Deanna Cornelissen v.
Dan Zahorchak
Deck Hockey-Assumption of the Risk-Hold Harmless Agreements
1. Plaintiff attended a winter deck hockey game
as a visitor but sat in the players' bench area
which was heated.
2. Six days before her accident, Plaintiff signed
a waiver of liability which all deck hockey
players were required to sign in order to
participate in the sport.
3. Plaintiff's claim for negligence against a
player who hit a slap shot which sailed over the
side boards and struck her in the eye during the
warm-up period was barred by the signed waiver
and the "no duty" rule for common, frequent and
expected risks inherent in the sports activity.
(Mary Ann C. Acton)
Jon R. Perry for Plaintiff.
David J. Rosenberg for Defendant.
No. GD 04-028168. In the Court of Common Pleas of
Allegheny County, Pennsylvania, Civil Division.
OPINION
Folino, J., March 13, 2006-The subject of this
opinion is this Court's February 15, 2006 order,
granting Defendant's motion for summary judgment
and dismissing Plaintiff's complaint with
prejudice.
The relevant facts, in a light most favorable to
Plaintiff, are as follows: On December 16, 2002,
Plaintiff Deanna Cornelissen ("Plaintiff") was a
spectator at Bill's Dek Hockey, awaiting the
start of the game. The arena was arranged in such
a way that the spectator area included stands and
a standing area around the deck hockey rink. This
spectator area was protected by boards as well as
a fence extending high above the boards. The only
area surrounding the rink that is not protected
by this fence is the players' bench area, which
is protected only by side boards. The players'
bench is used by the players as a penalty box and
timekeeper area. At the time of the accident,
Plaintiff chose not to watch play from the
protected spectator area, apparently because it
was too cold; rather she watched from the
players' bench area, which was heated.
Six days before the accident, Plaintiff had been
watching a game from the players' bench area when
an official at the rink approached her and
required her to sign a waiver. All deck hockey
players were required to sign a similar waiver.
Because Plaintiff wished to view the play from
the unprotected players' bench area (rather than
from the protected spectators' area), she signed
the waiver. It states in relevant part:
In consideration in [sic] being allowed to
participate in any way in Bill's Beach Volleyball
and/or Dek Hockey Leagues, tournaments, and/or
any type of open play the undersigned
acknowledges, appreciates, and agrees that:
1. The risk of injury from the activities
involved in this program is significant,
including the potential for permanent paralysis
and death, and while particular rules, equipment,
and personal discipline may reduce this risk, the
risk of serious injury does exist; and
2. I KNOWINGLY and FREELY ASSUME ALL SUCH RISKS,
both known and unknown, EVEN IF ARISING FROM THE
NEGLIGENCE OF THE RELEASES [sic] or others, and
assume FULL responsibility for my participation;
and
4. I, for myself, and on the behalf of my heirs,
assigns, personal representatives and next of
kin, HEREBY RELEASE AND HOLD HARMLESS Bill's Dek
Hockey and Beach Volleyball, Bill's Golfland,
Inc., their officers, officials, agents and/or
employees, other participants, owners and lessors
or [sic] the premises used to conduct the event
("Releasees") WITH RESPECT TO ANY AND ALL INJURY,
DISABILITY, DEATH, or lose [sic] or damages to
person or property, WHETHER ARISING FROM THE
NEGLIGENCE OF THE RELEASEES OR OTHERWISE.
(Def.'s Ex. E).
During the warm up period prior to the start of
the game, Defendant Dan Zahorchak ("Defendant")
hit a slap shot, causing the ball to sail over
the side boards and strike Plaintiff in the eye,
causing permanent blindness in her right eye.
Plaintiff's complaint sounded in a single count
of negligence against the Defendant player.
Thereafter, Defendant filed the subject motion
for summary judgment, arguing that Plaintiff's
claim was barred by waiver, the "no duty" rule,
and assumption of risk. After argument, this
Court granted Defendant's motion and dismissed
Plaintiff's complaint with prejudice.
I.
Under the "no duty" rule, "operators of a
baseball stadium, amusement park, or other such
amusement facilities have no duty to protect or
to warn spectators from 'common, frequent, and
expected' risks inherent in the activity." Romeo
v. Pittsburgh Assocs., 2001 Pa.Super. 343, 787
A.2d 1027, 1030. "Individuals attending these
types of activities are deemed to anticipate such
obvious risks and therefore assume them." Id.
The Superior Court's recent opinion in Loughran
v. The Phillies, 2005 Pa.Super. 396, 888 A.2d
872, is directly applicable to the case before
me. In Loughran, the plaintiff was injured when
the Phillies' centerfielder, upon catching the
last out at the top of the seventh inning, threw
the ball into the centerfield stands, striking
the plaintiff in the eye. Although the plaintiff
had argued that the player's throw could not be
expected, nor was it even part of the game
because the third out had been made and the
inning was over, the Superior Court disagreed,
stating:
When determining what is [a] "customary" part of
the game, it is our opinion that we cannot be
limited to the rigid standards of the Major
League Baseball rule book; we must instead
consider the actual everyday goings on that occur
both on and off the baseball diamond; we must
consider as "customary" those activities that
although not specifically sanctioned by baseball
authorities, have become as integral a part of
attending a game as hot dogs, cracker jack, and
seventh inning stretches. Fans routinely arrive
early for batting practice in hopes of retrieving
an errant baseball as a souvenir, and fans
routinely clamor to retrieve balls landing in the
stands via home runs or foul balls. Although not
technically part of the game of baseball, those
activities have become inextricably intertwined
with a fan's baseball experience, and must be
considered a customary part of the game.
Similarly, both outfielders and infielders
routinely toss caught balls to fans at the end of
an inning.
Id. at 875-76. Because the centerfielder's toss
was a customary part of the game, the Loughran
Court affirmed the trial court's grant of summary
judgment.
In the case before me, Plaintiff sustained her
injuries during the warm up period before the
start of the deck hockey game. At oral argument,
Plaintiff attempted to distinguish the facts in
this case from those in Loughran on two grounds:
first, that the "no duty" rule applies only
during the game, not before; second, that while
baseballs commonly leave the field of play, deck
hockey balls do not. As to Plaintiff's first
argument, this Court sees nothing in the Loughran
opinion that would suggest that the "no duty"
rule should apply only after the first pitch of
the game is thrown, but not, for example, during
batting practice before a baseball game.
Likewise, warming up before a game would appear
to be a customary part of virtually any sport,
and is certainly a customary part of a physically
demanding sport such as deck hockey; thus the "no
duty" rule would apply to bar Plaintiff's claim
here.
Plaintiff's second argument is equally
unpersuasive. In Plaintiff's brief in opposition,
she argued that although "Plaintiff conceded
thatŠshe had seen balls leave the rink during
games and had seen balls leave the end of the
rink during warm-ups, she never testified that
she had seen balls go over the side boards during
warm-ups. As a result, there is nothing 'common,
frequent, or expected' about the manner by which
she was injured." (Pl.'s Br. in Resp. at 8).
Pennsylvania courts have held that a plaintiff's
ignorance of an inherent risk is irrelevant,
charging even first-time spectators with
"neighborhood knowledge" of the inherent risks of
the game. Schentzel v. Philadelphia Nat'l League
Club, 173 Pa.Super. 179, 96 A.2d 186 (1953). It
seems obvious that if it is common, frequent, and
expected for errant balls to find their way into
the stands (and particularly into the players'
bench) during games; it is equally common,
frequent, and expected for these balls to reach these
areas during the warm up period. The proximity of
the players' bench to the rink, the lack of
protective fencing, and the nature of the game
itself all strongly suggest that the precise
circumstances that caused Plaintiff's injuries
were an inherent risk of spectating near the
players' bench at a deck hockey game.
II.
It would also appear that the exculpatory clause
in the waiver Plaintiff signed one week before
the accident would cover the circumstances which
caused Plaintiff's injuries. Exculpatory clauses
are generally not favored in Pennsylvania, and
therefore must spell out with the utmost
particularity the intention of the parties. Topp
Copy Prods. v. Singletary, 533 Pa. 468, 471, 626
A.2d 98, 99 (1993). Such clauses must be strictly
construed against the drafter. Id.
Plaintiff signed this waiver after referees
approached her the week before the accident.
These referees explained that Plaintiff could not
sit on the players' bench without signing the
waiver. Wishing to be permitted to sit on the
players' bench, Plaintiff voluntarily signed the
waiver. Plaintiff also provided a team name in
the corresponding space.
Plaintiff argues that the use of the term
"participate" in the introduction to the waiver
is ambiguous, and therefore must be construed
against the Defendant who seeks to enforce the
exculpatory clause. Plaintiff asserts that she
was merely spectating from the players' bench,
and was not "participating."
Given the circumstances under which the Plaintiff
signed the waiver and sustained her injuries,
this Court disagrees with Plaintiff's argument.
Plaintiff was required to sign the waiver because
she was sitting on the players' bench, a space in
close proximity to the playing area which is far
less protected than the stands intended for
spectators. This bench is used by players during
deck hockey games. Although Plaintiff was not
wearing pads and carrying a stick, it hardly
seems possible for the Plaintiff to maintain that
she was not, as the waiver describes,
"participating in any way." Plaintiff cannot sit
so close to the field of play in a space intended
only for participants without being considered a
participant at some level.
Accordingly, this Court's order granting
Defendant's motion for summary judgment and
dismissing Plaintiff's complaint with prejudice
should be affirmed.
DATE FILED: March 13, 2006