Nicholas Malfitano May 9, 2016, 4:43pm


PHILADELPHIA – According to a federal appellate court, a trial court was correct in determining a number of defendants had no proximate relation to the accidental death of an employee of Dorney Park & Wildwater Kingdom in Allentown.

Judges D. Michael Fisher, Robert E. Cowen and Marjorie O. Rendell decided May 4 that defendants R.J. Skelding Company, Inc. and Zachary J. Edwards were not the proximate cause for the Sept. 4, 2012 motor vehicle accident in South Whitehall Township that claimed the life of Li Zhen, a Chinese national visiting the United States on a temporary visa.

Defendants Cedar Fair L.P., Cedar Fair Entertainment Company, CCUSA, Inc. and Jodi E. Skubish had previously been dismissed from the case.

Zhen, then a 22 year-old fast food worker at Dorney Park & Wildwater Kingdom in Allentown, was a pedestrian on Pennsylvania State Route 8009 in the pre-dawn, early morning hours of Sept. 4, 2012, when she was struck and killed by a vehicle driven by Edwards.

The litigation in this matter was initiated by the administrator of her estate, Bruce Dolfman of Philadelphia, in May 2013. Dolfman asserted state law claims that Edwards’ carelessness and negligence in operating his vehicle that morning was the cause of the fatal accident. 

Dolfman alleged these claims since Edwards violated the restrictions of his Pennsylvania-issued driver’s license by operating a motor vehicle at that time of day, due to Edwards having retinoschisis, a genetic eye disorder.

Cedar Fair, CCUSA, and R.J. Skelding moved for summary judgment on all of Dolfman’s original claims. The District Court granted Cedar Fair’s and CCUSA’s motions on Nov. 21, 2014, but denied R.J. Skelding’s motion. After Cedar Fair and CCUSA were dismissed from the litigation, Dolfman settled his claims with R.J. Skelding and Edwards. Following the dismissal with prejudice, Dolfman timely appealed the order granting summary judgment to Cedar Fair and CCUSA.

“In order to make out a claim for negligence in Pennsylvania, Dolfman must show: the defendants had a duty of care to Li Zhen, they breached that duty, there is a causal connection between their conduct and the resulting injury, and Li Zhen suffered actual loss or damage. Dolfman argues that summary judgment was improper as to both (1) Cedar Fair and (2) CCUSA,” Fisher said.

“Dolfman first argues that Cedar Fair was negligent in placing Li Zhen at the Comfort Suites Hotel, which is located on a dangerous road. According to Dolfman, Cedar Fair knew that its employees would be required to walk along the road, putting them in danger,” Fisher added. “The District Court granted summary judgment in favor of Cedar Fair because it held that, as a matter of law, there was no proximate cause – any hypothetical breach of duty on Cedar Fair’s part was not the proximate cause of Li Zhen’s death.”

Fisher stated the District Court was “correct in holding that any alleged breach of duty by Cedar Fair did not proximately cause Li Zhen’s death," saying “too many other factors” were at work and contributing in this matter.

“First, Zachary Edwards drove in violation of his license restrictions and ultimately struck Li Zhen. Second, Li Zhen chose to make a personal trip to Philadelphia and left early in the morning before dawn,” Fisher said. “Finally, she chose not to avail herself of the other available modes of transportation or take a different route to the bus stop. Li Zhen’s placement at the Comfort Suites was thus a situation harmless unless acted upon by other forces for which Cedar Fair is not responsible.”

Dolfman argued his expert witness reports precluded the District Court from finding there was no proximate cause in this matter, but the Third Circuit judges determined that to be incorrect in their view.

“However, ‘an expert witness is prohibited from rendering a legal opinion.’ Proximate cause is a question of law for the court to answer. Thus, the District Court did not err in granting summary judgment in favor of Cedar Fair,” Fisher said.

Dolfman further charged CCUSA with breaching its duty of care to Zhen, in his appeal.

“First, he argues that CCUSA’s acquiescence to Cedar Fair’s placement of Li Zhen at the Comfort Suites proximately caused her death; and second, he argues that CCUSA failed to orient Li Zhen, in violation of its duty under federal regulations, and that failure proximately caused her death,” Fisher said. “The District Court held that any alleged breach – either the acquiescence to Cedar Fair’s housing choice or the failure to orient – by CCUSA did not proximately cause her death.”

Fisher said “too many other factors” contributed to a greater extent to her death – in effect, upholding the same rationale put forth by the District Court.

“For the reasons set forth above, we will affirm the District Court’s order granting summary judgment in favor of Cedar Fair and CCUSA,” Fisher said.

The appellant is represented by Dolfman and Kirk V. Wiedemer of the Law Offices of Kirk V. Wiedemer in Philadelphia and Caroline Reeves in Swarthmore.

The appellees are represented by Joseph S. D’Amico Jr. of Fitzpatrick Lentz & Bubba in Center Valley, John P. Morgenstern and Christopher C. Negrete of Deasey Mahoney & Valentini and Francine T. Radford of Goodin MacBride Squeri Day & Lamprey, in San Francisco, Calif.

U.S. Court of Appeals for the Third Circuit case 15-2695

U.S. District Court for the Eastern District of Pennsylvania case 5:13-cv-02831

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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