J-A27006-15
                             2016 PA Super 16




SHAYE-ASHLEY KENNEDY,                      IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellant

                 v.

ROBERT MORRIS UNIVERSITY

                 v.

UNIVERSAL CHEERLEADER
ASSOCIATION,

                      Appellee                  No. 1844 WDA 2014


          Appeal from the Judgment Entered October 28, 2014
           In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD-014305

SHAYE-ASHLEY KENNEDY,                      IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                      Appellant

                 v.

ROBERT MORRIS UNIVERSITY

                 v.

UNIVERSAL CHEERLEADER
ASSOCIATION,

                      Appellee                  No. 1845 WDA 2014


          Appeal from the Judgment Entered October 28, 2014
           In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD-014305

BEFORE: BOWES, OLSON, AND STABILE, JJ.
J-A27006-15



OPINION BY BOWES, J.:                          FILED JANUARY 29, 2016

      Shaye-Ashley Kennedy appeals from the trial court’s grant of summary

judgment in favor of Robert Morris University (“RMU” or “University”) and

Universal Cheerleader Association (“UCA”).     After thorough review, we

affirm.

      The certified record reveals the following facts.   Ms. Kennedy, an

incoming freshman student at RMU in 2010, was selected as a member of

the University’s cheerleading squad coached by Cynthia Hadfield.   Prior to

school, she attended a pre-camp for RMU cheerleaders run by Coach

Hadfield.   The RMU cheerleaders, including Ms. Kennedy, then attended a

mandatory camp at the University of Scranton conducted by UCA.

      On August 12, 2010, while at the UCA camp, Ms. Kennedy and three

other cheerleaders were practicing a new stunt called a rewind.      Three

individuals at the base were to propel her upward, Ms. Kennedy would

perform a tuck in the air, and the bases would catch her in a sponge

position.   The UCA instructors demonstrated the stunt one or two times,

breaking it down into steps. Kennedy Deposition, 12/18/13, at 95. On the

first attempt, the bases caught Ms. Kennedy but Ms. Kennedy did not fully

complete the stunt.   Id. at 100.   Ms. Kennedy was not sure whether her

RMU coach was present for that attempt but she did not expect her to be

there observing her group. Id. at 103, 104. Prior to the next attempt, Ms.

Kennedy asked for more spotters in addition to the UCA instructor, and UCA

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brought in two RMU cheerleaders to spot. This time, Ms. Kennedy landed on

top of her bases. While they caught her body, the back of her head hit the

floor.    She sustained a closed head injury, concussion, cervical strain and

sprain, impaired vision in her right eye, and injuries to her jaw and neck.

         Ms. Kennedy commenced a negligence action against RMU and UCA by

filing a praecipe for writ of summons on August 10, 2012. Service of the

writ was made upon RMU on August 28, 2012; service was not effected upon

UCA. On September 21, 2012, RMU ruled Ms. Kennedy to file a complaint.

Ms. Kennedy’s complaint, which was filed on December 31, 2012, contained

no factual allegations against UCA and stated therein that Ms. Kennedy did

not intend to proceed against UCA.

         In her complaint, Ms. Kennedy alleged that RMU, acting through Ms.

Hadfield, was negligent in several respects.    Ms. Hadfield knew or should

have known that the new trick was dangerous especially for persons who

had little experience as a team and particularly for Ms. Kennedy, the “flyer.”

She averred that there should have been a spotter in the front and the

ground members of the squad should have been taught how to break the fall

of the flyer.    She alleged that the other members of the group made no

attempt to catch her or cushion her fall.

         RMU filed an answer in which it denied that the activities at the

University of Scranton were solely under the direction of Coach Hadfield and

maintained that the accident occurred while the instruction and training was

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under the supervision and control of UCA. Furthermore, UCA instructors had

instructed the team in the proper way to perform the stunt and the accident

did not occur on the first attempt. Moreover, the group did attempt to break

Ms. Kennedy’s fall. Finally, RMU filed a cross-claim against UCA, in which it

alleged that the accident occurred while Ms. Kennedy was participating in

activities directed, controlled, and supervised by UCA and its certified

cheerleading instructions, not under the direction of RMU or Coach Hadfield.

To the extent that the instruction, safety standards, or supervision were

determined to be inadequate, UCA was liable to Ms. Kennedy and/or liable to

RMU for contribution or indemnity.

     In its answer and new matter to RMU’s cross-claims, UCA admitted

that the accident occurred while Ms. Kennedy was participating in a UCA

training program and that UCA determined which stunts would be taught.

UCA also denied that it was negligent and filed preliminary objections in the

nature of a demurrer to Ms. Kennedy’s complaint.         In support of the

demurrer, UCA pointed to Ms. Kennedy’s admission that she was not

“presently pursuing any claims against [UCA]” and the absence of any facts

pled that could support liability against UCA. Additionally, UCA maintained

that the action against it was barred by the two-year statute of limitations,

and thus Ms. Kennedy was precluded from amending the complaint to assert

a cause of action against UCA. Pursuant to a stipulation of the parties, UCA

was dismissed as a primary defendant but remained in the case as an

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additional defendant, and the caption was amended to reflect the parties’

changed status.

        On October 7, 2014, RMU moved for summary judgment. It alleged

that there was no dispute that UCA evaluated the cheerleader participants’

qualifications and skill levels, determined what stunts would be taught, and

exclusively taught and supervised the stunts. RMU contended it had no duty

to prevent injury to Ms. Kennedy while she was learning the stunt at a

cheerleading     camp     supervised     and   controlled   by   certified   instructors

employed by UCA.1 UCA also filed a motion for summary judgment in which

it asserted that UCA, not RMU, took responsibility for minimizing the

inherent risks associated with performing advanced cheerleading stunts.

Since RMU was entitled to summary judgment, UCA maintained that it was

entitled to summary judgment on RMU’s cross-claims.

        On October 7, 2014, the court granted summary judgment in favor of

RMU and UCA. Judgment was subsequently entered on October 28, 2014.

On November 6, 2014, Ms. Kennedy appealed and the trial court issued an

opinion on November 19, 2014. Ms. Kennedy presents three issues for our

review:

        I.    Whether the trial judge’s decision granting RMU’s motion
              for summary judgment on the basis that RMU owed no
              duty to Appellant, was proper, when Appellant, a student
____________________________________________


1
    Plaintiff did not allege that RMU negligently selected the UCA camp.



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             at RMU and a member of the RMU cheerleading team was
             participating in a mandatory training camp arranged solely
             by RMU with Universal Cheerleaders Associates. Further,
             RMU controlled pre-camp instruction and training, selected
             students for membership in particular groups and enrolled
             those groups in different classes at the camp.

      II.    Whether RMU could delegate its duties it owed to Appellant
             to a third party, namely UCA and thus excuse RMU from
             liability to Appellant when Appellant was allegedly injured
             because of unsafe training practices.

      III.   Whether the trial court’s grant of summary judgment to
             UCA was proper when the basis of same was that the court
             held that RMU owed no duty to the Appellant and RMU had
             filed a complaint over against UCA.

Appellant’s brief at 4.

      In 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.

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J-A27006-15




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

quotations and citations omitted).

     Ms. Kennedy concedes that there is virtually no dispute as to the facts

relevant to the issue of whether RMU owed a duty under the circumstances

herein. Appellant’s brief at 8. Ms. Kennedy also agrees that the trial court

properly looked to the five factors identified in Althaus v. Cohen, 756 A.2d

1166, 1168 (Pa. 2000), in determining whether RMU owed a duty of care.

Those factors include:

     1. The relationship between the parties;

     2. The social utility of the actor’s conduct;

     3. The nature of the risk imposed and foreseeability of the harm
        incurred;

     4. The consequences of imposing a duty upon the actor; and

     5. The overall public interest in the proposed solution.

Sellers v. Twp. of Abington, 106 A.3d 679, 682 (Pa. 2014) (quoting

Lindstrom v. City of Corry, 763 A.2d 394, 397 (Pa. 2000)). Whether a

duty of care is owed to a particular individual is a matter for the court to

decide. Sellers, supra at 682.

     Ms. Kennedy takes issue with the court’s reasoning and conclusions.

She directs our attention to the Court of Appeals for the Third Circuit’s

decision in Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir.

1993), which she maintains is factually on point and persuasive.    In that

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J-A27006-15



case, a Gettysburg College lacrosse player died from cardiac arrest during an

off-season practice at the school.   The plaintiff contended that the college

had a duty based on its special relationship with its student athletes to have

properly trained emergency medical personnel and services available at its

sporting events. The trial court disagreed, holding that the college had no

duty to anticipate and guard against a fatal arrhythmia in a young and

healthy athlete.   Thus, the college was not negligent for failing to provide

CPR trained coaches and trainers at the practice or otherwise have in place

measures to deal immediately with the medical emergency.         The court of

appeals reversed. It reasoned that, since it was foreseeable that a lacrosse

player could suffer serious injury during an athletic event, the Supreme

Court of Pennsylvania would find that the college had a duty to provide an

appropriate and timely response to a medical emergency during the sporting

event.

      Ms. Kennedy alleges that there is a special relationship between

herself and RMU due to her participation in the University’s cheerleading

program. The training camp was arranged by RMU and her attendance was

mandatory. She argues that she was injured while performing a stunt with a

group that had been assembled in pre-camp practice by Coach Hadfield and

that the coach was present when the injury occurred.       In terms of social

utility, Ms. Kennedy contends that the cheerleading program is for RMU’s

benefit. She maintains the risk to her and other cheerleaders was obvious.

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J-A27006-15



Finally, Ms. Kennedy suggests that if she had been injured on RMU’s

premises, there would be clear imposition of a duty. She contends that the

fact she was injured elsewhere at a camp arranged by her coach and while

her coach was just a few feet away should not warrant a different result.

      RMU concedes that although it owed a duty to Ms. Kennedy to use due

care in the selection of a cheerleading camp, Ms. Kennedy did not allege

negligence in the selection of the UCA camp or that UCA’s instructors were

unqualified.   However, RMU contends that it had no duty with respect to

UCA’s instruction generally or its instruction of the stunt at issue.      RMU

points to the trial court’s analysis of the five factors for determining whether

there is a duty in a given situation and concurs in the court’s reasoning for

finding no duty. RMU also argues that Kleinknecht is inapposite. Therein,

the plaintiff specifically alleged that the college breached its duty to provide

emergency medical services during a sporting event on its premises and

conducted under its auspices. In contrast, RMU contends that Ms. Kennedy

failed to identify any duty that RMU breached or any action or omission on

RMU’s part that caused or contributed to her injury.

      The trial court found that Ms. Kennedy was following the instructions

of UCA, not RMU, at the time of her injury.      It based that finding on Ms.

Kennedy’s own testimony that the camp was operated entirely by UCA and

that Ms. Kennedy did not expect supervision by her own coach. It applied

the factors and determined that the relevant conduct for purposes of

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J-A27006-15



analyzing the social utility factor was not college cheerleading per se, but

RMU’s decision to attend the UCA camp. It concluded that the cheerleading

instruction inured to the benefit of Ms. Kennedy as well as RMU. The trial

court found the third factor moot because the risk of harm of performing

stunts fell upon UCA, who was charged with supervision and training. The

court also found the fact that Coach Hadfield arranged for attendance at the

camp and accompanied the cheerleaders did not support imposition of a

duty upon RMU.     “Evaluation of the cheerleaders, assignment of specific

cheerleaders to specific groups and positions, identification of stunts to be

performed, and any and all instruction or safety precautions were directed

by UCA staff and instructors.” Trial Court Opinion, 11/19/14, at 2. Finally,

the public interest in imposing liability would not be served by imposing a

duty on RMU for UCA’s conduct.

     The record supports the trial court’s finding that Ms. Kennedy

identified no duty that RMU breached vis-à-vis stunt instruction and

supervision at the UCA camp. There was no evidence that Coach Hadfield

undertook to instruct or train Ms. Kennedy or other members of her squad in

the performance of the stunt that resulted in injury.      According to Ms.

Kennedy, Coach Hadfield was merely observing the four to six RMU stunt

groups.

     The Vice President of UCA and the head instructor of the camp,

Charles W. Ahern, confirmed that UCA provides all instruction and

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supervision and that college coaches are not expected or required to

participate.   Specifically, their own instructors are in charge of teaching a

stunt such as a rewind. Ahern Deposition, 4/4/14, at 42. He acknowledged

that there is a risk inherent in performing an aerial stunt like the rewind.

However, UCA, not the participating universities, was responsible for trying

to minimize the risk and run the classes safely for the participants. Id. at

59, 60. Mr. Ahern confirmed that Cindy Hadfield was not an instructor at the

camp and he had no expectation that she would be participating in the

teaching of the rewind stunt. Id. at 62.

      We find Kleinknecht, supra, distinguishable.           Potential liability

therein was premised on the college’s duty to have adequate medical

response personnel available on site during the school-sponsored lacrosse

practice. The issue was not whether the college was in sole control of the

practice, but whether it was foreseeable that a medical emergency could

arise. It mattered not that the plaintiff sustained an unforeseeable cardiac

arrhythmia rather than a contact-related lacrosse injury.         As the court

recognized, “the type of foreseeability that determines a duty of care, as

opposed to proximate cause, is not dependent on the foreseeability of a

specific event.”    Kleinknecht, supra at 1369 (citing Moran v. Valley

Forge    Drive-in    Theater,   Inc.,   246   A.2d   875,   878   (Pa.   1968)).

Foreseeability means the likelihood of a general type of risk rather than the




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precise chain of events that culminated in the injury.    Id. citing R.W. v.

Manzek, 888 A.2d 740 (Pa. 2005).

     The instant case turns on whether RMU owed a duty to prevent injury

to Ms. Kennedy while she and her stunt group were under the supervision

and control of UCA instructors. There is no allegation that RMU negligently

selected the UCA camp or that UCA was negligent in its instruction or

operation. All parties concede that UCA controlled the schedule and classes

and supervised the cheerleaders. Ms. Kennedy admitted that, “Sometimes

[Coach Hadfield] was present, sometimes she wasn’t.” Kennedy Deposition,

12/18/13, at 88. Ms. Kennedy was in a four-member group with a member

who was not an RMU student.        Although Ms. Kennedy pled that Coach

Hadfield assembled the stunt teams and selected the classes, those

allegations were not supported by the record. UCA instructors placed them

in stunting groups based on skill level.    Although Coach Hadfield chose

certain classes for RMU cheerleaders, inclusion in the class was conditioned

on individual qualification by UCA instructors. Hadfield Deposition, 8/28/14,

at 89. Ms. Kennedy stated that she believed she had the skills required for

the rewind stunt.

     In short, we agree with RMU that Ms. Kennedy failed to identify any

duty on the part of RMU that was breached when she sustained her

unfortunate injury.   There was no allegation that Coach Hadfield or RMU

negligently selected or entrusted its cheerleaders to UCA.   Coach Hadfield

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maintained that, “I made the decision to go with UCA because I believe they

run the best collegiate camps in the nation.”         Id. at 88.   The record

establishes that UCA, not RMU, operated the camp and directed and

supervised instruction.       UCA instructors were in charge of Ms. Kennedy’s

group at the time of the accident.

       Ms. Kennedy contends that RMU’s duty of care was non-delegable to

UCA. In support of that proposition, she cites a number of cases where our

courts held that a principal cannot escape liability for harm to its employee

by delegating its duties to a third party.2 See e.g., Prevost v. Citizen’s

Ice & Refrigeration Co., 40 A. 88 (Pa. 1898); Smith v. Hillside Coal &

Iron, Co., 40 A. 287 (Pa. 1898); Lewis v. Seifert, 11 A. 514 (Pa. 1887).

She baldly asserts, without more, that the relationship herein is similar to an

employment relationship.


____________________________________________


2
  Pennsylvania does recognize non-delegable duties in limited circumstances.
In Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991), our Supreme
Court held that, under the doctrine of corporate negligence, a hospital has a
non-delegable duty to its patient to ensure the patient’s safety and well-
being while in the hospital. In Webb v. Zern, 220 A.2d 853 (Pa. 1966),
Pennsylvania recognized the Restatement (Second) of Torts § 402A(1),
which imposed a non-delegable duty upon the seller of a product to make
and/or market the product free from "a defective condition unreasonably
dangerous to the consumer or [the consumer's] property." Restatement
(Second) of Torts § 402A(1); Tincher v. Omega Flex, 104 A.3d 328 (Pa.
2014).




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     RMU counters first that Ms. Kennedy’s assertion that it delegated a

non-delegable duty to UCA is waived due to a failure to develop this

argument in the trial court. Absent waiver, RMU argues that it lacks merit

because Ms. Kennedy again fails to identify the “non-delegable duty” RMU

purportedly delegated.     Furthermore, RMU maintains that the three cases

from the late 1800s upon which Ms. Kennedy relies are inapplicable as they

involve the alleged negligence of an employer and a company’s liability for

the negligence of its agents.        Since Ms. Kennedy failed to allege or offer

proof that UCA’s instruction and supervision was negligent, RMU argues that

even if RMU delegated a non-delegable duty, there was no act of negligence

on UCA’s part for which RMU could be held liable.            RMU characterizes Ms.

Kennedy as trying to impose strict liability “simply because she was injured

while a member of the school’s cheerleading squad.” Appellee’s brief at 14.

     We find that Ms. Kennedy’s claim of a non-delegable duty, although

not fully developed below, was advanced in the trial court. Nonetheless, the

argument misses the mark.           This is not an employment situation and Ms.

Kennedy   fails   to   articulate    any   rationale   for   treating   it   like   one.

Furthermore, as the dissent aptly noted in Leonard v. Commonwealth,

771 A.2d 1238, 1243 n.1 (Pa. 2001) (Dissent, Nigro, J.), the term "non-

delegable duty" in the employment situation is somewhat of a misnomer.

An employer may delegate "non-delegable duties" to another, but the

employer remains liable if the person to whom the performance is delegated

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acts negligently. Id. (citing Restatement (Second) of Agency §§ 214, 492-

520    (1958);     General        Building   Contractors     Assoc.,   Inc.   v.

Pennsylvania, 458 U.S. 375, 395-96 (1982)). Since Ms. Kennedy did not

assert any allegations of negligence against UCA, this rationale for imposing

liability is wholly inapposite.

      Furthermore, it appears that RMU engaged UCA as an independent

contractor. RMU contracted with UCA for the instruction and supervision of

its cheerleaders at UCA’s camp. The camp was conducted at the University

of Scranton and there is no evidence that RMU retained any control over the

manner of instruction or supervision of stunts.      Thus, RMU would not be

subject to vicarious liability for the negligence of UCA, even if Ms. Kennedy

had alleged that UCA was negligent.

      Finally, Ms. Kennedy contends that the grant of summary judgment in

favor of UCA was also improper. In support thereof, however, she advances

no rationale and cites no legal authority. We find no merit in her contention.

UCA, although a named defendant, was not served with the writ of summons

filed on August 10, 2012. In her complaint filed on December 31, 2012, Ms.

Kennedy averred that she was not pursuing any claims against UCA.

Counsel for UCA accepted service of the complaint and RMU’s answer, new

matter, and cross-claim on February 21, 2013.              UCA filed preliminary

objections in the nature of a demurrer to Ms. Kennedy’s complaint alleging

that Ms. Kennedy had not pled any claims against it and any potential claims

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that could be asserted were barred by the two-year statute of limitations.

The parties stipulated to discontinue Ms. Kennedy’s direct claims against

UCA, but keep UCA in the case as an additional defendant for purposes of

RMU’s third-party claims. The trial court, by order of May 24, 2013, granted

UCA’s motion to discontinue as to less than all defendants, dismissed UCA as

a defendant, and amended the caption to reflect UCA as an additional

defendant subject only to liability to RMU. Once RMU was granted summary

judgment, no basis for potential liability remained against UCA as UCA could

not be liable to Ms. Kennedy directly and summary judgment was proper.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




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