Kennedy v. Robert Morris Univ.

• Decision Date: 29 January 2016
• Docket Number: Nos. 1844 WDA 2014,s. 1844 WDA 2014
• Parties: Shaye–Ashley KENNEDY, Appellant v. ROBERT MORRIS UNIVERSITY v. Universal Cheerleader Association, Appellee.
• Court: Pennsylvania Superior Court

133 A.3d 38

Shaye–Ashley KENNEDY, Appellant

v.ROBERT MORRIS UNIVERSITY

v.Universal Cheerleader Association, Appellee.

Nos. 1844 WDA 2014

Superior Court of Pennsylvania.

Argued Sept. 17, 2015.

Filed Jan. 29, 2016.

James J. Stuczynski, Erie, for appellant.

Frank H. Stoy, IV, Pittsburgh, for Universal Cheerleader Association, appellee.

BEFORE: BOWES, OLSON, and STABILE, JJ.

OPINION BY BOWES

, J.:

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 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 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 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 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.

Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (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, 562 Pa. 547, 756 A.2d 1166, 1168 (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, ––– Pa. ––––, 106 A.3d 679, 682 (2014)

(quoting Lindstrom v. City of Corry, 563 Pa. 579, 763 A.2d 394, 397 (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 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...