In adopting comparative negligence, Pennsylvania expressly preserved the common law doctrine of voluntary assumption of risk as it applies to downhill skiing and injuries. See 42 Pa.C.S. §7102 (“Skier’s Responsibility Act”). The “inherent risks” in the sport of skiing have been expnded by the Pennsylvania case law to include skier/skier collisions and falling from a chair lift. It is difficult to imagine any claim for a ski accident which would not be barred by the assumption of risk doctrine at this time.
Also of note, it is not against public policy for insurance companies to cover ski area operators for punitive damages in downhill skiing cases. 42 Pa.C.S. Ann § 2051. Except for intentional or grossly negligent conduct, ski patrol members are granted civil immunity under the general Good Samaritan statute, found at 42 Pa.C.S. Ann. § 8332.
Review a few Ski Law cases from Pennsylvania below.
A Pennsylvania resort may be liable for a collision between a skier and the woman who stood on the snow watching her family take ski lessons, a federal judge ruled in Nov. 2013. Shawnee Mountain Ski Area had moved for summary judgment in a case filed by a spectator who was wiped out by a skier while watching her family take ski lessons. The judge held that the spectator was not a skier so the ski safety act did not apply, that assumption of risk defense was not supported by the evidence and that the “fan at the baseball game hit by a foul ball” is not analogous to the spectator/skier collision. The case is now heading to trial. To read more, see Spectator on Slopes Not Same as Baseball Fan.
Camelback Ski Corporation, Inc. operates a ski resort in Tannersville, Pennsylvania that offers various winter activities, including skiing and snow tubing. Before permitting its patrons to enjoy snow tubing, Camelback requires each customer to sign a pre-printed release form. Camelback offers its customers two different methods of snow tubing. One set of snow tubing slopes grants snow tubers relatively uncontrolled access down the mountain and deposits them in a common receiving area. Alternatively, customers can enjoy two snow tubing slopes identified as ” family” tubing slopes. These family tubing slopes are separated from the other snow tubing slopes, and the flow of snow tubers is controlled by a Camelback employee, who discharges them from the summit once the previous snow tubers have cleared the receiving area at the bottom. The receiving area for the family tubing slopes is segregated from the common receiving area connected to the other slopes.
On December 20, 2003, Appellee Barbara Lichtman Tayar and her family visited Camelback’s facility in the early afternoon. After observing the snow tubing slopes for a period of time, Tayar and her family decided to join in, and, pursuant to Camelback’s requirement, Tayar signed the Release. Tayar and her family elected to use the family tubing slopes, and completed four successful runs down the mountain, with Appellant Brian Monaghan, a Camelback employee, releasing them from the summit safely each time.
At the end of Tayar’s fifth run down the hill, she reached the receiving area at the bottom of the slope and exited her snow tube. She was immediately struck by another snow tuber coming down the family tubing slope. Camelback employees rushed to assist Tayar out of the receiving area, when yet another snow tuber narrowly missed striking her. At this point, several Camelback employees were yelling and gesturing up the mountain to Monaghan to stop sending snow tubers down the slope until they could safely remove Tayar from the receiving area. As a result of the collision, Tayar suffered multiple comminuted fractures of her right leg, for which she underwent surgery and required two metal plates and 14 screws to stabilize her ankle.
The Pennsylvania Supreme Court considered whether it is against public policy to release reckless behavior in a pre-injury exculpatory clause. The Court concluded that releasing recklessness in a pre-injury release is against public policy, and reversed the Superior Court’s to the degree it concluded that Monaghan was not covered by the Release. Affirming on the alternative basis that, to the degree it released reckless conduct, the Release was against public policy.
On January 19, 2006, Bell was skiing and Dean was snowboarding at Ski Roundtop, a recreational ski area. While Bell and Dean were progressing down an “expert level” ski slope called ” Ramrod,” Bell and Dean collided, causing physical injury to Bell. Bell claims that prior to the accident, he was slowly traversing down the expert ski slope and Dean was coming straight down the expert ski slope. Other than claiming that Dean was traveling at a high speed down the steeper “headwall” of the expert slope while failing to keep a proper lookout, Bell does not claim that Dean deviated in any other way in the manner he was snowboarding. At the time of the incident, Bell was engaged in his activities as a Certified Ski Patroller and has been a ski patroller for forty-four years. Defendant had been snowboarding for eight years, at a frequency of five to seven times per year.
The trial court granted Dean’s motion for summary judgment. On appeal, the Superior Court found that the Pennsylvania Supreme Court has specifically accounted for the exact risk of harm Bell’s claim arises from and categorized this risk-the risk of colliding with another skier or snowboarder-as a risk of downhill skiing that is common, frequent, expected and, therefore, inherent to the sport of downhill skiing. Because of this, by law Bell is said to have assumed the risk and Dean owed no duty to protect Bell from this risk. Thus, Dean cannot be negligent. The trial court, therefore, properly granted Dean’s motion for summary judgment, as he was entitled to judgment as a matter of law.
On February 18, 2006, Wang and her boyfriend were snow tubing at the Whitetail Mountain Resort when she was struck by an oncoming snow tuber. The accident occurred after a Whitetail Mountain employee had negligently instructed the couple to exit the snow tube spillway in a direction that brought her directly into the path of the oncoming snow tuber. Wang had executed a release which stated in part: Understanding, acknowledging and agreeing to all of the risks involved, I hereby agree to expressly and voluntarily accept and assume all risks involved in the sport of snow tubing.
The trial court granted summary judgment finding that the release barred recovery. The appeals court considered whether a release purportedly exonerating a snow tubing facility from liability for injuries caused by the inherent risks of snow tubing, regardless of negligence on the part of the facility, precludes the signer from suing the facility for injuries caused by the negligent actions of its employee in directing the signer to move into the path of another snow tuber where the wording of the release does not establish that that type of negligent conduct was within the contemplation of the parties at the time of signing?
The Superior Court found that looking to the unambiguous language of an agreement, in this case appellant’s particularized expression of the intent to assume the risks related to snow tubing, is all that must be done to determine what is contemplated by a party when entering into a release or any other contractual arrangement. Order of dismissal by trial court affirmed.
On December 31, 2001, Lori Chepkevich, along with her six-year-old nephew, Nicholas, was skiing at Hidden Valley Resort. Lori and Nicholas intended to board a chairlift, but Lori was concerned Nicholas would have a difficult time safely doing so due to his small size and skiing inexperience. Lori asked the chair lift operator to slow the device so that she and Nicholas could board safely. The operator assured Lori he would bring the chair around to Nicholas and her and stop it for boarding.
The operator failed to slow or stop the chair lift when it arrived, and though he attempted to place Nicholas on the seat, the operator managed only to get him on its edge, after which Nicholas began to slip. Lori made an effort to pull Nicholas to safety and shouted to the operator to stop the lift, as the boy was falling. The operator failed to do so, and the lift continued moving for some distance until Lori and Nicholas were forced to fall to the ground. Appellants alleged the resulting injuries to Lori, and Jeff’s loss of consortium claim, stemmed from Appellee’s negligence through the actions of its employee, the chair lift operator.
As one of its season pass holders, Lori executed a Release from Liability form in which she agreed thatall the risks of skiing and boarding present the risk of serious or fatal injury. By accepting this Season Pass, I agree to accept all these risks and agree not to sue Hidden Valley Resort or their employees if injured while using their facilities regardless of any negligence on their part.
After an analysis of the assumption of the risk doctrine and the Skiers Responsibility Act, the trial court determined that Lori was engaged in the act of downhill skiing at the time of her injury, but “[b]ecause the negligent operation of a ski lift is not a risk inherent in the sport of downhill skiing, . . . a question of fact exists as to whether the operator’s acts were negligent, and the proximate cause of [Lori’s] injuries;” thus, the trial court found Appellee was not entitled to summary judgment as a matter of law on that issue. Nevertheless, after a consideration of the Release from Liability document which Lori executed prior to her injury and which provided Lori agreed to accept all risks of skiing and boarding and not to sue “regardless of any negligence on [Appellee’s] part,” the trial court determined “[Appellants] may not bring suit on the basis of negligence against [Appellee] for injuries suffered while engaged in the activity detailed in the release, which specifically includes riding the chair lift.”
Plaintiffs appealed and won reversal at the appellate level, but when the Pennsylvania Supreme Court considered the case it found “We hold instead that appellees’ action for damages arises out of the “general risk” of falling from a ski lift, which is an inherent risk of skiing from which Hidden Valley owed no duty of protection, and thus is barred by the Act. Hidden Valley was entitled to summary judgment on this ground.” Thus the trail court ruling was affirmed. The Supreme Court also held that the exculpatory clause in the release document providing that the skier would accept all risks inherent to skiing, including use of lifts, and that skier would not sue ski resort if injured regardless of any negligence on part of resort or its employees, was valid and enforceable.
In a case of first impression, the Superior Court declared that the risk of being struck from behind by high school student snowboarding under the influence of alcohol was not a risk “inherent” to downhill skiing, and allowed plaintiff to recover. Crews v. Seven Springs Mountain Resort, 874 A.2d 100 (Pa. Super. 2005). In reaching its decision, the Crews court determined that for purposes of the Skier’s Responsibility Act and a waiver of liability, the court is to determine what is an “inherent risk” as a matter of law. The court discussed the limitations of the so-called “no duty” rule an interpretation of voluntary assumption of risk doctrine recognized by the court as applying to “amusement facilities which have not deviated in some relevant respect from established custom.” The court recognized that the rule does not abrogate the duty of such a facility to protect patrons from “forseeably dangerous conditions not inherent in the activity.” Id. at 103, citing Jones v. Three Rivers Management Corp., 394 A.2d 546, 551 (Pa. 1978) [emphasis added]. The Crews court found in favor of the plaintiff, concluding that the resort had knowledge of underage drinker/skiers, and failed to take any action to reduce the risk to its patrons. Interesting, then, is the extension of the “no duty” rule to an inherent risk analysis in a case where the skier sued a colliding snowboarder directly. See Cruz v. Gloss, Memorandum Disposition No. 2944 EDA 2003, entered October 25, 2005 (Pa. Super.). Relying in part on Crews, the Superior Court found error in the Court of Common Pleas’ decision to submit the question of inherent risk to the jury, rather than making that determination as a matter of law. The Superior Court, however, found harmless error in that the collision was, as a matter of law, an inherent risk that plaintiff assumed, and that this determination should have been made at the time of defendant’s motion for summary judgment, precluding plaintiff from recovery and determining the case. In interpreting the doctrine of voluntary assumption of an inherent risk, the court referenced four variations acknowledged in the Restatement of Torts, and applied the “no duty” rule, as applied to an amusement facility (particularly, a ski resort) in Crews. Plaintiff’s arguments regarding defendant’s negligence and recklessness, and that the legislature intended assumption of risk doctrine to benefit only ski area operators were rejected. (This argument is supported by the statement of purpose in the 1979 Act, as it was introduced.) The court interpreted the short but broadly-worded language of the Skier’s Responsibility Act as adopted by the legislature to command application of the “no duty” rule in any claim arising from plaintiff’s participation in “downhill skiing” where injury is caused by a court- determined “inherent risk.” For further discussion of these issues, together with an attempt to define the “inherent risks” of skiing, see Hughes v. Seven Springs Farm, Inc., 762 A.2d 339 (Pa. 2000) (cited heavily in Cruz); see also Bullman v. Giuntoli, 761 A.2d 566 at 573 (Pa. Super. 2000) (dicta suggesting that the inherent risks of skiing do not include that which happens suddenly or without warning, nor the affirmative negligence of another.) Some of these issues may ultimately be resolved by Pennsylvania’s Supreme Court, as appeals are presently contemplated in both the Crews and Cruz cases.