J-A18028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARK RICHMOND, JILL RICHMOND IN              IN THE SUPERIOR COURT OF
THEIR OWN RIGHT AND AS PARENTS                     PENNSYLVANIA
AND NATURAL GUARDIAN OF KYLE
RICHMOND A MINOR

                        Appellants

                   v.

WILD RIVER WATERPARK, INC. AND
LAKE RAYSTOWN RESORT, LLC D/B/A
LAKE RAYSTOWN RESORT, AND R.R.P.
RECREATION, A PA LIMITED
PARTNERSHIP, AND P. JULES PATT IN
HIS OWN RIGHT AND AS A GENERAL
PARTNER OF R.R.P. RECREATION, A PA
LIMITED PARTNERSHIP

                        Appellees                 No. 1972 MDA 2013


                 Appeal from the Order of October 11, 2013,
            In the Court of Common Pleas of Huntingdon County
                      Civil Division at No.: 2008-1283


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                       FILED OCTOBER 06, 2014

       Mark Richmond and Jill Richmond, in their own rights and as parents



Rich

judgment in favor of Wild River Waterpark, Inc., Lake Raystown Resort, LLC

d/b/a Lake Raystown Resort, R.R.P. Recreation, LP, and P. Jules Patt in his

own right and as a general partner of R.R
J-A18028-14



                                                   -

ability to state a claim for negligence against Wild River Waterpark after Kyle

Richmond sustained injuries on a waterslide. We affirm.

      The trial court set forth the facts of this case as follows:

      There is no dispute that Kyle Richmond was injured on August
      19, 2006, while riding an inner tube down a waterslide at Wild
      River Water Park. Kyle was fifteen (15) at the time of the
      accident. In the complaint it was alleged that Kyle was riding an
      inner tube down a waterslide when he unexpectedly was turned
      around and was thrown out of the inner tube striking his face on
      the bottom of t
      front teeth were knocked out, he received a laceration to the
      deep tissues of his upper lip and other injuries all of which
      required surgical intervention and resulted in scarring and the
      permanent loss of the teeth.

                                                       -3 (quotation marks and

record citations omitted).

      The Richmonds filed a writ of summons on August 8, 2008, and

eventually filed a complaint on June 18, 2012, raising four counts of

negligence against the collective defendants. On April 29, 2013, the parties

deposed Kyle Richmond and Joshua Patt, the assistant general manager of

Wild River Waterpark, Inc. Wild River Waterpark filed a motion for summary

judgment on June 24, 2013, arguing that the            -

amusement applied, which would preclude the Richmonds from proving the

duty or breach of duty elements in their negligence claims as a matter of

law. After hearing oral argument on the motion for summary judgment, the




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J-A18028-14



court granted summary judgment to Wild River Waterpark in its October 11,

2013 order and opinion. The Richmonds timely appealed.1

       The Richmonds raise the following four questions for our review:

       1.     Did the [c]ourt below commit an error of law and/or abuse
       its di
                                                          -

       2.    Did the [c]ourt below commit an error of law and/or abuse
       its discretion in finding that there was no genuine issue of
       material fact, by disregarding the critical, material facts that Kyle
       Richmond was supplied with the incorrect type of inner tube,
       instead of the open-bottomed tube that was required for safe
       operation of the water slide?

       3.     Did the [c]ourt below commit an error of law and/or abuse

       summary judgment when it failed to view the evidence in the
       light most favorable to the nonmoving party?

       4.     Did the [c]ourt below commit an error of law and/or abuse
       its discretion when the [c]ourt disregarded the importance of the
       contradictory oral testimony of Kyle Richmond and the
       representative of [Wild River Waterpark] regarding the inner
       tube at issue in this case?

Rich



judgment is well-settled:

       A reviewing court may disturb the order of the trial court only
       where it is established that the court committed an error of law
       or abused its discretion. As with all questions of law, our review
       is plenary.
____________________________________________


1
      The Richmonds timely filed a concise statement of errors and the trial
court entered a supplemental opinion on December 10, 2013. See Pa.R.A.P.
1925(a), (b).



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J-A18028-14



          judgment, we focus on the legal standard articulated in the
          summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
          where there is no genuine issue of material fact and the moving
          party is entitled to relief as a matter of law, summary judgment
          may be entered. Where the non-moving party bears the burden
          of proof on an issue, he may not merely rely on his pleadings or
          answers in order to survive summary judgment. Failure of a
          non-moving party to adduce sufficient evidence on an issue
          essential to his case and on which it bears the burden of proof
          . . . establishes the entitlement of the moving party to judgment
          as a matter of law. Lastly, we will view the record in the light
          most favorable to the non-moving party, and all doubts as to the
          existence of a genuine issue of material fact must be resolved
          against the moving party.

Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa.

2001) (case citations omitted).

          [T]he 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.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010)

(citati

negligence: a duty of care, a breach of that duty, a causal connection



Zeidman v. Fisher, 980 A.2d 637, 639 (Pa. Super. 2009).



was improper because the [c]ourt below improperly applied the no-duty rule

to the instant case because the injuries suffered by Kyle Richmond, as a

result of being supplied with the incorrect inner tube[,] were not common,


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J-A18028-14




Brief at 7. We disagree.

      The no-duty rule is a longstanding principle which applies to cases

involving a place of amusement for which admission is charged.

      An operator of such an establishment is not an insurer of his
      patrons. Rather, he will be liable for injuries to his patrons only
      where he fails to use reasonable care in the construction,
      maintenance, and management of [the facility], having regard to
      the character of the exhibitions given and the customary conduct
      of patrons invited.

Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546, 549 (Pa. 1978)

(citations omitted).

      The rule provides that a defendant owes no duty of care to warn,

                                                   Jones, 394 A.2d at
      551. If it is determined the no-duty rule is applicable to a
      negligence claim, a plaintiff will be unable to set forth a prima
      facie case of liability.

                                               , 951 A.2d 372, 375-76 (Pa.



adequate evidence that the amusement facility in which he was injured

deviated in some relevant respect from established custom will it be proper

                -                             Id. at 378.

      Here, the Richmonds have failed to establish that coming off the inner

                                                                            ,



Jones

landing and severity of his facial impact and injury were not inherent risks,

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J-A18028-14



[and] therefore [were] not covered by the no-

at 10. However, the severity of injury is irrelevant as to whether the no-

duty rule applies.     See Craig

confuses the concepts of risk and result. The risk at issue in this matter is

being struck by an errant softball; the risk is not the injuries that resulted



         Upon review of the record, we agree with the trial court that the

Richmonds have failed to establish that coming off the inner tube is not a

risk inherent in riding a waterslide. See Rule 1925(a) Opinion, 12/10/2013,

at 4.     In fact, the Richmonds conceded in their response to Wild River

                                                                        -duty

                                er it is a common, frequent and expected part




                                                                       wever,

they have pointed to no evidence of record to settle this inquiry in their

favor.

         Thus, the trial court did not err in applying the no-duty rule to the

instant case, and the Richmonds cannot state a prima facie claim against

Wild River Waterpark.      Summers, 997 A.2d at 1159; Craig, 951 A.2d at




type of inner tube was supplied to Kyle Richmond is a genuine issue of

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J-A18028-14



material fact in the instant case based on the oral testimony of a



Specifically, they contend that, because Kyle Richmond stated that the inner

tube he rode had a covered bottom, and Joshua Patt stated that the inner



differ as to the outcome of the instant case depending on the credibility of

                        Id. at 12-13. We disagree.



and prevents the entering of a summary judgment. But if plaintiff fails to

establish a prima facie case, the mere fact that his proof is oral does not

                                                         Thompson Coal Co. v.

Pike Coal Co., 412 A.2d 466, 474 (Pa. 1979).

       Here, Joshua Patt, representative of Wild River Waterpark, stated that



They do have two handles, but they are open-                Deposition of Joshua

Patt, 4/29/2013, at 37.2 The only evidence that Kyle rode in a tube with a

bottom cover comes from his own deposition.             See Deposition of Kyle

Richards, 4/29/2013, at 13.           The Richmonds have failed to support this

contention with expert reports, an inspection of Wild River Waterpark, or any
____________________________________________


2
     Mr. Patt did not state that an inner tube with a bottom cover would be
unsafe; he simply testified that the inner tubes provided for the waterslide
on which Kyle Richmond was injured were open-bottom. See Deposition of
Joshua Patt, at 35-39.



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J-A18028-14



other proof that Kyle actually rode a covered-bottom tube or any tube not

approved or suitable for use on the waterslide. Moreover, nowhere does the

record show a causal connection (through expert testimony or otherwise) to

                                                                              See

Zeidman, 980 A.2d 637 at 639.

          As previously discussed, the trial court properly concluded that the no-

duty rule precluded the Richmonds from stating a prima facie claim of

negligence against Wild River Waterpark. Craig, 951 A.2d at 375-76. Thus,




Thompson,

relief.



to grant a motion for summary judgment the court must view the evidence

in the light most favorable to the non-moving p



where a material fact could be supported by the acquisition of an expert



summa

the record of the instant case showing that the type of inner tube was a

                                                 Id. at 13-14. We disagree.

          Pennsylvania Rule of Civil Procedure 1035.2 provides:




                                        -8-
J-A18028-14


     After the relevant pleadings are closed, but within such time as
     not to unreasonably delay trial, any party may move for
     summary judgment in whole or in part as a matter of law

        (1)      whenever there is no genuine issue of any
        material fact as to a necessary element of the cause of
        action or defense which could be established by additional
        discovery or expert report, or

        (2)       if, after the completion of discovery relevant to
        the motion, including the production of expert reports, an
        adverse party who will bear the burden of proof at trial has
        failed to produce evidence of facts essential to the cause of
        action or defense which in a jury trial would require the
        issues to be submitted to a jury.

Pa.R.C.P. 1035.2.

     [O]ur responsibility as an appellate court is to determine
     whether the record either establishes that the material facts are
     undisputed or contains insufficient evidence of facts to make out
     a prima facie cause of action, such that there is no issue to be
     decided by the fact-finder. If there is evidence that would allow
     a fact-finder to render a verdict in favor of the non-moving
     party, then summary judgment should be denied.

Harris v. NGK N. Am., Inc., 19 A.3d 1053, 1063 (Pa. Super. 2011).

     Here, as previously established, the Richmonds acknowledged in their



question is whether it is a common, frequent and expected part of riding a

                                                      wer at 6.   Absent any




pursuant to the no-                                               prima facie

case. Craig, 951 A.2d at 375-76; see also Harris, 19 A.3d at 1063. At no

point did the Richmonds state they had not completed discovery, nor did


                                    -9-
J-A18028-14



they suggest that the court prevented them from supplementing the record.

Thus, the trial court properly granted Wild



                                                    1035.2(2).

       Furthermore, viewing the evidence in the light most favorable to the

Richmonds as the non-moving party, the Richmonds failed to establish the

causal connection that the type of inner tube Kyle Richmond used

contributed to his injury.   See Deposition of Joshua Patt, at 35-39.     A

dispute over whether the inner tube had a covered bottom does not make it



                                                                    1035.2.

Rather, the Richmonds were required in the first instance to offer some

evidentiary basis upon which a jury reasonably could conclude that an

unsuitable inner tube existed in the park and caused Kyle Richmond to

sustain his injuries.   Accordingly, the trial court did not err in granting

summary judgment to Wild River Waterpark. See Summers, 997 A.2d at

1159. This issue does not merit relief.

                                                                           -

standing rule articulated in Nanty-Glo [v. Am. Surety Co., 163 A. 523 (Pa.

1932)], a motion for summary judgment cannot be decided on oral

test



depositions of Kyle Richmond and Wild River Waterpark representative

                                    - 10 -
J-A18028-14



Joshua Patt differ with respect to whether the inner tube Richmond used had



                              Id. at 15. We disagree.

      The Nanty-Glo

insufficient to establish the absence of material fact necessary for the entry

                          Checchio v. Frankford Hosp.       Torresdale Div.,

717 A.2d 1058, 1062 (Pa. Super. 1998).

      Initially, it must be determined whether the plaintiff has alleged
      facts sufficient to establish a prima facie case. If so, the second
      step is to determine whether there is any discrepancy as to any
      facts material to the case. Finally, it must be determined
      whether, in granting summary judgment, the trial court has
      usurped improperly the role of the jury by resolving any material
      issues of fact.

Dudley v. USX Corp., 606 A.2d 916, 920 (Pa. Super. 1992).

      Here, as previously established, the Richmonds failed to establish that

coming off an inner tube and landing in the slide is not a common, frequent

and expected part of riding a waterslide. See Jones, 394 A.2d at 551. As a

result, the Richmonds could not establish a prima facie case for negligence

pursuant to the no-duty rule. See Craig, 951 A.2d at 375-76. Thus, we

                              er there is any discrepancy as to any facts

                        Dudley, 606 A.2d at 920. Accordingly, the trial court

did not violate the Nanty-Glo rule or rely on oral testimony to establish the

absence of a material fact.      See Checchio, 717 A.2d at 1062.            The



      Order affirmed.

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J-A18028-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2014




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