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A.M. v. Landscape Structures, Inc.

United States District Court, M.D. Pennsylvania

May 19, 2017

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


          William W. Caldwell United States District Judge

         I. Introduction

         This 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., [1] 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).

         Before 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.

         II. Procedural History

         On June 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.

         On 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).

         The 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 disposition.

         III. Standard of Review

         Federal 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 (1986)).

         A party 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).

         Once 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.

         IV. Background

         Judged 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.

         A. Transaction for Hamilton Heights' PlayBooster & Track Ride

         In May 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).

         In 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).

         The record reveals the following details regarding the School Defendants' PlayBooster transaction. On or about May 16, 1988, [2] 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, [3] 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).

         In 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[4] for purchasing, installing, and maintaining playground equipment, and eleven-steps[5] 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 Dep. 133:18-140:12).

         On or 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. 38:22-39:2, 128:14-19).

         B. Design of Hamilton Heights' Track Ride

         A Track 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.[6] (Fitzpatrick Dep. 63:8-64:19, 72:4-73:19, 129:1-5); (Fitzpatrick Aff. ¶ 6).

         Although 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.”)).

         C. A.M.'s Fall

         On June 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).

         A.M. 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. 37:7-40:12, 53:10-25).

         A.M. 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 Landscape).

         D. School Defendants' PlayBooster Maintenance and Inspection

         Landscape's 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.[7] (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).

         The 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).

         The 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 ...

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