Murphy et al v. Woodloch Pines et al
MEMORANDUM (Order to follow as separate docket entry) re 53 MOTION for Summary Judgment filed by Woodloch Builders, Woodloch Pines, Woodloch Pines, Inc., Woodloch Resort. We will deny the Woodloch defendants motion for summary judgment.An appropriate order follows. Signed by Magistrate Judge Joseph F. Saporito, Jr on 11/21/22. (ms)
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 1 of 22
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ELLEN MURPHY and THOMAS,
WOODLOCH PINES, WOODLOCH
PINES, INC., WOODLOCH
BUILDERS, ICE RINK
MANUFACTURING, LLC AND
MULTIPLEX SYSTEMS, INC.,
This matter is before the court on the motion for summary
judgment (Doc. 53) filed by the defendants Woodloch Pines, Woodloch
The parties have consented to proceed before the
undersigned pursuant to 28 U.S.C. § 636(c). The plaintiffs, Ellen Murphy
and Thomas Murphy, initiated this action on February 21, 2020, seeking
The remaining defendants, Ice Rink Engineering and
Manufacturing, LLC and Multiplex Systems, Inc., and third-party
defendant, Vycom Corp., were voluntarily dismissed without prejudice.
(Doc. 50; Doc. 52).
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 2 of 22
damages for a fall by Mrs. Murphy upon Woodloch’s synthetic ice-skating
rink on April 8, 2018.
Woodloch asserts that the defendants are entitled to summary
judgment on four aspects of this case. First, Woodloch argues that the
“no-duty” rule under Pennsylvania law precludes recovery by the
plaintiffs because Woodloch had no duty to Mrs. Murphy while she was
on the ice rink because of the known or obvious hazards associated with
ice skating rinks. Second, the Woodloch defendants contend they are
entitled to summary judgment under the doctrine of the assumption of
the risk. Third, they argue that Mrs. Murphy extinguished any claim by
her express waiver of liability by signing Woodloch’s “contract.” Finally,
Woodloch contends that Mr. Murphy’s derivative claim for loss of
consortium fails because Mrs. Murphy’s claim does not stand, and
alternatively, if Mrs. Murphy’s claim survives summary judgment, Mr.
Murphy has failed to present sufficient evidence to support his claim for
loss of consortium.
In opposition to the motion, the Murphys argue that Mrs. Murphy
never saw the rut which caused her to fall and never skated on a
synthetic ice rink before this incident, so she could not assume the risk
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 3 of 22
of ice skating. They also contend the waiver is unenforceable because it
was a “receipt” for a skate rental and not a contract, she never saw the
language of the alleged release, and no one from Woodloch advised her of
the alleged release.
The parties have briefed the motion, and Woodloch docketed a
statement of material facts which was answered by the plaintiffs making
the motion ripe for disposition. (Doc. 53-4; Doc. 54; Doc. 55-5; Doc. 54-2;
Doc. 55). For the reasons that follow, we will deny the motion.
Statement of Material Facts
In April 2018, the Murphys vacationed at Woodloch Lodge. On
April 8, 2018, the Murphys decided to ice skate on Woodloch’s synthetic
ice rink. While Mrs. Murphy is an experienced ice skater, as she has
skated at least twenty-five times before this event, she had never ice
skated on synthetic ice. Prior to skating, on the date of the incident, Mrs.
Murphy signed a document evidencing that she charged $5.00 to her
room for one skate rental.2
Below Mrs. Murphy’s signature, on the
document, the following appeared:
Although the document evidences only one skate rental, it is
undisputed that Mrs. Murphy’s husband and their two children were also
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 4 of 22
In consideration of the use of the Glice Rink at
Woodloch and rental equipment: I agree to keep
all equipment on Woodloch Property at all times;
to pay all rental fees, including state and local
taxes; and to return all equipment in the same
condition as it was received in. I agree to pay all
charges incidental to all breakages, shortages, or
damage, other than ordinary wear, to said
property; FURTHERMORE, my signature
indicates that I have read and understand the
terms of this agreement and I knowingly and
voluntarily agree to assume the inherent risk
involved in ice skating and all sports related
thereto. I further agree to hold harmless, release,
defend, and indemnify Woodloch Pines, Inc. its
subsidiaries, affiliates, officers, directors, agents,
and employees from and against all actions, costs,
claims, losses, expenses, and damages which arise
from or relate in any way to my use of the Glice
Rink at Woodloch, and/or rented equipment.
(Doc. 53-3, at 74).3
Mrs. Murphy did not read the quoted portion below her signature.
In addition, no one from Woodloch brought it to her attention. Woodloch’s
skating at the same time. (Doc. 53-4 ¶¶ 12, 13, 16; Doc. 54-2 ¶¶ 12, 13,
Apparently, Mr. Murphy and the plaintiffs’ children were permitted
to skate on the rink without signing such a statement, even though the
receipt indicates that only one skate rental was “sold” to “Murphy,
Thomas & Ellen.” (Doc. 53-3, at 74). Nonetheless, Mr. Murphy rented
skates for himself and his two children, but he has no recollection
whether he signed an exculpatory clause, nor was one presented to him
containing his signature during his deposition. (Mr. Murphy Dep. 11-12,
Doc. 53-3, at 94).
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 5 of 22
risk manager, Theodore Malakin, testified at his deposition that when a
patron rents skates, the patron provides the size and type of skate, and
the skates are then provided to the patron. (Malakin Dep. 70, Doc. 54-3,
at 72). Mr. Malakin further testified that, to his knowledge, no one from
Woodloch informs the patron that by renting skates the patron waives
the right to sue if anything happens to them while on Woodloch’s
Before she began skating on April 8, 2018, Mrs. Murphy noticed that
the rink appeared dirty and “that there were ruts and divots all over the
place.” (Mrs. Murphy Dep. 23, Doc. 53-3, at 32). She also maintained that
she did not see the divots before she was on the ice. (Id. at 86, Doc. 53-3,
at 48). She skated on the synthetic ice surface for ten to fifteen minutes
before she fell, but she was unable to glide smoothly over the surface. At
some point, Mrs. Murphy observed her children and her husband having
difficulty skating on the rink and she also saw her children using an
assistive device to skate. Mrs. Murphy did not think to get off the surface
despite her difficulty with skating on the rink. She wanted to let her
children experience what was available to them.
While skating, she
stopped and photographed her family with her cell phone. After she took
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 6 of 22
the photographs, Mrs. Murphy moved her body, and her skate became
stuck in a divot causing her to fall. As a result, Mrs. Murphy sustained
an injury to her elbow which required surgical repair and physical
Mr. Murphy assisted his wife with her basic everyday activities postsurgery because of her limitations. Her injuries limited the physical
sporting events in which the plaintiffs previously participated.
Murphy testified that their relationship was made stronger because of the
help he provided to his wife. The injury impacted the couple’s intimacy
during her recovery which was for a period of seven months.
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted only if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome
of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute of material fact is “genuine” only if the evidence “is such that a
reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 7 of 22
inferences “should be drawn in the light most favorable to the non-moving
party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell
Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis for its motion,”
and demonstrating the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts, supported
by the record, demonstrating that “the evidence presents a sufficient
disagreement to require submission to the jury.” Anderson, 477 U.S. at
251–52. Thus, in evaluating a motion for summary judgment, the Court
must first determine if the moving party has made a prima facie showing
that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex,
477 U.S. at 331. Only once that prima facie showing has been made does
the burden shift to the nonmoving party to demonstrate the existence of
a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477
U.S. at 331.
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 8 of 22
Both parties may cite to “particular parts of materials in the
information, affidavits or declarations, stipulations (including those made
for the purposes of the motion only), admissions, interrogatory answers or
other materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration
used to support or oppose a motion must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the
affiant or declarant is competent to testify on the matters stated.” Fed. R.
Civ. P. 56(c)(4). “Although evidence may be considered in a form which is
inadmissible at trial, the content of the evidence must be capable of
admission at trial.” Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599
(M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d
378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary
judgment, to consider evidence that is not admissible at trial).
This case is before the Court as a diversity of citizenship action
under 28 U.S.C. § 1332. The plaintiffs are citizens of New York, the
Woodloch defendants are Pennsylvania corporations or entities with a
principal place of business in the Commonwealth of Pennsylvania, and
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 9 of 22
the amount in controversy is alleged to be over $75,000. Thus, diversity
jurisdiction is proper. As this is a diversity action and Pennsylvania was
the situs of the injury, the Erie doctrine instructs that we apply
Pennsylvania law to the facts of this case. Erie R.R. Co. v. Tompkins, 304
U.S. 64 (1938).
a. The No-Duty Rule and the Assumption of the Risk
Despite Mrs. Murphy’s status as a business invitee, Woodloch
maintains that it owed her no duty to protect her against a known or
obvious hazard, and she observed the rink before and during skating and
voluntarily assumed the risks incidental to ice skating. The plaintiffs
posit that Woodloch, the possessor of land, owed the plaintiffs a duty to
protect them from foreseeable harm, and whether Mrs. Murphy knew of
the risks and appreciated their magnitude are questions for the factfinder
precluding summary judgment.
1. The “no-duty rule”
The no-duty rule provides that a defendant owes no duty of care to
warn, protect, or insure against risks which are “common, frequent and
expected” and “inherent” in an activity. Jones v. Three Rivers Mgmt.
Corp., 394 A.2d 546, 551 (Pa. 1978); Craig v. Amateur Softball Ass’n of
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 10 of 22
Am., 951 A.2d 372 (Pa. Super. Ct. 2008) (amateur softball player, who was
hit in the head while not wearing a helmet, was owed no duty to
recommend or mandate that he wear a helmet). If it is determined the
no-duty rule is applicable to a negligence claim, a plaintiff will be unable
to set forth a prima facie case of liability. Id. at 376. The “no-duty”
concept involves a finding that the defendant had no duty to the plaintiff
and, therefore, was not negligent. The defendant is not liable regardless
of whether defendant could successfully raise the assumption of the risk
defense. Berman v. Radnor Rolls, Inc., 542 A.2d 525, 531 (Pa. Super. Ct.
1988). In discussing the liability of an operator of an amusement facility,
the Pennsylvania Superior Court observed:
Although an operator of an amusement facility for
which admission is charged is not an insurer of
his patrons, he will be “liable for injuries to his
patrons . . . where he fails to use reasonable care
management of [the facility], having regard to the
character of the exhibitions given and the
customary conduct of the patrons invited.” Thus,
it is clear that the central inquiry with respect to
whether the “no-duty” rule will apply to a given
situation, thereby barring recovery, is whether
the injury resulted from a risk which is inherent
in the amusement activity.
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 11 of 22
Telega v. Security Bureau, Inc., 719 A.2d 372, 376 (Pa. Super. Ct. 1998
Therefore, the question before this Court is whether a first-time user
of a synthetic ice-skating rink will be held to assume as inherent in the
activity of ice skating the risk of her skate becoming stuck in a rut or divot
causing her to fall and injure herself. It goes without in-depth analysis
that falling while ice-skating is an inherent risk regardless of the nature
of the rink and whether imperfections or inequalities exist on its surface.
Even the most skillful ice-skaters fall from time-to-time on a level ice
surface. Woodloch’s contention, however, is an attempt improperly to
shift the focus of the “no-duty” inquiry from the risks inherent in the
activity of ice-skating itself to an examination of other risks which may be
present on a particular skating rink.
Our analysis is guided by Oberheim v. Pennsylvania Sports &
Enterprises, 55 A.2d 766 (Pa. 1947). There, the operator of an ice-skating
rink was found negligent in permitting an irregular ice pocket or ridge to
exist in the entrance way of the rink by a congealed pile of ice scrapings
and litter where the plaintiff fell and injured herself. The Court held that
the operator of the rink “was under a legal duty to keep the premises in a
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 12 of 22
reasonably safe and suitable condition so that those coming upon them at
the [rink operator’s] invitation, express or implied, would not be
unnecessarily or unreasonably exposed to danger.” Id., 55 A.2d at 768.
However, the Court observed that the actionable negligence did “not arise
from any condition of the skating area of the rink.” Id. Nonetheless, the
Superior Court of Pennsylvania, relying upon Oberheim, in an ice-skating
accident within the rink itself, where an experienced skater fell after he
struck a “soft spot” in the ice injuring himself, held that whether the
owner negligently permitted a soft spot in the skating rink was a jury
question. See Dean v. Cty. of Allegheny, 228 A.2d 40 (Pa. Super. Ct. 1967).
Interestingly, the Dean court noted that there was no barrier or warning
concerning the alleged defect in the ice. Id. at 41.
Therefore, we find that upon the state of the record before us, the
“no-duty” rule does not bar the plaintiffs’ action.
2. Assumption of the risk
Next, Woodloch argues that Mrs. Murphy voluntarily assumed the
risk of injury and is therefore barred from recovery. In the same situation
in Oberheim, the Court observed that “[I]t will be readily conceded that
an invitee of an ice skating rink assumes the ordinary risks incidental to
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 13 of 22
the sport, such as the risk of injury from falling because of imperfections
and inequalities on the surface of the ice reasonably to be anticipated.” 55
A.2d at 769. Here, we are presented with conflicting facts as elicited from
Mrs. Murphy in her deposition. For example, she testified as follows:
When you stepped on the rink,
did you notice anything about the rink?
Before I even
proceeded with skating, I did notice that to me it
looked dirty and not cared for.
I would like you to describe it a
little bit more. What about it was dirty, did you
notice any debris or dirt?
A. No. In other words, there seems to
be dirt that was embedded all over the surface
and I don’t know if you want me to continue with
that. I did see that there were ruts and divots
all over the place. So I surmised that this was
dirt that had been embedded into these ruts and
divots. I don’t know if it was leaves. I don’t know
what the dirt was from, but that’s what I noticed.
Did you notice this before you
I did. I thought it looked dirty.
I didn’t realize it until after I was there why it
looked dirty, but it – that was my first impression
that it looked dirty.
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 14 of 22
Explain a little bit more when
you say I did the best that I could, what does that
Well, it was not easy to skate
over the divots and ruts. It was not the same
experience as regular.
I was trying to
maneuver the new to me plastic surface.
(Mrs. Murphy Dep. 22-23, Doc. 53-3, at 32 (emphasis added). Later in her
deposition, she testified as follows:
When you fell, did you look
around you to see what the surface looked like?
Yes, and there was multiple
divots like I said, but there was one that I’m sure
that caught my skate. It was right there.
Do you recall how your skate got
caught on the divot, like what part of your skate?
I didn’t see the divot before I fell,
otherwise I would have probably avoided it. I saw
it after I fell when I was down . . . .
Other than the divot that you fell
in did you notice any other divots on the ice?
got on the ice?
Yes, I did.
Did you notice them before you
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 15 of 22
Did you notice the divots before
you got on the ice?
It sounds like you noticed
them after your incident, correct?
After my incident, I saw with
reasonable certainty that there was a lot of divots
around the rink, yes. I got a closer look for sure.
I was on the floor, ground or ice or whatever.
When you went on the ice, you
knew there were divots and you knew there was
dirt or some other kind of debris embedded in the
(Id. at 26, 85, 86, 88, (emphasis added) Doc. 53-3, at 33, 47-48). This
testimony is inconsistent, and at the very least it is unclear to the court.
It is not the kind of testimony based on which we are prepared to declare,
as a matter of law, that Mrs. Murphy assumed the risk of her injury.
Rather, based upon the state of the record before us, whether Mrs.
Murphy exercised due care in attempting to avoid the ruts and divots and
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 16 of 22
remaining on the ice when she may have known of them is a question for
b. The Exculpatory Clause
Here, Woodloch argues that the waiver signed by Mrs. Murphy
extinguishes any claim she may have while skating on the rink. The
plaintiffs contend that there was no contract to enforce because the receipt
is not a contract.
The general standards governing such exculpatory clauses have
been summarized by the Pennsylvania Supreme Court as follows:
It is generally accepted that an exculpatory clause
is valid where three conditions are met. First, the
clause must not contravene public policy.
Secondly, the contract must be between persons
relating entirely to their own private affairs and
thirdly, each party must be a free bargaining
agent to the agreement so that the contract is not
one of adhesion . . . [O]nce an exculpatory clause
is determined to be valid, it will, nevertheless,
still be unenforceable unless the language of the
parties is clear that a person is being relieved of
liability for his own acts of negligence. In
interpreting such clauses we listed as guiding
standards that: 1) the contract language must be
construed strictly, since exculpatory language is
not favored by the law; 2) the contract must state
the intention of the parties with the greatest
stipulation, and no inference from words of
general import can establish the intent of the
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 17 of 22
parties; 3) the language of the contract must be
construed, in cases of ambiguity, against the
party seeking immunity from liability; and 4) the
burden of establishing the immunity is upon the
party invoking protection under the clause.
Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1189 (Pa. 2010)
In support of the motion, Woodloch contends that the facts fall
squarely within the standards for the enforcement of an exculpatory
clause. In opposition to the motion, the plaintiffs argue that this issue is
governed by Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266 (Pa. Super.
Ct. 2006), because the exculpatory clause was unread (despite it being
undisputed that Mrs. Murphy signed the document), and it was
inconspicuous, as its placement, font size, and lack of appropriate
highlights or bold print did not bring it to Mrs. Murphy’s attention. (Doc.
54, at 12-13). Also, in Beck-Hummel, we note that the plaintiffs there did
not contest the enforceability of the release, which is contrary to the
plaintiffs’ assertion that the receipt did not constitute a contract.4 The
The plaintiffs in Beck-Hummel also contested whether the
language of the disclaimer encompassed their claims, but the court
never reached that issue. Id. at 1269 n.2.
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 18 of 22
court in Beck-Hummel stated the issue as “whether [the release] is
enforceable against the Hummels under the circumstances of this case,
including whether it was sufficiently conspicuous.” Id at 1269-70.
Here, the release language appeared on the same side of the paper
and below Mrs. Murphy’s signature. But, before the release language,
and after her signature, the document stated that Mrs. Murphy agreed to
keep the equipment on Woodloch’s property, to pay all rental fees,
including state and local taxes, to pay for any damage to the equipment,
and to return the equipment in the same condition as it was received other
than ordinary wear to the property. The release language was not set out
separately; it did not contain a different font size except and only for the
word “FURTHERMORE” which was before the start of the release; and it
was not highlighted or in bold print.
We recognize that under
Pennsylvania law, conspicuity of language is not essential to contract
formation. Hinkal v. Pardoe, 133 A.3d 738, 745 (Pa. Super. Ct. 2016).
“Nonetheless, in cases where the existence of a contract, or a meeting of
the minds, cannot be determined as a matter of law, conspicuity has been
resorted to as a means of proving the existence or lack of a contract.” Id.
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 19 of 22
In Beck-Hummel, the release language appeared on the back side of
an unsigned tubing ticket, the plaintiff never read the exculpatory
language, she was never told by anyone to read it, and there was no sign
telling her to do so. There, the court was guided by Section 496B of the
Restatement (Second) of Torts which provides:
A plaintiff who by contract or otherwise expressly
agrees to accept a risk of harm arising from the
defendant's negligent or reckless conduct cannot
recover for such harm, unless the agreement is
invalid as contrary to public policy.
Also, the Beck-Hummel court relied upon comment d to Section 496B,
In order for an express agreement assuming the
risk to be effective, it must appear that the
plaintiff has given his assent to the terms of the
agreement. Particularly where the agreement is
drawn by the defendant, and the plaintiff's
conduct with respect to it is merely that of a
recipient, it must appear that the terms were in
fact brought home to him and understood by him,
before it can be found that he has accepted them.
Id. at 1273-74. We are familiar with the law of Pennsylvania,
which holds that “[o]ne who is about to sign a contract has a duty
to read that contract first.” Schillachi v. Flying Dutchman
Motorcycle Club, 751 F. Supp. 1169, 1174 (E.D. Pa. 1990) (citations
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 20 of 22
Woodloch directs our attention to Hinkal, which
supports this well-settled legal precedent. Hinkel, 133 A.3d at 743.
However, in Hinkal and unlike our facts, the membership
agreement contained an unambiguous directive not to sign the
agreement until reading both sides, a clear pronouncement that
the terms on both sides of the form were part of the agreement, and
a straightforward statement that the agreement constituted the
entire agreement between the parties.
Under the circumstances of this case, where it is disputed
whether Mrs. Murphy read the exculpatory language despite her
signature, it is undisputed that no one specifically brought her
attention to it, the document itself was not instructive that she
should not sign the document unless she first read it, and it is not
so conspicuous as to place her on notice, we cannot conclude, as a
matter of law, that the exculpatory language is enforceable.
acknowledgment that its terms were read and accepted before
using the facility and nothing about the receipt ensured that a
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 21 of 22
purchaser would be aware of its release provision. 5
As in Beck-
Hummel, where the resolution of this issue was dependent upon
whether there was a meeting of the minds to establish the
existence of a contract, we find that there are genuine issues of
material fact which preclude the entry of summary judgment on
Therefore, we will leave this issue of fact for the
Woodloch concedes that the waiver does not protect against
allegedly reckless conduct by Woodloch. (Doc. 55, at 11). However, the
Woodloch defendants maintain that the evidence does not rise to the level
of recklessness and therefore, its motion should be granted to that extent.
In their complaint, the plaintiffs have alleged reckless conduct by
Woodloch and we decline the invitation to declare, as a matter of law, that
the evidence submitted in support of the motion does not rise to
Although rather thin, the plaintiffs present evidence from
Although Mr. Murphy’s name appeared on the “receipt” or
“contract,” he did not sign the document and it is unclear whether
he was made aware of the exculpatory clause. Regardless,
Woodloch has not relied upon the exculpatory clause to avoid
liability as to Mr. Murphy’s loss of consortium claim, but rather it
asserts that, as a derivative claim, if his wife’s claim fails, so does
Case 3:20-cv-00320-JFS Document 56 Filed 11/21/22 Page 22 of 22
which a jury might reasonably infer recklessness. Thus, we will leave
that matter for the jury.
c. Mr. Murphy’s loss of consortium claim
Woodloch’s position that Mr. Murphy’s derivative claim for loss of
consortium is unsustainable based upon the evidence in the record is
meritless. Mr. Murphy assisted his wife with her basic everyday activities
post-surgery because of her limitations. Her injuries limited the physical
sporting events in which the plaintiffs previously participated.
Murphy testified that their relationship was made stronger because of the
help he provided to his wife. The injury impacted the couple’s intimacy
during her recovery which was for a period of seven months.
Therefore, we will deny the Woodloch defendants’ motion for
An appropriate order follows.
s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge
Dated: November 21, 2022
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?