Patrick and Kathryn Kibler (appellants) appealed a May 24, 2017 order from the Court of Common Pleas of Bedford County, which granted summary judgment in favor of Blue Knob Recreation, Inc. and Blue Knob Resort, Inc. (defendants). The case arose from an incident on December 21, 2014, when Patrick Kibler applied for a season ski pass at Blue Knob Ski Resort and signed an agreement acknowledging the inherent risks associated with skiing, including personal injury and property damage. The agreement included an exculpatory clause releasing the defendants from liability and stipulating that any disputes would be litigated in designated Pennsylvania courts.
On the day of the incident, Kibler skied on two of five open slopes and fell after encountering trenches on the slope "Lower Mambo," which were identified as being caused by a resort employee's all-terrain vehicle. As a result of the fall, Kibler suffered fractures to his left tibia and fibula. The appellants filed a negligence complaint on February 15, 2015. After discovery, the defendants filed a motion for summary judgment on January 23, 2017, while the appellants filed their own motion on March 17, 2017. The trial court held oral arguments on April 18, 2017, ultimately granting the defendants' motion and dismissing the appellants' complaint with prejudice while denying their motion for summary judgment.
On June 16, 2017, appellants filed a notice of appeal, complying with the trial court's order to submit a concise statement of errors by July 18, 2017. The trial court issued an opinion on August 10, 2017, reaffirming its earlier ruling that granted summary judgment to the defendants. Appellants raised four issues for review, focusing on: A) whether the hazard encountered during downhill skiing was inherent to the activity, especially given the defendants' Director of Maintenance's testimony that it was unusual; B) the validity of the Blue Knob All Seasons Resort's season pass release, which was argued to be ambiguous and not adequately prominent; C) whether a claim for injuries from gross negligence could be barred by an exculpatory clause in the season pass; and D) whether the appellant voluntarily assumed the risk of injury from a hazard he was unaware of. The appellate review standard involves determining if the trial court abused its discretion or erred in law, with a plenary scope of review focused on whether there are genuine issues of material fact. Issues A and D are considered together, as are issues B and C, regarding voluntary assumption of risk and the season pass release's validity. Rule of Civil Procedure 1035 outlines the conditions under which motions for summary judgment can be granted, emphasizing the absence of genuine material fact disputes.
Motions for summary judgment require the plaintiff to prove elements of the cause of action, and are appropriate when, post-discovery, the party bearing the burden of proof fails to produce essential evidence that would necessitate jury consideration. Summary judgment is warranted when no genuine issue exists regarding material facts necessary for the case, and the moving party is legally entitled to judgment. The record must either show undisputed material facts or insufficient evidence to establish a prima facie case.
In the context of the Pennsylvania Skier’s Responsibility Act, the doctrine of voluntary assumption of risk applies specifically to downhill skiing injuries. The Act acknowledges the inherent risks associated with downhill skiing and states that these risks are not altered by certain subsections of the law. The Supreme Court of Pennsylvania has outlined a two-step standard for reviewing summary judgment in downhill skiing cases: confirm the appellant was skiing at the time of injury, and determine if the risk was an inherent one assumed under the Act. If both criteria are met, summary judgment is appropriate as the appellant cannot recover for their injuries.
The Court has defined inherent risks as those that are common and expected in dangerous activities, where the defendant owes no duty of protection. In this case, it is undisputed that the appellant was engaged in downhill skiing during the incident, which includes activities related to the sport, such as using ski lifts and navigating to and from the trails.
The central question is whether wheel ruts created by an ATV on a ski slope constitute an inherent risk of downhill skiing. Appellants argue that encountering such ruts is not an expected part of the sport, referencing maintenance director Craig Taylor's deposition, which indicated that skiers would not anticipate encountering ATV wheel ruts. Conversely, defendants contend that the origin of the ruts is irrelevant to their classification as an inherent risk. The Chepkevich court noted Pennsylvania's lack of a clear definition for "inherent risk" compared to other states. New York law, specifically in Schorpp v. Oak Mountain, establishes that skiers assume inherent risks from terrain irregularities, including ruts. The appellate court in Schorpp reversed a lower court decision, affirming that the plaintiff assumed the risk of injury from such conditions. The New York statute explicitly identifies ruts as an inherent risk, and the language of the release signed by the appellant mirrors this statute. Consequently, the court concludes that wheel ruts are an inherent risk of downhill skiing, affirming the trial court's summary judgment favoring the defendants.
Regarding the validity of the release signed by the appellant when purchasing a season pass, the appellant claims it is invalid due to ambiguity, insufficient print size to attract attention, and lack of evidence that he read it. The validity of exculpatory releases is assessed based on three criteria: it must not violate public policy, it must pertain to private affairs, and both parties must be free bargaining agents, ensuring it is not a contract of adhesion.
In *Dilks v. Flohr Chevrolet*, the Pennsylvania Supreme Court established that exculpatory clauses, while valid, are unenforceable unless the language explicitly relieves a party from liability for their own negligence. Key interpretive standards for such clauses include: strict construction of contract language, clear expression of intent by the parties, construction against the party seeking immunity in cases of ambiguity, and the burden of proof on the party invoking the clause. In analyzing an exculpatory release related to downhill skiing, the court referenced *Chepkevich*, noting that the release clearly outlined the inherent dangers of skiing and waived the right to sue the resort for injuries, regardless of negligence. The court emphasized that participation in skiing is voluntary and does not equate to a contract of adhesion, as individuals are not compelled to sign the release or participate, making it non-unconscionable. The absence of a specific definition of negligence does not invalidate the contract. Ultimately, the release signed by the appellant was deemed facially valid, aligning with Pennsylvania's policy to encourage skiing while placing associated risks on the skier.
Enforceability of the release is examined under the Topp Copy/Employers Liability standard, requiring strict construction against defendants to ascertain the parties' intent to release defendants from liability. The burden lies with defendants to establish immunity. Appellants argue the release is ambiguous, lacks conspicuity, and was not sufficiently noticeable to an ordinary person. They claim the release does not clearly express an intent to absolve defendants from liability, nor does it reference the specific risks faced, such as deep frozen trenches, positing that such hazards are not inherent to skiing. However, the court counters that the release explicitly mentions the risk of ruts on the ski slope, which can be synonymously interpreted as trenches.
Regarding conspicuity, the release includes a section labeled “PLEASE READ THE FOLLOWING BEFORE SIGNING,” which presents the exculpatory language. Under the Pennsylvania Uniform Commercial Code, a term is deemed conspicuous if it is written or displayed in a manner that a reasonable person would notice. The release satisfies this requirement, featuring a capitalized heading of equal size to the exculpatory text and punctuation that emphasizes its importance. Consequently, the court finds the release to be both unambiguous and conspicuous.
Appellants' claim that the release lacked conspicuity and was not prominently printed is rejected, as the release meets the standards set by the Pennsylvania Uniform Commercial Code. The argument that the appellant did not read the release before signing it is also dismissed; Pennsylvania law requires individuals to read contracts prior to signing, and failure to do so does not invalidate the agreement. Regarding liability for gross negligence and reckless conduct, the court notes that exculpatory releases for reckless behavior are against public policy. The court will evaluate whether the appellant's actions—operating an ATV on a ski slope—constitute gross negligence or reckless conduct.
Gross negligence is defined as more egregious than ordinary negligence but less than intentional indifference to the consequences of one's actions. Courts have the authority to determine, as a matter of law, if conduct does not meet the threshold for gross negligence, provided the facts are clear and undisputed. Recklessness differs from negligence in that it involves conscious actions that create substantial risks, whereas negligence typically involves inadvertent actions. The court's analysis will rely on these established legal definitions and distinctions as it considers the specifics of the case.
The Restatement (Second) of Torts defines “reckless disregard” as conduct that shows a conscious choice of actions or inactions that create an unreasonable risk of physical harm, substantially exceeding the risk necessary for negligence. Recklessness must involve a greater degree of risk than mere negligence, which is characterized by inadvertence or a failure to act appropriately. The Commentary emphasizes that recklessness is marked by a conscious awareness of the danger involved, distinguishing it from negligence, which may arise from a failure to be aware of such risks. The legal distinction between recklessness and negligence is also reflected in criminal law, where recklessness entails a conscious disregard of substantial risks, while negligence involves a lack of awareness of such risks.
In the case at hand, the court found no evidence of gross negligence or reckless conduct by the defendants, who were operating a snow-making crew on a ski slope. While their actions may have contravened maintenance policies and were arguably negligent, they were engaged in expected maintenance activities that, although carelessly executed, did not constitute recklessness or gross negligence. The court concluded that the defendants’ behavior exemplified mere inadvertence and incompetence, rather than reckless disregard for safety. Consequently, the enforceability of the Release signed by the appellant was upheld, affirming the lower court's decision.
