AUGUSTUS FELECCIA AND JUSTIN T. RESCH, Appellees
LACKAWANNA COLLEGE A/K/A LACKAWANNA JUNIOR COLLEGE, KIM A. MECCA, MARK D. DUDA, WILLIAM E. REISS, DANIEL A. LAMAGNA, KAITLIN M. COYNE AND ALEXIS D. BONISESE, Appellants
ARGUED: December 5, 2018
from the Order of the Superior Court at No. 385 MDA 2016
dated February 24, 2017, reconsideration denied April 26,
2017, Reversing the Judgment of the Lackawanna County Court
of Common Pleas, Civil Division, at No. 12-CV-1960 entered
February 2, 2016 and Remanding for trial.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
discretionary appeal arising from the dismissal of personal
injury claims on summary judgment, we consider whether the
Superior Court erred in 1) finding a duty of care and 2)
holding a pre-injury waiver signed by student athletes
injured while playing football was not enforceable against
claims of negligence, gross negligence, and recklessness.
After careful review, we affirm the Superior Court's
order only to the extent it reversed the trial court's
entry of summary judgment on the claims of gross negligence
and recklessness, and we remand to the trial court for
further proceedings consistent with this opinion.
Augustus Feleccia and Justin T. Resch, (collectively,
appellees) were student athletes who played football at
Lackawanna Junior College (Lackawanna), a nonprofit junior
college. See Complaint at ¶¶ 29, 30. At
all times relevant to this matter, the following individuals
were employed by Lackawanna and involved in its football
program: (1) Kim A. Mecca, the Athletic Director for
Lackawanna College who oversaw all of Lackawanna's
athletic programs, including the football program (AD Mecca);
(2) Mark D. Duda, the head coach (Coach Duda); (3) William E.
Reiss, an assistant and linebacker coach (Coach Reiss); (4)
Daniel A. Lamagna, an assistant and quarterback coach (Coach
Lamagna); (5) Kaitlin M. Coyne, hired to be an athletic
trainer (Coyne); and (6) Alexis D. Bonisese, hired to be an
athletic trainer (Bonisese) (collectively with Lackawanna
referred to as appellants). Id. at
¶¶31-34, 40, 41, 43, 44.
had customarily employed two athletic trainers to support the
football program. However, both athletic trainers
resigned in the summer of 2009 and AD Mecca advertised two
job openings for the position of athletic trainer. AD Mecca
received applications from Coyne and Bonisese, recent
graduates of Marywood University who had obtained Bachelor of
Science degrees in Athletic Training. AD Mecca conducted
telephone interviews with Coyne and Bonisese for the open
athletic trainer positions at Lackawanna. See Feleccia v.
Lackawanna College, 156 A.3d 1200, 1203 (Pa. Super.
time she applied and interviewed for the Lackawanna position,
Coyne had not yet passed the athletic trainer certification
exam, which she took for the first time on July 25, 2009, and
was therefore not licensed by the Board. Bonisese was also
not licensed, having failed the exam on her first attempt,
and still awaiting the results of her second attempt when she
applied and interviewed for the Lackawanna position.
Nevertheless, Lackawanna hired both Coyne and Bonisese in
August 2009 with the expectation they would serve as athletic
trainers, pending receipt of their exam results, and both
women signed "athletic trainer" job descriptions.
Id. After starting their employment at Lackawanna,
Coyne and Bonisese both learned they did not pass the
athletic trainer certification exam. Coyne informed AD Mecca
of her test results, and AD Mecca also learned Bonisese had
failed her second attempt at certification. Id. at
Mecca retitled the positions held by Coyne and Bonisese from
"athletic trainers" to "first
responders." Id. at 1204. AD Mecca notified
Coyne and Bonisese via email and written correspondence that
due to their failure to pass the certification exam, they
would function as "first responders" instead of
"athletic trainers." However, neither Coyne nor
Bonisese executed new job descriptions, despite never
achieving the credentials included in the athletic trainer
job descriptions they did sign. Appellants were also aware
the qualifications of their new hires was called into
question by their college professors and clinic supervisors.
See Id. More specifically, Shelby Yeager, a
professor for Coyne and Bonisese during their undergraduate
studies, communicated to AD Mecca her opinion that Coyne and
Bonisese were impermissibly providing athletic training
services in September 2009. Professor Yeager was aware
Lackawanna did not have any full-time athletic trainers on
staff and noted Coyne and Bonisese, as
recent graduates, were inexperienced and did not have the
required Board license. Professor Yeager stated that Coyne in
particular was "ill-equipped to handle the rigors of a
contact sport (like football) as an athletic trainer on her
own regardless of whether she managed to pass [the
certification] exam and obtain her state license."
Id., quoting Affidavit of Shelby Yeager.
With regard to Bonisese, Bryan Laurie, who supervised her as
a student, rated her performance as "below
average/poor" and provided his assessment that she was
not qualified to act as an athletic trainer in March of 2010.
Id., citing Affidavit of Bryan Laurie.
Resch started playing football at the age of six, and
continued playing through high school. Id. at
1204-05. Upon graduating from high school in 2008, Resch was
accepted at Lackawanna and, hoping to continue playing
football, met with Coach Duda prior to arriving for classes.
Resch tried out for the Lackawanna football team in the fall
of 2008. Resch not only failed to make the roster, but was
also placed on academic probation, so he was ineligible to
play football in the spring of 2009.
Feleccia also began playing football as a child at the age of
ten, and played through high school. Feleccia was recruited
by Coach Duda to play football at Lackawanna. See
id. Feleccia did not make the team in the fall of 2008,
but practiced with them during that time. During a scrimmage
in the fall of 2008, Feleccia tore the labrum in his left
shoulder, which was surgically repaired. Feleccia was also
placed on academic probation after the fall 2008 semester and
temporarily withdrew from Lackawanna. See id.
mid-January 2010, Resch and Feleccia returned to Lackawanna
for the spring semester with the aspiration to make the
football team. Id. Lackawanna required appellees to
fill out and sign various documents in a "participation
packet" before playing with the team, including a
"Waiver of Liability and Hold Harmless Agreement"
(the Waiver) and a form including an
"Information/Emergency Release Consent" (the
Consent). See Appellees' Brief in Opposition to
MSJ at Exhibit 18(b). Appellee Resch "skimmed" and
signed the Waiver on March 22, 2010. Feleccia, 156
A.3d at 1205. Feleccia also executed the Waiver on March 22,
2010. The Waiver provided as follows:
1. In consideration for my participation in _[Football]___
(sport), I hereby release, waive, discharge and covenant not
to sue Lackawanna College, its trustees, officers, agents,
and employees from any and all liability, claims, demands,
actions, and causes of action whatsoever arising out of or
related to any loss, damage, or injury, including death, that
may be sustained by me, or to any property belonging to me,
while participating in such athletic activity.
2. To the best of my knowledge, I am not aware of any
physical disability or health-related reasons or problems
which would preclude or restrict my participation in this
activity. I am fully aware of the risks and hazards connected
with _[Football]___ (sport), and I hereby elect to
voluntarily participate in said activity, knowing that the
activity may be hazardous to me and my property. I
voluntarily assume full responsibility for any risks of loss,
property damage, or personal injury, including death, that
may be sustained by me, or any loss or damage to property
owned by me, as a result of being engaged in such activity.
3. I have adequate health insurance necessary to provide for
and pay any medical costs that may directly or indirectly
result from my participation in this activity. I agree to
indemnify and hold harmless Lackawanna College, its trustees,
officers, agents, and employees, from any loss, liability,
damage or costs, including court costs and attorneys'
fees that may be incurred, due to my participation in said
4. It is my express intent that this Release and Hold
Harmless Agreement shall bind my family, if I am alive, and
my heirs, assigns and personal representative, if I am
deceased, and shall be deemed as a release, waiver, discharge
and covenant not to sue Lackawanna College, its trustees,
officers, agents and employees. I hereby further agree that
this Waiver of Liability and Hold Harmless Agreement shall be
construed in accordance with the laws of the Commonwealth of
In signing this release, I acknowledge and represent that I
have read the foregoing Waiver of Liability and Hold Harmless
Agreement, understand it and sign it voluntarily; no oral
representations, statements, or inducements, apart from the
foregoing written agreement, have been made; I am at least
eighteen (18) years of age and fully competent; and I execute
this Release for full, adequate and complete consideration
fully intending to be bound by the same.
Parent/Guardians' signature required for individuals
under eighteen (18) years of age.
attached as Exhibit A to Appellants' Answer with New
also signed the Consent that provided, in pertinent part, as
(1) I do hereby off[er] my voluntary consent to receive
emergency medical services in the event of an injury during
an athletic event provided by the athletic trainer, team
physician or hospital staff.
Consent attached as part of Exhibit 18(b) to Appellees'
Brief in Opposition to MSJ.
March 29, 2010, appellees participated in the first day of
spring contact football practice. The team engaged in a
variation of the tackling drill known as the "Oklahoma
Drill." Appellees had previously participated in the
Oklahoma Drill, or a variation of it, either in high school
or at Lackawanna football practices, and were aware the drill
would take place during practices. While participating in the
drill, both Resch and Feleccia suffered injuries. Resch
attempted to make a tackle and suffered a T-7 vertebral
fracture. Resch was unable to get up off the ground and Coyne
attended to him before he was transported to the hospital in
an ambulance. See Feleccia, 156 A.3d at 1207.
Notwithstanding Resch's injury, the Lackawanna football
team continued practicing and running the Oklahoma Drill.
Later that same day, Feleccia was injured while attempting to
make his first tackle, experiencing a "stinger" in
his right shoulder, i.e., experiencing numbness,
tingling and a loss of mobility in his right shoulder.
Id. Bonisese attended Feleccia and cleared him to
continue practice "if he was feeling better."
Id. Feleccia returned to practice and then suffered
a traumatic brachial plexus avulsion while making a tackle
with his right shoulder. Id.
filed suit against appellants, Lackawanna, AD Mecca, Coach
Duda, Coach Reiss, Coach Lamagna and Coyne and Bonisese,
asserting claims for damages caused by negligence, including
negligence per se. The complaint also sought
punitive damages, alleging appellants acted "willfully,
wantonly and/or recklessly." Complaint at
¶¶82, 97, 98, 102 & 103. Appellants filed
preliminary objections which were overruled, and filed an
answer with new matter raising defenses, including that the
Waiver precluded liability on all of appellees' claims.
close of discovery, appellants filed a motion for summary
judgment, relying primarily on the Waiver; appellants argued
they were entitled to judgment as a matter of law due to
appellees' voluntary release of appellants from any and
all liability for damages resulting from participation in the
Lackawanna football program. See Appellants'
Brief in Support of MSJ at 13. In response, appellees argued
Lackawanna "ran its Athletic Training Department in a
manner demonstrating a total disregard for the safety of its
student-athletes or the laws of the Commonwealth of
Pennsylvania." Appellees' Brief in Opposition to MSJ
at 1. Appellees argued appellants had required appellees to
sign the Consent for treatment by an "athletic
trainer," thus taking on a duty to provide an athletic
trainer, but then failed to provide an athletic trainer for
its football team. See id. at 18-20.
trial court granted summary judgment in favor of appellants.
The court ruled the Waiver: (1) did not violate public
policy; (2) was a contract between Lackawanna and college
students relating to their own private affairs, and (3) was
not a contract of adhesion. See Feleccia v. Lackawanna
College, 2016 WL 409711, at *5-*10 (Pa..Com.Pl. Civil
Div. Feb. 2, 2016), citing Chepkevich. v. Hidden Valley
Resort, L.P., 2 A.3d 1174 (Pa. 2010) (setting forth
elements of valid exculpatory agreements).
court then considered whether the Waiver was enforceable,
i.e., whether it "spells out the intention of
the parties with particularity and shows the intent to
release [Lackawanna] from liability by express
stipulation." Id. at *10, quoting
Chepkevich, 2 A.3d at 1191 (additional citations
omitted). The court noted the Waiver did not specifically use
the word "negligence" or mention the Oklahoma
Drill, but it was executed freely by appellees, and stated
they were fully aware of the risks and hazards in the
activity and "voluntarily assume[d] full responsibility
for any . . . personal injury" resulting from it.
Id. at *11, quoting the Waiver. The court
found the Waiver immunized appellants from liability because
it addressed the "risks and hazards" ordinarily
inherent in the sport of football. Id. at
*12. Finding the negligence claims barred,
the court ruled the claim for punitive damages also failed,
and discussion of the Waiver's applicability to those
allegations was unnecessary. Id. at *14 n.13. The
court concluded there was no genuine issue of material fact
and appellants were entitled to judgment as a matter of law
on the basis of the Waiver.
filed an appeal and the Superior Court
reversed. Although the panel agreed with the
trial court's holding the Waiver was valid under
Chepkevich, the panel disagreed that the Waiver
barred all of appellees' claims as a matter of law. The
panel first observed the Waiver was "not sufficiently
particular and without ambiguity" to relieve appellants
of liability for their own acts of negligence.
Feleccia, 156 A.3d at 1212-13, quoting
Chepkevich, 2 A.3d at 1189 (exculpatory clause is
unenforceable "unless the language of the parties is
clear that a person is being relieved of liability for his
own acts of negligence.").
panel also held the trial court erred in failing to address
appellees' allegations underlying their claim for
punitive damages, and whether the Waiver applied to preclude
liability based on those allegations. Id. at 1213.
The panel recognized this Court's jurisprudence holding
exculpatory clauses are not enforceable to preclude liability
for reckless conduct. Id. at 1214, citing Tayar
v. Camelback Skip Corp., 47 A.3d 1190 (Pa. 2012).
the panel's "most important" reason for
reversing the trial court's grant of summary judgment was
that, after reviewing the record in the light most favorable
to appellees as the non-moving parties, there were genuine
issues of material fact as to "whether the College's
failure to have qualified medical personnel at the March 29,
2010 practice constitute[d] gross negligence or
recklessness," and whether that failure caused
appellees' injuries or increased their risk of harm.
Id. at 1214, 1219. The panel's determination in
this regard was based on its view that Lackawanna had a
"duty of care to its intercollegiate student athletes .
. . to have qualified medical personnel available at the
football tryout on March 29, 2010, and to provide adequate
treatment in the event that an intercollegiate student
athlete suffered a medical emergency." Id. at
1215. The panel relied in part on Kleinknecht v.
Gettysburg College, 989 F.2d 1360 (3d Circ. 1993), where
the Third Circuit predicted this Court "would hold that
a special relationship existed between the [c]ollege and
[student-athlete] that was sufficient to impose a duty of
reasonable care on the [c]ollege." Id. at 1367.
The panel further held it was for a jury to decide whether
appellees signed the Waiver "unaware that
[Lackawanna's] athletic department did not include
qualified athletic trainers." Feleccia, 156
A.3d at 1219. Accordingly, the panel remanded the matter for
petition by appellants we granted allowance of appeal to
address following issues:
a. Is a Pennsylvania college required to have qualified
medical personnel present at intercollegiate athletic events
to satisfy a duty of care to the college's
b. Is an exculpatory clause releasing "any and all
liability" signed in connection with participation in
intercollegiate football enforceable as to negligence?
Feleccia v. Lackawanna College, 175 A.3d 221 (Pa.
2017) (per curiam).
matter presents pure questions of law, over which our
standard of review is de novo and our scope of
review is plenary. See In re Vencil, 638 A.3d 1,
11-12 (Pa. 2017). "[A]n appellate court may reverse the
entry of summary judgment only where it finds that the trial
court erred in concluding that the matter presented no
genuine issue as to any material fact and that it is clear
that the moving party was entitled to [a] judgment as a
matter of law." Phillips v. Cricket Lighters,
841 A.2d 1000, 1004 (Pa. 2003), citing Pappas v.
Asbel, 768 A.2d 1089 (Pa. 2001). We consider the
parties' arguments with these standards in mind.
Is a Pennsylvania college required to have qualified medical
personnel present at intercollegiate athletic events to
satisfy a duty of care to the college's
argue the Superior Court created a brand new common law duty
of care requiring colleges to have qualified medical
personnel available to render treatment at every practice and
every game. Appellants aver the Superior Court did so without
attempting to analyze the factors set forth in Althaus ex
rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000)
(before recognizing new duty of care courts must analyze the
relationship between the parties; the social utility of the
actor's conduct; the nature of the risk imposed and
foreseeability of the harm incurred; the consequences of
imposing a duty upon the actor; and the overall public
interest in the proposed solution). Appellants' Brief at
18-20, citing Feleccia, 156 A.3d at 1215. Appellants
assert that, in creating this new duty of care, the Superior
Court relied only on a decades-old, non-binding federal
decision. Id., citing Kleinknecht, 989 at 1371.
Appellants argue that, had the Superior Court applied the
Althaus factors instead, it would not have created
such a duty. Appellants' Brief at 20-22. Appellants argue
a proper analysis of these factors either weighs against the
creation of a new duty or is neutral. Accordingly, appellants
request we reverse the Superior Court's decision to the
extent it created a new duty.
respond that the panel did not create a new, onerous duty,
and that appellants actually failed to comply with existing
common law and statutory duties to have qualified medical
personnel available at intercollegiate athletic events.
Appellees refer to MPA provisions that set forth the
qualifications for an "athletic trainer" and the
manner in which they must perform their duties. Specifically,
appellees note the regulations implementing the MPA establish
restrictions and protocols for licensed athletic trainers,
and they also prohibit the use of the title "athletic
trainer" by any person without a Board-issued license.
See Appellees' Brief at 29-30, quoting
63 P.S. §422.51a ("An athletic trainer who meets
the requirements of this section shall be licensed, may use
the title 'athletic trainer' . . . and may perform
athletic training services. A person who is not licensed
under this section may not use the designation of licensed
athletic trainer, athletic trainer or any of the listed
abbreviations for that title, including 'L.A.T.' or
'A.T.L.,' or any similar designation.").
Appellees thus argue the Superior Court's holding
recognizes appellants have a duty to provide athletic
trainers at practices, who, by statute, should be qualified
medical personnel. Appellees' Brief at 31.
also submit appellants' claim the Superior Court ignored
the Althaus factors is disingenuous. Appellees note
the panel explicitly relied on Kleinknecht and,
although the federal decision predated Althaus, the
Third Circuit considered the same factors ultimately set
forth in Althaus. Appellees' Brief at 39-40,
citing Feleccia, 156 A.3d at 1215
(Kleinknecht court recognized: special relationship
between college and student-athlete requiring college to act
with reasonable care towards athletes; risk of severe
injuries during athletic activities was foreseeable; and
college acted unreasonably in failing to protect against
risk). In any event, appellees reiterate, the Superior Court
did not create a new common law duty, but rather recognized
the "duty of care is necessarily rooted in often
amorphous public policy considerations[.]"
Appellees' Brief at 38, quoting Althaus, 756
A.2d at 1169.
appellees observe appellants themselves undertook the duty to
protect their student-athletes by customarily hiring licensed
athletic trainers prior to 2009, and holding out Coyne and
Bonisese as "athletic trainers" in the
documentation regarding their employment, including executed
job descriptions, where Coyne and Bonisese acknowledged they
were required to have passed the national certification exam,
which is a pre-requisite to use of the title "athletic
trainer." See Appellees' Brief at 41-43,
quoting Rstmt (2d) of Torts, §323 ("One
who undertakes . . . to render services to another . . . is
subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his
undertaking[.]"). Appellees argue the evidence presented
was sufficient to raise factual jury questions regarding
whether appellants breached this duty and whether that breach
led to appellees' injuries.
considered the parties' arguments and the opinion below,
we acknowledge the Superior Court articulated a duty not
previously recognized by Pennsylvania Courts: a college has a
"duty of care to its intercollegiate student athletes
requir[ing] it to have qualified medical personnel available
at [athletic events, including] the football tryout, . . .
and to provide adequate treatment in the event that an
intercollegiate student athlete suffer[s] a medical
emergency." Feleccia, 156 A.3d at 1215,
citing Kleinknecht, 989 F.2d at 1369-70. We further
recognize the Superior Court did not analyze the
Althaus factors, as required when imposing a
previously unarticulated common law duty. Althaus,
756 A.2d at 1169. Instead, the panel relied on non-binding
federal case law to impose what it viewed as a new common law
duty. In this specific regard, the panel erred.
should not enter into the creation of new common law duties
lightly because "the adjudicatory process does not
translate readily into the field of broad-scale
policymaking." Lance v. Wyeth, 85 A.3d 434, 454
(Pa. 2014), citing Seebold, 57 A.3d at 1245; see
also Official Comm. of Unsecured Creditors of Allegheny
Health Educ. & Research Found. v. PriceWaterhouseCoopers,
LLP, 989 A.2d 313, 333 (Pa. 2010) ("Unlike the
legislative process, the adjudicatory process is structured
to cast a narrow focus on matters framed by litigants before
the Court in a highly directed fashion"). We also
acknowledge it "is the Legislature's chief function
to set public policy and the courts' role to enforce that
policy, subject to constitutional limitations."
Seebold, 57 A.3d at 1245 & n.19 (additional
citations omitted). "[T]he Court has previously adopted
the default position that, unless the justifications for and
consequences of judicial policymaking are reasonably clear
with the balance of factors favorably predominating, we will
not impose new affirmative duties." Id. at 1245
Applying the Althaus factors is not a mere
formality, but is necessary when courts announce a new common
law duty. Althaus requires consideration of the
justifications for and the relevant consequences and policy
concerns of the new duty of care. See Althaus, 756
A.2d at 1169 (setting forth factors for determination of new
common law duty). Further, "determining whether to
impose a duty often requires us to weigh 'amorphous
public policy considerations, which may include our
perception of history, morals, justice and
society.'" Walters v. UPMC Presbyterian
Shadyside, 187 A.3d 214, 223 (Pa. 2018), quoting
Althaus, 756 A.2d at 1169 (additional citations
omitted). The Superior Court did not engage these factors,
nor did the summary judgment record include relevant data
regarding, for example, injury rates at practices, the
consequences of having (or not having) available qualified
medical professionals, the budgetary or other collegiate
resource impact, or the relative public policy concerns
Importantly, however, an Althaus analysis was not
necessary here because our review reveals the present
circumstances involve application of existing statutory and
common law duties of care. See, e.g., Dittman v.
UPMC, 196 A.3d 1036, 1038 (Pa. 2018) (analysis of
Althaus factors not required where case is one
involving "application of an existing duty to a novel
factual scenario"). In Dittman, for example, we
recognized the legal duty of an employer (UPMC) "to
exercise reasonable care to safeguard its employees'
sensitive personal information stored by the employer on an
internet-accessible computer system." Id. at
1038. We did so because UPMC had required its employees to
provide sensitive personal information, and then collected
and stored that information on its computer system without
implementing adequate security measures, such as encryption,
firewalls, or authentication protocols. Id. at 1047.
We reasoned that this "affirmative conduct" by UPMC
created the risk of a data breach, which in fact occurred.
Id. We further determined that, in collecting and
storing its employees' data on its computers, UPMC owed
those employees a duty to "exercise reasonable care to
protect them against an unreasonable risk of harm arising out
of that act." Id. Dittman may have been our
first opportunity to recognize this duty in the context of
computer systems security, but there is longstanding
jurisprudence holding that "[i]n scenarios involving an
actor's affirmative conduct, he is generally 'under a
duty to others to exercise the care of a reasonable man to
protect them against an unreasonable risk of harm to them
arising out of the act.'" Id. at 1046,
quoting Seebold, 57 A.3d at 1246. This existing duty
"appropriately undergirds the vast expanse of tort
claims in which a defendant's affirmative, risk-causing
conduct is in issue." Id. at 1047, quoting
Seebold, 57 A.3d at 1246, see also Dittman, 796
A.3d at 1056-57 (Saylor, CJ, concurring and dissenting)
(requirement to provide confidential information as condition
of employment created "special relationship"
between employer and employees giving rise to duty of
reasonable care to protect information against foreseeable
we have adopted as an accurate statement of Pennsylvania law
the Restatement (Second) of Torts §323 (1965).
Gradel v. Inouye, 421 A.2d 674, 677-78 (Pa. 1980)
("Section 323(a) of the Restatement of Torts has been
part of the law of Pennsylvania for many years.").
Section 323 provides:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other's person or
things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable care
to perform his undertaking, if
(a) his failure to exercise such care increases the risk of
such harm, or
(b) the harm is suffered because of the other's reliance
upon the undertaking.
Restatement. (Second) of Torts, §323 (1965). See
also Feld v Merriam, 485 A.2d 742, 746 (Pa. 1984)
(landlord that undertook duty to provide secured parking for
tenants may be liable for damages arising from failure to
exercise reasonable care in doing so).
Feld, the plaintiffs were injured during a
carjacking that began inside the garage of their apartment
building. They filed a negligence lawsuit against their
landlord, who had charged tenants additional rental fees to
provide a gate and security guard for its parking garages. In
discussing the viability of the plaintiffs' negligence
action, the Feld Court first noted landlords do not
generally owe a duty as insurer to protect the safety of
their tenants. However, the Court noted such a duty might
arise if the landlord undertook to provide secured parking
and failed to exercise reasonable care in doing so, and the
tenants, who had relied on those services, were injured as a
result. Id. at 746, citing Restatement
(Second) of Torts, §323 (1965) (identifying discrete
duty where a "landlord [who] by agreement or voluntarily
offers a program to protect the premises, . . . must perform
the task in a reasonable manner and where a harm follows a
reasonable expectation of that harm, he is liable.").
of these legal principles to the present factual scenario
supports a determination that "affirmative conduct"
by appellants created a "special relationship" with
and increased risk of harm to its student athletes such that
appellants had a duty to "exercise reasonable care to
protect them against an unreasonable risk of harm
arising" from that affirmative conduct. Dittman,
supra. In addition, the record supports a finding
appellants undertook a duty to provide duly licensed athletic
trainers for the purpose of rendering treatment to its
student athletes participating in athletic events, including
the football practice on March 29, 2010,  although it remains
to be determined whether the steps actually taken by
appellants satisfied that duty. See Wilson v. PECO Energy
Co., 61 A.3d 229, 233 (Pa. Super. 2012) (sufficient
facts alleged to overcome summary judgment and reach jury on
question of scope of duty undertaken and its breach).
when we consider the record in the light most favorable to
appellees as the non-moving parties, we observe the
following: before hiring Coyne and Bonisese, Lackawanna
customarily employed athletic trainers, who were licensed as
required by applicable statutes and regulations; Lackawanna
required its student athletes including appellees to execute
the Consent to treatment by "athletic trainer, team
physician or hospital staff" in the event of an
emergency during participation in the football program;
Lackawanna held out Coyne and Bonisese as athletic trainers
to appellees and their teammates, despite its knowledge they
lacked the statutorily required licenses; Lackawanna
demonstrated its awareness that Coyne and Bonisese did not
have the qualifications of athletic trainers by renaming them
"first responders," but did not alter their job
descriptions, which encompassed the duties of "athletic
trainers"; Coyne and Bonisese were the only individuals
present at the March 29, 2010 football tryout to provide
treatment to injured student athletes; the coaching staff
propagated the misrepresentation of Coyne and Bonisese as
athletic trainers; and Coyne and Bonisese performed the role
of athletic trainers by attending appellees when they were
injured, and directing appellee Feleccia to return to
practice when he was "feeling better."
these circumstances, appellants clearly created an
expectation on which the student athletes might reasonably
rely - i.e. in the case of injury during an athletic
event, they receive treatment from a certified athletic
trainer, as clearly outlined in the Consent they were
required to sign. We thus easily conclude appellants
undertook a duty to provide treatment by a certified athletic
trainer at the March 29, 2010 practice. We further conclude
the record, taken in the light most favorable to appellees,
demonstrates the existence of a genuine issue of material
fact sufficient to overcome summary judgment regarding
whether appellants breached this duty and caused
appellees' injuries. Thus, we hold the trial court erred
in entering summary judgment in favor of appellants.
Is the Waiver enforceable as to the negligence
the existence of a duty on the part of appellants, and
factual allegations of a breach of that duty which would
support a negligence claim, we must now consider whether the
Waiver completely precludes any liability on such a claim, or
on appellees' additional claims of gross negligence and
recklessness. Appellants observe that by signing the Waiver
appellees released "any and all liability, claims,
demands, actions and causes of action whatsoever arising out
of or related to any loss, damage, or injury, including
death, that may be sustained" while playing football at
Lackawanna. Appellants' Brief at 38. Appellants submit
Topp Copy Prod., Inc. v. Singletary, 626 A.2d 98,
100 (Pa. 1993) held a Waiver of "any and all"
liability was sufficiently clear to bar claims of all
negligence, and the Superior Court erred in holding the
Waiver is unenforceable because "it does not indicate
that Lackawanna was being relieved of liability for its own
acts of negligence." Appellants' Brief at 39,
quoting Topp Copy, 626 A.2d at 100 ("[T]he word
'all' needs no definition; it includes everything and
excludes nothing. There is no more comprehensive word in the
language, and as used here it is obviously broad enough to
cover liability for negligence.") (additional citations
omitted). Appellants emphasize "Pennsylvania courts have
consistently held that exculpatory clauses may bar suits
based on negligence even where the language of the clause
does not specifically mention negligence at all."
Appellants' Brief at 43, quoting Chepkevich, 2
A.3d at 1193 (emphasis added).
submit the only issue preserved by appellants with respect to
the validity of the Waiver is whether it is enforceable as to
negligence, and that in this regard, the Superior Court
correctly determined the Waiver is not sufficiently explicit
regarding appellants' own negligence to be enforceable.
Appellees further assert the law is clear the Waiver is not
enforceable to protect appellants from liability arising from
gross negligence or recklessness, and the Superior Court
properly remanded for further proceedings to determine
whether appellants' conduct constituted gross negligence
or recklessness. Appellees' Brief at 45-46, citing
Tayar, supra, and Chepkevich, supra.
outset, we note appellants concede, as they must, that
appellees' claims of liability arising from recklessness
are not precluded by the Waiver. See, e.g. Tayar, 47
A.3d at 1203 (finding public policy prohibits pre-injury
waivers from releasing reckless behavior). The issue before
us is thus narrowed to whether the Waiver, which purports to
release "any and all liability," precludes
liability on appellees' claims of negligence and,
relatedly, gross negligence. We bear in mind that
exculpatory contracts are generally disfavored, and subject
to close scrutiny. See Employers Liability Assur. Corp.
v. Greenville Bus. Men's Ass'n, 224 A.2d 620,
623 (Pa. 1966) ("contracts providing for immunity from
liability for negligence must be construed strictly since
they are not favorites of the law"); see also
Tayar, 47 A.3d at 1199. Accordingly, exculpatory
contracts are valid and enforceable only when "certain
criteria are met." Tayar, 47 A.3d at 1200 &
n.8, citing Chepkevich and Topp Copy. Our
case law provides "guiding standards" for assessing
the enforceability of exculpatory contracts. See, e.g.,
Topp Copy, 626 A.2d at 99 (1) the contract language must
be construed strictly, since exculpatory language is not
favored by the law; 2) the contract must state the intention
of the parties with the greatest particularity, beyond doubt
by express ...