ARTICLE: "Mixed Results in Recent Ski Resort Liability Cases" By Daniel E. Cummins

 

There's a saying -- "Skiing....the only sport where you spend an arm and a leg to break an arm and a leg."

Here is a LINK to my recent article entitled "Mixed Results in Recent Ski Resort Liability Cases" which was published in the December, 2020 edition of Counterpoint, the newsletter for the Pennsylvania Defense Institute.

If you wish to review any of the decisions noted in the article, please go to www.TortTalk.com and type the Plaintiff's name into the "Search This Blog" Box in the upper right hand corner and then click on the word "Search."  That will take you to the Tort Talk blog post on that case, in which you should find a link to the actual decision.

Source of Image:  www.stories.avvo.com

Summary Judgment in Snow Tubing Accident Case Reversed by Pennsylvania Supreme Court

In the case of Bourgeois v. Sno Time Inc., No. 50 M.A.P. 2019 (Pa. Dec. 9, 2020) (Op. by Mundy, J.), the Pennsylvania Supreme Court reversed a Pennsylvania Superior Court's decision affirming the entry of summary judgment in favor of a ski resort in a snow tubing accident case.

According to the Opinion, the Plaintiff sustained a spinal cord injury, resulting in quadriplegia when the snow tube he was riding on collided with a folder deceleration mat that the resort had placed at the bottom of a snow tubing hill to slow down customers in order to prevent them from traveling beyond the run-out-area.

According to the record before the court, the Plaintiff had purchased a snow tubing season pass. On the reverse side of the season pass, there was a release agreement which provided that snow tubing involves “inherent and other risks that could lead to serious injury to death.”

The release on the back of the snow tubing season pass also provided that the customer both assumed all of the risk of snow tubing and released the snow resort from any liability.

After reviewing the record before it, the Pennsylvania Supreme Court concluded that the Pennsylvania Superior Court erred in failing to consider the evidence presented, specifically the expert reports, in a light most favorable to the Plaintiffs. As such, the Pennsylvania Supreme Court reversed and remanded the matter for further proceedings.

The Pennsylvania Supreme Court rejected the defense argument that the trial court had considered the expert reports in the trial court’s granting of summary judgment. The Pennsylvania Supreme Court disagreed with that argument and instead noted that, although the trial court accurately recited the summary judgment standard and, even though the trial court addressed the theories of recklessness and gross negligence, the Pennsylvania Supreme Court felt that the trial court did not do so in a light most favorable to the Plaintiffs. 

The Pennsylvania Supreme Court felt that the expert reports presented in the case created genuine issues of material fact for a jury to resolve and that the trial court erred in not considering them. As such, the Pennsylvania Supreme Court ruled that the Pennsylvania Superior Court had erred in not reserving the trial court on this basis.

Anyone wishing to review a copy of this decision may click this LINK.

Summary Judgment Granted in Snow Tubing Case Based on No-Duty Rule

In the case of Hamber v. CBH2O, LP t/a Camelback Mountain Resort, No. 8778-CV-2017 (C.P. Monroe Co. Jan. 9, 2020 Harlacher Sibum, J.), the court granted the Defendant’s Motion for Summary Judgment and dismissed the Complaint with prejudiced in a case involving allegations of injuries allegedly sustained by the Plaintiff while snowtubing at Camelback Mountain Resort.

The Plaintiff alleged that, while nearing the end of a snow tube run, his tube came into contact with a deceleration mat and became airborne, causing the Plaintiff to be ejected from the snow tube and to land on his neck in an adjacent snow tubing lane. The Plaintiff alleges that the accident was caused by the improper placement of the deceleration mat.

The court ruled that the use of a deceleration mat was directly related and inherent to the sport of snow tubing as it would be a common, frequent and expected part of the activity to encounter some decelerating agent at the end of the run.

Given that contact with the deceleration mat was an inherent part of the snow tubing activity, and given that the risk of being thrown from the snow tube as an inherent part of snow tubing, the court held that the Defendant had no duty to protect the Plaintiff under Pennsylvania law from contact with the deceleration mat or the general risk of being thrown from the tube.

As such, the court found that the Plaintiff’s negligent claim was barred under the “no-duty” doctrine.

Judge Harlacher Sibum more specifically stated that, under Pennsylvania law, “the assumption of risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In this regard, the court quoted the case of Chepkevich v. Hidden Valley Resort, LP., 2 A.3d 1174, 1186 (Pa. 2010).

The court further stated, again citing Chepkevich, that “where there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant… and there can be no recovery based on allegations of negligence.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions” Pennsylvania Law Weekly (Feb. 5, 2020).

Eastern Federal District Court of PA Rules That Snowtubing Activities Do Not Fall Under Skier's Responsibility Act

Does Pennsylvania's Skier's Responsibility Act apply to snowtubing?

In what appears to be a case of first impression, the court in the case of Amadeo v. Spring Mountain Adventures, Inc., No. 18-2472 (E.D. Pa. Nov. 1, 2019 Kenney, J.), denied a Defendant's motion for summary judgment and ruled that protections afforded to defendant ski resorts under Pennsylvania Skier’s Responsibility Act do not apply to snowtubing activities.

According to the short matter-of-fact Opinion of the court, the Plaintiff injured her ankle when her snow tube hit a barrier at the end of a run.

The defense filed a motion for summary judgment under Pennsylvania's Skier's Responsibility Act and argued that, under that Act, snowtubing activities carry inherent risks that a participant assumes when engaging in such activities.

The court here noted that no prior decisions had ruled that snowtubing activities fell under the ambit of the Act which is focused on downhill skiing activities.  The court in this Amadeo case predicted that, if faced with the issue, the Pennsylvania Supreme Court would fall on the side that favors plaintiffs and would rule that snowtubing should be viewed as an "inherently benign" activity under Pennsylvania law.

As such, since the court found that the Skier's Responsibility Act did not support the granting of the Defendant's motion for summary judgment, the motion was denied.

Anyone wishing to review a copy of this decision may click this LINK.  The companion Order can be viewed HERE.

Postscript:  According to this LINK to a page on the defendant's website, the defendant is no longer able to offer snowtubing activities at its location due to a change in insurance coverage, which coverage does not provide liability protection for snowtubing activities.

I send thanks to Attorney James M. Beck of the Philadelphia office of Reed Smith law firm for bringing this case to my attention.

Pennsylvania Supreme Court To Review Duties Owed By Ski Resorts

The Supreme Court of Pennsylvania has granted allocatur in the case of Bourgeois v. Snow Time, Inc., No. 768 MAL 2018 (Pa. June 25, 2019) involving a snow tubing accident at the Roundtop Resort in York, PA. 

The court accepted all four issues presented for review, which included issues addressing (1) a trial court’s obligation to consider expert reports when ruling on an MSJ, (2) the sufficiency of expert reports, (3) the duties owed by a snow tubing facility (previously established in Tayar v. Camelback), (4) and whether evidence of industry standards is required to sustain a cause of action in recklessness/gross negligence.

Anyone wishing to review the Supreme Court's Order outlining the issues to be reviewed may click this LINK.

I send thanks to Attorney Paul Oven of the Moosic, PA office of Dougherty, Leventhal & Price for bringing this Order to my attention.

Release From Liability Form Upheld in Poconos Snow Tubing Case

In his recent decision in the case of Dunlap v. Davenport v. The Villas at Tree Tops and Fairway, PICS Case No. 14-0883 (Monroe Co. April 28, 2014 Williamson, J.), Judge David Williamson of the Monroe County Court of Common Pleas upheld a release from liability form containing an exculpatory clause signed by a Plaintiff relative to the Plaintiff's participation in snow tubing at the Fernwood Hotel and Resort in the Poconos.  

The court found that the release form was a proper contract between the parties and that the Plaintiff was free to go snow tubing elsewhere or simply not go at all.  

The court also rejected the Plaintiff’s contentions that the release form should be deemed to be unenforceable in that it had extremely small printing with all of the writing on a single page.  

The court additionally rejected the Plaintiff’s contention that there was no evidence that the Plaintiff had read and understood the release terms that protected the Defendant from liability arising out of the snow tubing activities.  

The court otherwise rejected an argument that the release form violated Pennsylvania public policy.  

Judge David Williamson
Monroe County

Overall, because the release form was found to be a valid contractual agreement between the parties, Judge Williamson granted the Defendant’s Motion for Judgment on the Pleadings on the personal injury claim.  

The court additionally dismissed the husband’s loss of consortium claim as that claim was derivative of, and dependent upon, the wife’s personal injury claim.  

I do not have a copy of this one.  Anyone desiring a copy of this case may contact the Pennsylvania Instant Case Service of the Pennsylvania Law Weekly by calling 1-800-276-7427 and providing the above noted PICS Case No. along with a payment of a small fee.  

Source: "Case Digests," Pennsylvania Law Weekly (June 2014).