J-A04034-16


                               2016 PA Super 96

JACK HILL, SR. AND CHERYL HILL,                  IN THE SUPERIOR COURT OF
INDIVIDUALLY, AND AS CO-                               PENNSYLVANIA
ADMINISTRATORS OF THE ESTATE OF
JACK HILL, JR., DECEASED,

                         Appellants

                    v.

SLIPPERY ROCK UNIVERSITY; SLIPPERY
ROCK UNIVERSITY MCLACHLAN
STUDENT HEALTH CENTER; LAURA A.
BATEMAN, CRNP; THE NATIONAL
COLLEGIATE ATHLETIC ASSOCIATION
“N.C.A.A.,”

                         Appellees                    No. 180 WDA 2015


                   Appeal from the Order January 20, 2015
               In the Court of Common Pleas of Butler County
                    Civil Division at No(s): AD-14-10570


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and SHOGAN, J.

OPINION BY SHOGAN, J.:                                   FILED MAY 03, 2016

      Jack Hill, Sr. and Cheryl Hill, individually and as co-administrators of

the estate of Jack Hill, Jr. (“Mr. Hill”), deceased, (collectively “Appellants”),

appeal from the order entered on January 20, 2015. The January 20, 2015

order made final a portion of the order entered on December 22, 2014, that

granted the preliminary objection in the nature of a demurrer filed by the

National Collegiate Athletic Association (“the NCAA”) and dismissed with
J-A04034-16


prejudice Appellants’ claims against the NCAA.1 Appellants contend that the

trial court erred in granting the NCAA’s preliminary objection.                 More

specifically, Appellants argue that the trial court erred in concluding that an

increased risk of harm, as required by Section 323(a) of the Restatement

(Second) of Torts, can be based only on an affirmative act. For the reasons

that follow, we reverse and remand for further proceedings.

       The trial court set forth the relevant background of this matter as

follows:

               [Appellants], parents and Administrators of the Estate of
       Jack Hill, Jr., Deceased, allege that, on September 9, 2011, Jack
       Hill, Jr. was participating in a late-night, high-intensity basketball
       practice, when he complained of feeling ill and collapsed to the
       floor, unresponsive. [Appellants] allege that neither the coaches
       nor the training staff offered Mr. Hill immediate medical care,
       such as CPR. [Appellants] allege that Mr. Hill was eventually
       transported to the Grove City Medical Center, where he was
       found to be in respiratory and cardiac arrest, and where he
       subsequently passed away. [Appellants] allege that an autopsy
       revealed marked red blood cell sickling in Mr. Hill’s lungs and
       liver, and that hemoglobin electrophoresis disclosed the
       presence of Sickle Cell Trait (“SCT”). [Appellants] allege that
       [Slippery Rock University], the [Slippery Rock University] Health
       Center, and Nurse Bateman were negligent for not testing for or
       requiring testing on Mr. Hill or other athletes for SCT prior to
____________________________________________


1
  The trial court specifically stated that portion of the order was deemed final
pursuant to Pa.R.A.P. 341(c) and that “an immediate appeal will facilitate
resolution of this entire case.” Order, 1/20/15, at unnumbered 2. The
December 22, 2014 order also granted in part and denied in part the
preliminary objections filed by Slippery Rock University, Slippery Rock
University McLachlan Student Health Center, and Laura A. Bateman,
[Certified Registered Nurse Practitioner (“CRNP”)] (collectively “the Slippery
Rock Defendants”). The Slippery Rock Defendants are not a part of this
appeal.



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J-A04034-16


     allowing him/them to participate in athletic activities, and for
     failing to educate Mr. Hill and other athletes about the dangers
     of SCT. [Appellants] allege said parties were negligent for failing
     to respond to Mr. Hill’s collapse by providing immediate medical
     care, and for failing to adequately train and supervise its staff on
     proper CPR administration, AED use, and other emergency first
     aid procedures. [Appellants] also allege that the N.C.A.A. was
     negligent for failing to require Division II schools, such as
     [Slippery Rock University], to screen its athletes for SCT prior to
     their participation in athletic activities.

           [Appellants] filed their initial Complaint on September 6,
     2013, then they filed three subsequent Amended Complaints,
     ending with their Fourth Amended Complaint (“Complaint”), filed
     on March 17, 2014. [Appellants] assert, against each Defendant,
     one count each for negligence, wrongful death, and survival
     action. On April 25, 2014, Judge Folino, of the Allegheny County
     Court of Common Pleas, transferred the case to Butler County.

           On September 5, 2014, the N.C.A.A. filed its Preliminary
     Objections to [Appellants’] Fourth Amended Complaint and its
     Brief in Support. In said objections, the N.C.A.A. demurs, and
     argues that [Appellants] fail to allege that the Defendant[s]
     owed Mr. Hill any legally recognized duty. The N.C.A.A. further
     argues that the Complaint lacks specificity as regards the source
     of any duty that it allegedly owed to him. Finally, the N.C.A.A.
     argues that the “no-duty” rule precludes any basis for liability
     between the N.C.A.A. and the [Appellants].

            On September 9, 2014, the Slippery Rock Defendants filed
     their Preliminary Objections to [Appellants’] Fourth Amended
     Complaint and their Brief in Support, incorporating by reference
     their Preliminary Objections to [Appellants’] original Complaint.
     Said Defendants argue that [Appellants’] claims for corporate
     negligence and negligent supervision, hiring, and training,
     against the University and the Health Center, are barred by
     sovereign immunity. The Slippery Rock Defendants further argue
     that [Appellants’] allegations of negligence, based upon said
     Defendants’ failure to test, to require testing, or to educate
     students about the risks of SCT, are based upon corporate
     policies and are thus barred by sovereign immunity. Said
     Defendants argue that the allegations against Nurse Bateman,
     for negligent hiring, training, and supervision, and for failing to
     require SCT testing, are allegations of corporate negligence, and

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J-A04034-16


      are barred. Finally, said Defendants argue that [Appellants’]
      request for loss of parental consortium is not recognized in
      Pennsylvania, and that funeral and estate administration
      expenses are not recoverable against a state agency.

             On October 31, 2014, [Appellants] filed their Responses
      and Briefs in Support to each Defendants’ Preliminary
      Objections. With regard to the Slippery Rock Defendants,
      [Appellants] argue that the University’s negligence is based upon
      the doctrine of respondeat superior, and is not based upon a
      corporate negligence theory. With regard to the N.C.A.A.’s
      preliminary objections, [Appellants] argue that their Fourth
      Amended Complaint contains dozens of allegations regarding
      N.C.A.A.’s alleged duty to Mr. Hill, which, when taken together,
      sufficiently plead an N.C.A.A. duty owed to Jack Hill, Jr.
      [Appellants] further argue that the “no-duty” rule does not apply
      to this case, as the risk at issue, sickle cell complications, is not
      an inherent risk of physical activity. On November 6, 2014, the
      N.C.A.A. filed its Reply Memorandum of Law in Support of its
      Preliminary Objections. Oral arguments were held on November
      7, 2014.

Trial Court Opinion, 12/22/14, at 2-4.

      As noted above, the trial court granted in part and denied in part the

preliminary objections filed by the Slippery Rock Defendants, and it granted

the preliminary objection in the nature of a demurrer filed by the NCAA and

dismissed the claims against the NCAA with prejudice.         In dismissing the

claims against the NCAA, the trial court initially concluded that Appellants’

factual allegations did aver, with sufficient specificity, the assumption of a

legal duty by the NCAA to, and for the benefit of, Mr. Hill. However, the trial

court ultimately found that Appellants failed to sufficiently plead liability on

the part of the NCAA.      This appeal followed.      Both the trial court and

Appellants have complied with Pa.R.A.P. 1925.


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J-A04034-16


      The issue on appeal is whether, under the circumstances presented in

the case at bar, Appellants possess a cognizable negligence claim against

the NCAA arising from Mr. Hill’s death. Appellants’ Brief at 4. Specifically,

Appellants aver that when a party owes a duty, an allegation that the party

failed to act in conformance with that duty can increase the risk of harm and

satisfy the elements of a claim of negligence pursuant to Section 323(a) of

the Restatement (Second) of Torts. Appellants’ Brief at 33. After review,

we agree with Appellants’ position that, at this stage of the proceedings, the

trial court erred in concluding that no recovery was possible.

      Appeals from orders granting a preliminary objection in the nature of a

demurrer are reviewed under the following standard:

      A preliminary objection in the nature of a demurrer is properly
      granted where the contested pleading is legally insufficient.
      Preliminary objections in the nature of a demurrer require the
      court to resolve the issues solely on the basis of the pleadings;
      no testimony or other evidence outside of the complaint may be
      considered to dispose of the legal issues presented by the
      demurrer. All material facts set forth in the pleading and all
      inferences reasonably deducible therefrom must be admitted as
      true.

      In determining whether the trial court properly sustained
      preliminary objections, the appellate court must examine the
      averments in the complaint, together with the documents and
      exhibits attached thereto, in order to evaluate the sufficiency of
      the facts averred. The impetus of our inquiry is to determine the
      legal sufficiency of the complaint and whether the pleading
      would permit recovery if ultimately proven. This Court will
      reverse the trial court’s decision regarding preliminary objections
      only where there has been an error of law or abuse of discretion.
      When sustaining the trial court’s ruling will result in the denial of
      claim or a dismissal of suit, preliminary objections will be
      sustained only where the case is free and clear of doubt.

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J-A04034-16



     Thus, the question presented by the demurrer is whether, on the
     facts averred, the law says with certainty that no recovery is
     possible. Where a doubt exists as to whether a demurrer should
     be sustained, this doubt should be resolved in favor of overruling
     it.

Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208-209 (Pa.

Super. 2012) (internal citations and quotation marks omitted).

     In their fourth amended complaint, Appellants alleged the NCAA was

negligent. Fourth Amended Complaint, 3/17/14, at 20, Count III.

           To establish a viable cause of action in negligence the
     pleader must aver in his complaint “a duty, a breach of that
     duty, a causal relationship between the breach and the resulting
     injury, and actual loss.” Feeney v. Disston Manor Personal
     Care Home, Inc., 849 A.2d 590, 594 (Pa. Super. 2004).
     Appellant sought to establish negligence based upon section 323
     of the Restatement (Second) of Torts, which provides as follows:

           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).3
           3
             Section 323 has been adopted as the law in
           Pennsylvania. Feld v. Merriam, 506 Pa. 383, 485
           A.2d 742, 746 (1984); Cooper v. Frankford Health
           Care System, Inc., 960 A.2d 134, 145–45 (Pa.


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J-A04034-16


            Super. 2008); Filter v. McCabe, 733 A.2d 1274 (Pa.
            Super. 1999).

Unglo v. Zubik, 29 A.3d 810, 813 (Pa. Super. 2011).

      In their Fourth Amended Complaint, Appellants pled: “At all times

material hereto, the N.C.A.A. had an irrevocable duty to [Mr. Hill] to

establish and enforce protocols relating to student athlete safety.”     Fourth

Amended Complaint, 3/17/14, at 8, ¶ 64.        Additionally, Appellants alleged

that the NCAA regulated, promulgated, and enforced protocols for the safety

of student athletes, and NCAA affiliated schools were mandated to comply

with NCAA medical condition testing. Id. at ¶¶ 66-71. If a school failed to

abide by the NCAA mandates for student athlete safety, that school would

face sanctions.   Id. at ¶ 73.   At all times relevant hereto, Slippery Rock

University was an NCAA member school.        Id. at ¶ 78. Beginning in 2010,

the NCAA required SCT testing for Division I athletes, Fourth Amended

Complaint, 3/17/14, at 8, ¶ 90, but such testing was not implemented in

Division II schools until 2012 and Division III schools until 2013. Id. at ¶

92.

      Initially, the trial court concluded that Appellants sufficiently alleged

that the NCAA assumed a duty, and pleaded facts that, if true, would

support a finding that the NCAA acted for the benefit of student athletes and

that Mr. Hill, at the time of his death, was within the class of individuals the

NCAA was to protect.     Trial Court Opinion, 12/22/14, at 20-22.      On that

basis, the trial court denied the NCAA’s preliminary objection wherein the

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J-A04034-16


NCAA averred that Appellants failed to plead a duty. Id. at 22. However,

the trial court then determined that Appellants failed to plead facts that

would allow for a finding that the NCAA increased Mr. Hill’s risk of harm, as

required under Section 323(a) of the Restatement.2            As support for its

position, the trial court cited Wissel v. Ohio High School Athletic

Association, 605 N.E. 2d 458 (Ohio Ct. App. 1992).                The trial court

provided the following rationale:

       As noted by the court in Wissel, supra, § 323(a), increased risk
       of harm, applies

              only when the defendant’s actions increased the risk
              of harm to the plaintiff relative to the risk that would
              have existed had the defendant never provided the
              services initially. Put another way, the defendant’s
              negligent performance must somehow put the
              plaintiff in a worse situation than if the defendant
              had never begun the performance. As we have noted
              when interpreting § 324A(a), a companion provision
              to § 323(a), to prevail under a theory of increased
              risk of harm a plaintiff must ‘identify sins of
              commission rather than omission.’

       Id. at 465 (citing Patentas v. United States, 687 F.2d 707,
       716 (3d Cir.1982) [quoting Turbe v. Government of Virgin
       Islands, 938 F.2d 427, 428 (C.A.3 (Virgin Islands),1991)].
       [Appellants] argue that, because the N.C.A.A. knew of the
       dangers of SCT and yet failed to timely implement mandatory
       SCT testing for Division II schools, Mr. Hill was not tested for or
       diagnosed with SCT; therefore, his exertion levels were not
       properly monitored during his basketball practice, and SCT-
       related emergency resuscitation procedures were not employed
____________________________________________


2
  The trial court also decided that there was insufficient pleading of reliance
for liability pursuant to Section 323(b) of the Restatement (Second) of Torts.
Appellants do not challenge that conclusion on appeal.



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       by emergency personnel. [Appellants] argue that these actions
       increased Mr. Hill’s risk of harm relative to the risk that he would
       have faced had he been diagnosed with SCT and properly
       monitored during practice. However, [Appellants] interpretation
       of the risk of harm standard for liability is not provided for in the
       case law. As explained in Wissel, the proper test for increased
       risk of harm is whether the N.C.A.A., by undertaking to provide
       medical condition testing and sports participation protocols, put
       Mr. Hill in a worse situation than if the N.C.A.A. had never
       undertaken to perform said services. In this case, [Appellants]
       do not plead facts that would support such an allegation; in
       other words, contrary to the requirements set forth in Wissel,
       [Appellants] allege sins of omission, rather than commission.
       Therefore, [Appellants] do not sufficiently allege that the
       N.C.A.A.’s actions increased Mr. Hill’s risk of harm, to establish a
       legal duty under § 323.

Trial Court Opinion, 12/22/14, at 22-23.

       First, we point out that neither Wissel nor the cases it cites, Turbe

and Patentas, is binding authority in this Court.3 Second, we cannot agree

with the trial court’s analysis.

       Here, Appellants alleged the NCAA owed a duty of care to Mr. Hill

because he was a student at Slippery Rock University.               Fourth Amended

Complaint, 3/17/14, at 4, ¶ 13.                Mr. Hill completed a pre-participation

____________________________________________


3
  See NASDAQ OMX PHLX, Inc. v. PennMont Securities, 52 A.3d 296,
303 (Pa. Super. 2012) (decisions of the federal courts of appeals are not
controlling authority); Gongloff Contracting, L.L.C. v. L. Robert Kimball
& Associates, Architects and Engineers, Inc., 119 A.3d 1070, 1078 (Pa.
Super. 2015) (stating that pronouncements of the lower federal courts have
only persuasive authority and are not controlling); see also Umbelina v.
Adams, 34 A.3d 151, 160 (Pa. Super. 2011) (stating that the decisions of
other states are not binding authority for this Court, although they may be
persuasive).




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athletic physical. Id. at ¶ 20. The medical questionnaire asked if Mr. Hill

had Sickle Cell Anemia (“SCA”) or SCT. Id. at ¶ 23. Mr. Hill was unaware

that he had SCT. Id. at ¶¶ 24-25. Appellants claimed that despite inquiring

as to whether Mr. Hill had SCA or SCT, at no point did anyone require or

request a blood test to check for these diseases. Id. at ¶ 26. Appellants

asserted that despite the pre-participation physical questionnaire, no one

informed Mr. Hill of the dangers of SCA or SCT. Id. at ¶ 27.

      Furthermore, Appellants averred that the NCAA regulates athletic

participation rules for its student athletes.     Fourth Amended Complaint,

3/17/14, at 4, ¶ 69.      Appellants specifically stated that a 2007 NCAA

Consensus Statement recommended testing for SCT in all student athletes.

Id. at ¶ 87. Appellants also pled that the NCAA mandated SCT testing for

athletes at Division I schools in August of 2010, id. at ¶ 90, but it failed to

require SCT testing for Division II schools such as Slippery Rock until August

of 2012. Id. at ¶¶ 91-92. The SCT testing at Division II schools, therefore,

was not implemented until after Mr. Hill’s death.

      Thus, relevant to our standard of review, the complaint asserted that

the Slippery Rock Defendants and the NCAA initiated medical and physical

evaluations, but provided no SCT testing and permitted Mr. Hill to participate

in the workout that led to his demise.       The incomplete medical clearance

may have led Mr. Hill to believe that he was physically fit for basketball.

Therefore, Appellants sufficiently alleged that the initiation of medical and


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J-A04034-16


physical evaluations, which did not include SCT testing for Division II

schools, increased Mr. Hill’s risk of harm.

       We conclude that Appellants’ Fourth Amended Complaint succinctly

averred that the then-existing NCAA Division II participation protocols

allowed a young man with SCT to participate in a high-intensity workout.

Had the NCAA’s protocols tested for SCT at Division II schools, Mr. Hill may

not have suffered the event that caused his death. Thus, Appellants claimed

that the inadequate pre-participation physical, which allowed Mr. Hill to play

basketball, increased his risk of harm. Appellants alleged that this increased

risk of harm could have been prevented if the NCAA discharged its duty and

required SCT testing.

      Herein, the trial court’s reliance on Wissel for the proposition that an

increased risk of harm can be established through only “sins of commission”

was incorrect. In Pennsylvania, an increased risk of harm can occur through

a failure to act, or a “sin of omission.”   Indeed, in addressing increased risk

of harm under Section 323 of the Restatement, the Pennsylvania Supreme

Court stated as follows:

      [O]nce a plaintiff has demonstrated that defendant’s acts or
      omissions, in a situation to which Section 323(a) applies, have
      increased the risk of harm to another, such evidence furnishes a
      basis for the fact-finder to go further and find that such
      increased risk was in turn a substantial factor in bringing about
      the resultant harm; the necessary proximate cause will have
      been made out if the jury sees fit to find cause in fact.




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J-A04034-16


Hamil v. Bashline, 392 A.2d 1280, 1288 (Pa. 1978) (footnote omitted)

(emphasis added).         Moreover, in Hamil, the Court noted the effect of

Section 323(a) was to relax the degree of certainty ordinarily required of a

plaintiff’s evidence in order to make a case for the jury.             Id.; see also

Feeney, 849 A.2d at 595 (applying the standard announced in Hamil to a

motion to remove a compulsory nonsuit).4

       In this case, Appellants pled that the NCAA had a duty to protect its

student athletes from SCT, and it is evident that Appellants also pled that

the NCAA, in failing to discharge that duty, increased the risk of harm to Mr.

Hill. Fourth Amended Complaint, 3/17/14, at ¶¶ 114-116. Ultimately, the

factfinder could reasonably conclude that the NCAA’s decision to test for SCT

at Division I schools as part of its protocols, while forgoing such testing

at Division II schools, was an error of omission and a failure in its duty,

thereby increasing the risk of harm to Mr. Hill.

       After review of the pleadings, at this juncture of the proceedings and

pursuant to our standard of review, we cannot conclude that there is a

certainty that no recovery is possible. Weiley, 51 A.3d at 208-209. Simply

stated,   Appellants’     allegations     are   sufficient   to   survive   preliminary

objections.     Accordingly, we conclude that the trial court erred in its

____________________________________________


4
  While Feeney addressed Section 323 in connection with a motion to
remove a compulsory nonsuit, its discussion of Section 323 and its
application to acts of commission and omission is particularly apt.



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application of the law, and we reverse that part of the order granting the

NCAA’s preliminary objection in the nature of a demurrer.

      Order reversed in part.        Case remanded for further proceedings

consistent with this Opinion. Jurisdiction relinquished.

      P.J.E. Ford Elliott joins the Opinion.

      P.J.E. Bender Notes Dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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