Archibald v. Kemble - 2009 PA Super 79, 971 A.2d 513

Rule:

Pa.R.C.P. No. 1019(b) provides that malice, intent, knowledge, and other conditions of the mind may be averred generally. An example of a condition of the mind that may be averred generally is wanton conduct. Because recklessness is also known as wanton and willful misconduct, recklessness is a condition of the mind that may be averred generally.

Facts:

Robert Archibald and the Cody Kemble were participating in an adult non-checking, or no bodily contact, ice hockey league game. Kemble allegedly checked Archibald into the boards of the ice hockey rink, shattering his femur. Archibald testified that Kemble picked up his right skate and jammed it into Archibald’s left skate. The trial judge granted Kemble’s motion for summary judgment. Archibald sought review.

Issue:

Did the trial judge err in concluding that Archibald’s cause of action was not subsumed within the negligence count pled in the complaint?

Answer:

Yes

Conclusion:

The appellate court held that merely determining the degree of care was recklessness did not give rise to a separate tort that must have been pled within the applicable statute of limitations. The trial judge was correct in ruling the degree of care was recklessness. However, he erred in concluding that Archibald’s cause of action was not subsumed within the negligence count pled in the complaint. It was clear from the record there was evidence that Kemble owed a duty of care to Archibald, that he breached the duty by acting recklessly, and that his breach of his duty of care caused injury and damages to the injured person. Whether, of course, Archibald was able to persuade a jury those facts were true remained to be seen, but he had to be given the opportunity to do so.