Date: Fri, 21 Apr 2000 11:45:35 -0400
From: "Doug Wolfberg" 
To: 
Subject: Legal Issues - Weighing In
Message-ID: 

I have been following the discussion on legal issues spurred by Mark
Milliron's e-mail about liability for NOT providing campus EMS.  Sorry this
e-mail is so long, but I am including the text of a court case which sort of
speaks to this very issue, albeit in the context of legal duty to provide an
emergency response to a student-athlete.  The court concluded that the
university DID have such a duty on the facts before it.  Thought this case
might make interesting reading to those who are interested.  It is from the
Third Circuit Court of Appeals, which is an intermediate appellate court
right below the US Supreme Court on the "food chain."  Its holding would
only be directly applicable in the states covered by the Third Circuit, like
PA and NJ, but its reasoning is certainly interesting for those seeking
support for campus-based EMS.

FYI -- I am an attorney with a firm whose practice is concentrated in EMS,
ambulance and medical transportation law and also happen to be an alumnus of
Penn State EMS (1987).

Douglas M. Wolfberg
Page, Wolfberg & Wirth, LLC
A National EMS, Ambulance and Medical Transportation Law Firm
5010 E. Trindle Road, Suite 202
Mechanicsburg, PA 17050
(717) 691-0100
(717) 691-1226 (fax)
e-mail: dwolfberg@pwwemslaw.com
web site: www.pwwemslaw.com


***********
SUZANNE W. KLEINKNECHT, Personal Representative of the Estate of Drew R.
Kleinknecht, Deceased; RICHARD P. KLEINKNECHT, Personal Representative of
the Estate of Drew R. Kleinknecht, Deceased; SUZANNE W. KLEINKNECHT, in
their own right; RICHARD P. KLEINKNECHT, in their own right v. GETTYSBURG
COLLEGE, a corporation 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,
Appellants


No. 92-7160


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


989 F.2d 1360; 1993 U.S. App. LEXIS 6609; 25 Fed. R. Serv. 3d (Callaghan) 65



September 24, 1992, Argued
March 31, 1993, Filed

SUBSEQUENT HISTORY:  [**1]  Petition for Panel Rehearing Denied April 27,
1993, Reported at 1993 U.S. App. LEXIS 9969.

PRIOR HISTORY: Appeal from the United States District Court for the Middle
District of Pennsylvania. D.C. Civil Docket No. 90-01515.

CORE TERMS: duty, athlete, intercollegiate, lacrosse, duty of care,
immunity, team, cardiac arrest, trainer, emergency, athletic, sport,
athletic activity, ambulance, collapse, summary judgment, training, owe,
foreseeability, participating, minute, foreseeable, recruited, coach, first
aid, stadium, player, life-threatening, predict, guard

COUNSEL: Lee C. Swartz, Esquire, Stephen M. Greecher, Jr., Esquire (Argued),
Hepford, Swartz & Morgan, 111 North Front Street, P.O. Box 889, Harrisburg,
PA 17108, Attorneys for Appellants.

James K. Thomas, II, Esquire (Argued, Paul J. Dellasega, Esquire, Sarah W.
Arosell, Esquire, Thomas, Thomas & Hafer, 305 North Front Street, P.O. Box
999, Harrisburg, PA 17108, Attorneys for Appellee.

JUDGES: PRESENT: HUTCHINSON and ALITO, Circuit Judges, FULLAM, District
Judge * *
  Hon. John P. Fullam, District Judge of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.


OPINIONBY: HUTCHINSON

OPINION:  [*1362]  OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Suzanne W. Kleinknecht and Richard P. Kleinknecht (collectively "the
Kleinknechts") appeal an order of the United States District Court for the
Middle District of Pennsylvania granting summary judgment to appellee
Gettysburg College ("the College"). The district court had subject matter
jurisdiction under 28 U.S.C.A. ? 1332(a)(1) (West Supp. 1992) n1 . This
Court has appellate  [**2]  jurisdiction under 28 U.S.C.A. ? 1291 (West
Supp. 1992). n2 We will reverse the district court's order granting summary
judgment to the College for the following reasons.

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n1 This section provides in pertinent part:

The district courts shall have original jurisdiction of all civil actions
where the matter in controversy exceeds the sum or value of $ 50,000,
exclusive of interest and costs, and is between--
(1) citizens of different States[.]

28 U.S.C.A. ? 1332(a)(1).

n2 This section provides in pertinent part:

The courts of appeals . . . shall have jurisdiction of appeals from all
final decisions of the district courts of the United States . . . .

28 U.S.C.A. ? 1291.

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Footnotes- - - - - - - - - - - - - - - - -

I. Procedural History

Drew Kleinknecht died of cardiac arrest on September 16, 1988, while a
student at the College and during a practice session of its intercollegiate
lacrosse team. His parents filed this wrongful  [**3]  death and survival
action against the College on August 15, 1990. The College filed an answer
on September 11, 1990, and a motion for summary judgment on August 31, 1991.
The district court initially denied the motion on November 1, 1991, but then
granted the College's motion for reconsideration on January 9, 1992.

Following oral argument on January 30, 1992, the district court reversed its
earlier decision and entered summary judgment in favor of the College on
March 12, 1992. Kleinknecht v. Gettysburg College, 786 F. Supp. 449 (M.D.
Pa. 1992). In its opinion, the court first held that the College had no duty
to anticipate and guard against the chance of a fatal arrhythmia in a young
and healthy athlete. Id. at 454. The court also held that the actions taken
by school employees following Drew's collapse were reasonable, and thus the
College did not negligently breach any duty that might exist. Id. at 456.

In a footnote the court observed that because it had found that the College
owed no special duty of care to Drew, it was not necessary to reach the
question whether the immunity Pennsylvania's  [**4]  Good Samaritan law
provides applied to any of the defendants. Id. at 457 n.2. The court
nevertheless stated that if the immunity law were applicable, Head Coach
Henry L. Janczyk and Assistant Coach Donald Anderson would not be immune
because neither of them held the required certification. Id. The court held,
however, that student volunteer trainer Traci Moore would be shielded from
liability, and that the College would also be immune because "the statutory
context does not 'clearly indicate[]'. . . that the word 'person' does not
apply to corporations . . . ." Id.

The Kleinknechts filed a timely appeal on March 25, 1992.

II. Factual History

In September 1988, Drew Kleinknecht  [*1363]  was a twenty-year old n3
sophomore student at the College, which had recruited him for its Division
III intercollegiate lacrosse team. The College is a private, four-year
liberal arts school. In 1988, it had an enrollment of about two thousand
students and supported twenty-one intercollegiate sports teams involving
approximately 525 male and female athletes.

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n3 To be precise, Drew had turned twenty only one week before his death.

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Footnotes- - - - - - - - - - - - - - - - -  [**5]

Lacrosse is a contact sport. In terms of sports-related injuries at the
College, it ranked at least fourth behind football, basketball, and
wrestling, respectively. Lacrosse players can typically suffer a variety of
injuries, including unconsciousness, wooziness, concussions, being knocked
to the ground, and having the wind knocked out of them. Before Drew died,
however, no athlete at the College had experienced cardiac arrest while
playing lacrosse or any other sport.

In September 1988, the College employed two full-time athletic trainers,
Joseph Donolli and Gareth Biser. Both men were certified by the National
Athletic Trainers Association, which requires, inter alia, current
certification in both cardio-pulmonary resuscitation ("CPR") and standard
first aid. In addition, twelve student trainers participated in the
College's sports program. The trainers were stationed in the College's two
training room facilities at Musselman Stadium and Plank Gymnasium.

Because lacrosse is a spring sport, daily practices were held during the
spring semester in order to prepare for competition. Student trainers were
assigned to cover both spring practices and games. Fall practice was held
only  [**6]  for the players to learn "skills and drills," and to become
acquainted with the other team members. No student trainers were assigned to
the fall practices.

Drew participated in a fall lacrosse practice on the afternoon of September
16, 1988. Coaches Janczyk and Anderson attended and supervised this
practice. It was held on the softball fields outside Musselman Stadium. No
trainers or student trainers were present. Neither coach had certification
in CPR. Neither coach had a radio on the practice field. The nearest
telephone was inside the training room at Musselman Stadium, roughly 200-250
yards away. The shortest route to this telephone required scaling an
eight-foot high cyclone fence surrounding the stadium. According to Coach
Janczyk, he and Coach Anderson had never discussed how they would handle an
emergency during fall lacrosse practice.

The September 16, 1988 practice began at about 3:15 p.m. with jogging and
stretching, some drills, and finally a "six on six" drill in which 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 a cardiac
arrest. According to a teammate observing from  [**7]  the sidelines, Drew
simply stepped away from the play and dropped to the ground. Another
teammate on the sidelines stated that no person or object struck Drew prior
to his collapse.

After Drew fell, his teammates and Coach Janczyk ran to his side. Coach
Janczyk and some of the players noticed that Drew was lying so that his head
appeared to be in an awkward position. No one knew precisely what had
happened at that time, and at least some of those present suspected a spinal
injury. Team captain Daniel Polizzotti testified that he heard a continuous
"funny" "gurgling" noise coming from Drew, and knew from what he observed
that something "major" was wrong. Other teammates testified that Drew's skin
began quickly to change colors. One team member testified that by the time
the coaches had arrived, "[Drew] was really blue." Appendix (App.) at 1074.

According to the College, Coach Janczyk acted in accordance with the
school's emergency plan by first assessing Drew's condition, then
dispatching players to get a trainer and call for an ambulance. Brief for
Appellee at 8. Coach Janczyk himself  [*1364]  then began to run toward
Musselman Stadium to summon help.

The Kleinknechts dispute the College's  [**8]  version of the facts. They
note that although Coach Janczyk claims to have told two players to run to
Apple Hall, a nearby dormitory, for help, Coach Anderson did not recall
Coach Janczyk's sending anyone for help. Even if Coach Janczyk did send the
two players to Apple Hall, the Kleinknechts maintain, his action was
inappropriate because Apple Hall was not the location of the nearest
telephone. It is undisputed that two other team members ran for help, but
the Kleinknechts contend that the team members did this on their own accord,
without instruction from either coach.

The parties do not dispute that Polizzotti, the team captain, ran toward the
stadium, where he knew a training room was located and a student trainer
could be found. In doing so, Polizzotti scaled a chain link fence that
surrounded the stadium and ran across the field, encountering student
trainer Traci Moore outside the door to the training room. He told her that
a lacrosse player was down and needed help. She ran toward the football
stadium's main gate, managed to squeeze through a gap between one side of
the locked gate and the brick pillar forming its support, and continued on
to the practice field by foot until  [**9]  flagging a ride from a passing
car. In the meantime, Polizzotti continued into the training room where he t
old the student trainers there what had happened. One of them phoned Plank
Gymnasium and told Head Trainer Donolli about the emergency.

Contemporaneously with Polizzotti's dash to the stadium, Dave Kerney,
another team member, ran toward the stadium for assistance. Upon seeing that
Polizzotti was going to beat him there, Kerney concluded that it was
pointless for both of them to arrive at the same destination and changed his
course toward the College Union Building. He told the student at the front
desk of the emergency on the practice field. The student called his
supervisor on duty in the building, and she immediately telephoned for an
ambulance.

Student trainer Moore was first to reach Drew. She saw Drew's breathing was
labored, and the color of his complexion changed as she watched. Because
Drew was breathing, she did not attempt CPR or any other first aid
technique, but only monitored his condition, observing no visible bruises or
lacerations.

By this time, Coach Janczyk had entered the stadium training room and
learned that Donolli had been notified and an ambulance called.  [**10]
Coach Janczyk returned to the practice field at the same time Donolli
arrived in a golf cart. Donolli saw that Drew was not breathing, and turned
him on his back to begin CPR with the help of a student band member who was
certified as an emergency medical technician and had by chance arrived on
the scene. The two of them performed CPR until two ambulances arrived at
approximately 4:15 p.m. Drew was defibrillated and drugs were administered
to strengthen his heart. He was placed in an ambulance and taken to the
hospital, but despite repeated resuscitation efforts, Drew could not be
revived. He was pronounced dead at 4:58 p.m.

As the district court observed, the parties vigorously dispute the amount of
time that elapsed in connection with the events following Drew's collapse.
The College maintains that "Coach Janczyk immediately ran to Drew's side,
followed closely by assistant coach, Anderson." Brief for Appellee at 7.
Team captain Polizzotti estimated that it took him no more than thirty
seconds to get from the practice field to the training room. The College
contends that it took Moore no more than two minutes to get from the
training room to Drew's side. In fact, the College maintains,  [**11]  the
lacrosse team was practicing on this particular field because of its close
proximity to the training room and the student trainers. The College
estimates that an ambulance was present within eight to ten minutes after
Drew's collapse.

The Kleinknechts, on the other hand, assert that as much as a minute to a
minute and a half passed before Coach Janczyk arrived at Drew's side. Brief
for Appellants at 10. With the aid of an engineering  [*1365]  firm, the
Kleinknechts constructed a map for the district court showing the paths
taken by Polizzotti and Kerney, including estimates of how long it took them
to arrive at their respective destinations and relay their messages to those
who could be of assistance. They estimate that it took Polizzotti a minute
and a half to arrive at the stadium training room from the practice field,
advise someone on duty, and have that person notify Donolli. The
Kleinknechts also estimate that it took Kerney two minutes and thirteen
seconds to arrive at the College Union Building, speak to the student at the
desk, and then have the secretary telephone for an ambulance. They point to
Donolli's deposition testimony indicating that it took him approximately
three minutes  [**12]  and fifteen seconds to arrive at the scene. The
Kleinknechts further maintain, and the College does not dispute, that at
least five minutes elapsed from the time that Drew was first observed on the
ground until Head Trainer Donolli began administering CPR. Thus, the
Kleinknechts contend that evidence exists from which a jury could infer that
as long as twelve minutes elapsed before CPR was administered. They also
estimate that roughly ten more minutes passed before the first ambulance
arrived on the scene.

Prior to his collapse on September 16, 1988, Drew had no medical history of
heart problems. The Kleinknechts themselves describe him as "a healthy,
physically active and vigorous young man" with no unusual medical history
until his death. Brief for Appellants at 3-4. In January 1988, a College
physician had examined Drew to determine his fitness to participate in
sports and found him to be in excellent health. The Kleinknecht's family
physician had also examined Drew in August 1987 and found him healthy and
able to participate in physical activity.

Medical evidence indicated Drew died of cardiac arrest after a fatal attack
of cardiac arrhythmia. Post-mortem examination could not  [**13]  detect the
cause of Drew's fatal cardiac arrhythmia. An autopsy conducted the day after
his death revealed no bruises or contusions on his body. This corroborated
the statements by Drew's teammates that he was not in play when he suffered
his cardiac arrest and dispelled the idea that contact with a ball or stick
during the practice might have caused the arrhythmia. The National
Institutes of Health examined Drew's heart as part of the autopsy but found
no pathology. A later examination of the autopsy records by a different
pathologist, and still further study by yet another physician after Drew's
body was exhumed, also failed to reveal any heart abnormality which could
have explained Drew's fatal heart attack.

III. Issues on Appeal

The Kleinknechts present three general issues on appeal. They first argue
that the district court erred in determining that the College had no legal
duty to implement preventive measures assuring prompt assistance and
treatment in the event one of its student athletes suffered cardiac arrest
while engaged in school-supervised intercollegiate athletic activity.
Second, the Kleinknechts maintain that the district court erred in
determining that the  [**14]  actions of school employees following Drew's
collapse were reasonable and that the College therefore did not breach any
duty of care. Finally, the Kleinknechts urge that the district court erred
in determining that both Traci Moore and the College were entitled to
immunity under the Pennsylvania Good Samaritan Act.

The following analysis addresses each of these contentions in the order
presented. This Court exercises plenary review over the district court's
order granting the College's motion for summary judgment. Mellon Bank Corp.
v. First Union Real Estate Equity and Mortgage Invs., 951 F.2d 1399, 1404
(3d Cir. 1991).

A federal court exercising diversity jurisdiction must "apply the
substantive law of the state whose laws govern the action." Robertson v.
Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir. 1990) (citing Erie R.R. v.
Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938)). The parties
agree that Pennsylvania law applies to the present dispute. "In cases where
the  [*1366]  state's highest court has not considered the precise question
to be answered, the federal court is called upon to predict how the state
court  [**15]  would resolve the issue should it be called upon to do so."
Id. (citations omitted). Because the Supreme Court of Pennsylvania has not
addressed the precise issues raised by the Kleinknechts, we must attempt to
predict how that Court would rule in this case.

IV. Analysis

1. The Duty of Care Issue

Whether a defendant owes a duty of care to a plaintiff is a question of law.
See Restatement (Second) of Torts ? 328(B) (1965) (court determines whether
facts give rise to any legal duty on part of defendant); accord Leedy v.
Hartnett, 510 F. Supp. 1125 (M.D. Pa. 1981), aff'd, 676 F.2d 686 (3d Cir.
1982); Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680 (Pa.
1983); see also Bradshaw v. Rawlings, 612 F.2d 135, 138 (3rd Cir. 1979)
(negligence claim must fail if based on circumstances for which law imposes
no duty of care on defendant), cert. denied, 446 U.S. 909, 64 L. Ed. 2d 261,
100 S. Ct. 1836 (1980); Boyce v. United States Steel Corp., 446 Pa. 226, 285
A.2d 459, 461 (Pa. 1971) (no negligence claim can be based upon facts on
which  [**16]  law does not impose duty upon defendant in favor of
plaintiff). In order to prevail on a cause of action in negligence under
Pennsylvania law, a plaintiff must establish: (1) a duty or obligation
recognized by the law, requiring the actor to conform to a certain standard
of conduct; (2) a failure to conform to the standard required; (3) a causal
connection between the conduct and the resulting injury; and (4) actual loss
or damage resulting to the interests of another. Morena, 462 A.2d at 684 n.5
(citing Prosser, Law of Torts ? 30, at 143 (4th ed. 1971)).

The Kleinknechts assert three n4 different theories upon which they
predicate the College's duty to establish preventive measures capable of
providing treatment to student athletes in the event of a medical emergency
such as Drew's cardiac arrest: (1) existence of a special relationship
between the College and its student athletes; (2) foreseeability that a
student athlete may suffer cardiac arrest while engaged in athletic
activity; and (3) public policy.

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n4 The Kleinknechts assert a fourth theory of liability based upon the
College's voluntary undertaking to provide certain services to its student
athletes. This theory is founded on section 323 of the Restatement (Second)
of Torts, which provides:

One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the
other's person or things, is subject for liability to the other for physical
harm resulting from his failure to exercise reasonable care to perform his
undertaking, if(a) his failure to exercise such care increases the risk of
such harm, or (b) the harm is suffered because of the other's reliance upon
the undertaking.

Restatement (Second) of Torts ? 323 (1965); see Feld v. Merriam, 506 Pa.
383, 485 A.2d 742, 746 (Pa. 1984) (recognizing that section 323 has been
adopted as accurate statement of Pennsylvania law); Morena, 462 A.2d at 684.

Because we resolve the duty issue by reference to the other theories argued
by the Kleinknechts, we do not consider the applicability of section 323 to
the facts of this case.

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Footnotes- - - - - - - - - - - - - - - - -  [**17]

a. Special Relationship

The Kleinknechts argue that the College had a duty of care to Drew by virtue
of his status as a member of an intercollegiate athletic team. The Supreme
Court of Pennsylvania has stated that "duty, in any given situation, is
predicated on the relationship existing between the parties at the relevant
time . . . ." Morena, 462 A.2d at 684. The Kleinknechts argue that although
the Supreme Court has not addressed this precise issue, it would conclude
that a college or university owes a duty to its intercollegiate athletes to
provide preventive measures in the event of a medical emergency.

In support of their argument, the Kleinknechts cite the case of Hanson v.
Kynast, No. CA-828 (Ohio Ct. App. June 3, 1985), rev'd on other grounds, 494
N.E.2d. 1091 (Ohio 1986). In Hanson an intercollegiate, recruited lacrosse
player was seriously injured while playing in a lacrosse game against
another college. The plaintiff alleged that his university breached its
legal duty to have an ambulance  [*1367]  present during the lacrosse game.
The trial court granted the defendant's motion for summary judgment based
[**18]  on its holding, inter alia, that

There is no duty as a matter of law for the Defendant College or other
sponsor of athletic events to have ambulances, emergency vehicles, trained
help or doctors present during the playing of a lacrosse game or other
athletic events, and the failure to do so does not constitute negligence as
a matter of law.

Id. at 10. The court of appeals reversed, concluding, "It is a question of
fact for the jury to determine whether or not appellee University acted
reasonably in failing to have an ambulance present at the field or to
provide quick access to the field in the event of an emergency." Id. at 6.
By directing the trial court to submit the case to a jury, the court of
appeals implicitly held that the university owed a duty of care to the
plaintiff.

Although the Hanson court did not specify the theory on which it predicated
this duty, we think it reached the correct result, and we predict that the
Supreme Court of Pennsylvania would conclude that a similar a duty exists on
the facts of this case. Like the lacrosse student in Hanson, Drew chose to
attend Gettysburg College because he was persuaded it had a good lacrosse
program,  [**19]  a sport in which he wanted to participate at the
intercollegiate level. Head Trainer Donolli actively recruited Drew to play
lacrosse at the College. At the time he was stricken, Drew was not engaged
in his own private affairs as a student at Gettysburg College. Instead, he
was participating in a scheduled athletic practice for an intercollegiate
team sponsored by the College under the supervision of College employees. On
these facts we believe that the Supreme Court of Pennsylvania would hold
that a special relationship existed between the College and Drew that was
sufficient to impose a duty of reasonable care on the College. Other states
have similarly concluded that a duty exists based on such a relationship.
See Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 553 (Ind. 1987)
(high school personnel have duty to exercise ordinary and reasonable care
for safety of student athletes under their authority); Leahy v. Sch. Bd. of
Hernando County, 450 So. 2d 883, 885 (Fla. Dist. Ct. App. 1984) (defendant
school board owed duty to properly supervise spring football practice as
approved school activity in which school  [**20]  employees had authority to
control behavior of students); cf. Fox v. Board of Supervisors, 576 So. 2d
978, 984-85 (La. 1991) (Louisiana court had no specific personal
jurisdiction over Minnesota college arising from its student's injury at
rugby tournament in Louisiana where college did not (1) have rugby team in
athletic department, (2) provide coach or advisor to rugby club, (3) supply
club with athletic equipment or uniforms, or (4) arrange for club to
participate in tournament); Benitez v. New York City Bd. of Educ., 73 N.Y.2d
650, 541 N.E.2d 29, 32, 543 N.Y.S.2d 29 (N.Y. App. 1989) (trial court
erroneously instructed jury that defendant high school owed student athlete
voluntarily competing in interscholastic football game same duty as prudent
parent rather than lesser duty of reasonable care to protect student
athletes in sports competitions from injuries arising from unassumed,
concealed, or unreasonably increased risks). n5

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n5 We recognize that most of these cases involve participation in sports
sponsored by a public school system at the pre-college level. Arguably, the
relationship between the injured participant and the sponsor is closer, and
the need to import a duty based on the special nature of the relationship
between a public school and its interscholastic athletes is therefore more
compelling than in the case of a private college and its students
participating in an intercollegiate athletic program. Here, however, we
think that distinction is balanced out by Gettysburg's active recruitment of
Drew to participate in its intercollegiate lacrosse program.

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Footnotes- - - - - - - - - - - - - - - - -  [**21]

The Supreme Court of Pennsylvania has not specifically addressed the issue
whether schools owe its athletes a duty based on that special relationship.
The Supreme Court has, however, held that a university cannot be held liable
for property damage incurred in a fire started by an intoxicated minor
student of the university. In Alumni Association v. Sullivan, 524 Pa. 356,
572 A.2d 1209, 1211 (Pa. 1990), the plaintiff alleged that the university
knew or should  [*1368]  have known that alcohol was being provided to
minors in a dormitory and a fraternity house. Finding no evidence that
either the fraternity or the university was involved in serving, supplying
or purchasing the liquor, the Court declined to impose a duty based on a
custodial relationship between the university and its students. Id. at 1213.

In so holding, the Sullivan Court quoted from this Court's decision in
Bradshaw v. Rawlings, on which the College relies in support of its position
that it has no duty of care to its students. Bradshaw is clearly
distinguishable, for the same reasons. There the plaintiff had attended a
sophomore class picnic sponsored by his college.  [**22]  He left the picnic
with another visibly intoxicated student who, while driving, was involved in
an automobile accident that left the plaintiff with severe injuries. We held
that the college owed no duty to the plaintiff in this situation based on a
recognition that "the modern American college is not an insurer of the
safety of its students." 612 F.2d at 138. We found neither the college's
regulation imposing sanctions on its students for underage drinking nor its
awareness in general of underage drinking by its students sufficient to
impose a duty of custodial care on the college. Id. at 140-43; see
University of Denver v. Whitlock, 744 P.2d 54, 61 (Colo. 1987) (in banc)
(university owed no duty to protect student from dangers of using trampoline
located in front of fraternity house on campus). n6

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n6 Also distinguishable is Morena v. South Hills Health System. There the
Supreme Court of Pennsylvania held that the defendant ambulance company had
no duty to transport a shooting victim from one hospital to another when the
company had no knowledge that the transfer was being requested on an
emergency basis. 462 A.2d at 685. Likewise, in Zanine v. Gallagher, 345 Pa.
Super. 119, 497 A.2d 1332 (Pa. Super. 1985), the court concluded that a
fleeing motorist had no special duty of care towards a police officer who
suffered a heart attack subsequent to the pursuit because the heart attack
was not foreseeable. Id. at 1334.

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Footnotes- - - - - - - - - - - - - - - - -  [**23]

Here, unlike Sullivan and Bradshaw, Drew was not acting in his capacity as a
private student when he collapsed. Indeed, the Kleinknechts concede that if
he had been, they would have no recourse against the College. There is a
distinction between a student injured while participating as an
intercollegiate athlete in a sport for which he was recruited and a student
injured at a college while pursuing his private interests, scholastic or
otherwise. This distinction serves to limit the class of students to whom a
college owes the duty of care that arises here. Had Drew been participating
in a fraternity football game, for example, the College might not have owed
him the same duty or perhaps any duty at all. There is, however, no need for
us to reach or decide the duty question either in that context or in the
context of whether a college would owe a duty towards students participating
in intramural sports. On the other hand, the fact that Drew's cardiac arrest
occurred during an athletic event involving an intercollegiate team of which
he was a member does impose a duty of due care on a college that actively
sought his participation in that sport. We cannot help but think that
[**24]  the College recruited Drew for its own benefit, probably thinking
that his skill at lacrosse would bring favorable attention and so aid the
College in attracting other students.

The case of Wissel v. Ohio High School Athletic Ass'n, 78 Ohio App. 3d 529,
605 N.E.2d 458 (Ohio Ct. App. 1992) is illustrative. There the appellant, a
high school football player, was rendered a quadriplegic because of an
allegedly defective football helmet. Id. at 461. The trial court granted
judgment to the appellee Athletic Association and two other defendants.
Although the appellate court affirmed the order granting summary judgment,
it did so because the appellant failed to "'identify sins of commission
rather than omission'" necessary to prevail under a theory of increased risk
of harm, id. at 465 (quoting Patentas v. United States, 687 F.2d 707, 716
(3d Cir. 1982)), not because of a lack of duty of care owed by the appellees
to the student athlete:

All three appellees specifically disclaimed owing young Wissel any direct
duty of reasonable care. We find it odd and disconcerting that organizations
[**25]  such as the appellees, which undertake to  [*1369]  enhance the
quality and safety of high school football games, disclaim that they do so
to provide a service to the athletes who participate in the games. Moreover,
we find similarly incongruous the argument that organizations whose rules
govern the contest and whose discussions determine the type of athletic
equipment that the athletes are provided do not owe those athletes a duty of
reasonable care in their activities. The fact that these organizations
purport to act gratuitously and for noble purposes does not, ipso facto,
absolve them of a legal duty of care toward the athletes.

Id.

In conclusion, we predict that the Supreme Court of Pennsylvania would hold
that the College owed Drew a duty of care in his capacity as an
intercollegiate athlete engaged in school-sponsored intercollegiate athletic
activity for which he had been recruited.

b. Foreseeability

This does not end our inquiry, however. The determination that the College
owes a duty of care to its intercollegiate athletes could merely define the
class of persons to whom the duty extends, without determining the nature of
the duty or demands it makes on the College.  [**26]  Because it is
foreseeable that student athletes may sustain severe and even
life-threatening injuries while engaged in athletic activity, the
Kleinknechts argue that the College's duty of care required it to be ready
to respond swiftly and adequately to a medical emergency. See Blake v.
Fried, 173 Pa. Super. 27, 95 A.2d 360, 364 (Pa. Super. 1953) (requiring risk
"reasonably to be perceived" in order to impose duty).

Foreseeability is a legal requirement before recovery can be had. See Griggs
v. BIC Corp., 981 F.2d 1429, 1435 (3d Cir. 1992) (foreseeability is integral
part of determination that duty exists under Pennsylvania negligence law)
(citing Carson v. City of Philadelphia, 133 Pa. Commw. 74, 574 A.2d 1184,
1187 (Pa. Commw. Ct. 1990)). "'The test of negligence is whether the
wrongdoer could have anticipated and foreseen the likelihood of harm to the
injured person, resulting from his act.'" Id. (quoting Dahlstrom v. Shrum,
368 Pa. 423, 84 A.2d 289, 290-91 (Pa. 1951)).

The type of foreseeability that determines a duty of care, as opposed to
proximate cause, is not dependent on the foreseeability of a specific
[**27]  event. See, e.g., Moran v. Valley Forge Drive-in Theater, Inc., 431
Pa. 432, 246 A.2d 875, 878 (Pa. 1968) (upholding verdict for plaintiff who
lost hearing when firecrackers exploded in restroom of defendant's movie
theater). Instead, in the context of duty, "the concept of foreseeability
means the likelihood of the occurrence of a general type of risk rather than
the likelihood of the occurrence of the precise chain of events leading to
the injury." Suchomajcz v. Hummel Chem. Co., 524 F.2d 19, 28 n.8 (3d Cir.
1975) (citing Harper & James, The Law of Torts ? 18.2, at 1026, ? 20.5, at
1147-49 (1956)); see Griggs, 981 F.2d at 1435 ("'The risk reasonably to be
perceived defines the duty to be obeyed[.]'") (quoting Dahlstrom, 84 A.2d at
290-91). Only when even the general likelihood of some broadly definable
class of events, of which the particular event that caused the plaintiff's
injury is a subclass, is unforeseeable can a court hold as a matter of law
that the defendant did not have a duty to the plaintiff to guard against
that broad general class of risks within  [**28]  which the particular harm
the plaintiff suffered befell. Alumni Ass'n v. Sullivan, 369 Pa. Super. 596,
535 A.2d 1095, 1098 (Pa. Super. 1987) (citing Migyanko v. Thistlethwaite,
275 Pa. Super. 500, 419 A.2d 12, 14 (Pa. Super. 1980) and Palsgraf v. Long
Island R.R., 248 N.Y. 339, 162 N.E. 99, 100 (N.Y. 1928)), aff'd, 524 Pa.
356, 572 A.2d 1209 (Pa. 1990).

Even this determination that the harm suffered was foreseeable fails to end
our analysis. If a duty is to be imposed, the foreseeable risk of harm must
be unreasonable. Griggs, 981 F.2d at 1435. The classic risk-utility analysis
used to determine whether a risk is unreasonable "balances 'the risk, in
light of the social value of the interest threatened, and the probability
and extent of the harm, against the value of the interest which the actor is
[*1370]  seeking to protect, and the expedience of the course pursued.'" Id.
at 1435-36 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of
Torts ? 31, at 173 (5th ed. 1984) (footnotes omitted)).

No person can be expected to guard against harm from events which are
[**29]  not reasonably to be anticipated at all, or are so unlikely to occur
that the risk, although recognizable, would commonly be disregarded. . . .
On the other hand, if the risk is an appreciable one, and the possible
consequences are serious, the question is not one of mathematical
probability alone. . . . As the gravity of the possible harm increases, the
apparent likelihood of its occurrence need be correspondingly less to
generate a duty of precaution.

Id. (quoting Prosser and Keeton, supra ? 31, at 170-71 (footnotes omitted)).

Although the district court correctly determined that the Kleinknechts had
presented evidence establishing that the occurrence of severe and
life-threatening injuries is not out of the ordinary during contact sports,
it held that the College had no duty because the cardiac arrest suffered by
Drew, a twenty-year old athlete with no history of any severe medical
problems, was not reasonably foreseeable. Its definition of foreseeability
is too narrow. Although it is true that a defendant is not required to guard
against every possible risk, he must take reasonable steps to guard against
hazards which are generally foreseeable. Kimble v. Mackintosh Hemphill Co.,
359 Pa. 461, 59 A.2d 68, 71 (Pa. 1948).  [**30]  Though the specific risk
that a person like Drew would suffer a cardiac arrest may be unforeseeable,
the Kleinknechts produced ample evidence that a life-threatening injury
occurring during participation in an athletic event like lacrosse was
reasonably foreseeable. In addition to the testimony of numerous medical and
athletic experts, Coach Janczyk, Head Trainer Donolli, and student trainer
Moore all testified that they were aware of instances in which athletes had
died during athletic competitions. The foreseeability of a life-threatening
injury to Drew was not hidden from the College's view. Therefore, the
College did owe Drew a duty to take reasonable precautions against the risk
of death while Drew was taking part in the College's intercollegiate
lacrosse program.

Having determined that it is foreseeable that a member of the College's
interscholastic lacrosse team could suffer a serious injury during an
athletic event, it becomes evident that the College's failure to protect
against such a risk is not reasonable. The magnitude of the foreseeable
harm--irreparable injury or death to one of its student athletes as a result
of inadequate preventive emergency measures--is indisputable.  [**31]  With
regard to the offsetting cost of protecting against such risk, the College
prophesied that if this Court accepts that the College owed the asserted
duty, then it will be required "to have a CPR certified trainer on site at
each and every athletic practice whether in-season or off-season, formal or
informal, strenuous or light," and to provide similar cardiac protection to
"intramural, club sports and gym class." This "slippery slope" prediction
reflects an unwarranted extension of the holding in this case. First, the
recognition of a duty here is limited to intercollegiate athletes. No other
scenario is presented, so the question whether any of the other broad
classes of events and students posited by the College merit similar
protection is not subject to resolution. Second, the determination whether
the College has breached this duty at all is a question of fact for the
jury. See Suchomajcz, 524 F.2d at 27; see also Doughtery v. Boyertown Times,
377 Pa. Super. 462, 547 A.2d 778, 787 (Pa. Super. Ct. 1988). This Court
recognizes only that under the facts of this case, the College owed a duty
to Drew to have measures in place at the lacrosse  [**32]  team's practice
on the afternoon of September 16, 1988 in order to provide prompt treatment
in the event that he or any other member of the lacrosse team suffered a
life-threatening injury.

We also must reject the College's vigorous and lengthy argument that Drew's
cardiac arrest could not have been foreseeable because his parents'
encouragement to engage in athletic activity shows that Drew's death as a
result of cardiac arrest while  [*1371]  participating in athletics was not
foreseeable even to them:

In response to their perception of the risk of Drew experiencing sudden
cardiac arrest as negligible, the parents made no attempt to learn CPR. They
made their home a beehive of athletic activity, but they made no provision
to treat the rare, unpredictable circumstance presented by this case.Had
physical activity at his parents' home produced Drew Kleinknecht's heart
attack, he would be just as dead.

Brief for Appellee at 21 (citation omitted). This argument is unavailing
because it addresses foreseeability as relating to causation, not duty. It
is not pertinent to the issue of the College's duty of care to Drew.

The Leahy court described the duty a school owes its athletes  [**33]  as

"Tak[ing] the form of giving adequate instruction in the activity, supplying
proper equipment, making a reasonable selection or matching of participants,
providing non-negligent supervision of the particular contest, and taking
proper post-injury procedures to protect against aggravation of the injury."

Leahy, 450 So.2d at 883 (quoting Annot., 35 A.L.R.3d 725, 734 (1971)
(footnotes omitted)). n7 In reversing the district court's grant of summary
judgment to the College, we predict that the Supreme Court of Pennsylvania
would hold that a college also has a duty to be reasonably prepared for
handling medical emergencies that foreseeably arise during a student's
participation in an intercollegiate contact sport for which a college
recruited him. It is clearly foreseeable that a person participating in such
an activity will sustain serious injury requiring immediate medical
attention.

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n7 We note again that this case involved participation in public school
athletics at the pre-college level.

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Footnotes- - - - - - - - - - - - - - - - -  [**34]

It may be that the emergency medical measures the College had in place were
sufficient to fulfill this duty. It is also possible that the College could
not foresee that its failure to provide emergency medical services other
than those which it already had in place would substantially contribute to
the death of an apparently healthy student. Nevertheless,

Whether in a particular case the plaintiff has demonstrated, by a
preponderance of the evidence, that the defendant's negligent conduct was a
substantial factor in bringing about the plaintiff's harm, is normally a
question of fact reserved for the jury, and should only be removed from the
jury's consideration where it is clear, as a matter of law, that reasonable
minds could not differ on the issue.

Sullivan, 535 A.2d at 1098 (citing Little v. York County Earned Income Tax
Bureau, 333 Pa. Super. 8, 481 A.2d 1194, 1198 (Pa. Super. Ct. 1984)).

Our holding is narrow. It predicts only that a court applying Pennsylvania
law would conclude that the College had a duty to provide prompt and
adequate emergency medical services to Drew, one of its intercollegiate
athletes, while he was engaged  [**35]  in a school-sponsored athletic
activity for which he had been recruited. Whether the College breached that
duty is a question of fact. See Suchomajcz, 524 F.2d at 27; see also
Doughtery, 547 A.2d at 787. If the factfinder concludes that such a breach
occurred, we think that the question whether that breach was the proximate
or legal cause of Drew's death would likewise be a question of fact. n8
Griggs, 981 F.2d at 1439 (citing White v. Rosenberry, 441 Pa. 34, 271 A.2d
341, 342 (Pa. 1970) and Takach v. B.M. Root Co., 279 Pa. Super. 167, 420
A.2d 1084, 1086 (Pa. Super. Ct. 1980)); see Sullivan, 535 A.2d at 1098.

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n8 Of course, we are unable to say what effect any additional facts will
have on this case as the record is developed.

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c. Public Policy

Finally, the Kleinknechts argue that the College owed a duty of care to Drew
based on public policy considerations. The  [**36]  Supreme Court of
Pennsylvania has recently announced that

In determining the existence of a duty of care, it must be remembered that
the  [*1372]  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.
Takasaki, 55 Haw. 398, 520 P.2d 758, 764 (1974). . . . "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, 573 A.2d 1016, 1020 (Pa.
1990) (quoting Sinn v. Burd, 486 Pa. 146, 404 A.2d 672, 681 (Pa. 1979)).
Seizing upon this language, the district court held that the College had no
[**37]  duty "to anticipate . . . and guard against" the "possibility of a
healthy, physically active, young" athlete having a heart attack while
engaged in intercollegiate athletic activity, "candidly admitting that
[this] conclusion shades off into these broad areas of policy concern."
Kleinknecht, 786 F. Supp. at 454.

Again, we believe this determination fails to distinguish duty from legal
cause. It also fails to appreciate the full import of the very language upon
which the district court says it relied. As already explained, two distinct
theories establish that the College owed a duty of care to Drew as an
intercollegiate athlete. A special relationship existed between the College
and Drew in his capacity as a school athlete. His medical emergency was
within a reasonably foreseeable class of unfortunate events that could arise
from participation in an intercollegiate contact sport. If, as the Supreme
Court of Pennsylvania has stated, 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,'" then it
strengthens our belief that that Court  [**38]  would hold that the policies
supporting these two theories are themselves sufficient to require the
College to adopt preventive measures reasonably designed to avoid possible
death from a life-threatening injury a recruited athlete suffers during an
intercollegiate athletic activity.

Under the facts of this case, the College owed a duty to Drew to have
reasonable measures in place at the practice on the afternoon of September
16, 1988 to provide prompt treatment in the event that he or any other
member of the lacrosse team suffered a life-threatening injury. The
determination whether the College in fact breached this duty is a question
of fact for the jury. See Suchomajcz, 524 F.2d at 27; see also Doughtery,
547 A.2d at 787.

2. The Reasonableness of the College's Actions

On the duty question, it remains only for us to address the district court's
second holding that the conduct of the College's agents in providing Drew
with medical assistance and treatment following his cardiac arrest was
reasonable. n9 The court based this determination in part, if not in whole,
on its conclusion that the College had no duty to consider  [**39]  what
emergency assistance measures would be necessary were one of its student
athletes to suffer a cardiac arrest during athletic activity:

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n9 This is a separate and distinct duty from that which the College had in
terms of maintaining prompt and adequate emergency medical attention prior
to Drew's collapse. The College does not dispute that a duty of care was
imposed on it at the time of Drew's collapse.

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Footnotes- - - - - - - - - - - - - - - - -

The plaintiffs' argument was stronger when they could still assert that
there was a duty of care to protect Drew from the risk of cardiac arrest
but, since we have decided that it had no such duty, the actions of its
agents and students subsequent to Drew's collapse were reasonable.

Kleinknecht, 786 F. Supp. at 456. Thus, its holding that the College did not
breach any duty was dependent, at least in part, on its holding that the
College had no duty to Drew to guard against emergencies occasioned  [*1373]
by injuries the kind students participating in lacrosse might be expected to
suffer.  [**40]  The question of breach must be reconsidered on remand in
light of this Court's holding that the College did owe Drew a duty of care
to provide prompt and adequate emergency medical assistance to Drew while
participating as one of its intercollegiate athletes in a school-sponsored
athletic activity.

Moreover, on remand, we think the district court should be careful not to
infringe on the province of the factfinder by prematurely deciding whether
the College breached its duty. A district court should grant a motion for
summary judgment only when the plaintiff's evidence, together with all
reasonable inferences of fact arising therefrom viewed in the light most
favorable to the plaintiff, is insufficient to make out a prima facie case
of negligence. Doughtery, 547 A.2d at 787 (citing Watkins v. Sharon Aerie
No. 327 Fraternal Order of Eagles, 423 Pa. 396, 223 A.2d 742, 743 (Pa.
1966); Stenson v. Rechutti, 416 Pa. 548, 207 A.2d 760 (Pa. 1965)).
"Negligence is a question for the jury to determine upon proper instruction.
The court should not remove the question from the jury unless the facts
leave no room for doubt." Id.  [**41]  (citing Papa v. Pittsburgh
Penn-Center Corp., 421 Pa. 228, 218 A.2d 783 (Pa. 1966); Spraggins v.
Shields, 310 Pa. Super. 408, 456 A.2d 1000 (Pa. Super. Ct. 1983)). These
Pennsylvania authorities are in full accord with the Restatement. It
concludes, "In any case in which different conclusions may be reached on the
issue . . . whether the defendant has conformed to the standard of conduct
required by the law" is a matter for the jury. Restatement (Second) of Torts
? 328C(b) (1965).

3. The Immunity Issue

Finally, we address the College's argument that Pennsylvania's Good
Samaritan law provides immunity to both the College and its personnel who
rendered emergency care to Drew. This statute provides in pertinent part:



(a) General rule.--Any person who renders emergency care, first aid or
rescue at the scene of an emergency . . . shall not be liable to such person
for any civil damages as a result of any acts or omissions in rendering the
emergency care, first aid or rescue . . . except any acts or omissions
intentionally designed to harm or any grossly negligent acts or omissions
which result in harm to the person receiving the emergency  [**42]  care,
first aid, or rescue . . . .
(b) Exceptions.--

* * *

(2) In order for any person to receive the benefit of the exemption from
civil liability provided for in subsection (a), he shall be, at the time of
rendering the emergency care, first aid or rescue . . . the holder of a
current certificate evidencing the successful completion of a course in
first aid, advanced life saving or basic life support sponsored by the
American National Red Cross or the American Heart Association or an
equivalent course of instruction approved by the Department of Health . . .
and must be performing techniques and employing procedures consistent with
the nature and level of the training for which the certificate has been
issued.

42 Pa. Cons. Stat. Ann. ? 8332(a), (b)(2) (1982).

The Kleinknechts argue that the College waived any defense of immunity under
the Good Samaritan law because it did not plead it as an affirmative defense
in its answer. See Fed. R. Civ. P. 8(c) (all affirmative defenses must be
pled). Failure to raise an affirmative defense in a responsive pleading,
however, does not always result in waiver. Charpentier v. Godsil, 937 F.2d
859, 863 (3d Cir. 1991)  [**43]  (citing Prinz v. Greate Bay Casino Corp.,
705 F.2d 692, 694 (3d Cir. 1983)). For example, a party may raise an unpled
affirmative defense in an appropriate motion. See, e.g., Williams v.
Murdoch, 330 F.2d 745, 749 (3d Cir. 1964) (affirmative defense of res
judicata properly raised in motion to dismiss under Federal Rule of Civil
Procedure 12(b)) (citing Hartmann v. Time, Inc., 166 F.2d 127, 131 n.3 (3d
Cir. 1947), cert. denied, 334 U.S. 838, 92 L. Ed. 1763, 68 S. Ct. 1495
(1948)).

 [*1374]  Although the College did not assert the defense of immunity under
the Act in its answer, it did raise this defense in paragraph nine of its
motion for summary judgment. Even though a motion for summary judgment is
not the most appropriate way to raise a previously unpled defense of
immunity, we think it would be inappropriate in the present case to decide
the immunity issue on the basis of waiver.

Under Fed.R.Civ.P. 15(a), a responsive pleading may be amended at any time
by leave of court to include an affirmative defense, and "leave shall be
freely given when justice so requires." Unless the opposing  [**44]  party
will be prejudiced, leave to amend should generally be allowed. Moreover,
under Fed.R.Civ.P. 15(c), issues tried by the express or implied consent of
the parties are "treated in all respects as if they had been raised in the
pleadings." It has been held that a "defendant does not waive an affirmative
defense if 'he raised the issue at a pragmatically sufficient time, and [the
plaintiff] was not prejudiced in its ability to respond.'"

Charpentier, 937 F.2d at 863-64 (citations omitted). Here, the Kleinknechts
received notice of the immunity defense when they received the College's
motion for summary judgment. Like the plaintiff in Charpentier, the
Kleinknechts have not claimed that they were prejudiced because the College
raised this defense in its summary judgment motion rather than in its
answer. The relevant facts underlying the College's claim of immunity are
not in dispute, so the issue presents only a question of law for resolution.
Like the district court in Charpentier, the district court here could have
exercised its discretion to permit the College to amend its answer to assert
the immunity defense but instead ruled on the  [**45]  merits of the
immunity claim without deciding whether it had been waived. n10 Following
the lead of Charpentier, and because both the record and the Kleinknechts'
brief fail to disclose that any objection to such an amendment was preserved
in the district court, this Court will consider the merits of the College's
immunity claim. See id. at 864.

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n10 The record on appeal fails to contain any evidence that the Kleinknechts
objected to the College's assertion of the immunity defense. The record
contains only part of the College's motion for summary judgment and no
indication of how or whether the Kleinknechts responded to it. The record
likewise does not include a transcript of the hearing on the motion for
summary judgment. If the Kleinknechts did not raise any objection to the
College's failure to raise the immunity defense in its answer either in a
responding motion or at oral argument, then they have arguably waived any
such objection. This Court will therefore assume that the issue was properly
preserved for appeal.

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Footnotes- - - - - - - - - - - - - - - - -  [**46]

The parties do not dispute the district court's determination that neither
Coach Janczyk nor Coach Anderson is entitled to immunity. The College,
however, argues that it too is entitled to immunity because it is a "person"
within the terms of the statute. In general, Pennsylvania statutory law
defines the term "person" as including corporations, partnerships, and
associations unless the statutory context indicates otherwise. 1 Pa. Cons.
Stat. Ann. ? 1991 (Supp. 1992). Section 8332, however, requires a person who
seeks immunity to hold certification in an approved first aid, advanced life
saving, or basic life support course. We think it is unlikely that the
Pennsylvania General Assembly intended that corporations could achieve the
requisite certification and receive immunity. As the Kleinknechts note, the
statute encourages rescue and lending assistance at the scene of an
emergency. These measures can only be taken by a natural person. n11
Therefore, we reject the College's argument and predict that the Supreme
[*1375]  Court of Pennsylvania will not hold that a corporation is entitled
to immunity under the Pennsylvania Good Samaritan law.

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n11 In 1982, the Pennsylvania General Assembly passed 42 Pa. Cons. Stat.
Ann. ? 8332.1 (Supp. 1992), which specifically addresses sports programs
conducted by "nonprofit associations" and the liability of managers,
coaches, umpires, and referees. That statute does not apply here because,
inter alia, it applies only to programs for people under age eighteen.
Nevertheless, the fact that the General Assembly specifically provided
immunity for nonprofit corporations in that statue, see id. ? 8332.1(d)
(defining "nonprofit associations"), but did not explicitly do so in ? 8332,
further supports the conclusion that the term "person" in ? 8332 does not
include a corporation.

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Footnotes- - - - - - - - - - - - - - - - -  [**47]

Moreover, even if an agent such as Traci Moore is immune, the principal can
still be vicariously liable. See Muntan v. City of Monongahela, 45 Pa.
Commw. 23, 406 A.2d 811, 813-14 (Pa. Commw. Ct. 1979) (employer may be held
responsible for torts of employees even if employees are immune from
liability) (citing Wicks v. Milzoco Builders, Inc., 25 Pa. Commw. 340, 360
A.2d 250, 253 (Pa. Commw. Ct. 1976), aff'd, 481 Pa. 554, 393 A.2d 300 (Pa.
1978); Restatement (Second) of Agency ? 217(b)(ii) (1958)). Thus, the
College may not claim immunity either in its own right or derivatively from
Moore, regardless of whether she falls within the provisions of the statute.
n12

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- -

n12 The Kleinknechts argue that immunity should not be extended to Traci
Moore because at the time she rendered care to Drew she acted within the
scope of her employment. Whether Moore is entitled to immunity under the
Good Samaritan law is irrelevant because she is not named as an individual
defendant. Her actions or omissions are pertinent to this case only insofar
as they could establish or refute the College's vicarious liability, which
is not dependent on her immunity status under the statute.

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 [**48]
V. Conclusion

The district court's holding that the College's duty of care to Drew as an
intercollegiate athlete did not include, prior to his collapse, a duty to
provide prompt emergency medical service while he was engaged in
school-sponsored athletic activity will be reversed. The district court's
holding that the College acted reasonably and therefore did not breach any
duty owed to Drew following his collapse will likewise be reversed. We will
remand this matter to the district court for further proceedings consistent
with this opinion. We will reverse the district court's conclusion that the
College is entitled to immunity under the Good Samaritan law.

DISSENTBY: ALITO

DISSENT:
ALITO, Circuit Judge, dissenting.

I respectfully dissent. Essentially for the reasons set out by the district
court, I would hold that the facts upon which the plaintiffs relied were
insufficient to establish a breach of Gettysburg College's duty to
participants in its intercollegiate athletic program. See Kleinknecht v.
Gettysburg College, 786 F. Supp. 449 (M.D. Pa. 1992).


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