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Pennsylvania Supreme Court grapples with distinction between gross negligence and recklessness.

By Christopher P. Lagay

In the case of Feleccia v. Lackawanna College, No. 74 MAP 2017, 215 A.3d 3 (Pa. 2019), the Pennsylvania Supreme Court heard an appeal from the Lackawanna College defendants, after their motion for summary judgment, granted by the trial court, was reversed on appeal by the Superior Court.

Plaintiffs, Feleccia and Resch were student athletes at Lackawanna College, trying out for the football team in March of 2010.  Lackawanna College’s football department had lost its two athletic trainers in the summer of 2009, and had hired two recent graduates with degrees in Athletic Training, though neither had passed their athletic trainer certification exam at the time they were hired for the position.  In fact, after their hiring, both new hires failed their certification exam, and the Lackawanna re-titled their position to “first responder,” though they did not sign new or different job descriptions.

Lackawanna College moved for and was granted summary judgment, based primarily on waiver.  Finding the negligence claims barred, the trial court ruled the claim for punitive damages also failed, and discussion of the waiver’s applicability to the punitive damages claim was unnecessary.

Feleccia and Resch appealed, and the Superior Court reversed, noting that exculpatory agreements are not enforceable to preclude liability for reckless conduct.  The Superior Court found that the waiver was “not sufficiently particular and without ambiguity” to relieve defendants of their own acts of negligence, and there were material questions of fact with regard to whether the college’s failure to have qualified medical personnel at the practice gross negligence and reckless conduct.   The Superior Court found that a special relationship existed between the school and its athletes, and that Lackawanna “had a duty of care to its intercollegiate student athletes … 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.”

The Supreme Court granted appeal to address a) whether a Pennsylvania college is required to have qualified medical personnel present at intercollegiate athletic events to satisfy a duty of care to the college’s student-athletes, and b) whether an exculpatory clause releasing “any and all liability” signed in connection with participation in intercollegiate football enforceable as to negligence and gross negligence?  The Supreme Court’s standard of review over pure questions of law was de novo, and the scope of review was plenary.

With respect to the first question, the Supreme Court held that in this specific factual scenario, Lackawanna College led the student athletes to expect they would receive treatment from certified athletic trainers in the event of an injury, and therefore, voluntarily undertook a duty to do so.  A fact question remained as to whether Lackawanna College breached that duty, precluding summary judgment.

With respect to the second issue, the Supreme Court held that the waiver was enforceable as to Lackawanna College against claims of ordinary negligence, holding that the release of “any and all “ liability was sufficiently clear preclude liability for ordinary negligence, even though the word “negligence” was not used in the waiver.  The Supreme Court recognized that appellee’s claims of recklessness could not be precluded by waiver, but there was no precedent at civil law for whether a claim of gross negligence could be precluded by waiver.

The Supreme Court recognized that there is a distinct difference between ordinary negligence and gross negligence, but had never specifically defined gross negligence.   Noting that gross negligence does not rise to the level of “intentional indifference or conscious disregard” that defines recklessness, it is still an extreme departure from the standard of care, beyond that required to establish ordinary negligence.  Feleccia, 215 A.3d at 21.  Gross negligence involves more than a simple breach of the standard of care, and instead describes a “flagrant or gross deviation” from the standard of care, and therefore, the same policy considerations that preclude waivers in cases of recklessness would also apply to claims of gross negligence.  Id. at 21.

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