Premises & Retail Liability

Key Points:

• The definition of what constitutes gross negligence under Pennsylvania case law is vague and difficult to apply to various factual scenarios.
• What constitutes gross negligence is often not at issue in premises liability cases.
• With more fitness and recreational facilities requiring customers to sign liability waivers excluding liability for negligence, gross negligence will become an issue as informed plaintiff attorneys will recognize that they need to plead gross negligence to avoid the waiver defense.

In Pennsylvania, the topic of gross negligence is seldom considered in premises liability cases because ordinary negligence is far easier for an injured plaintiff to prove against an alleged negligent premises owner. Pennsylvania courts have held that there is a substantive difference between gross negligence and negligence. Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 985 (Pa. Super. 2018). This substantive difference typically results in only ordinary negligence being pleaded by a plaintiff against a property owner.

However, gross negligence comes into play when, prior to an alleged accident, the injured individual signs a valid liability waiver, which waivers are often used by fitness and recreation entities. A liability waiver will typically contain an exculpatory clause excluding the premises owner for liability for negligent conduct. Yet, “gross negligence” cannot be excluded, even by a valid liability waiver. When a liability waiver is involved, a plaintiff’s lawyer will typically plead both negligence and gross negligence. Such allegations could potentially negate the effect of the liability waiver and require that a judge or jury determine whether the premises owner’s conduct amounted to not only negligence, but also gross negligence.

In determining what type of conduct constitutes gross negligence, the general consensus is that the alleged conduct must be more egregious than negligence, but it does not rise to intentional acts or conduct. Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 704 (Pa. Super. 2000). In practice, application of this broad definition in a wide variety of varying factual scenarios can prove difficult.

In the premises liability context, in 2018, the Superior Court of Pennsylvania was asked to determine whether gross negligence existed in a case involving an injured skier and a ski resort. In Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974 (Pa. Super. 2018), the plaintiff-skier was injured when he ran over “trenches” in the snow that were caused by an all-terrain vehicle operated by a resort employee. While the plaintiff had signed a valid liability waiver relating to the negligence of the ski resort, the plaintiff argued that the ski resort’s conduct amounted to gross negligence. The Superior Court held that the ski resort’s conduct in creating the trenches did not amount to grossly negligent conduct. The Superior Court reasoned that, while this conduct was arguably negligent, it did not amount to gross negligence because the resort’s employees were, at most, careless in their actions. The Superior Court further found that “mere inadvertence, incompetence, unskillfulness, or a failure to take precautions” do not support a claim of gross negligence.

While case law involving the application of the concept of gross negligence with regard to premises liability are few, this concept has also been applied by Pennsylvania courts to mental health facilities covered under the Mental Health Procedures Act (Act). This Act provides an exception to a blanket protection for treating mental health facilities when said facilities render grossly negligent treatment.

For example, in Albright v. Abington Memorial Hospital, 696 A.2d 268 (Pa. 1997), the Supreme Court of Pennsylvania held that the defendant-hospital’s conduct, after a patient failed to appear for a scheduled appointment, did not amount to gross negligence as a matter of law, even in light of the fact that the defendant-hospital was aware of the patient’s deteriorating mental condition, and even though it failed to have the patient committed. In Downey v. Crozer-Chester Medical Center, 817 A.2d 517 (Pa. Super. 2003), a similar decision was upheld when the defendant-hospital’s failure to supervise the plaintiff-decedent, despite her mental health issues, constituted nothing more than ordinary “carelessness, inadvertence, laxity or indifference,” and not gross negligence.

The broad gross negligence definition will undoubtedly be put to the test in Pennsylvania courts. In a recent premises liability case involving a gym member and premises/gym owner, the Superior Court ruled that the gym member’s claims for negligence were excluded under a valid liability waiver and that the member failed to raise the claim of gross negligence in a timely manner, having raised the issue of gross negligence for the first time at the summary judgment stage. Toro v. Fitness Int’l LLC, 150 A.3d 968 (Pa.  Super. 2016). Given that the claims of negligence and gross negligence were substantively different, the Superior Court granted summary judgment in the premises/gym owner’s favor. Based upon the ruling of Toro, an informed plaintiff’s attorney will likely plead both negligence and gross negligence in any premises liability case involving a liability waiver in an effort to defeat it. The vague definition of gross negligence will, therefore, likely be the key topic in cases involving liability waivers at the summary judgment and trial stages.

As more and more recreational and fitness entities are requiring customers to sign liability waivers before using their facilities, the issue of what kind conduct constitutes gross negligence will likely become more prevalent in premises liability lawsuits.

*Jim is an associate in our Pittsburgh, Pennsylvania, office. He can be reached at 412.803.1159 or jpcullen@mdwcg.com.

_{Defense Digest, Vol. 28, No. 3, October 2022 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2022 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}