J-A25024-16

                                   2017 PA Super 44



AUGUSTUS FELECCIA AND JUSTIN T.                   IN THE SUPERIOR COURT OF
RESCH,                                                  PENNSYLVANIA

                            Appellants

                       v.

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,

                            Appellees                 No. 385 MDA 2016


             Appeal from the Judgment Entered February 2, 2016
             In the Court of Common Pleas of Lackawanna County
                      Civil Division at No(s): 12-CV-1960


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

OPINION BY SHOGAN, J.:                            FILED FEBRUARY 24, 2017

       Student athletes Augustus Feleccia (“Gus”) and Justin T. Resch

(“Justin”) appeal from the entry of summary judgment in favor of

Lackawanna College a/k/a Lackawanna Junior College (“the College”),

Athletic Director Kim A. Mecca (“AD Mecca”), Mark D. Duda (“Coach Duda”),

William E. Reiss (“Coach Reiss”), Daniel A. Lamagna (“Coach Lamagna”),

Kaitlin M. Coyne, and Alexis D. Bonisese (collectively “Lackawanna”).



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A25024-16


Because genuine issues of material fact remain for resolution by a jury, we

reverse the entry of summary judgment and remand for trial.

       This case involves personal injuries suffered by Gus and Justin on

March 29, 2010, while they were participating in a tackling drill during the

first day of spring contact football practice at the College.           Complaint,

5/4/12, at ¶¶ 46, 48, 49, 65, 72, 76.            The College is a non-profit junior

college in northeastern Pennsylvania and a member of the National Junior

College Athletic Association (“NJCAA”). Id. at ¶¶ 3, 18. Traditionally, the

College employed two athletic trainers to support the football program. In

June and July of 2009, respectively, athletic trainers Daniel Dolphin and

Scott Summers tendered their resignations to the College. Answer to Motion

for Summary Judgment, 10/16/15, at Exhibits 29 (AD Mecca Deposition,

1/14/14, at 100), 52, 56. When AD Mecca1 advertised the job openings, Ms.

Coyne and Ms. Bonisese applied for the positions.            Answer to Motion for

Summary Judgment, 10/16/15, at Exhibits 32 (Coyne Deposition, 12/9/14,
____________________________________________


1
  AD Mecca was hired by the College on September 17, 1999, as a part-time
Alumni Relations Coordinator. AD Mecca’s Responses to Plaintiffs’ Request
for Admissions, 7/25/14, at Response 1. Raymond S. Angeli, President of
the College, appointed AD Mecca as the full-time Director of Intramurals and
Assistant Athletic Director on May 31, 2006; she accepted the position on
June 1, 2006. Id. at Responses 2, 3. Shortly thereafter, when the College’s
athletic director resigned, AD Mecca was offered the position and accepted it
on July 1, 2006. Id. at Responses 4, 5; Answer to Motion for Summary
Judgment, 10/16/15, at Exhibit 29 (AD Mecca at 10).              AD Mecca’s
experience included running a golf tournament for ten years and coaching
one year of college softball. Answer to Motion for Summary Judgment,
10/16/15, at Exhibit 29 (AD Mecca Deposition at 11, 12, 17).



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at 147), 33 (Bonisese Deposition, 12/3/14, at 27), 59, 62. Following phone

interviews with Ms. Coyne and Ms. Bonisese conducted by AD Mecca, the

College hired them in August of 2009.            Answer to Motion for Summary

Judgment, 10/20/15, at Exhibits 58, 61. Ms. Coyne and Ms. Bonisese were

hired “with the intent to have them serve as Certified Athletic Trainers.”

Lackawanna’s Brief at 5.         Upon hiring, Ms. Coyne and Ms. Bonisese each

signed an athletic-trainer job description. Id. at Exhibits 60, 63.

       Although they had earned their Bachelor of Science degrees in athletic

training in the spring of 2009 from Marywood College, neither Ms. Coyne nor

Ms. Bonisese was certified or licensed at any time relevant to the underlying

action. Answer to Motion for Summary Judgment, 10/16/15, at Exhibits 32

(Coyne at 11–12) and 33 (Bonisese at 10, 55).           In August of 2009, Ms.

Coyne and Ms. Bonisese learned that they had not passed the Board of

Certification, Inc. (“BOC”) examination, and they informed AD Mecca. Id. at

Exhibit 32 (Coyne at 55) and 33 (Bonisese at 16, 53–54).2 In response, AD

Mecca retitled Ms. Coyne and Ms. Bonisese as “First Responders.”        Id. at

Exhibits 32 (Coyne at 55–56), 33 (Bonisese at 30, 110), and 70.          Upon

being retitled as first responders, neither Ms. Coyne nor Ms. Bonisese

____________________________________________


2
   Ms. Coyne and Ms. Bonisese eventually passed the BOC examination. The
Commonwealth of Pennsylvania issued each of them a license to practice as
an athletic trainer on July 30, 2010, and September 14, 2010, respectively.
Answer to Motion for Summary Judgment, 10/16/15, at Exhibits 32 (Coyne
at 86), 33 (Bonisese at 16), and 71.



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completed a new or amended job description, despite the inaccuracy about

their qualifications on the original job description. Id. at Exhibit 32 (Coyne

at 55–56) and 33 (Bonisese at 53). In September of 2009, the College hired

a certified part-time trainer, Maureen Burke, but she did not attend football

practices during the 2009–2010 academic year. Id. at Exhibits 32 (Coyne at

44), 64. All three women’s job descriptions were identical. Id. at Exhibits

60, 63, 64.

      In September of 2009, Shelby Yeager, a former professor of Ms. Coyne

and Ms. Bonisese at Marywood College, expressed her concern to Ms. Coyne

that Ms. Coyne and Ms. Bonisese were impermissibly providing athletic

training services.   Answer to Motion for Summary Judgment, 10/16/15, at

Exhibits 32 (Coyne at 149–151), 67. In an affidavit, Ms. Yeager stated that

Ms. Coyne 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.

at Exhibit 69 (Yeager Affidavit, 9/29/15 at ¶¶ 13, 16–19, 28–31). AD Mecca

learned of Ms. Yeager’s concerns regarding the qualifications of Ms. Coyne

and Ms. Bonisese.     Id. at Exhibit 68 (Email from Ms. Coyne to AD Mecca

forwarding email from Chris O’Brien: Hey, Chris!, 9/2/09). Similarly, Bryan

Laurie, head athletic trainer at SUNY New Paltz, provided an affidavit.

Therein he stated that he had supervised Ms. Bonisese as a student, that her

performance was “below average/poor,” and that she was not qualified to


                                    -4-
J-A25024-16


act as a trainer in March of 2010. Answer to Motion for Summary Judgment,

10/20/15, at Exhibit 74 (Laurie Affidavit, 9/20/15, at ¶¶ 9, 10, 12, 15, 17,

19).

       Ms. Coyne and Ms. Bonisese were the only training staff working with

the football players on March 29, 2010; the College had no certified athletic

trainers on the practice field that day. Lackawanna’s Statement of Material

Facts, 12/2/15, at Exhibit O ¶ 89; Answer to Motion for Summary Judgment

at Exhibit 33 (Bonisese at 54–55). A football teammate, Christopher Yoo,

testified that Ms. Coyne and Ms. Bonisese were the trainers and the only

trainers in the program as of the spring of 2010.          Answer to Motion for

Summary Judgment, 10/20/15, at Exhibit 44 (Yoo Deposition, 1/7/15, at

105). Similarly, teammate Anthony Carillo testified that Ms. Coyne and Ms.

Bonisese represented themselves as trainers and that the coaching staff

propagated that representation.           Id. at Exhibit 45 (Carillo Deposition,

1/7/15, at 40–44).

       The trial court summarized additional facts underlying this case, as

follows:

           A. Plaintiff Justin T. Resch

             [Justin] began playing football at the age of six. He
       continued playing football through high school and was
       instructed, on numerous occasions, that making a proper tackle
       involves keeping one’s head up. Along the way, [Justin] broke
       his arm, injured his ankle, broke his collarbone, and experienced
       a “stinger, burner, or pinched nerve” while playing football. He
       graduated from Piu[s] X High School in 2008, applied to
       Defendant Lackawanna College a/k/a Lackawanna Junior College

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J-A25024-16


     (hereinafter “Lackawanna”) in Scranton, was accepted, and
     sought to continue playing football.        Though he met with
     Lackawanna’s head football coach, Defendant Mark D. Duda,
     prior to arriving for classes, [Justin] was not offered an athletic
     scholarship to play football.

            In the fall of 2008, [Justin] tried out for the Lackawanna
     football team. Again, he was instructed to make tackles with his
     head up. During tryouts, [Justin] was aware that Lackawanna
     was using a variation of the tackling drill called the “Man Maker,”
     “One-on-One,” or “Oklahoma” drill (hereinafter the “Oklahoma
     Drill”). Shortly thereafter, [Justin] was placed on academic
     probation for bad grades. Despite this, Lackawanna allowed him
     to enroll in the spring semester. In the spring of 2009, he again
     tried out for the football team, but failed to make the squad.
     This fact notwithstanding, [Justin] was academically ineligible to
     play football through the 2008-2009 academic year.            After
     returning to Lackawanna in mid-January of 2010 to begin spring
     semester classes, [Justin] began running and weight training in
     preparation for football tryouts.

        B. Plaintiff Augustus Feleccia

           [Gus] began playing football at the age of ten.         He
     continued playing football through high school and was
     instructed, on numerous occasions, that making a proper tackle
     involves keeping one’s head up. In 2003, [Gus] injured his
     lower back playing football.       He graduated from Lansdale
     Catholic High School in 2008.         Despite being recruited by
     Defendant Duda to play football at Lackawanna, [Gus] was not
     offered an athletic scholarship to play football.

           In the fall of 2008, [Gus] tried out for the Lackawanna
     football team. Again, he was instructed to make tackles with his
     head up. During tryouts, [Gus] was aware that Lackawanna was
     using a variation of the Oklahoma Drill. Though he tried out,
     [Gus] did not make the team, was redshirted, and was allowed
     to practice with the team during the fall of 2008. During that
     time, he tore the labrum in his left shoulder during a scrimmage
     and, later, underwent reparative surgery. Shortly thereafter,
     [Gus] was placed on academic probation. He withdrew from
     Lackawanna after the fall of 2008 semester and, in the spring of
     2009, enrolled in the Montgomery County Community College.
     He reenrolled at Lackawanna for the spring semester of 2010.

                                    -6-
J-A25024-16


       After returning to Lackawanna in mid-January of 2010 to begin
       spring semester classes, [Gus] began running and weight
       training in preparation for football tryouts.

          C. The Waiver

              In anticipation of spring football tryouts in 2010, [Gus and
       Justin] were presented with, “skimmed,” and signed, on March
       22, 2010, a document titled “Lackawanna College Waiver of
       Liability and Hold Harmless Agreement” (hereinafter “the
       Waiver”).[3] The Waiver, in [relevant part], provides:

                                          * * *

              1.    In consideration for my participation in (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.

                                          * * *

              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
              Pennsylvania.

                                          * * *
____________________________________________


3
   Both Gus and Justin indicated on the Waiver that they were participating
in football. Lackawanna’s Statement of Material Facts, 12/2/15, at Exhibit E.



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J-A25024-16



       Both [Gus and Justin] admitted to knowing that by signing the
       Waiver, they had agreed not to sue Lackawanna or its agents for
       any injuries incurred while playing football at Lackawanna.

          D. The Oklahoma Drill[4]

             On March 29, 2010, both [Gus and Justin] participated in a
       variation of the Oklahoma Drill at Lackawanna’s first fully
       padded, full contact tryout practice of the season. [Gus and
       Justin’s] expert neither defines the drill nor acknowledges its use
       in the sport of football. [Lackawanna’s] expert explains that the
       Oklahoma Drill is “a live contact drill that is usually performed in
       a confined space.” He opines that “there are many variations of
       the Oklahoma Drill,” including those used at Texas A&M
       University and Virginia Tech University, described as follows:

              A. Texas A&M Oklahoma Drill (“Tunnel of Truth”)
              (Procedure)
              1.    Create a shoot approximately 10 yards in
              length and about 4–5 yards wide.
              2.    Have either a Running Back tie up with a
              Linebacker, or a Defensive Back tie up with a Wide
              Receiver. An offensive player will then receive the
              ball and try to read the block in front of him and
              evade the free defender waiting in the shoot.

              (Coaching Points)
              1.     The defender in the tie up will demonstrate
              proper block shedding technique while the offensive
              player will demonstrate proper stalk blocking
              technique.
              2.    The ball carrier must read the block and make
              the appropriate cut with proper pad level and ball
              security. The free defender must stay square, work
              downhill towards the ball carrier, and deliver a good,
              hard, fundamental tackle.
____________________________________________


4
    The record suggests that the drill was actually a variation of the
“Oklahoma Drill” that Coach Reiss referred to as the “Man-Maker Drill.”
Answer to Motion for Summary Judgment, 10/16/15, at Exhibit 45 (Carillo at
52).



                                           -8-
J-A25024-16


           ...

           B. Virginia Tech Oklahoma Drill
           (Procedure)
           1.    This is a one-on-one tackling drill (Defensive
           Backs/Linebackers     vs.   Running      Backs/Wide
           Receivers)
           2.    The shoot is approximately 10 yards in length,
           and two cones create a width of approximately 2
           yards.
           3.    The two players come down the shoot and
           engage at the cones.

           (Coaching Points)
           1.     The defender must demonstrate proper
           tackling technique.
           2.     The ball carrier must demonstrate proper pad
           level and ball security.

                                   * * *

            Significantly, both [Gus and Justin] had previously
     participated in a variation of the Oklahoma Drill either in high
     school or at Lackawanna. When [Justin] signed the Waiver on
     March 22, 2010, he understood that a variation of the Oklahoma
     Drill might be used at future Lackawanna football practices and
     that he could be injured while participating in such drills.
     Similarly, when [Gus] signed the Waiver on March 22, 2010, he
     understood that the Oklahoma Drill would be run at
     Lackawanna’s first football practice using only a running back,
     linebacker, and maybe a quarterback.

           While participating in the drill, [Justin] attempted to make
     a tackle with his head down and suffered a T-7 vertebral
     fracture. As [Gus] describes it, [Justin] “put his head down, hit
     him with his head and just went limp on the ground and kind of
     rolled over.” [Gus] went on to admit that [Justin’s] tackle was
     improper because “his head was down and he led with the top of
     his head.” [Justin] recalls that while lying on the ground in pain,
     he was attended to by “one of the first responders,” namely
     Defendant Kaitlin M. Coyne, before being transported to the
     hospital in an ambulance.




                                    -9-
J-A25024-16


            Despite [Justin’s] injury, the Oklahoma Drill continued.
     When [Gus] attempted his first tackle, he endured a “stinger” to
     his right shoulder, an injury he understood as “when your arm
     tingles.” He described his injury as feeling “tingly and numb”
     and that he “couldn’t really move his right shoulder as well.”
     Following his injury, [Gus] sought guidance from Defendant
     Alexis D. Bonisese, the other first responder employed by
     Lackawanna to monitor football practices. [Gus] testified that
     Bonisese told him he could return to practice “if he was feeling
     better,” and that he was “feeling a little better” when he
     returned to practice, even though his pain had “not totally” gone
     away. He then participated in the Oklahoma Drill again, made a
     tackle with his right shoulder, and suffered a traumatic brachial
     plexus avulsion on his right side.

Trial Court Opinion, 2/2/16, at 1–7 (internal citations, brackets, and

footnotes omitted).

     Gus and Justin initiated the underlying lawsuit by writ of summons on

March 28, 2012. They filed a complaint on May 4, 2012, advancing claims of

negligence and negligence per se and requesting punitive damages.

Lackawanna filed preliminary objections asserting that Gus and Justin failed

to allege legally sufficient negligence claims against Lackawanna and that

the punitive-damage claims do not constitute an independent cause of action

under Pennsylvania law; therefore, Lackawanna argued, the complaint

should be dismissed as legally insufficient.   The trial court overruled the

preliminary objections on September 4, 2012, thus declining to find any of

the claims legally insufficient or to dismiss them as a matter of law.

Lackawanna filed an answer with new matter on October 5, 2012, raising,

inter alia, the Waiver and assumption of the risk as defenses.




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J-A25024-16


      At the close of discovery, Lackawanna filed a motion for summary

judgment, relying primarily on the Waiver and an assumption-of-the-risk

defense. Motion for Summary Judgment, 7/31/15, at ¶¶ 9, 10. Lackawanna

also claimed that Ms. Coyne and Ms. Bonisese were immune from liability

under the Pennsylvania Good Samaritan Act; that Gus and Justin could not

maintain a cause of action for negligence per se under the Medical Practice

Act of 1985 because there was no private cause of action under that act;

and that Gus and Justin failed to set forth a prima facie case of negligence

per se against Ms. Coyne and Ms. Bonisese because they were not subject to

the regulations of licensed athletic trainers. Id. at ¶¶ 11, 12, 13, 14.

      Gus and Justin argued in response that the College “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.”     Memorandum in Opposition to Motion for Summary

Judgment, 10/20/15, at 1.       Relying on expert opinion, Gus and Justin

claimed that the “coaches should have insisted that the College provide

competent medical coverage and all of them failed to do that.” Id. at 12.

Moreover, Gus and Justin asserted that the College failed to provide qualified

athletic trainers who could have directed an end to or a modification of the

improperly conducted drill in the interest of the student athlete’s safety, and

who would have been able to properly assess Gus’ “stinger” and advise him

against returning to the drill. Id. at 16–20.


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J-A25024-16


       Following oral argument on November 19, 2015, the trial court

granted Lackawanna summary judgment based on the Waiver and,

alternatively, on assumption of the risk.          Order, 2/2/16.5   Gus and Justin

timely appealed. They and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Gus and Justin raise the following issues for our review:

            Did the trial court abuse its discretion or err as a matter of
       law by granting [Defendants’] Motion for Summary Judgment,
       when:

             The trial court failed to analyze the record in the
              light most favorable to [Gus and Justin];

             The trial court erred by failing to consider whether
              [Defendants’] conduct constituted recklessness or
              gross negligence, as alleged in the Complaint;

             [Defendants] limited their defense to assumption of
              the risk;

             [Lackawanna’s] Waiver of Liability and Hold
              Harmless Agreement (“Waiver”)/exculpatory clause
              did not expressly state in a clear and unambiguous
              manner that it was a waiver of [Lackawanna’s] own
              negligence;

             The trial court erred by finding that the Waiver,
              which contravened public policy, barred [Gus’ and
              Justin’s] claims and was void; and, therefore

             The Court erred by failing to submit the disputed
              factual questions to a jury?

Gus and Justin’s Brief at 4.
____________________________________________


5
   Recently, this Court opined that a liability waiver constitutes an express
assumption of the risk. Valentino v. Philadelphia Triathlon, LLC., 150
A.3d 483, 2016 PA Super 248 at *13 (Pa. Super. filed November 15, 2016).



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J-A25024-16


     “The    overarching   question    of      whether   summary   judgment   is

appropriate is a question of law, and thus our standard of review is de novo

and the scope of review is plenary.”            Chepkevich v. Hidden Valley

Resort, L.P., 2 A.3d 1174, 1182 (Pa. 2010) (internal citation omitted).

Furthermore:

     [i]n reviewing the grant of summary judgment, the following
     principles apply. [S]ummary judgment is appropriate only in
     those cases where the record clearly demonstrates that there is
     no genuine issue of material fact and that the moving party is
     entitled to judgment as a matter of law. When considering a
     motion for summary judgment, the trial court must take all facts
     of record and reasonable inferences therefrom in a light most
     favorable to the non-moving party. In so doing, the trial court
     must resolve all doubts as to the existence of a genuine issue of
     material fact against the moving party, and, thus, may only
     grant summary judgment where the right to such judgment is
     clear and free from all doubt. On appellate review, then, an
     appellate court may reverse a grant of summary judgment if
     there has been an error of law or an abuse of discretion. But the
     issue as to whether there are no genuine issues as to any
     material fact presents a question of law, and therefore, on that
     question our standard of review is de novo. This means we need
     not defer to the determinations made by the lower tribunals. To
     the extent that this Court must resolve a question of law, we
     shall review the grant of summary judgment in the context of
     the entire record.

Kennedy v. Robert Morris Univ., 133 A.3d 38, 41 (Pa. Super. 2016),

appeal denied, 145 A.3d 166 (Pa. 2016) (quoting Summers v. Certainteed

Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal quotations and citations

omitted)).




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J-A25024-16


                                 The Waiver

         In granting summary judgment to Lackawanna, the trial court relied

primarily on the Waiver.       It is generally accepted that a waiver, or

exculpatory clause, is valid where three conditions are met. First, the clause

must not contravene public policy.     Chepkevich, 2 A.3d at 1189; Topp

Copy Products, Inc. v. Singletary, 626 A.2d 98 (Pa. 1993); Employers

Liab. Assu. Corp. v. Greenville Business Men’s Ass’n, 224 A.2d 620 (Pa.

1966). “Contracts against liability, although not favored by courts, violate

public policy only when they involve a matter of interest to the public or the

state.     Such matters of interest to the public or the state include the

employer-employee relationship, public service, public utilities, common

carrier, and hospitals.” Seaton v. E. Windsor Speedway, Inc., 582 A.2d

1380, 1382 (Pa. Super. 1990).      “Secondly, the contract must be between

persons relating entirely to their own private affairs and thirdly, each party

must be a free bargaining agent to the agreement so that the contract is not

one of adhesion.” Chepkevich, 2 A.3d at 1189 (citations omitted); see also

Toro v. Fitness International, LLC., 150 A.3d 968, 2016 PA Super 243

(Pa. Super. filed November 10, 2016) (applying Chepkevich to a waiver

raised as a defense to a negligence claim in a slip-and-fall case); McDonald

v. Whitewater Challengers, Inc., 116 A.3d 99 (Pa. Super. 2015), appeal

denied, 130 A.3d 1291 (Pa. 2015) (applying Chepkevich to a waiver signed




                                    - 14 -
J-A25024-16


by a New York resident and raised as a defense to a negligence claim in a

whitewater rafting case).

      [O]nce an exculpatory clause is determined to be valid, it will,
      nevertheless, still be unenforceable unless the language of the
      parties is clear that a person is being relieved of liability for
      [their] own acts of negligence. In interpreting such clauses we
      listed as guiding standards that: 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
      stipulation, and no inference from words of general import can
      establish the intent of the parties; 3) the language of the
      contract must be construed, in cases of ambiguity, against the
      party seeking immunity from liability; and 4) the burden of
      establishing the immunity is upon the party invoking protection
      under the clauses.

Chepkevich, 2 A.3d at 1189 (citations omitted).

      On appeal, Gus and Justin first argue that summary judgment was

improper because the trial court erred in not allowing a jury “to decide

whether the scope of [the College’s] conduct exceeded the Waiver.”         Gus

and Justin’s Brief at 25.    Gus and Justin acknowledge that the Waiver

“released [Lackawanna] from negligence claims[.]” Id. at 23. According to

Gus and Justin, however, “by requiring athletes to waive their right to sue,”

the College had a duty “to assure that [it] hired qualified personnel to assess

and treat foreseeable injuries,” that “its staff was adequately trained” and

certified, and that “it took reasonable measures to assure the safety of its

student athletes.”   Id. at 25.    Therefore, Gus and Justin contend, the

question of “whether [the College’s] failure to hire qualified personnel




                                    - 15 -
J-A25024-16


constitutes negligence, gross negligence or recklessness . . . should be left

to the jury.” Id. at 27.

      In support of their position that the Waiver cannot be used as a shield

against claims of gross negligence or recklessness, Gus and Justin rely on

Tayar v. Camelback Ski Corp., 47 A.3d 1190 (Pa. 2012). Gus and Justin’s

Brief at 27–29.   Therein, Barbara Tayar and her family elected to use the

family tubing slopes at Camelback Ski Resort.         They completed four

successful runs down the mountain, with appellant Brian Monaghan, a

Camelback employee, releasing them from the summit safely each time. Id.

at 1193. On the fifth run, when Barbara Tayar reached the receiving area at

the bottom of the slope:

      she exited her snow tube and was immediately struck by another
      snow tuber coming down the family tubing slope. Camelback
      employees rushed to assist Tayar out of the receiving area,
      when yet another snow tuber narrowly missed striking her. At
      this point, several Camelback employees were yelling and
      gesturing up the mountain to Monaghan to stop sending snow
      tubers down the slope until they could safely remove Tayar from
      the receiving area. As a result of the collision, Tayar suffered
      multiple comminuted fractures of her right leg, for which she
      underwent surgery and required two metal plates and 14 screws
      to stabilize her ankle.

Id.

      Tayar was a case of first impression in which our Supreme Court

addressed the public policy question of whether recklessness can be released

in a pre-injury exculpatory clause. The Tayar Court first considered where




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J-A25024-16


recklessness falls on the spectrum of tortious conduct—closer to waivable

common negligence or to non-waivable intentional conduct:

           Recklessness is distinguishable from negligence on the
     basis that recklessness requires conscious action or inaction
     which creates a substantial risk of harm to others, whereas
     negligence suggests unconscious inadvertence. In Fitsko v.
     Gaughenbaugh, 69 A.2d 76 (Pa. 1949), we cited with approval
     the Restatement (Second) of Torts definition of “reckless
     disregard” and its explanation of the distinction between
     ordinary negligence and recklessness.        Specifically, the
     Restatement (Second) of Torts defines “reckless disregard” as
     follows:

                 The actor’s conduct is in reckless disregard of
           the safety of another if he does an act or
           intentionally fails to do an act which it is his duty to
           the other to do, knowing or having reason to know of
           facts which would lead a reasonable man to realize,
           not only that his conduct creates an unreasonable
           risk of physical harm to another, but also that such
           risk is substantially greater than that which is
           necessary to make his conduct negligent.

     Restatement (Second) of Torts § 500 (1965). The Commentary
     to this Section emphasizes that “[recklessness] must not only be
     unreasonable, but it must involve a risk of harm to others
     substantially in excess of that necessary to make the conduct
     negligent.” Id., cmt. a. Further, as relied on in Fitsko, the
     Commentary contrasts negligence and recklessness:

                  Reckless misconduct differs from negligence in
           several important particulars. It differs from that
           form of negligence which consists in mere
           inadvertence, incompetence, unskillfulness, or a
           failure to take precautions to enable the actor
           adequately to cope with a possible or probable future
           emergency, in that reckless misconduct requires a
           conscious choice of a course of action, either with
           knowledge of the serious danger to others involved
           in it or with knowledge of facts which would disclose
           this danger to any reasonable man.... The difference
           between reckless misconduct and conduct involving

                                    - 17 -
J-A25024-16


           only such a quantum of risk as is necessary to make
           it negligent is a difference in the degree of the risk,
           but this difference of degree is so marked as to
           amount substantially to a difference in kind.

     Id., cmt. g.

                                      * * *

           This conceptualization of recklessness as requiring
     conscious action or inaction not only distinguishes recklessness
     from ordinary negligence, but aligns it more closely with
     intentional conduct. As a result, we are inclined to apply the
     same prohibition on releasing reckless conduct as we do for
     intentional conduct.

Tayar, 47 A.3d at 1200–1201. The Tayar Court then concluded:

     [W]ere we to sanction releases for reckless conduct, parties
     would escape liability for consciously disregarding substantial
     risks of harm to others; indeed, liability would be waivable for all
     conduct except where the actor specifically intended harm to
     occur. There is near unanimity across jurisdictions that such
     releases are unenforceable, as such releases would jeopardize
     the health, safety, and welfare of the people by removing any
     incentive for parties to adhere to minimal standards of safe
     conduct. We therefore conclude that, even in this voluntarily
     [sic] recreational setting involving private parties, there is a
     dominant public policy against allowing exculpatory releases of
     reckless behavior, which encourages parties to adhere to
     minimal standards of care and safety.

Tayar, 47 A.3d at 1203 (internal citation omitted). In sum, the Tayar Court

held that recklessness cannot be released in a pre-injury exculpatory clause.

     Ultimately, the Supreme Court affirmed our en banc order reversing

the entry of summary judgment and remanding for a determination of

whether the defendants’ conduct was reckless or intentional and whether

such conduct was the cause of the ski patron’s injuries. Tayar, 42 A.3d at


                                    - 18 -
J-A25024-16


1203. Cf. Valentino v. Philadelphia Triathlon, LLC., 150 A.3d 483, 2016

PA Super 248 (Pa. Super. filed November 15, 2016) (affirming the entry of

summary judgment based on a signed waiver where the trial court struck all

references in the plaintiff’s amended complaint to gross negligence,

recklessness, and punitive damages).

      Lackawanna argues, “The Waiver’s clear language demonstrates the

intent of the Students to release Lackawanna of all liability by express

stipulation.” Lackawanna’s Brief at 39. Additionally, Lackawanna contends

that the gross negligence and recklessness claims were raised in counts for

punitive damages, not in substantive counts; therefore, they do not provide

independent grounds for recovery. Id. at 42–43. Thus, Lackawanna avers,

Tayar is not applicable “in this appeal as [it] did not involve allegations of

reckless [sic] pleaded in an independent cause of action for punitive

damages.” Id. at 43.

      While recognizing that our courts have yet to address waivers of

liability in collegiate football, the trial court relied on “the standards

governing the validity of exculpatory clauses” set forth in Chepkevich and

Topp Copy. Trial Court Opinion, 2/2/16, at 10. In doing so, the trial court

initially concluded that the Waiver met the requirements for validity: (1) it

did not violate public policy because football is an inherently dangerous

sport, id. at 11–14; (2) it related entirely to the private affairs of Gus,




                                    - 19 -
J-A25024-16


Justin, and the College, id. at 14–15; and (3) it was not a contract of

adhesion, id. at 15–18.

      Next, the trial court addressed the Waiver’s enforceability, applying

the standards also set forth in Chepkevich and Topp Copy.             Trial Court

Opinion, 2/2/16, at 18.    Focusing solely on Gus and Justin’s averments of

negligence, the trial court concluded that the Waiver was enforceable

because the College met its burden of proving that, when strictly construed,

the Waiver’s language was sufficiently particular and unambiguous to

provide immunity.    Id. at 18–22. The trial court also recognized that the

Oklahoma Drill has been criticized in the wake of the NFL Concussion

Litigation, but it discounted the significance of the criticism in light of the

types of injures that Gus and Justin experienced. Id. at 21.

      Upon review, we conclude that, as in other inherently dangerous

activities, the Waiver is valid. Like the trial court, we agree that the Waiver

does not violate public policy, relates to the private affairs of the parties, and

is not a contract of adhesion.     Indeed, Gus and Justin do not specifically

challenge the trial court’s analysis of the second and third requirements for

the validity of the Waiver.    Nevertheless, we disagree with the trial court

that the Waiver is enforceable under the facts of this case for multiple

reasons. First, the language of the Waiver is not sufficiently particular and

without ambiguity as to preclude liability.    We have explained, “[O]nce an

exculpatory clause is determined to be valid, it will, nevertheless, still be


                                     - 20 -
J-A25024-16


unenforceable unless the language of the parties is clear that a person

is being relieved of liability for his own acts of negligence.”

Chepkevich, 2 A.3d at 1189 (emphasis supplied).          Although valid, the

Waiver’s language does not indicate that Lackawanna was being relieved of

liability for its own acts of negligence.

      Second, as noted above, in addition to averring negligence, Gus and

Justin raised issues of gross negligence and recklessness.         Complaint,

5/9/12, at ¶¶ 80, 82, 93, 102, 103, 119.          In its summary judgment

memorandum, the trial court did not address the averments of gross

negligence and recklessness or whether such conduct rendered the Waiver

unenforceable. Instead, the trial court discounted these allegations within a

footnote that stated punitive damages do not exist as a separate claim under

Pennsylvania law. Trial Court Opinion, 2/2/16, at 27, n.13. We do not find

such a statement dispositive of whether there were sufficient allegations of

recklessness or gross negligence for purposes of the enforceability of the

Waiver.    Indeed, we find that this omission resulted in an incomplete

analysis by the trial court and, ultimately, led it to reach an incorrect

conclusion.

      Summary judgment requires the trial court to review the “(1)

pleadings, discovery materials, i.e., depositions, answers to interrogatories,

admissions and affidavits, and reports signed by an expert witness. ...”




                                      - 21 -
J-A25024-16


Pa.R.C.P. 1035.1 cmt (internal quotation marks omitted).                  In their

complaint, Gus and Justin averred:

         gross negligence and recklessness against Lackawanna College at
          ¶¶ 82(a)–(i);

         gross negligence and recklessness against Coach Duda at ¶¶ 97(h),
          (l), (m)–(r), 98(l)–(r);

         gross negligence and recklessness against Assistant Coaches Reiss
          and Lamagna at ¶¶ 102(j), 103(j).

Complaint, 5/4/12.     Additionally, Gus and Justin raised issues of gross

negligence and recklessness in their Reply to Preliminary Objections,

7/16/12, at ¶¶ 2, 3, 14, 21; in their Memorandum of Law in Reply to

Preliminary   Objections,   7/26/12,    at      unnumbered   6–8;   and   in   their

Memorandum of Law in Opposition to Motion for Summary Judgment,

10/20/15, at 29, 32, 37, 41, and 44.

      Moreover, fellow student athletes identified Ms. Coyne and Ms.

Bonisese as the College’s athletic trainers in the spring of 2010. Answer to

Motion for Summary Judgment, 10/20/15, at Exhibits 44 (Yoo at 105) and

45 (Carillo at 40–44).      Also, experts M. Scott Zema, Associate Athletic

Director, Stevenson University, and Betsy Mitchell, Director of Athletics,

California Institute of Technology, opined that the College’s conduct in hiring

Ms. Coyne and Ms. Bonisese as athletic trainers fell below the applicable

standard of care. Id. at Exhibits 95 (Report of M. Scott Zema, 4/9/15, at

unnumbered 12–13) and 94 (Report of Betsy Mitchell, 4/14/15, at 4–5).




                                       - 22 -
J-A25024-16


      Additionally, expert Richard C. Slocum, former Texas A&M University

head football coach for fourteen years, stated:

      In all my years of being involved in football, I cannot recall
      seeing a football drill as oblivious to the safety of its players as
      the one that I watched on video at Lackawanna College during
      the Spring of 2010. In fact I have I have [sic] never seen the
      drill run as it was at Lackawanna. It was conducted in a way
      that had very little application to playing the game of football
      and that elevated the possibility of serious injury. In addition,
      there was little, or no consideration given in the event a player
      sustained a serious injury.

                                    * * *

            After reviewing numerous documents, many depositions
      and deposition exhibits, there is no question in my mind that
      what happened to Gus Feleccia and Justin Resch on March 29,
      2010 was the end result of overall systemic failure on the part of
      the College, its Athletic Department and, in particular, those
      persons responsible for the Football Program. Simply put, none
      of the defendants demonstrated any appreciable concern for the
      safety of the student-athletes.

Answer to Motion for Summary Judgment, 10/16/15, at Exhibit 93 (Report of

Richard C. Slocum, 4/13/15, at 3–4).

      Notably, the College’s coaching staff “had never heard” the term “first

responder” prior to this incident and assumed it meant “being the first to

respond.”   Memorandum of Law in Opposition to Motion for Summary

Judgment, 10/20/15, at 8 (citing Answer to Motion for Summary Judgment,

10/16/15, at Exhibits 34, 35, 37).     Yet, Lackawanna’s expert, Dr. William

Dempsey, testified that Ms. Coyne and Ms. Bonisese were first responders

who acted according to the applicable standard of care. Answer to Motion

for Summary Judgment, 10/16/15, at Exhibit 48 (Dr. William Dempsey

                                     - 23 -
J-A25024-16


Report, 7/14/15, at ¶¶ IV, VI). Moreover, Dr. Ray Angeli, President of the

College, indicated that he was not willing to pay the salary that athletic

trainers requested because it was higher than a first year professor’s salary.

Id. at Exhibit 28 (Dr. Angeli Deposition, 7/25/13, at 90–93).             Lastly,

consulting economist, Andrew Verzilli, reviewed the 2001–2002 through

2009–2010 athletic department budgets and concluded that the department

“had sufficient funds available to hire a full-time Athletic Trainer” for the

2009–2010 academic year.            Id. at Exhibit 96 (Letter Report of Andrew

Verzilli, 4/15/15). In light of this record, the trial court erred in determining

that the Waiver was enforceable without considering the scope of the Waiver

with regard to claims of gross negligence and reckless conduct.

       Our third and most important reason for rejecting the trial court’s

analysis is that a genuine issue of material fact exists as to whether the

College’s failure to have qualified medical personnel at the March 29, 2010

practice constitutes gross negligence or recklessness, the latter of which,

pursuant to Tayar, cannot be waived in a pre-injury exculpatory release.

We analyze whether the College’s failure to have qualified medical personnel

at the March 29, 2010 practice constitutes gross negligence or recklessness

through the lens of Kleinknecht v. Gettysburg College, 989 F.2d 1360

(3rd Cir. 1993).6 Therein, the Third Circuit Court of Appeals addressed the

____________________________________________


6
    We acknowledge that:
(Footnote Continued Next Page)


                                          - 24 -
J-A25024-16


provision of medical assistance in the context of collegiate sports.           Drew

Kleinknecht, a sophomore lacrosse player, suffered a cardiac arrest during a

fall practice. No athletic trainers were present at the practice, and “despite

repeated resuscitation efforts, Drew could not be revived.”             Id. at 1364.

Drew’s parents filed suit against Gettysburg College, arguing that, given

Drew’s status as a student athlete, the college owed “a duty to its

intercollegiate athletes to provide preventative measures in the event of a

medical emergency.”           Id. at 1366.          In resolving the duty issue, the

Kleinknecht Court explained that Drew “was participating in a scheduled

athletic practice for an intercollegiate team sponsored by the [c]ollege under

the supervision of [c]ollege employees.” Id. at 1367. On these facts, the

Third Circuit Court of Appeals predicted “that the Supreme Court of

Pennsylvania would hold that a special relationship existed between the

[c]ollege and Drew that was sufficient to impose a duty of reasonable care


                       _______________________
(Footnote Continued)


      federal court decisions do not control the determinations of the
      Superior Court. Our law clearly states that, absent a United
      States Supreme Court pronouncement, the decisions of federal
      courts are not binding on Pennsylvania state courts, even when
      a federal question is involved.... [However, w]henever possible,
      Pennsylvania state courts follow the Third Circuit so that litigants
      do not improperly “walk across the street” to achieve a different
      result in federal court than would be obtained in state court.

McDonald, 116 A.3d at 106 n.13 (quoting NASDAQ OMX PHLX, Inc. v.
PennMont Secs., 52 A.3d 296, 303 (Pa. Super. 2012) (citations omitted)).



                                           - 25 -
J-A25024-16


on the [c]ollege.    Other states have similarly concluded that a duty exists

based on such a relationship.” Id. (citing Indiana and Florida cases).

      Additionally, the Kleinknecht Court agreed with Drew’s parents

regarding the foreseeability of student athletes sustaining severe and even

life-threatening    injuries   while   engaged   in   athletic   activity,   and   the

unreasonableness of a college’s failure to protect against such a risk.

Kleinknecht, 989 F.2d at 1369–1370. The Third Circuit Court of Appeals

predicted “that the Supreme Court of Pennsylvania would hold that a college

also has a duty to be reasonably prepared for handling medical emergencies

that foreseeably arise during a student’s participation in an intercollegiate

contact sport.” Id. at 1371.

      We consider the Kleinknecht decision persuasive.              Like Drew, Gus

and Justin were injured while participating in a scheduled practice for an

intercollegiate athletic team sponsored by the College while on the College’s

property and under the supervision of the College’s employees.                     Cf.

Kennedy, 133 A.3d 38 (affirming grant of summary judgment to the

university because it owed no duty to a student cheerleader who was injured

at a cheerleading camp held off campus and directed by an independent

contractor).   Accordingly, we hold that the College owed Gus and Justin a

duty of care in their capacity as intercollegiate athletes engaged in a school-

sponsored and supervised intercollegiate athletic activity. Kleinknecht, 989

F.2d at 1369.       We further hold that the College’s duty of care to its


                                        - 26 -
J-A25024-16


intercollegiate student athletes required it 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 1369–1370.7 Lastly, we hold that the

determinations of whether the College breached this duty to Gus and Justin

and whether that breach caused the student athletes’ damages are

questions of fact for the jury.       Id. at 1371. Thus, the trial court erred in

determining that the Waiver was enforceable without considering whether

the College’s conduct in failing to provide qualified medical personnel at the

March 29, 2010 practice was grossly negligent or reckless.

       Upon review of the record and Tayar, and in light of our holdings

based on Kleinknecht, we conclude that the trial court’s analysis was

incomplete and incorrect.            It erred in finding that the Waiver was

enforceable because the Waiver would not release Lackawanna from, at

least, its own reckless conduct as a matter of law. Tayar. Moreover, Gus

and Justin sufficiently pled gross negligence and recklessness in their

complaint with regard to the College’s failure to provide qualified trainers.

Kleinknecht.      Additionally, Gus and Justin proffered sufficient evidence in

the form of testimony from fellow student athletes and experts in athletics

and athletic training to raise a genuine issue of material fact regarding the
____________________________________________


7
   As this case involved the use of a waiver in the athletic program of a
junior college, we limit our holdings to intercollegiate sports.



                                          - 27 -
J-A25024-16


scope of the Waiver and whether Lackawanna was grossly negligent or

reckless. Thus, the trial court erred in entering summary judgment.

       Gus and Justin further argue on appeal that the Waiver “cannot relieve

a party of liability for violating the law.”8      Gus and Justin’s Brief at 30.

According to Gus and Justin, Lackawanna violated Pennsylvania law by

employing Ms. Coyne and Ms. Bonisese on March 29, 2010, because they

were not qualified athletic trainers and because Ms. Bonisese made a “return

to play” decision.      Id. (citing 63 P.S. § 422.51a).9   Thus, they conclude,

____________________________________________


8
    We interpret Gus and Justin’s position as invoking the concept of
negligence per se, which:

       establishes both duty and the required breach of duty where an
       individual violates an applicable statute, ordinance or regulation
       designed to prevent a public harm. A plaintiff, however, having
       proven negligence per se, cannot recover unless it can be proven
       that such negligence was the proximate cause of the injury.
       J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582,
       585 (Pa. Super. 1997).

Cabiroy v. Scipione, 767 A.2d 1078, 1079 (Pa. Super. 2001).
9
  Section 422.51a of the Medical Practice Act, 63 P.S. §§ 422.1–422.51a is
the statutory authority regarding athletic trainers. Gus and Justin also cite
49 Pa. Code § 18.503. Gus and Justin’s Brief at 7. Title 49 section 18.50 of
the Pennsylvania Code regulates the conduct of athletic trainers, in relevant
part, as follows:

       (a) A person may not use the title “athletic trainer” or “licensed
       athletic trainer” or use any abbreviation including “A.T.,” “A.T.L.”
       or “L.A.T.” or any similar designation to indicate that the person
       is an athletic trainer unless that person has been licensed by the
       Board.

(Footnote Continued Next Page)


                                          - 28 -
J-A25024-16


“[T]he trial court should have allowed the jury to decide whether the Waiver

was valid and whether [Lackawanna’s] conduct was so egregious as to

render the [W]aiver unenforceable.” Id. at 34.

       Lackawanna responds that the laws related to athletic trainers are not

applicable to this case because Ms. Coyne and Ms. Bonisese were first

responders; additionally, Lackawanna asserts that Ms. Coyne and Ms.

Bonisese have statutory immunity as Good Samaritans.10            Lackawanna’s


                       _______________________
(Footnote Continued)

       (b) Except as otherwise provided in this subsection, a person
       may not perform the duties of an athletic trainer unless that
       person is licensed by the Board….

49 Pa. Code § 18.50(a), (b).
10
     The Medical Good Samaritan civil immunity statute provides as follows:

       (a) General rule.—Any physician or other practitioner of the
       healing arts or any registered nurse, licensed by any state, who
       happens by chance upon the scene of an emergency or who
       arrives on the scene of an emergency by reason of serving on an
       emergency call panel or similar committee of a county medical
       society, or who is called to the scene of an emergency by the
       police or other duly constituted officers of a government unit, or
       who is present when an emergency occurs and who, in good
       faith, renders emergency care at the scene of the emergency,
       shall not be liable for any civil damages as a result of any acts or
       omissions by such physician or practitioner or registered nurse in
       rendering the emergency care, except any acts or omissions
       intentionally designed to harm or any grossly negligent acts or
       omissions which result in harm to the person receiving
       emergency care.

       (b) Definition.—As used in this section ‘good faith’ shall
       include, but is not limited to, a reasonable opinion that the
(Footnote Continued Next Page)


                                           - 29 -
J-A25024-16


Brief at 10, 12, 29. Lackawanna further contends that negligence per se is

not an available basis for recovery because “there was no legal requirement

in Pennsylvania or standard in the NJCAA requiring a Certified Athletic

Trainer to be on the college practice field.”         Id. at 12.    According to

Lackawanna, therefore, it had no duty to have qualified trainers as a matter

of law. Id. at 11.

      Again, the trial court did not address Gus and Justin’s averments of

negligence per se. Moreover, we consider Lackawanna’s First Responder and

Good Samaritan arguments disingenuous and inapplicable. When viewed in

the light most favorable to Gus and Justin, the record reveals that Ms. Coyne

and Ms. Bonisese were hired as medical providers. On March 29, 2010, they

were acting within the scope of their employment in the College’s athletic

training department.        They each signed an athletic-trainer job description,

and student athletes understood them to be athletic trainers. Furthermore,

the record contains conflicting testimony which, when viewed in a light most

favorable to Gus and Justin, suggests that Ms. Bonisese made an

unauthorized return-to-play decision about Gus by telling him he should wait

until his arm felt better and then he could return to the drill.      Answer to

Motion for Summary Judgment, 10/16/15, at Exhibit 33 (Bonisese at 37,
                       _______________________
(Footnote Continued)

      immediacy of the situation is such that the rendering of care
      should not be postponed until the patient is hospitalized.

42 Pa.C.S. § 8331(a), (b).



                                           - 30 -
J-A25024-16


40), Exhibit 46 (Gus Deposition, 3/7/14, at 79).            Based on the record at

hand, therefore, we conclude that a jury must determine if Ms. Coyne and

Ms.   Bonisese   were   acting   as   athletic   trainers    and   if   the    College’s

employment of them at the practice was negligence per se and resulted in

harm to Gus and Justin. 42 Pa.C.S. § 8331.

                          Assumption of the Risk

      In granting summary judgment to Lackawanna, the trial court relied

alternatively on Lackawanna’s assumption-of-the-risk defense.             Trial Court

Opinion, 2/2/16, at 22–26. Regarding assumption of the risk, this Court has

held that:

      the assumption of the risk doctrine is a “function of the duty
      analysis” required in any negligence action . . . . [Montagazzi v.
      Crisci, 994 A.2d 626, 636 (Pa.Super. 2010)]. Under this
      formulation of the doctrine, a person relieves another of any
      duty to alleviate dangers when he voluntarily proceeds “to
      encounter a known or obvious danger.” [Carrender v. Fitterer,
      469 A.2d 120, 125 (Pa. 1983)]. Accordingly, in Montagazzi we
      reiterated that “the question of assumption of the risk typically
      remains for the jury,” and that “only where the evidence reveals
      a scenario so clear as to void all questions of material fact
      concerning the plaintiff’s own conduct can the court enter
      summary judgment.” Montagazzi, 994 A.2d at 636.

Thompson v. Ginkel, 95 A.3d 900, 906–907 (Pa. Super. 2014), appeal

denied, 108 A.3d 36 (Pa. 2015). “[T]he court may determine that no duty

exists only if reasonable minds could not disagree that the plaintiff

deliberately and with awareness of specific risks inherent in the activity

nonetheless engaged in the activity that produced his injury.”                Howell v.

Clyde, 620 A.2d 1107, 1112–1113 (Pa. 1993) (plurality).

                                      - 31 -
J-A25024-16


      Gus and Justin challenge the trial court’s entry of summary judgment

on the basis that they assumed the risk of playing football. Gus and Justin’s

Brief at 35. Gus and Justin argue that they did not assume the amplified

risks of the College providing unqualified personnel at the full-contact tryout.

Id. at 38–39.

      Lackawanna responds, “The issue in this appeal . . . is not whether

Lackawanna breached the standard of care. The actual issue on appeal is

whether Lackawanna has any duty at all when [Gus and Justin] knowingly

and voluntarily assumed the risk of injury playing football.” Lackawanna’s

Brief at 21 n.18 (emphasis in original). According to Lackawanna, whether

Gus and Justin assumed the risk of participating in football is a “duty”

question to be decided by the trial court.    Id. at 21. Lackawanna asserts

that it “had no duty as a factual matter to protect [Gus and Justin] from

their knowing and voluntary” participation in the football practice, and,

therefore, it cannot be deemed to have been negligence. Id. at 10.

      Without addressing the lack of qualified athletic trainers, the trial court

analyzed the assumption-of-the-risk defense as follows:

             Here, . . . both [Gus and Justin] were “experienced ball-
      players,” [Justin] having played football since he was six-years-
      old and [Gus] having played since he was ten. Both [Gus and
      Justin] understood the dangers of the sport, as both had been
      injured previously while playing football. Both had previously
      participated in a variation of the Oklahoma Drill either in high
      school or college, and both knew that Lackawanna used the drill.
      Both had the opportunity to observe the drill several times on
      March 29, 2010 before participating in it. Neither [Gus nor
      Justin] testified that they discussed the drill with Lackawanna’s

                                     - 32 -
J-A25024-16


      coaches prior to their participation. Additionally, contrary to
      [Gus and Justin’s] contentions in their Memorandum of Law in
      Opposition to Defendants’ Motion for Summary Judgment,
      neither [Gus nor Justin] testified that their coaches told them
      they would not be able to play football if they did not participate
      in the Oklahoma Drill. Therefore, we find that [Gus and Justin]
      voluntarily faced the risk presented.

      From the facts discussed above, we conclude that [Gus and
      Justin] voluntarily and knowingly proceeded in the face of an
      obvious and dangerous condition and, therefore, we find that
      Lackawanna owed no duty to [Gus and Justin]. With no genuine
      issue of material fact in dispute and, because [Gus and Justin]
      have failed to produce evidence of facts essential to their causes
      of action requiring a jury trial, we will, in the alternative . . .
      grant Lackawanna’s Motion for Summary Judgment on the basis
      of the assumption of risk doctrine and enter judgment in favor of
      Defendants.

Trial Court Opinion, 2/2/16, at 25–26.

      According    to   Gus   and     Justin,   the   trial   court’s   reasoning

“misapprehends the issue before the Court.” Gus and Justin’s Brief at 35.

Specifically, Gus and Justin state:

             This case presents facts and factual disputes that remove
      it from the definition of assumption of the risk. If [the College]
      had hired qualified and certified athletic trainers, and [Gus and
      Justin] relied upon their advice, then their decision would be
      knowing and voluntary. But in this case, [the College] chose to
      hire two persons who were not qualified to be athletic trainers
      and to allow them to examine and advise students on the
      football team, who—as here—reasonably assumed that the
      advice they received was from a person upon whom they could
      rely.

Id. at 39.

      We acknowledge that Gus and Justin had prior experience with the drill

and had an understanding of the dangers associated with the drill. Answer


                                      - 33 -
J-A25024-16


to Motion for Summary Judgment, 10/16/15, at Exhibits 46 (Gus at 177,

201–203) and 47 (Justin Deposition, 3/6/15, at 99, 124–125). However, as

Gus and Justin posit, although they were aware of the general risks inherent

in the sport of football, they were unaware of Lackawanna’s failure to take

reasonable measures to assure their safety by providing qualified trainers

during the drill. Gus and Justin’s Brief at 42. See Kleinknecht, 989 F.2d

1360 (college has a duty to provide qualified medical personnel to attend

student athletes).   Hence, we reject Lackawanna’s defense.         Reasonable

minds could disagree as to whether Gus or Justin “deliberately and with the

awareness of specific risks inherent in the activity nonetheless engaged in

the activity that produced” their injuries, where they signed the Waiver

unaware that the College’s athletic department did not include qualified

athletic trainers. Howell, 620 A.2d at 1112–1113; Kleinknecht, 989 F.2d

at 1369–1370. Thus, we conclude it is for the jury to decide whether the

College’s employment of unqualified personnel increased the risk of harm to

its student athletes, and, if so, whether Gus and Justin assumed a known or

obvious danger, i.e., the risk of injury caused by the College’s conduct.

Kleinknecht, 989 F.2d at 1371.

      As a final matter, we address the risks inherent in the sport of football.

See Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 343 (Pa. 2000)

(“[C]ases involving injuries to the plaintiffs who were . . . participating at

sporting events . . . have tended to speak in terms of whether the injury


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suffered resulted from a risk ‘inherent’ in the activity in question; if it did,

then the defendant was under no duty to the plaintiff, and the suit could not

go forward.”).      In the case at hand, Gus and Justin’s collegiate football

expert, Richard Slocum, opined that the drill had little application to playing

football. Answer to Motion for Summary Judgment, 10/16/15, at Exhibit 93

(Report of Richard Slocum, 4/13/15, at 3). Contrarily, Lackawanna’s football

expert opined, “[The drill] precisely replicated realistic game conditions, and

was therefore a valuable and productive drill for players.”          Lackawanna’s

Statement of Material Facts, 12/2/15, at Exhibit I (Chester L. Parlavecchio

Report, 7/15/15, at § IV). Thus, we discern an additional genuine issue of

material fact to be resolved by a jury: Is the tackling drill at issue in this

case part of the game of football, so that an injury resulting from

participation in the drill at the tryout is an inherent risk of football?

       Aside from the concern about this practice drill being considered an

inherent risk of football, we are concerned with a release being used to

excuse a college from having qualified medical personnel readily available to

its student athletes. Colleges are expected to put a priority on the health

and safety of their students, especially student athletes engaged in

dangerous sports.11 Many colleges profit significantly from student athletes’

____________________________________________


11
    Indeed, “[t]he purpose of the athletic training program at Lackawanna
College is to provide the utmost quality medical care to the student athletes
of the school’s intercollegiate athletic programs.” Answer to Motion for
(Footnote Continued Next Page)


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J-A25024-16


participation in these sports.         Enforcing a release and granting summary

judgment in a situation where the availability of qualified medical personnel

is called into question would jeopardize the health and safety of such student

athletes by removing at least one incentive for colleges “to adhere to

minimal standards of care and safety.” Tayar, 47 A.3d at 1203.

      In sum, genuine issues of material fact exist.             Thus, the trial court

erred in granting summary judgment to Lackawanna.                     Accordingly, we

reverse the entry of summary judgment and remand for trial.

      Summary judgment reversed.                 Case remanded for trial.   Jurisdiction

relinquished.

      P.J.E. Stevens did not participate in the decision of this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




                       _______________________
(Footnote Continued)

Summary Judgment, 10/16/15, at Exhibit 29 (AD Mecca at 69 and Exhibit
5).



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