster, including its
Track Ride component; Landscape and Ely were not involved in
construction, installation, or maintenance. (Ely Dep.
16:20-25, 38:1-46:14); (Fitzpatrick Dep. 25:22-28:7); (Doc.
67-3, Pryor Dep. 15:14-18:3, Oct. 17, 2016 (“Pryor
Dep.”); (Docs. 69, 79, & 81, School Defendants'
SMF, ¶¶ 12-13, admitted by Landscape). Since
installation, the PlayBooster and its Track Ride component
have not been moved or reconfigured. (Pryor Dep. 32:6-44:23,
63:15-64:8); (Peters Dep. 46:3-47:22); (Fitzpatrick Aff.
¶ 8); (Doc. 53-2 at 26-31); (Fitzpatrick Dep.
Design of Hamilton Heights' Track Ride
Ride is a PlayBooster component resembling a zip line, where
children stand on a platform, grasp a handlebar on a trolley
attached to an overhead beam, step off the platform, and,
while holding the handlebar, glide above ground along a steel
track to a platform on the other end of the beam. (Doc. 53-2
at 44-45 & 59-79); (Fitzpatrick Dep. 59:7-62:6,
104:10-13). According to Landscape's site specifications,
the design of Hamilton Heights' Track Ride was such that
it was affixed to two triangular platforms connected by an
overhead beam, which spanned just over ten feet in length.
(Fitzpatrick Aff. ¶ 6); (Doc. 68-11); (Fitzpatrick Dep.
59:7-62:6). The triangular platforms were fourteen inches
above ground, and the distance from the platform to the
overhead beam was seventy-eight inches. (Doc. 53-2 at 44-45).
Accordingly, the total distance from the top of the overhead
beam to the ground-the “fall height”-was
ninety-two inches. (Fitzpatrick Dep. 63:8-64:19, 72:4-73:19,
129:1-5); (Fitzpatrick Aff. ¶ 6).
the anticipated use of Hamilton Heights' Track Ride was
for users to begin riding while standing on a fourteen-inch
triangular platform, its design was such that one of the
triangular platforms was attached to a taller, “main
structure” platform, which was forty-two inches above
ground. (Doc. 68-5 at 66-69); (Fitzpatrick Dep. 82:4-15);
(Doc. 68-11). A vertical ladder connected the triangular and
main structure platforms, and a u-shaped hand loop helped
children climb the ladder from the triangular platform to the
main structure platform. (Doc. 68-11); (Fitzpatrick Dep.
79:22-83:18, 149:13-150:2). Because the main structure
platform was adjacent-and in close proximity-to the Track
Ride, children who were not tall enough to access the Track
Ride from the designated triangular platform could access it
using the main structure platform. (Doc. 68-5 at 69). To
access the Track Ride in this manner, children could reach
over the hand loop, grasp the Track Ride's handlebar,
maneuver around the loop, and start riding from the main
structure platform. (Doc. 68-5, A.M. Dep. 17:2-14, Ex. 2 Oct.
28, 2016 (“A.M. Dep.”)).
8, 2010, Plaintiff A.M. was a first grade student at Hamilton
Heights Elementary School and was playing on the PlayBooster
during her lunch recess. (Docs. 69, 79, & 81, School
Defendants' SMF, ¶¶ 25-26, admitted by
Landscape); (A.M. Dep. 4:12). It does not appear that A.M.
played on the Track Ride prior to this day, and, after
watching other kids play on it, A.M. waited in line to ride.
(A.M. Dep. 20:20-23:1, 42:2-23); (Doc. 68-4, Forgione Dep.
10:10-25, Oct. 28, 2016 (“Forgione Dep.”); (Docs.
69, 79, & 81, School Defendants' SMF, ¶ 27,
admitted by Landscape). A.M. tried accessing the Track Ride
from the lower, triangular platform, but was too short to
reach the handlebar. (A.M. Dep 22:2-9, 29:16-19). According
to Landscape's product compliance engineer, if a child
could not reach the handlebar from the triangular platform,
they were not an intended user of the Track Ride.
(Fitzpatrick Dep. 69:15-70:9, 77:9-84:15). A.M. then tried to
access the Track Ride from the taller, adjacent main
structure platform, which she had seen done by other students
on previous occasions. (A.M. Dep 22:2-9, 26:8-11, 29:16-19,
31:17); (Docs. 69, 79, & 81, School Defendants' SMF,
¶¶ 27-28, admitted by Landscape).
leaned over the hand loop to grab the Track Ride handlebar
from the main structure platform, but was hesitant to step
off the platform. (A.M. Dep. 17:2-14, 24:14-25:2, 27:1-3,
43:5-44:18); (Docs. 69, 79, & 81, School Defendants'
SMF, ¶¶ 28-30, admitted by Landscape); (Forgione
Dep. 29:25-31:15). A.M. was “still considering”
whether to ride when a fellow student in line behind her
became impatient and pushed her off the platform. (A.M. Dep.
32:19-40:2, 43:5-14, 54:21-55:16). After being unexpectedly
pushed, A.M.'s body swung around the hand loop and she
glided above ground across the Track Ride. (Docs. 69, 79,
& 81, School Defendants' SMF, ¶ 31, admitted by
Landscape); (Forgione Dep. 9:7-24) (A.M. Dep. 26:18-27:17).
A.M. reached the end of the Track Ride, but was too short for
her feet to reach the platform on the other end to dismount.
(A.M. Dep. 36:10-16). A.M. lost her grip on the handlebar due
to sweaty hands, dropped onto the platform's ledge, and
fell backward onto the ground, landing on her right elbow.
(Docs. 69, 79, & 81, School Defendants' SMF,
¶¶ 32-34, admitted by Landscape); (A.M. Dep.
was sent to the school nurse, was picked up from school and
brought to a hospital by her mother, and was ultimately
diagnosed with a broken elbow and referred for surgery. (Doc.
68-6, Altland Dep. 8:17-9:25, 11:11-14, Oct. 28, 2016
(“Altland Dep.”); (Forgione Dep. 16:1-19:19,
29:25-31:15); (Docs. 69, 79, & 81, School Defendants'
SMF, ¶¶ 35-43, partially admitted by Landscape);
(A.M. Dep. 40:16). Surgery occurred the following day, during
which “pins” and “screws” were
implanted in A.M.'s arm; the following week, she was
placed in an arm-length cast. (Forgione Dep. 19:23-23:4).
A.M. did not return to school that year, and her cast and the
implanted pins and screws were removed in August 2010.
(Forgione Dep. 22:5-26:3, 35:4-18); (Docs. 69, 79, & 81,
School Defendants' SMF, ¶¶ 44-45, admitted by
School Defendants' PlayBooster Maintenance and
PlayBooster construction guidelines advised that because
“falls are the most common playground accident, ”
a resilient safety surface “must be provided under and
around the PlayBooster.” (Doc. 53-2 at 25, 71-95, 167);
(Fitzpatrick Dep. 30:21-31:9, 90:7-91:15). The guidelines
recommended an adequate fall absorbing surface for impact
attenuation and to prevent head injuries. (Docs. 69, 79,
& 81, School Defendants' SMF, ¶¶ 15-16,
admitted by Landscape); (Fitzpatrick Dep. 90:7-92:1, 118:17-
23). The School Defendants used woodchips as a protective
surface underneath Hamilton Heights' PlayBooster, and
their maintenance department was charged with maintaining the
PlayBooster and its premises. (Pryor Dep. 6:12-13:13,
37:6-19); (Peters, Dep. 47:15-22). At the time of A.M.'s
fall, the department's procedures for inspecting and
maintaining the PlayBooster included a daily playground
safety checklist, annual woodchip replenishment, and an
annual equipment inspection. (Pryor Dep. 19:3-21:3).
custodial staff at Hamilton Heights completed a daily
inspection checklist of the PlayBooster and its premises.
(Pryor Dep. Ex. 1). The checklist required staff to monitor
various categories of playground safety, such as whether
equipment was loose or broken, and whether there were
sufficient woodchips underneath the equipment. (Id.)
For each safety category, custodial staff marked whether it
was “satisfactory” or “required
attention.” (Id.) The daily checklist
completed by Hamilton Heights' custodial staff on June 7,
2010, the day before A.M.'s fall, reveals that all safety
categories, including the adequacy of woodchips under the
PlayBooster, were marked satisfactory. (Id.) The
checklist, however, did not require documentation as to the
depth of woodchips, and the record does not indicate the
depth of woodchips underneath the PlayBooster in the time
leading up to A.M.'s fall. (Peters Dep. 30:1-33:6);
(Pryor Dep. 58:1-59:2).
School Defendants also purchased woodchips on an annual basis
for each of their playgrounds. (Pryor Dep. 31:14-33:18).
Every summer, the maintenance department tilled and
replenished the woodchips at their playgrounds, including
Hamilton Heights' PlayBooster. (Docs. 69, 79, & 81,
School Defendants' SMF, ¶¶ 17-18, partially
admitted by Landscape); (Peters Dep. 17:8-20:20, 30:1-24,
34:13-35:22) (Pryor Dep. 65:10-22). The annual replenishing
was “automatic, ” and a “stockpile”
of woodchips was preserved, from which the maintenance
department would level off areas at playgrounds on an
as-needed basis throughout the school year. (Pryor Dep.
33:21-36:17, 57:2-10); (Docs. 69, 79, & 81, School
Defendants' SMF, ¶¶ 17-18, partially ...