Pestalozzi v. Philadelphia Flyers Ltd.

Decision Date07 June 1990
Citation394 Pa.Super. 420,576 A.2d 72
PartiesDavid PESTALOZZI, Appellant, v. PHILADELPHIA FLYERS LTD, Philadelphia Hockey Club, Inc., Spectacor, Inc. and the National Hockey League.
CourtPennsylvania Superior Court

Leonard L. Campbell, West Chester, for appellant.

Mark D. Mazza, West Chester, for appellees.



This is an appeal from an order of the Court of Common Pleas of Philadelphia County which granted appellees' motion for summary judgment. We affirm.

On appeal, appellant argues that the lower court erroneously granted appellees' motion for summary judgment. Specifically, appellant states that genuine issues as to material facts exist which support his cause of action. In this case, appellant was struck by a hockey puck while attending a professional game as a spectator. Appellant argues that the lower court improperly found that he assumed the risk of being struck. Central to this contention, appellant states that he intentionally sought to avoid this danger by securing a seat two rows behind the protective plexiglass near center ice. We reject appellant's argument for the reasons outlined below.

As an appellate court, we are bound to consider certain principles which dictate when and under what circumstances a trial court may properly enter summary judgment. Goebert v. Ondek, 384 Pa.Super. 100, 104, 557 A.2d 1064, 1066 (1989). The trial court must accept as true all well-pleaded facts in the non-moving party's pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom. Jefferson v. State Farm Insurance, 380 Pa.Super. 167, 170, 551 A.2d 283, 284 (1988). Summary judgment should not be entered unless the case is clear and free from doubt. Hathi v. Krewstown Park Apartments, 385 Pa.Super. 613, 615, 561 A.2d 1261, 1262 (1989). A grant of summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the lower court's conclusion that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035, 42 Pa.C.S.A. See Penn Center House, Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989) (entire record before lower court must be thoroughly examined and all doubts as to the existence of a genuine issue of material fact are to be resolved against a grant of summary judgment). We will overturn a trial court's entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 318, 549 A.2d 1311, 1313 (1988).

Citing our supreme court's decision in Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978), the lower court found that appellant had assumed the risk of personal injury and granted appellee's motion for summary judgment. In Jones, our supreme court discussed the so-called "no-duty" rule applicable to spectator sports. Id. Specifically, the court in Jones declared that baseball parks are not generally the insurer of its spectators with regard to batted balls. Id. at 84, 394 A.2d at 550. Due to the unique facts presented in the Jones case, however, the supreme court declined to apply the "no-duty" rule in that instance. Id. at 86-87, 394 A.2d at 551-52.

Thus, our probe is two-fold. First, we must determine whether the law articulated in Jones concerning flying baseballs is applicable to similar incidents involving hockey pucks. Second, we must decide whether this "no-duty" rule is applicable to the facts presented in the case sub judice. For the reasons outlined below, we find the rule applicable and affirm the lower court's order granting appellee's motion for summary judgment.

A review of the law of this Commonwealth reveals that Jones shines brightly as a polestar with regard to the so-called "no-duty" rule. In Jones, our supreme court relied upon well-established common law concerning amusement facilities in determining the duty owed by a baseball park to its patrons. Id. at 81-82, 349 A.2d at 548-49. "Only when the plaintiff introduces adequate evidence that the amusement facility in which he was injured deviated in some relevant respect from established custom will it be proper for an 'inherent-risk' case to go to the jury." Id. at 84, 394 A.2d at 550. The court in Jones explained that ball park management has no duty to protect spectators from risks inherent to the game of baseball. Id. Most importantly, this so-called " 'no-duty' [rule applies] only to risks which are common, frequent and expected." Id. at 85, 394 A.2d at 551 (citations omitted).

In Jones, however, appellant/spectator was struck in the eye with a batted ball during batting practice while using an interior walkway within Three Rivers Stadium. Id. at 79-80, 394 A.2d at 547-48. Appellant was not aware that batting practice had begun and was going to the concession stand to purchase food when she was struck. Id. at 79, 394 A.2d at 548. Furthermore, the court in Jones found that appellant had not previously attended any event held in Three Rivers Stadium. Id. at 80, 394 A.2d at 548. In fact, our supreme court noted that the pertinent incident occurred on July 16, 1970, the facility's inaugural date. Id. at 79, 394 A.2d at 547. Thus, appellant in Jones was neither in close proximity of the playing field or cognizant of the risk involved. Given these factors, our supreme court concluded that such an incident was not a reasonably foreseeable danger inherent to the game of baseball and found the "no-duty" rule inapplicable. Id. at 86-87, 394 A.2d at 551-52.

We do not find, nor does appellant proffer, any reason for this Court to differentiate flying hockey pucks from batted baseballs with regard to the risk assumed by the spectators of the two sports. To the contrary, we find the risks involved similar. The omnipresent specter of a deflected Mario Lemieux missile whizzing towards spectators seated at center ice is as inherent to the sport of hockey as the unnerving probability of a Von Hayes rocket flying towards patrons sitting in first base box seats is to a baseball game. Thus, we find the "no-duty" rule applicable to hockey spectators as well as baseball patrons. Therefore, we must determine whether risk in the instant case was "common, frequent and expected."

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11 cases
  • Vigil v. Franklin
    • United States
    • Colorado Supreme Court
    • November 30, 2004
    ...the activity in question." Id. (citing Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546 (1978); Pestalozzi v. Phila. Flyers, Ltd., 394 Pa.Super. 420, 576 A.2d 72 (1990)). The court of appeals rejected the defendant's attempt to engraft this common law no duty defense onto the pre......
  • Pagesh v. Ucman
    • United States
    • Pennsylvania Superior Court
    • April 19, 1991
    ...who sustained injuries after slipping on sand on the volleyball court assumed the risks of the game); Pestalozzi v. Philadelphia Flyers Ltd., 394 Pa.Super. 420, 576 A.2d 72 (1990) (plaintiff assumed the risk of being struck by a flying puck when he attended a hockey game). 9 Here, we note o......
  • Bellezzo v. State
    • United States
    • Arizona Court of Appeals
    • October 29, 1992
    ...499 A.2d 464, 467 (Me.1985) (risk that spectator at golf game may be struck by golf ball is obvious); Pestalozzi v. Philadelphia Flyers Ltd., 394 Pa.Super. 420, 576 A.2d 72, 74 (1990) (risk that spectator at hockey game may be struck by errant hockey puck is common and foreseeable).7 We rej......
  • Petrongola v. Comcast-Spectacor, LP
    • United States
    • Pennsylvania Superior Court
    • November 28, 2001 was not an inherent risk associated with the activity. Id. at 377 (emphasis added) (citing Pestalozzi v. Philadelphia Flyers Ltd., 394 Pa.Super. 420, 576 A.2d 72, 74 (1990)). ¶ 13 The Pestalozzi case is strikingly similar to the present case. In Pestalozzi an errant hockey puck struck ......
  • Request a trial to view additional results
1 books & journal articles
    • United States
    • Full Court Press Travel Law
    • Invalid date face with hockey puck shot by player on the Cleveland Barons hockey team). Pennsylvania: Pestalozzi v. Philadelphia Flyers, Ltd., 394 Pa. Super. 420, 576 A.2d 72 (1990) (fan hit with hockey puck). Wisconsin: Moulas v. PBC Productions Ind., 213 Wis. 2d 406, 570 N.W.2d 739 (1997) (sports f......

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