J-A24025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KATHERINE M. & WILLIAM SELL              :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                    Appellants            :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 WELLSBORO HOTEL COMPANY                  :    No. 483 MDA 2018

            Appeal from the Order Entered February 20, 2018
   In the Court of Common Pleas of Tioga County Civil Division at No(s):
                             701 CV 2016


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:             FILED: JANUARY 17, 2019

      Katherine M. and William Sell appeal from the order denying their

motion for reconsideration of the order granting summary judgment in favor

of Wellsboro Hotel Company (“Wellsboro”). For the reasons that follow, we

affirm.

      Wellsboro owns the Penn Wells Hotel and Lodge, which includes a

Fitness Center of which the Sells are members. On September 24, 2015, Ms.

Sell used the swimming pool and hot tub at the Fitness Center. Afterwards,

she walked barefoot from the pool area down the tiled hallway toward the

locker rooms. The hallway to the locker rooms connects to the lobby of the

hotel, and is a common area used by both members of the Fitness Center and

hotel guests. Ms. Sell slipped in water, fell, and fractured her right femur.

      The Sells filed a complaint against Wellsboro on September 19, 2016,

pleading claims of negligence and loss of consortium. Wellsboro filed an
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answer and new matter, and attached a copy of the membership application

and agreement (“Membership Agreement” or “Agreement”) signed by the

Sells. The second paragraph of the Agreement is titled “LIABILITY AND

WAIVER OF LIABILITY,” and states:

      It is expressly agreed that all exercises and use of the facilities
      shall be undertaken at member’s own risk. The Penn Wells and
      mangers, officers and directors shall not be liable for any claims,
      demand, injuries, damages, actions or causes of action for
      personal injury or property damage incurred by member,
      member’s family, or guests while on premises.

Membership Agreement at ¶ 2. We hereinafter refer to this paragraph as “the

exculpatory clause.”

      The third paragraph of the Agreement is titled “RULES OF CONDUCT,”

and includes general rules, including:

      No wet bathing suits or wet towels are permitted in the exercise
      room or lobby area.

                                       ...

      Because floors can be slippery, in consideration of other members
      and guests, please towel off after exiting the pool before entering
      the corridor to the locker room.

      Please be aware that the locker rooms are also the public
      restrooms for the lobby and breakfast area.

Id. at ¶ 3.

      Wellsboro deposed the Sells during discovery. The Sells each testified

during their depositions that they had read the Membership Agreement and

signed it voluntarily. Ms. Sell testified that it was normal for the hallway to be

wet. N.T. (Deposition of Katherine M. Sell), 1/11/17, at 51. She also stated

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she had informed an employee of the slipperiness at some point before her

injury. Id. at 52-54. Mr. Sell testified that he and Ms. Sell had previously

discussed that the hallway to the locker room was slippery. N.T. (Deposition

of William Sell), 1/11/17, at 13-14.

      The Sells deposed Shawn Bryant, the CEO and corporate designee for

Wellsboro. Bryant testified that the tile on which Ms. Sell slipped was laid in

2012. N.T. (Deposition of Shawn Bryant), 1/11/17, at 12. Part of the hallway

was covered by a carpet placed there in order to absorb some of the water,

but there was no carpet in the portion of the hallway in which Ms. Sell slipped.

Id. at 15. Bryant denied that the purpose of the carpet was to prevent

slippage. Id. at 16. He asserted that he was not aware of any other slips and

falls that occurred inside the hotel. Id. at 29. Bryant also stated that after the

accident, housekeeping began placing yellow caution signs in the hallway after

it was mopped, or if there had been an increase in traffic from the pool area.

Id. at 29, 31.

      Ann Callihan, Amber Hull, and Elizabeth Gordon—other members of the

fitness center—submitted statements in support of the Sells, each stating that

the stone tiles in the area were always very wet and slippery, and that this

was well known to the people who regularly used the pool and Fitness Center.

      At the close of pleadings and discovery, Wellsboro filed a motion for

summary judgment, arguing that the exculpatory clause relieved them of

liability for the Sells’ claim of negligence. The court held a hearing and granted

the   motion     on   November   14,   2017.   The   Sells   filed   a   motion   for

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reconsideration. The court issued an order vacating the summary judgment

and scheduling a hearing on the motion for reconsideration.1 The court denied

the motion for reconsideration on February 20, 2018, and the Sells appealed.2

       The Sells raise the following issues:

       1. Whether the lower court abused its discretion or committed an
       error of law in denying [the Sells]’ Motion for Reconsideration,
       because the exculpatory clause at issue does not relieve
       [Wellsboro] from its own acts of negligence?

       2. Whether the lower court abused its discretion or committed an
       error of law in denying [the Sells’] Motion for Reconsideration,
       because [Wellsboro]’s actions constitute “recklessness”?

       3. Whether the lower court abused its discretion or committed an
       error of law in denying [the Sells’] Motion for Reconsideration,
       because the release refers to the fitness center and [Ms. Sell’s]
       injuries occurred outside of the fitness center?

Sells’ Br. at 4.

       The entry of summary judgment is appropriate “where the record

demonstrates that there remain no genuine issues of material fact, and . . .

____________________________________________


1  Before the court vacated summary judgment and scheduled the
reconsideration hearing, the Sells filed a notice of appeal to this Court. After
the court vacated summary judgment and scheduled the hearing, the appeal
was stricken as premature pursuant to Pa.R.A.P. 1701(b)(3).

2 Ordinarily, an appeal may not lie from an order denying a motion for
reconsideration. See Oliver v. Irvello, 165 A.3d 981, 983 n.1 (Pa.Super.
2017). Here, however, the trial court de facto granted the motion for
reconsideration when it vacated summary judgment and scheduled a
reconsideration hearing. This action tolled the appeal period until the court’s
disposition. See Pa.R.A.P. 1701(b)(3), and note 1, supra. Therefore while the
court’s February 20, 2018 order purportedly denies reconsideration, it is more
aptly construed as an order reinstating summary judgment in favor of
Wellsboro. Thus, it was final and appealable.

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the moving party is entitled to judgment as a matter of law.” Chepkevich v.

Hidden Valley Resort, L.P., 2 A.3d 1174, 1182 (Pa. 2010). As review of

summary judgment presents a question of law, our standard of review is de

novo and the scope of review is plenary. Id.

                             I. The Exculpatory Clause

       The Sells argue that the exculpatory clause in the Membership

Agreement does not absolve Wellsboro from its negligence in this case. The

Sells contend that the clause does not apply to an injury caused by slipping

en route to the locker room, as this activity was ancillary to the fitness

activities contemplated by the Membership Agreement. Sells’ Br. at 13-19

(citing, inter alia, Brown v. Racquetball Centers, Inc., 534 A.2d 842

(Pa.Super. 1987)). The Sells also argue that we should not interpret the

exculpatory clause as releasing Wellsboro from liability for its own negligent

acts, as it does not specifically mention either negligence or negligence by

Wellsboro. Sells’ Reply Br. at 13-17 (citing Dilks v. Flohr Chevrolet, Inc.,

192 A.2d 682 (Pa. 1963)).

       An otherwise valid exculpatory clause 3 is 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 (quoting Topp Copy

Prod., Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993)). In interpreting
____________________________________________


3 The Sells do not argue that the clause contravenes public policy, is not
between private entities governing their own affairs, or is a contract of
adhesion. See Chepkevich, 2 A.3d at 1189 (listing preliminary requirements
for a valid exculpatory clause).

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whether a liability waiver meets this standard, we construe the language

strictly and, when ambiguous, “against the party seeking immunity from

liability.” Id. The clause “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.” Id.

      In Brown, the plaintiff signed a membership application with a

racquetball club, stating that he assumed “all risks of injury to [his] person

and property that may be sustained in connection with the stated and

associated activities in and about [the] premises” and that he released the

club from “all claims . . . for injury sustained to [his] person and/or property

during [his] presence on the premises and my participation in those activities

due to negligence or any other fault.” 534 A.2d at 843 (emphasis added). We

held that the release did not bar a claim by the plaintiff based on injuries he

sustained when he exited the shower facilities and slipped on the wet tile floor.

Id. at 843-44. We came to this conclusion because the release only relieved

the defendant of liability for injuries the plaintiff sustained “while participating

in certain activities of the [c]lub,” which did not include use of the shower

facilities. Id. at 833.

      Here, unlike in Brown, the language of the exculpatory clause does not

limit the waiver of liability to the certain activities. Rather, it unambiguously

states that the members assume risk of “all exercises and use of the

facilities” and that Wellsboro is not liable for “any claims [or] injuries”

sustained by members “while on [the] premises.” Membership Agreement

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at ¶ 2 (emphasis added).           The language therefore applies to the Sells’

negligence claim, which arose from Ms. Sell’s use of the facilities while on the

premises. Moreover, other language in the contract warns that guests who

exit the pool must dry off “before entering the corridor to the locker room,”

“[b]ecause floors can be slippery.” Id. at ¶ 3. Therefore, in addition to the

broad language employed in the exculpatory clause applying it to any activity

on the premises, the Agreement as a whole explicitly contemplated the activity

at issue here: walking in the wet corridor to the locker room after using the

pool. As the activity which caused Ms. Sell’s injuries was contemplated by the

contract, the Sells’ argument that the exculpatory clause does not apply to

her claim is meritless.4

       We are equally unpersuaded by the Sells’ argument that the exculpatory

clause was not intended to bar claims arising from Wellsboro’s negligence. An

exculpatory clause need not specifically mention “negligence” in order to bar

negligence suits. Chepkevich, 2 A.3d at 1192-93. For example, our Supreme

Court has acknowledged that language providing a party is not liable “for any

injury” to the other is an explicit statement releasing the party from

negligence claims. Id. at 1193 & n.21 (discussing Nissley v. Candytown

Motorcycle Club Inc., 913 A.2d 887 (Pa.Super. 2006)); see also Zimmer

v. Mitchell and Ness, 385 A.2d 437, 439-40 (Pa.Super. 1978) (holding

____________________________________________


4 We shall not discuss the cases cited by the Sells on this point which are not
controlling authority, but note that we found none of them persuasive to our
disposition.

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common sense interpretation of exculpatory clause not containing word

“negligence” but releasing defendant of “any liability” was not ambiguous and

included negligence claims), aff’d, 416 A.2d 1010 (Pa. 1980)). Here, the

Agreement stated that Wellsboro would “not be liable for any claims, demand,

injuries, damages, actions, or causes of action for personal injury or property

damage incurred by member . . . .” Membership Agreement at ¶ 2 (emphasis

added). This obviously included a bar against suits arising from Wellsboro’s

own negligence.5

                            II. The Recklessness Claim

       In their second issue, the Sells argue that the court erred in granting

summary judgment for Wellsboro because Ms. Sell’s injuries were caused by

Wellsboro’s recklessness, which was not waived by the exculpatory clause.

According to the Sells, Wellsboro owed a duty to Ms. Sell, as a business

invitee, to “protect [her] from foreseeable harm,” meaning circumstances that

Wellsboro either knew of or would have discovered through the exercise of

reasonable care, and which created an unreasonable risk of harm. Sells’ Br.
____________________________________________


5  Dilks is inapposite. In that case, the Supreme Court was charged with
constructing a contract stating that the defendant, Chevrolet, was to keep the
premises it was leasing from the plaintiff in good order and repair, but that it
assumed no liability for “reasonable wear and tear and damage by accidental
fire or other casualty not occurring through the negligence of [Chevrolet].”
Dilks, 192 A.2d at 429 (brackets in original). The Court examined the use of
the word “or,” and held that the release did not clearly bar the claim of damage
following a fire caused by the negligence of Chevrolet. Id. at 436. Here, the
wording of the exculpatory clause is not so ambiguous, and we are not faced
with interpreting whether it only barred actions negligence actions arising from
certain enumerated injuries.


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at 23-24 (citing Estate of Swift, 690 A.2d 710 (Pa.Super. 1997)). The Sells

also posit that Section 343 of Restatement (Second) of Torts (1965),

employed in Toro v. Fitness Int'l LLC., 150 A.3d 968 (Pa.Super. 2016),

requires a plaintiff to prove that the defendant either helped create the

harmful condition, or had actual or constructive notice of the condition. Sells’

Br. at 24. The Sells argue that, unlike the plaintiff in Toro, who slipped in

soapy water on the floor of an exercise gym, they set forth evidence that

Wellsboro knew that the floor was dangerously slippery, and therefore the

question of whether the evidence proved that Wellsboro was reckless should

have been decided by a fact-finder.

      Toro and Swift explained the duty owed to invitees and a breach of

that duty within the context of a negligence claim. See Toro, 150 A.3d at

977; Swift, 690 A.2d at 722. The instant claim is appropriately analyzed

under the definition of “reckless disregard” from Section 500 of Restatement

(Second) of Torts (1965). See Hinkal v. Pardoe, 133 A.3d 738, 746

(Pa.Super. 2016) (citing Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190

(Pa. 2012)). Section 500 states:

      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).



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      In other words, whereas negligence consists of “mere inadvertence,

incompetence, unskillfulness, or a failure to take precautions to enable the

actor adequately to cope with a possible or probable future emergency,”

recklessness requires “a conscious choice of a course of action,” and must

“involve an easily perceptible danger of death or substantial physical harm,

and the probability that it will so result must be substantially greater than is

required for ordinary negligence.” Id. at cmt. a, g. The general examples of

reckless conduct given by the comment to the section include driving through

heavy traffic at a high rate of speed; rendering imperfect surgical aid when

professional assistance is available; and intentionally driving through a

highway in defiance of a stop sign if a stream of vehicles is approaching. Id.

at cmt. a, b.

      Here, the Sells allege that Wellsboro knew that water was being

constantly deposited on the tile floor outside of the women’s locker room, and

that this created a slippery condition. However, as a matter of law, these facts

sustain a claim of negligence, not recklessness. As the trial court stated, “no

reasonable jury could find [Wellsboro] intentionally failed to dry the floor not

only having reason to know it created an unreasonable risk of harm to [Ms.

Sell] but also that such risk is greater than that which would make its conduct

negligent.” Trial Court Opinion, filed May 8, 2016, at 6-7. We agree. The Sells

focus on whether Wellsboro had notice that the floor was slippery when wet,

and fail to acknowledge that the circumstances here do not involve “an easily

perceptible danger of substantial physical harm” with a substantially greater

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probability of occurring than that of negligence. The courts of our

Commonwealth have consistently analyzed slip-and-fall claims such as this

one within the parameters of a negligence action.6 While we do not imply that

a slip and fall case can never prevail under a theory of recklessness, the facts

here do not meet the standard for recklessness. This issue merits no relief.

                                   III. The Hallway

       In their final issue, the Sells argue that because the exculpatory clause

should be construed narrowly, and against Wellsboro, see Section I, supra, it

should not be construed to apply to the hallway where the injury occurred, as

this was not part of the facilities belonging to the Fitness Center. According to

the Sells, the Membership Agreement refers to the Fitness Center facilities as

the exercise room and the swimming pool, and specifies that the hallway and


____________________________________________


6 See, e.g. Katz v. John Wanamaker Philadelphia, Inc., 112 A.2d 65, 68
(Pa. 1955) (holding whether slip and fall on wet, slippery marble staircase was
negligence was question for jury); Sheridan v. Horn & Hardart Baking Co.,
77 A.2d 362, 362 (Pa. 1951) (finding defendant had no notice of the conditions
and plaintiff was contributorily negligent in negligence claim for slip and fall in
wet, slushy revolving door of restaurant); Flora v. Great Atl. & Pac. Tea
Co., 198 A. 663, 665 (Pa. 1938) (holding store owner negligent for failing to
dry wet, slippery linoleum floor in slip-and-fall case); Toro, 150 A.3d at 977-
78 (finding plaintiff could not prevail on slip and fall in men’s locker room of
exercise club where plaintiff put forth no evidence of notice); Rodriguez v.
Kravco Simon Co., 111 A.3d 1191, 1194 (Pa.Super. 2015) (determining
plaintiff in slip and fall case failed to prove defendant shopping mall was
negligent); Estate of Swift v. Ne. Hosp. of Philadelphia, 690 A.2d 719,
722-23 (Pa.Super. 1997) (examining negligence claim based on slip and fall
on wet bathroom floor).




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locker room, in contrast, are common areas for public use. Therefore, the

hallway is not encompassed by the exculpatory clause.7

       The exculpatory clause relieves Wellsboro from negligence claims arising

from injuries sustained by members both during “use of the facilities” and

“while on [the] premises.” Membership Agreement at ¶ 2. Neither the

“facilities” or “premises” are specifically defined by the Agreement, but the

rules listed in the Agreement indicate that Fitness Center membership allows

for use of the “pool,” “pool area,” “pool facilities,” “exercise room,” “exercise

rooms,” “cardio and weight room,” “lobby area,” “corridor to the locker

room,” and “locker rooms.” Id. at ¶ 3 (emphasis added). Thus, we conclude

that the corridor to the locker room, where Ms. Sell was injured, is included in

the “facilities” and “premises” of the Fitness Center for purposes of the

Membership Agreement. The Sells advance no colorable reason why the

corridor cannot be considered both a part of the Fitness Center for which they

have waived Wellsboro’s liability, and an area open to the public.

       Having found no reason to vacate summary judgment, we affirm.

       Order affirmed.




____________________________________________


7 As the facts of this case do not necessitate we determine whether the
entirety of the hotel is included in the “premises” of the Fitness Center, we do
not address the Sells’ argument on this point.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/17/2019




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