Flohr v. Pennsylvania Power & Light Co., Civ. A. No. 91-4216.

• Decision Date: 19 March 1992
• Docket Number: Civ. A. No. 91-4216.
• Citation: 800 F. Supp. 1252
• Parties: Harry D. FLOHR and Sharon G. Flohr, in their own right and as guardians of Erin E. Flohr, Jennifer Flohr and Douglas Flohr and Harry Flohr, Administrator of the Estate of Dana Marie Flohr, Plaintiffs, v. PENNSYLVANIA POWER & LIGHT COMPANY, Otter Creek Recreational Campground, Otter Creek Enterprises, Inc., Allen Entrekin and Fern Entrekin, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

800 F. Supp. 1252

Harry D. FLOHR and Sharon G. Flohr, in their own right and as guardians of Erin E. Flohr, Jennifer Flohr and Douglas Flohr and Harry Flohr, Administrator of the Estate of Dana Marie Flohr, Plaintiffs, v.PENNSYLVANIA POWER & LIGHT COMPANY, Otter Creek Recreational Campground, Otter Creek Enterprises, Inc., Allen Entrekin and Fern Entrekin, Defendants.

Civ. A. No. 91-4216.

United States District Court, E.D. Pennsylvania.

March 19, 1992.

Dwight L. Koerber, Jr., Kriner Koerber & Kirk, Clearfield, Pa., John T. Siegler, Sims, Walker & Steinfeld, P.C., Washington, D.C., for plaintiff.

Charles C. Thebaud, Jr., Paul H. Lamboley, Washington, D.C., for defendant.

MEMORANDUM & ORDER

HUYETT, District Judge.

This action arises as a result of an accident which killed Dana Marie Flohr on July 3, 1989 when she and her family were fishing at Otter Creek Recreational Area.DefendantsPennsylvania Power And Light Company, Otter Creek Recreational Campground, and Otter Creek Enterprises, Inc. move to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6).¹Plaintiffs, Harry D. Flohr and Sharon G. Flohr, in their own right and as guardians of Erin E. Flohr, Jennifer Flohr and Douglas Flohr and Harry Flohr, Administrator of the Estate of Dana Marie Flohr, oppose defendants' motions to dismiss.For the reasons stated below, I shall deny defendantPennsylvania Power And Light Company's motion to dismiss and grant the motion to dismiss of defendants Otter Creek Recreational Campground and Otter Creek Enterprises, Inc.

I.Introduction²

On or about July 3, 1989, plaintiffs("the Flohr family") paid a fee to rent and use the facilities at the Otter Creek Recreational Area located in York County, Pennsylvania.The Otter Creek Recreational Area is owned by defendantPennsylvania Power And Light Company("PP & L") and managed by defendants Otter Creek Recreational Campground and Otter Creek Enterprises, Inc.(referred to collectively as "defendant Otter Creek").³On July 3, 1989, the Flohr family was fishing on the banks of the Otter Creek when a nearby tree fell across the Otter Creek and struck three members of the Flohr family.Sharon G. Flohr and Erin E. Flohr were both hit by the falling tree and sustained serious personal injuries.Dana Marie Flohr was hit directly by the falling tree and was killed.Harry G. Flohr was thrown into the Otter Creek by the impact of the falling tree.The tree that fell and caused these tragic events was in decaying and dangerous condition prior to falling across the Otter Creek.

The Flohr family was fishing from a bank of the Otter Creek which was part of Otter Creek Recreational Area.Across the Otter Creek from plaintiffs' fishing spot was other land also owned by PP & L, but not part of Otter Creek Recreational Area.The tree that struck, injured and killed members of the Flohr family was located on the land owned by PP & L, but not part of Otter Creek Recreational Area.The tree fell across the Otter Creek to the bank where the Flohr family was fishing.

Plaintiffs bring this diversity of jurisdiction action pursuant to 28 U.S.C. § 1332.Plaintiffs' complaint alleges forty-five (45) distinct claims against the various defendants.All forty-five (45) counts sound in negligence law.Defendants PP & L and Otter Creek move to dismiss the instant complaint pursuant to Fed.R.Civ.P. 12(b)(6).The essence of defendants' motions is the claim that both defendants are immune from liability under the Recreational Use of Land and Water Act, 68 P.S. § 477-1 et seq.("Recreation Act").In the alternative, defendants Otter Creek Recreational Campground and Otter Creek Enterprises, Inc. argue that the complaint must be dismissed because no legal duty exists to inspect or correct existing conditions on adjacent land.Plaintiffs oppose defendants' motions to dismiss.

II.Discussion

A. Fed.R.Civ.P. 12(b)(6) Standard For Motions To Dismiss.

In resolving a motion to dismiss, the Court must accept as true all the well-pleaded allegations of the complaint, construe the complaint in the light most favorable to the plaintiffs, and determine whether, under any reasonable interpretation of the pleadings, the plaintiffs may be entitled to relief.Estate of Bailey by Oare v. County of York,768 F.2d 503, 506(3d Cir.1985);Helstoski v. Goldstein,552 F.2d 564, 565(3d Cir.1977)(per curiam).A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."Conley v. Gibson,355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80(1957).

B.Immunity Under The Recreation Use And Water Act.

The Pennsylvania legislature enacted the Recreation Act"to encourage owners of land to make land and water available to the public for recreational purposes by limiting their liability towards persons entering thereon for such purposes."68 P.S. § 477-1.The Recreation Act defines land as "land, roads, water, water courses, private ways and buildings, structures and machinery or equipment attached to the realty."Id. at § 477-2.Further, the Recreation Act defines the term "recreational purpose" to include "but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports and viewing or enjoying historical, archaeological, scenic or scientific sites."Id.

The specific liability protection that the Recreation Act affords owners of land is included in 68 P.S. §§ 477-3,477-4, and477-5.These sections of the Recreation Act state:

§ 477-3Duty to keep premises safe; warning

Except as specifically recognized or provided in section 6 of this act, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

§ 477-4Assurance of safe premises; duty of care; responsibility, liability

Except as specifically recognized or provided in section 6 of this act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:

(1) Extend any assurance that the premises are safe for any purpose.

(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed.

(3) Assume responsibility for or incur liability for any injury to persons or property caused by an act of omission of such persons.

§ 477-5.Land leased to State or subdivision

Unless otherwise agreed in writing, the provisions of sections 3and4 of this act shall be deemed applicable to the duties and liability of an owner of land leased to the State or any subdivision thereof for recreational purposes.

Id.⁴

Owners under the Recreation Act are protected from liability.Plaintiffs do not contest the status of defendants PP & L and Otter Creek Recreational Area as owners, nor do plaintiffs question the Recreation Act's immunity provisions.Rather, plaintiffs argue that given the circumstances of the instant case, defendants are removed from the protections of the Recreation Act.

The Recreation Act contains two exemptions from the immunity afforded owners of land.The two exemptions from immunity appear at 68 P.S. § 477-6 which states:

nothing in this act limits in any way any liability which otherwise exists:

(1) For willful or malicious failure to guard against a dangerous condition, use, structure, or activity.

(2) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section.

Id.

Plaintiffs argue that both exemptions apply to defendants PP & L and Otter Creek in the instant matter.First, plaintiffs contend that Section 477-6 only affords immunity to property held out to the public free of charge.Because plaintiffs paid a fee incident to using an Otter Creek campsite, plaintiffs argue that the protections of Section 477-4 are unavailable to defendants PP & L and Otter Creek.Second, plaintiffs argue that Section 477-6 permits the imposition of liability when landowners willfully or maliciously fail to guard or warn against a dangerous condition, use, structure or activity.Essentially, plaintiffs contend that defendants willfully failed to guard or warn against the dangerous tree that struck, injured and killed members of the Flohr family.

1.Section 477-6(2) — Charge Exception.

Plaintiffs argue that they were charged a fee of $57.00 to enter Otter Creek Recreational Area and that this fee constituted a charge under the Recreation Act.Thus, plaintiffs contend that defendants fall within Section 477-6's charge exception to the Recreation Act's immunity provisions.See68 P.S. § 477-6.Defendants respond by arguing that the fee the Flohr family paid was for rental of the campsite and that these fees possess no applicability to the charge exception to the Recreation Act.Defendants PP & L and Otter Creek assert that because (1) there is no charge for members of the general public to enter Otter Creek Recreational Area and (2)plaintiffs gained no right of access to special recreational facilities at Otter Creek by paying the camping fee, it follows that the fee paid by the Flohr family falls outside the meaning of the term "charge" under the Recreation Act.

Plaintiffs correctly note the word "charge" is defined in the Recreation Act as "the admission price or fee asked in return for invitation or permission to enter or go upon the land."SeePlaintiffs' Brief Opposing Defendant's Motion To Dismissat 2, quoting68 P.S. § 477-2.Plai...