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Defense Digest

Pennsylvania Superior Court Ends Split of Authority Based on Allegations of Recklessness Within a Negligence Complaint

Defense Digest, Vol. 28, No. 12, December 2022

December 1, 2022

by Brad E. Haas

Key Points:

  • The Superior Court recently addressed the long unsettled issue regarding ability of plaintiffs to allege recklessness in negligence complaint.
  • The court’s opinion removes the requirement that plaintiffs plead allegations of reckless conduct with particularity.

In what can be seen as a setback for the defense bar, the Pennsylvania Superior Court recently addressed the long unsettled issue regarding the ability of plaintiffs to allege recklessness in a negligence complaint. Out of an abundance of caution, these types of allegations have routinely been subject to preliminary objections, to avoid the potential for punitive damages. In Monroe v. CBH2O LP, d/b/a Camelback Ski Resort, 2022 WL 17087072 (Pa. Super. Nov. 21, 2022), the Superior Court held that, under Pa.R.C.P. 1019(b), allegations of recklessness and/or reckless conduct fall under “state of mind” allegations and, thus, may be pled generally. The opinion removes the requirement that plaintiffs plead allegations of reckless conduct with particularity.

The Monroe case arose out of an accident involving a zipline. While the court’s review was based upon the granting of a motion for judgment on the pleadings related to allegations of recklessness, the Superior Court made clear that its holding would encompass cases in which a defendant files preliminary objections to a complaint on the same grounds.

The complaint in Monroe contained general allegations of recklessness, as follows:

[Defendant’s] recklessness, carelessness and negligence included, but was not limited to:

a. Failing to properly monitor the speed of the zipline, in disregard of the safety of [Plaintiff];

b. Failing to use reasonable prudence and care by leaving [Plaintiff] to land with no help, in disregard of the safety of [Plaintiff];

c. Failing to use reasonable prudence and care to respond to [Plaintiff]’s safety concerns during the ziplining, specifically when [Plaintiff] asked [Defendant] to slow down the ziplining machine, in disregard of the safety of [Plaintiff]; and,

d. Failing to inspect and/or properly monitor the ziplining machine engine, in disregard of the safety of [Plaintiff].

The court began its discussion by reviewing the language of Pa.R.C.P. 1019(b), which states:

(b)       Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.

The court stated, “The plain language of this Rule thus indicates that, while a party must plead the material facts that support a cause of action, a party may generally aver knowledge, intent, and state of mind.” Monroe, 2022 WL 17087072, at *8. The Monroe court went on to discuss the interplay between negligence and recklessness, stating, “In other words, gross negligence and recklessness are states of mind; they are forms of negligence, not independent causes of action. Thus, our procedural rules allow the plaintiff to plead gross negligence and recklessness generally.” Id. at *9.

The Monroe court held that allegations of recklessness are “subsumed” within the negligence allegation. See Id. at *9-10. As such, these allegations do not require a separate, more specific type of pleading. The court opined that doing so would place an undue burden on the plaintiff to plead specific facts related to the alleged recklessness at the pleading stage. It further noted that only through discovery and expert opinion could the plaintiff determine what the defendant knew or should have known about the risk involved in a given situation. The opinion further stated that, only upon the completion of discovery, is a plaintiff required to produce evidence of recklessness and that, should a plaintiff fail to meet this burden, summary judgment should be entered on the claims of recklessness.

In a footnote to the opinion, the court discussed its awareness of the inconsistent rulings by various Pennsylvania trial courts and specifically stated that requiring a plaintiff to plead specific facts of recklessness was a misapplication of rule 1019. Id. at *10 n. 6. The court listed several trial level cases which either struck down allegations of recklessness or required a more specific pleading. In addressing these cases, the Monroe court held:

These and all other trial court decisions that have sustained preliminary objections or granted judgment on the pleadings based upon demands for heightened factual averments to support a claim of willful, wanton, or reckless conduct did not accurately apply the law. Our ruling today removes any doubt that, so long as a plaintiff’s complaint (1) specifically alleges facts to state a prima facie claim for the tort of negligence, and (2) also alleges that the defendant acted recklessly, the latter state-of-mind issue may only be resolved as a matter of law after discovery has closed.

Id.

Based upon the Superior Court’s ruling, it appears that the split of authority amongst Pennsylvania trial courts has been settled and plaintiffs may plead recklessness in nearly every type of negligence case. The court’s holding will undoubtedly lead to an increase in complaints alleging reckless conduct, with defense attorneys being forced to withhold attacking the sufficiency of such allegations until the summary judgment stage, after discovery has closed. Defense counsel will need to remain mindful of the allegations of recklessness throughout a case and strategize their defense to pave the way for an eventual motion for summary judgment to rid the case of any recklessness issue and avoid any chance that punitive damages will be a jury question.

Firm Highlights

Thought Leadership

PA Middle District Dismisses Claims Against School District and its Superintendent, Principal, Special Education Director, and Classroom Teacher

A five-year-old special education student was enrolled in the Wyoming Valley West School District and attended the State Street Elementary School during the 2024-2025 school year. The student refused to clean up classroom toys at dismissal. When his teacher allegedly grabbed him by the wrist to walk him back to his seat, the student dropped to the floor and began crying. The teacher then allegedly grabbed the student by the ankle and dragged him across the floor. Following an investigation, criminal charges were not advanced by the county DA, and the school permitted the teacher to return to the classroom. The student’s parents sued, lodging thirteen legal counts under both state and federal law, which sought monetary damages from the teacher, the school district, the superintendent, the principal, and the director of special education. The plaintiff’s 42 USC 1983 claims were dismissed as to the school district for failure to allege a policy or custom violation, and the failure to alleged deliberate indifference in the failure-to-train context. As to the superintendent, building principal, and special education director, the Section 1983 claims were also dismissed for failure to allege personal involvement on the part of the individuals. Regarding an equal protection claim asserted against all defendants, the motion to dismiss was also granted for a failure to advance a plausible equal protection claim, holding that “plaintiffs' single-act allegations do not include a factual basis to even infer that the act was motivated by discriminatory animus rather than some other non-discriminatory impulse.” The court further dismissed the plaintiff’s negligence-based claims including negligence against the teacher and district administrators, NIED, and vicarious liability under the Political Subdivision Tort Claims Act (PSTCA). The federal claims under the IDEA, Section 504, and the ADA were also dismissed in various respects. The IDEA claim was dismissed against all defendants with prejudice for failure to exhaust administrative remedies. The Section 504 claims against the individual defendants were also dismissed with prejudice, as districts, not individuals, are the recipients of federal funds under Section 504. However, the Section 504 and ADA claims were dismissed without prejudice as to defendant Wyoming Valley West, and the plaintiff was permitted leave to amend.

Thought Leadership

U.S. Supreme Court Decides Key Issue Regarding Interstate Freight Broker Liability

Freight brokers are intermediaries.  They connect shippers of goods with trucking companies that transport those goods.  Freight brokers match a load of freight with a trucking company and oversee the logistics of the transportation. For a number of years there has been a division among the Federal Circuits regarding the potential liability of freight brokers when the trucking companies that they retain for interstate loads are involved in accidents.  At the center of this division was the Federal Aviation Administration Authorization Act of 1994 (FAAAA).  Some Federal Circuit Courts have held that state law negligent hiring claims against freight brokers were preempted by the FAAAA .  Other Federal Circuits Courts have held that even if preemption applied, the “safety exception” in the FAAAA saved state law negligent hiring claims from federal preemption.  On May 14, 2026, the U.S. Supreme Court addressed the conflict in Montgomery v. Caribe Transport II, LLC, et al, No24-1238. In that case freight broker C.H. Robinson selected Caribe Transport to haul an interstate load. The commercial truck driver employed by Caribe Transport allegedly caused an accident and the plaintiff, Montgomery, was seriously injured. Montgomery brought an action against the driver, Caribe Transport and C.H. Robinson. The allegation against C.H. Robinson was that it negligently retained Caribe Transport when it knew, or should have known, that it was an unsafe company. The Seventh Circuit Court of Appeals held that Montgomery’s claims against C.H. Robinson were preempted by the FAAAA. The plaintiff appealed to the U.S. Supreme Court.  The U.S. Supreme Court’s decision focused primarily on the safety exception in the FAAAA.  That provision provides that the FAAAA preemption “…shall not restrict the safety regulatory authority of a State with respect to motor vehicles.” C.H. Robinson argued, as freight brokers historically have, that their function was not “with respect to motor vehicles” because they do not own trucks or employ drivers. They are merely intermediaries, connecting entities who need freight moved with entities who can do that job. Therefore, C.H. Robinson argued that preemption applied, not the safety exception. The U.S. Supreme Court did not accept that argument. The Court focused on the meaning of the phrase “with respect to” in the safety exception. The Court held that it means “referring to”, “concerning” or “regarding”. Therefore, writing for a unanimous Court, Justice Barrett concluded that “[r]equiring C.H. Robinson to exercise ordinary care in selecting a carrier therefore “concerns” motor vehicles—most obviously, the trucks that will transport the goods. So, Montgomery’s negligent-hiring claim falls within the FAAAA’s safety exception, which saves it from preemption.” Justice Kavanaugh, in his concurring opinion, noted the effect this ruling may have on freight brokers and their insurers throughout the country: Importantly, the Court's decision today should not be read to mean that brokers will routinely be subject to state tort liability in the wake of truck accidents. As even plaintiff's counsel stressed, brokers should be able to successfully defend against state tort suits if the brokers have acted reasonably and arranged transportation with reputable trucking companies. Tr. of Oral Arg. 27-29. In plaintiff's counsel's words, the brokers "just have to hire carriers that actually have a reasonable policy," and "the broker is not going to have a problem if it's asking the hard questions of the carrier." Id., at 42, 45. In addition, the proximate-cause requirement in typical state tort law should help protect brokers from excessive liability. Id., at 25. That said, the brokers rightly caution against naivete. In the real world, as the brokers forcefully respond, state tort law can be unpredictable, and the costs to brokers of litigation and insurance may be significant even when brokers prevail in lawsuits. Moreover, the costs of litigation and insurance, as well as the costs of brokers' conducting more substantial inquiries into trucking companies, will cascade through the economy and be paid in part by American consumers in the form of higher prices. The concerns expressed by the brokers are legitimate and weighty. The key point here is that freight brokers can no longer claim they are protected from negligent retention claims by the FAAAA (in cases involving interstate transportation). The challenge will be to determine what is considered ”reasonable efforts” used by brokers when retaining transportation companies. 

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict.