The Supreme Court of Pennsylvania has reinstated a trial court ruling that granted summary judgment to a ski resort, which had maintained that a waiver signed by a skier, who became injured and subsequently sued the resort, shielded it from liability.
In so ruling, the High Court also found that the skier assumed the risk and was subject to the Pennsylvania Skier’s Responsibility Act (Act).
On December 31, 2001, plaintiffs Lori Chepkevich and various family members, including her husband, co-plaintiff Jeff Chepkevich, were skiing on the slopes of appellant Hidden Valley Resort, L.P.. Lori was a season pass holder at Hidden Valley and an experienced skier. After the family had been skiing for several hours, Lori’s six-year-old nephew Nicholas had to return to the condominium where the family was staying because he was cold. Lori volunteered to return with Nicholas while the rest of the family continued skiing.
To return to the condominium, Lori and Nicholas planned to ride the “Blizzard” ski lift. Because Lori was concerned that Nicholas would have difficulty boarding the chair lift due to his small size and inexperience, she asked the lift operator to slow the lift before it reached them so she could ensure that Nicholas boarded safely. The operator replied that this lift had only one speed and could not be slowed. According to Lori, the operator then agreed to stop the lift two times to allow them to board: first, when the chair was behind the bull wheel, to allow Lori and Nicholas to move out of the line of skiers waiting to board and position themselves in the path of the chair; then, a second time, just before the chair reached them, to allow them to board. After the lift was stopped the first time, Lori and Nicholas moved from the line and into the path of the chair. However, as the lift came around, the operator did not stop it again. Nevertheless, Lori safely boarded the lift, and the operator attempted to help Nicholas onto the moving seat by grabbing his shoulder and hoisting him up. Unfortunately, Nicholas was not properly seated, and he began to slip off the chair. Lori, who was seated, reached over and attempted to pull Nicholas onto the seat while shouting for the operator to stop the lift. The lift continued moving, and Lori and Nicholas fell. Nicholas was not seriously injured. Lori, however, suffered a dislocated shoulder and a fractured hip.
Lori and her husband sued Hidden Valley to recover damages for Lori’s injuries and Jeff’s loss of consortium.
The couple had signed a release prior to skiing. The release, printed on a single page and titled “RELEASE FROM LIABILITY,” read, in relevant part:
“Skiing, Snowboarding, and Snowblading, including the use of lifts, is a dangerous sport with inherent and other risks which include but are not limited to variations in snow and terrain, ice and icy conditions, moguls, rocks, debris (above and below the surface), bare spots, lift towers, poles, snowmaking equipment (including pipes, hydrants, and component parts), fences and the absence of fences and other natural and manmade objects, visible or hidden, as well as collisions with equipment, obstacles or other skiers . . . . All 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.”
On the basis of the release, Hidden Valley moved for summary judgment, which the court granted solely on the basis of the Release.
“In its opinion, the trial court first examined whether summary judgment should be granted based on assumption of the risk as embodied in the Act,” noted the Supreme Court. “The court determined that summary judgment was inappropriate under the Act because Lori had not assumed the risk of her injury. The trial court considered and distinguished this Court’s opinion in Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (Pa. 2000), where we held that the doctrine of assumption of risk barred a skier’s lawsuit for damages arising out of a collision with another skier at the base of a ski slope, a risk determined to be inherent to the sport of downhill skiing.
“The trial court found the Superior Court’s decision in Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. 2005), appeal denied, 586 Pa. 726, 890 A.2d 1059 (Pa. 2005), more relevant to this case than Hughes. In Crews, the panel majority held that the risk of injuries arising out of a collision with an underage drinker on a snowboard was not inherent to the sport of skiing because, the majority reasoned, that particular risk could be ‘removed without altering the nature of the sport.’ 874 A.2d at 104
“The trial court reasoned that a skier assumes only the risk of injuries that: (1) occur while the skier is engaged in the sport of skiing; and (2) arise from risks inherent to the sport. The trial court concluded that Lori was engaged in the sport of skiing at the time of her injury but, under Crews, Lori did not assume the risk of lift operator negligence because that risk is not inherent to skiing. The trial court concluded that this specific risk ‘could be removed without altering the fundamental nature of skiing,’ and thus the Act did not bar (the plaintiffs’) lawsuit.”
However, as mentioned above, the trial court did conclude that the release was applicable “because it expressly disclaimed liability for the negligent acts of Hidden Valley’s employees, and thus ‘relieves Hidden Valley from all liability for any negligence by its employee in the operation of the ski lift.’”
On appeal, the Superior Court disagreed with the lower court about the enforceability of the release.
Noting that the release “did not define or give examples of ‘negligence,’” it held that “it was arguably an adhesion contract, … which provides no recourse to one who disagrees with it, but to reject the entire transaction.” It also held that “a contested issue of fact–what the lift operator said to the skier–made summary judgment inappropriate.” The panel thus remanded the case for further proceedings.
However, that ruling was also appealed.
The Supreme Court found the Act had “broad” applications in the instant case. “The clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Falling from a ski lift “is an inherent risk of skiing from which Hidden Valley owed no duty of protection, and thus is barred by the Act.”
Turning to the release, the high court agreed with the trial court that the release “clearly encompassed the risk at issue here as a matter of law. The release also clearly spelled out the parties’ intention to release Hidden Valley from liability for injuries arising from the risk accompanying the use of a ski lift, regardless of any negligence on the part of the ski lift operator.”
It also refuted the superior court’s finding that “the lift operator’s alleged agreement to stop the lift modified or superseded Lori’s agreement, pursuant to the release, not to sue Hidden Valley for any negligent acts of its employees. First, [the plaintiffs] did not make this allegation in their complaint. … [W]hether or not the lift operator agreed to stop the lift, there is no allegation that he somehow told Lori that he was thereby bestowing upon her the right to sue Hidden Valley should she be injured while boarding or riding it.
“The terms of the release explicitly encompassed the negligence of Hidden Valley employees, and negligence by an employee is precisely what [the plaintiffs] alleged here. An allegation of employee negligence cannot overcome the express terms of the release barring just such suits for employee negligence.”
Lori T. Chepkevich and Jeff Chepkevich v. Hidden Valley Resort, L.P., S.CT. Pa.; No. 22 WAP 2007, 2010 Pa. LEXIS 1311; 6/21/10
