A Pennsylvania state appeals court has reversed a trial court’s grant of summary judgment in a case involving a snow-tubing accident, finding that the plaintiffs may not have been aware that they were giving up their right to sue when they purchased a lift ticket.
Specifically, the court found that a question about the plaintiffs’ comprehension of the agreement, in the form of exculpatory language on the back of the ticket, would be better resolved at trial rather than through a summary judgment motion.
The incident in question occurred on January 12, 2000 when Suzanne Beck-Hummel, Michael Hummel and their children visited a ski resort, Ski Shawnee, Inc., to go tubing.
Hummel purchased four tubing tickets from Ski Shawnee, Inc. employees, which contained exculpatory language. Neither Hummel nor Beck-Hummel read the language, unaware that by paying for and accepting the snow tubing ticket, they were entering into a contractual agreement with the resort.
The language read as follows:
“Shawnee Mountain Ski Area
PLEASE READ
Acceptance of this ticket constitutes a contract. The conditions of the contract are set forth below on this ticket and will prevent or restrict your ability to sue Ski Shawnee, Inc.
Skiing, snowboarding and snow tubing, including the use of lifts, are dangerous sports with inherent and other risks. These risks include but are not limited to, variations in snow, steepness and terrain, trail side drop offs, ice and icy conditions, moguls, rocks, trees, and other forms of forest growth or debris (above and below the surface), bare spots, lift towers, utility lines, poles and guy wires, snowmaking equipment and component parts, trail fences and control nets and the absence of such fences and nets, and other forms of natural or man-made obstacles on and/or off designated trails, as well as collisions with equipment, obstacles or other participants; trail conditions vary constantly because of weather changes and skier use. These are some of the risks of skiing, snowboarding and snow tubing. All of the inherent and other risks of skiing, snowboarding and snow tubing present the risk of serious and/or fatal injury.
In consideration of using Ski Shawnee, Inc.’ s facilities, the purchaser or user of this ticket agrees to accept the risks of skiing, snowboarding and snow tubing and agrees not to sue Ski Shawnee, Inc. or it employees if hurt while using the facilities regardless of any negligence of Ski Shawnee, Inc. or its employees or agents.
I agree that all disputes arising under this contract and/or from my use of the facilities at Shawnee Mountain shall be litigated exclusively in the Court of Common Pleas of Monroe County or in the United States District Court for the Middle District of Pennsylvania.
The purchaser or user of this ticket voluntarily assumes the risk of injury while participating in these sports.”
After purchasing the ticket, the family began their adventure, only to have it cut short when Beck-Hummel fractured her ankle after the tube left the course. The Hummels sued, alleging that the resort was negligent. Ski Shawnee raised the exculpatory language on the ticket as a complete defense, and filed a motion for summary judgment on that basis. The trial court granted the motion, sparking the appeal.
Not far into its analysis, the appeals court noted that “releases are not favored in the law. Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 478, 385 A.2d 437, 439 (1978), aff’d, 490 Pa. 428, 416 A.2d 1010 (1980). To be enforceable, a release must meet the following standards: (1) it must not contravene any policy of the law; (2) it must be a contract between individuals relating to their private affairs; (3) each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction; and (4) the agreement must spell out the intent of the parties with the utmost particularity. Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 447, 603 A.2d 663, 665 (1992) (citing Zimmer, supra); see also Employers Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).
”(A)t issue (in the instant case) is whether (the release) is enforceable against the Hummels under the circumstances of this case, including whether it was sufficiently conspicuous.”
The plaintiff argued that there was clearly no “meeting of the minds” that would establish the existence of a contract. They claimed they were never informed that “the barely readable type on the back of the snow tubing ticket would form the terms of a contractual agreement between themselves and Ski Shawnee, Inc. Nobody, at the time that the ticket was sold to Mr. Hummel, informed him that a contract was being formed. Furthermore, it is not disputed that Ms. Beck-Hummel was not in any way involved in the transaction of purchasing the tickets. In the absence of mutual assent to the language printed on the back of the snow tubing ticket, no contract was ever formed which contained such terms.”
This clearly resonated with the appeals court, which focused heavily on one case — Passero v. Killington, Ltd., 1993 U.S. Dist. LEXIS 14049, 1993 WL 406726 (E.D. Pa. Oct. 4, 1993). “There, an injured skier sued the skiing facility, and the facility raised as a defense the exculpatory language printed on the back of the lift ticket purchased by the plaintiff. As here, the plaintiff stated that he never read the exculpatory language that he was never told by the ticket seller or anyone else to read the ticket, and that he did not recall seeing any sign telling him to do so. 1993 U.S. Dist. LEXIS 14049.”
In that case, the trial court concluded that it could not decide the issue as a matter of law:
”The determination of these issues are the linchpin of both Passero’s case for liability and Killington’s defense. Given their extraordinary significance, the court finds that [it] is best left to the trier of fact to determine whether the language of the lift ticket reasonably communicated the existence of a contractual agreement to the purchaser, and whether the mere presence of exculpatory language on the lift ticket acts as a bar to recovery.”
The court then applied the case law and other factors to the instant case: “Under the circumstances of this case, where it is undisputed that neither the purchaser nor user of the ticket read its language, and where the language of the ticket itself is not so conspicuous as to, without more, put the user/purchaser on notice, we cannot conclude as a matter of law that the disclaimer is enforceable. Accordingly, we find that the trial court erred in granting summary judgment to Ski Shawnee on this basis, reverse the order entering that judgment, and remand for further proceedings.”
Suzanne Beck-Hummel and Michael Hummel v. Ski Shawnee, Inc.,; Super. Ct. Pa.;
No. 2190 EDA 2005; LEXIS 1547; 6/30/06
Attorneys of record: (for appellants) Eric W. Wassel of Wilkes-Barre, Pa. (for appellee)
Michael Daley of Paoli, Pa.
Jean D. Patrick, in her own right and on behalf of Steven A. Rosenberg, a minor v. Great Valley School District, et al.; E.D.Pa.; CIVIL ACTION NO. 04-5934; 2006 U.S. Dist. LEXIS 35346; 5/31/06
