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1. Kleinknecht v. Gettysburg College, 786 F. Supp. 449

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Kleinknecht v. Gettysburg College

United States District Court for the Middle District of Pennsylvania

March 12, 1992, Decided ; March 12, 1992, Filed

CIVIL ACTION NO. 1:CV-90-1515

Reporter 786 F. Supp. 449 *; 1992 U.S. Dist. LEXIS 2960 **

SUZANNE W. KLEINKNECHT and RICHARD P. KLEINKNECHT, Personal Representatives of the Estate of DREW R. KLEINKNECHT, Deceased, and SUZANNE W. KLEINKNECHT and RICHARD P. KLEINKNECHT, in their own right, Plaintiffs vs. GETTYSBURG COLLEGE, Defendant

Core Terms

plaintiffs', players, trainers, minutes, training, foreseeability, cardiac arrest, athlete, ambulance, stadium, ran, breathing, emergency, collapse, measures, coaches, healthy, anticipated, estimates, reasonably foreseeable, practice field, no duty, deposition, lacrosse, summary judgment, arrythmia, teammates, arrived, parties, argues

Case Summary

Procedural Posture Plaintiff parents filed an action against defendant college alleging the college negligently caused the death of their son who was a student there. The college filed a motion for summary judgment, which was denied, and the college filed a motion for reconsideration.

Overview The parents' son was a student at the college. He suffered cardiac arrest at an off-season lacrosse practice. The parents contended the college was negligent having failed its duty to provide for the safety of student athletes and its failure to have a measure in place to provide proper treatment in case a student had a cardiac arrest. They argued the college had a "special relationship" to the student that gave rise to the duty they alleged had been violated. The evidence showed that the parents' son had been examined prior to his cardiac arrest and there was no indicator he was at risk for such an occurrence. After his death, no reason for his attack was discovered. The court found that the

college had no duty to anticipate and guard against a healthy student athlete's cardiac arrest as it occurred in a manner unconnected to the risks of the game in which he was engaged. Because the attack was no foreseeable, no duty could be imposed. Without a showing it had a duty to the parents' son, the college could not be negligent as a matter of law.

Outcome The court granted the motion for consideration, vacated its prior order, and entered summary judgment against the parents.

LexisNexis® Headnotes

Torts > … > Elements > Duty > General Overview

HN1[ ] Elements, Duty

Duty is an essential element of a negligence claim.

Torts > … > Duty > Standards of Care > General Overview

HN2[ ] Duty, Standards of Care

In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection from the harm suffered.

Torts > … > Duty > Affirmative Duty to Act > General Overview

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HN3[ ] Duty, Affirmative Duty to Act

A duty will be imposed only when an event is "reasonably foreseeable," and this term to means, under Pennsylvania law, an event that has some reasonable probability of occurring, not one simply within the realm of possibility.

Torts > … > Duty > Affirmative Duty to Act > General Overview

HN4[ ] Duty, Affirmative Duty to Act

A court can rule as a matter of law that there is no duty only when foreseeability is clearly and undeniably negated.

Torts > … > Duty > Affirmative Duty to Act > General Overview

HN5[ ] Duty, Affirmative Duty to Act

The concept of foreseeability means the likelihood of the occurrence of a general type of risk rather than the likelihood of the precise chain of events leading to the injury.

Torts > … > Duty > Affirmative Duty to Act > Voluntary Assumption of Duty

HN6[ ] Affirmative Duty to Act, Voluntary Assumption of Duty

The Good Samaritan Law, 42 Pa. C.S. § 8332(a) (Pennsylvania) specifically provides protection for any "acts or omissions."

Torts > … > Duty > Affirmative Duty to Act > Voluntary Assumption of Duty

HN7[ ] Affirmative Duty to Act, Voluntary Assumption of Duty

The Good Samaritan Law, 42 Pa. C.S. § 8332(a) (Pennsylvania), applies to a college since the statutory context does not "clearly indicate," that the word "person" does not apply to corporations.

Torts > Vicarious Liability > Agency Relationships > General Overview

HN8[ ] Vicarious Liability, Agency Relationships

Generally a principal can still be held vicariously liable for the torts of its agent when the agent is immune from suit.

Counsel: [**1] FOR SUZANNE W. KLEINKNECHT AND RICHARD P. KLEINKNECHT, Personal Representative of the Estate of Drew R. Kleinknecht, Deceased, plaintiffs: Stephen M. Greecher, Jr. and Lee C. Swartz, Hepford, Swartz, Menaker & Morgan, 111 N. Front St., P. O. Box 889, Harrisburg, PA 17101-0889, 717-234-4121.

SUZANNE W. KLEINKNECHT AND RICHARD P. KLEINKNECHT, In Their Own Right, plaintiffs: Stephen M. Greecher, Jr. and Lee C. Swartz, Hepford, Swartz, Menaker & Morgan, 111 N. Front St., P. O. Box 889, Harrisburg, PA 17101-0889, 717-234-4121.

GETTYSBURG COLLEGE, a corporation, defendant: James K. Thomas, II, Thomas, Thomas & Hafer, 305 N. Front St., P.O. Box 999, Harrisburg, PA 17108-0999, 717-255-7617.

Judges: Caldwell

Opinion by: WILLIAM W. CALDWELL

Opinion

[*450] MEMORANDUM

We currently have before us the motion of defendant, Gettysburg College, to reconsider our order, dated November 1, 1991, which denied its motion for summary judgment under Fed. R. Civ. P. 56. Oral argument on the reconsideration motion was held on January 30, 1992, and the parties subsequently submitted additional legal authorities. We will evaluate the current motion under the same standard to be employed in deciding a motion for summary judgment. The latter [**2] standard was recently set forth in Gray v. York Newspapers, Inc., 957 F.2d 1070, 1992 WL 26521 (3d Cir. 1992). References to briefs and exhibits will be to those submitted in connection with the summary judgment motion.

786 F. Supp. 449, *449; 1992 U.S. Dist. LEXIS 2960, **2960786 F. Supp. 449, *449; 1992 U.S. Dist. LEXIS 2960, **2960

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This is a diversity action controlled by Pennsylvania law. The plaintiffs, Suzanne W. Kleinknecht and Richard P. Kleinknecht, filed this suit on their own behalf and as the personal representatives of the estate of their son, Drew R. Kleinknecht, who was a student at the College and a member of its lacrosse team. They claim that the College's negligence and that of its agents was a legal cause of their son's [*451] death after he suffered cardiac arrest at an off-season lacrosse practice.

One of their theories of negligence is that, in connection with the College's duty of providing for the safety of its student athletes, it had to have measures in place at the practice to provide prompt treatment in case one of the students suffered cardiac arrest, even if he had no history of heart disease or any other significant illness. The College allegedly breached this duty in several ways: it did not have in place a written plan to deal with medical emergencies; it failed [**3] to insure that coaches present at practices were certified in cardiopulmonary resuscitation (CPR); it did not have student trainers or other trainers present who were certified in CPR; and it did not have communication devices such as walkie-talkies at the practice field. According to the plaintiffs, these measures would have insured a swifter response to Drew's medical emergency than actually occurred. The consequent delay in treatment was, in the view of the plaintiffs' medical experts, a substantial factor in Drew's passing, hence making the College liable for his death.

The defendant strongly attacks this theory on the element of duty. The College argues that it had no duty to protect a healthy young athlete like Drew from a fatal arrythmia. Without this duty, the College cannot be held responsible for not having coaches or student trainers at practice who were certified in CPR or for not taking other measures that would have insured a quicker response to his medical emergency. Hence, this theory of liability must fail.

The factual background to this particular aspect of the plaintiffs' case is undisputed and is as follows. Drew was a twenty year old sophomore at Gettysburg and [**4] was participating in an off-season lacrosse practice on September 16, 1988. Practice had begun at about 3:15 p.m. with jogging and stretching, some drills, and finally a six on six drill, with the team split into two groups at opposite ends of the field. Drew was a defenseman and was participating in one of the drills when he suffered his cardiac arrest. According to a teammate observing from the sidelines, Drew simply stepped away from the play and collapsed to the ground. (defendant's exhibit H,

deposition of Erik Johnson, p. 10). Another teammate along the sidelines said that Drew collapsed without being struck by anyone or by any object. (doc. no. 66, affidavit of Scott Goldman). Help was summoned. Traci Moore, a student trainer, appeared. Then Joseph Donolli, the College's head trainer, arrived and he began to administer CPR. Shortly thereafter, an ambulance from Gettysburg Hospital came as well, advanced life support measures were initiated, and Drew was transported to the Hospital. Unfortunately, all measures to resuscitate him were unsuccessful and he died at about 5:00 p.m.

There was no sign that Drew was ever at risk for heart problems. In fact, the plaintiffs themselves [**5] describe him until the time of his death as "a healthy, physically active and vigorous young man," (opposition brief at p. 1), with no unusual medical history. In January of 1988, he had been examined by a physician for the College to determine his ability to participate in sports and was cleared to play lacrosse. In August of 1987, Drew's family physician had also examined him and had found him to be healthy and able to participate in physical activity. (defendant's exhibit C).

Post-mortem examinations were performed. They could not detect the reason for his fatal arrythmia. An autopsy conducted the day after Drew died revealed no bruises or contusions on the body. This fact was in accord with the evidence supplied by his teammates that he was not in the play when he suffered his arrest, and helped to dispel the notion that the arrythmia might have been caused by contact during the practice, such as with a ball or stick. As part of the autopsy, Drew's heart was sent to the National Institutes of Health for further study but no pathology was found. A subsequent examination of the autopsy records by another pathologist, and further study by a third physician after an exhumation of [**6] Drew's body, likewise did not reveal the presence of any heart [*452] abnormality which could have explained Drew's fatal collapse.

We are thus confronted with a claim that the College had a duty to anticipate a cardiac arrest in a healthy young man showing no apparent illness whatsoever and to guard against the consequences of that possibility by having CPR trained individuals at hand or having some other way of providing treatment more promptly than he received.

Plaintiffs contend that, although no Pennsylvania court has ever ruled on a similar case, this claim is a valid one under the well established elements of a negligence

786 F. Supp. 449, *450; 1992 U.S. Dist. LEXIS 2960, **2786 F. Supp. 449, *450; 1992 U.S. Dist. LEXIS 2960, **2

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cause of action and that the College owed their son a duty which it breached. Citing Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983), they contend that duty depends upon the relationship between the parties at the relevant time and that there was a "special relationship," (opposition brief at p. 20), between the College and Drew based upon his status as an athlete performing in an activity supervised by College personnel. The College accordingly had to provide for his safety during this time. The plaintiffs further [**7] argue that a duty may be justifiably imposed on the College here because it was foreseeable that an athlete could suffer cardiac arrest while exerting himself in practice. In support of this contention, they rely upon the testimony of their experts that cardiac arrest is foreseeable during physical activity even in a healthy young adult. As further support for their position, they point out that Pennsylvania law does not require that the specific injury to the plaintiff be anticipated, only that a general type of harm be foreseeable. See, e.g., Moran v. Valley Forge Drive-in Theater, Inc., 431 Pa. 432, 246 A.2d 875 (1968). Finally, they argue that "only when foreseeability is clearly and undeniably negated may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff." Migyanko v. Thistlewaite, 275 Pa. Super. 500, 419 A.2d 12 (1980).

For its part, the College points out that it is initially for the court to determine as a matter of law whether there is a duty. See Burton v. Terry, 140 Pa. Commw. 336, 592 A.2d 1380 (1991) (en banc); Wyke v. Ward, 81 Pa. Commw. 392, 474 A.2d 375 (1984). [**8] The defendant then analyses its duty, as the plaintiffs have done, in light of the relationship between itself and Drew but concentrates more on the foreseeability of the injury he suffered. Unlike the plaintiffs, however, the College would characterize the foreseeability of that injury as remote and highly unlikely to happen. Hence, it concludes it had no duty to provide him with the care necessary for almost immediate treatment of the emergency he suffered since only reasonably foreseeable occurrences must be guarded against, not every possible risk. See Kimble v. Mackintosh Hemphill Co., 359 Pa. 461, 59 A.2d 68 (1948); Zanine v. Gallagher, 345 Pa. Super. 119, 497 A.2 1332, 497 A.2d 1332 (1985). Accordingly, since HN1[ ] duty is an essential element of a negligence claim, see Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209 (1990); Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989), the College argues that it cannot be liable for its failure to have CPR certified coaches or trainers at the practice

field, or otherwise not to have in place [**9] a way of dealing with Drew's fatal arrythmia more promptly. This particular claim must therefore fail.

The issue presented can be analyzed in different ways. The Pennsylvania Supreme Court has sometimes spoken about establishing a duty by way of the relationship between the parties, see Morena, supra, and at other times by relying on foreseeability coupled with considerations of proximate cause, see Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986). In other cases, it has taken a far broader approach and has said that a duty should be imposed depending upon whether "policy" dictated that result:

HN2[ ] In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than "the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection" from the harm suffered. Leong v. [*453] Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (1974). To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view [**10] as follows: These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question. When we find a duty, breach and damage, everything has been said. The word serves a useful purpose in directing attention to the obligation to be imposed upon the defendant, rather than the causal sequence of events; beyond that it serves none. In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, "always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind."

Gardner v. Consolidated Rail Corp., 524 Pa. 445, 454- 55, 573 A.2d 1016, 1020 (1990) (quoting Sinn v. Burd, 486 Pa. 146, 164, 404 A.2d 672, 681 (1979)). [**11] See also Hoffman v. Sun Pine Line Co., 394 Pa. Super. 109, 575 A.2d 122 (1990).

786 F. Supp. 449, *452; 1992 U.S. Dist. LEXIS 2960, **6786 F. Supp. 449, *452; 1992 U.S. Dist. LEXIS 2960, **6

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