What conduct constitutes gross negligence is an important question in Pennsylvania law, particularly with regard to issues involving liability waivers and healthcare provider immunity pursuant to the Mental Health Procedures Act (MHPA) 50 P.S. Section 7101 et seq. In the recent case of Feleccia v. Lackawanna College, No. 75 MAP 2017 (Pa. 2019), the Pennsylvania Supreme Court, with reference to several cases interpreting the MHPA, defined the term gross negligence in the context of a motion for summary judgment involving a liability waiver agreement.

Facts in 'Feleccia'

Feleccia actually involved two student athletes at Lackawanna College who suffered severe physical injuries while both were participating in football tackling drills on the same day in March 2010. Prior to participating in the football practice where they were injured, both plaintiffs signed a document termed Lackawanna College waiver of liability and hold harmless agreement. According to the document, the plaintiffs agreed to relinquish any claims for injuries that they may have sustained arising from their participating in the school's football program. Despite the plaintiffs signing the waiver, they filed suit to recover for their injuries, advancing claims of negligence, negligence per se, gross negligence and recklessness. The plaintiffs sought not only compensatory but also punitive damages.

Trial Court Grants Summary Judgment

Lackawanna College filed a motion for summary judgement after the close of discovery contending inter alia that the plaintiffs had assumed the risk of injury and by signing the waiver agreement, they had waived any claims for injury arising from their participation in the defendant's football program. The trial court granted summary judgment based on assumption of the risk and relying upon the waiver of liability agreement. The plaintiffs appealed to the Pennsylvania Superior Court.

Superior Court Reverses

The Superior Court started its analysis of the trial court's grant of summary judgment by reviewing Tayar v. Camelback Ski, 616 Pa. 385 (Pa. 2012). In that case the Pennsylvania Supreme Court held that an otherwise valid waiver of liability was against public policy and could not bar a plaintiff's claim of injury caused by the defendant's reckless conduct. The court then reviewed the evidence that  the plaintiffs were able to obtain through discovery and found that "the trial court erred in determining that the waiver was enforceable without considering the scope of the waiver with regard to claims of gross negligence and reckless conduct." The court also rejected the trial court's finding that the plaintiffs assumed the risk of their injuries. The court noted that one of the plaintiff's claims centered on the defendant's failure to provide qualified athletic trainers during the football drills at which the plaintiffs were injured. The court first held that the defendant as a college owed student athletes like the plaintiffs a duty of care when engaged in a school-sponsored and supervised intercollegiate athletic activity. The court then held that it was for the jury to decide whether the defendant's employment of unqualified trainers increased the risk of harm to the plaintiffs and whether they assumed a known or obvious danger (risk of injury caused by the college's conduct).

The Supreme Court's Analysis

The defendant then sought review by the Supreme Court which was granted. The court's decision first addressed the issue of whether the defendant college had a duty to provide qualified medical personnel at intercollegiate athletic events. The court noted that it is reluctant to create a new common law duty. However, it found that it did not need to do so because under the circumstances of the case, the defendant had, in fact, undertaken a duty to provide athletic trainers at the time of the injuries to the plaintiffs. Relying upon Restatement (Second) of Torts, Section 323 (1965) and Pennsylvania cases applying it, the issue was whether the defendant's failure to exercise reasonable care increased the risk of harm to the plaintiffs as the defendant had undertaken a duty to the plaintiffs by having athletic trainers involved with the football practice where plaintiffs had suffered injury.

The Supreme Court then turned to the issue of whether the waiver agreement barred plaintiffs' claims. It agreed with the Superior Court that under its decision in Tayer, the plaintiffs' claims that rise to the level of recklessness can not be barred by the waiver agreement: "our law is clear that pr-injury exculpatory contracts purporting to protect a party from liability arising from recklessness are unenforceable on this public policy basis." However, it rejected the Superior Court's finding that the waiver was not enforceable as to the plaintiffs' ordinary negligence claims, but then addressed whether the waiver agreement barred their claims of gross negligence.

With regard to gross negligence the court noted that defining gross negligence in the civil context has been difficult; it recognized that Pennsylvania courts have struggled to provide a workable definition of gross negligence when faced with the need to apply the concept.  However, the court noted that gross negligence has been defined in connection with the MHPA as a "form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary care standard of care." The court also noted that gross negligence is defined in the Pennsylvania Standard Civil Jury Instructions, 13.50 as "significantly worse than ordinary negligence" requiring proof actor "significantly departed from how a reasonably careful person would act under the circumstances."  The court concluded that as we have seen gross negligence does not rise to the level of the international indifference or "conscious disregard" of risk that defines recklessness, but it is defined as an "extreme departure" from the standard of care, beyond that required to establish ordinary negligence … As such, the same policy concerns that prohibit the application of a waiver in cases of recklessness—i.e., allowing it would incentivize conduct that jeopardizes the signer's health, safety and welfare to an unacceptable degree requires a similar holding with regard to gross negligence. Accordingly, we hold the waiver is not enforceable to preclude liability arising from the plaintiff's claims of gross negligence, and the allegations supporting such claims should be tested at trial on remand.

The Superior and Supreme Court opinions in Feleccia are a must read for attorneys in cases involving a waiver agreements. Between them they address all of the issues the parties will confront  in determining whether the waiver will bar the plaintiff from recovering for her injuries. The Supreme Court's decision in Feleccia provides guidance as to what conduct constitutes gross negligence. The opinion re-affirms that gross negligence is a form of negligence that involves a significant departure from the standard of care, but does not rise to the level of recklessness.

Stephen J. Pokiniewski Jr. is a member of an Anapol Weiss and focuses his practice on medical negligence, nursing home and personal injury matters. Pokiniewski is a member of the Pennsylvania Bar Association, as well as the American and Pennsylvania Associations for Justice and the Philadelphia Trial lawyer Association.