By James Moss
Ski Shawnee, Inc., a small ski area located minutes from the New Jersey boarder was fighting two negligence claims, or maybe more, at the same time. One in Federal Court, Birl v. Ski Shawnee, Inc., 2026 U.S. App. LEXIS 20; 2026 LX 70043, and one in state court, Lin v. Shawnee Mt. Ski Resort, 2025 Pa. Super. Unpub. LEXIS 3259; 2025 LX 571762, which were decided within 24 days of each other.
In Lin, the plaintiff described herself as a Type II skier. Type II is a rating developed by ski binding manufacturers to determine the level of adjustment of the binding based on the skier’s height, weight, age, and skiing ability. These factors are charted, and a value is determined that is then set in the value. This value makes it easier or harder to exit the binding. The ratings go from Type I, beginner, through III, expert level skier. Lin stated she was an intermediate-level skier.
Lin was skiing green or beginner slopes that day. Ski slopes are rated by the ski area based on their level of difficulty. Green runs are beginner runs, Blue runs are intermediate, and Black runs are expert runs. On the last run (hard to get injured and ski another run), Lin skied off the slope across the runout and could not slow down; she skied away from and missed a rack of skis, but went through the lodge window, sustaining multiple injuries. Lin and a person skiing with her stated that Lin could not slow down because the area was too icy. (I think falling is always better than going through plate glass windows. But that is just my opinion.)
Lin sued Ski Shawnee, Inc. for negligence, gross negligence, and recklessness, and sought both compensatory and punitive damages in the Pennsylvania state court. A punitive damages allegation was dropped. Ski Shawnee filed a motion for summary judgment, which was granted based on the release Lin had signed when she rented her ski gear that morning and the Pennsylvania’s Skiers Responsibility Act (the Act), 42 Pa.C.S.A.
Lin’s expert witness, which the court quoted several times, stated that there should have been a deceleration area, safety barriers, and tempered glass, among several allegations in his report of the ski area’s gross negligence.
The issue then boiled down to whether the facts alleged by the plaintiff, supported by her expert witness, were sufficient to support an allegation of gross negligence. Gross negligence was defined by the court as:
Gross negligence “constitutes conduct more egregious than ordinary negligence[,] but does not rise to the level of intentional indifference to the consequences of one’s acts.”
The court differentiated gross negligence from recklessness, which was also pleaded by Lin, defining recklessness under Pennsylvania law as:
“Recklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”
Courts always follow these definitions with the disclaimer that releases, or, in this case, exculpatory releases, do not release claims of gross negligence.
Exculpatory releases of reckless behavior are unenforceable, “as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct.”
Many states have stood on the edge of the gross negligence abyss, trying to find a way to argue through motions that a release can bar gross negligence claims, but have not dared take the leap except in Nebraska, which does not recognize claims for gross negligence (see Palmer v. Lakeside Wellness Center, 281 Neb. 780; 798 N.W.2d 845; 2011 Neb. LEXIS 62). Or where the allegations in the complaint do not add up to a claim for gross negligence (Cotty v. Town of Southampton, et al., 2009 NY Slip Op 4020; 64 A.D.3d 251; 880 N.Y.S.2d 656; 2009 N.Y. App. Div. LEXIS 3919). Additionally, some courts have held that assumption of the risk can bar a gross negligence claim (Downes et al. v. Oglethorpe University, Inc., 342 Ga. App. 250 (Ga. App. 2017)). However, overall, gross negligence claims typically reach a jury.
Here, the appellate court stated that the only way a judge could determine if there was no gross negligence was if there was no way a jury could find a claim for gross negligence.
…a given set of facts satisfies the definition of gross negligence is a question of fact to be determined by a jury, a court may take the issue from a jury, and decide the issue as a matter of law, if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence
The appellate court sent the case back to the lower court for a jury to determine whether Ski Shawnee’s failure to act amounted to gross negligence. The release the plaintiff signed to rent her ski equipment did bar her claims against Ski Shawnee for simple or ordinary negligence.
Shawnee’s release does not indemnify it against any acts of gross negligence or recklessness, but it does bar Lin’s claims for ordinary negligence
Judge in Birl Cites Inherent Risks of Skiing
Contrast this decision with Birl v. Ski Shawnee, Inc., decided 28 days earlier by the Third Circuit Court of Appeals. In Birl, it was claimed that the ski area designed the jumps in its terrain park in a manner that did not allow for a safe landing area and forced jumpers into the trees along the side of the terrain park.
A terrain park is a series of features, ideally in a confined, protected area of a ski hill, with multiple jumps, rails, pipes, and other elements for performing. Terrain parks have their own warning signs designed by the National Ski Area Association (NSAA) and skier etiquette. You raise your hand if you are going to enter the feature next.
This court found that the Pennsylvania Skier Responsibility Act created a two-part test to determine whether the injured party assumed the risks of skiing outlined in the statute:
We must determine if (1) the plaintiff was engaged in the sport of downhill skiing, and (2) the injury arose from an inherent risk to the sport of skiing
The court found the first test was easy; the plaintiff, G. B., was snowboarding, which was defined as skiing under the statute. The second part of the test was whether the acts the plaintiff alleged fell within the risks assumed by skiers under the Pennsylvania Skier Responsibility Act, specifically § 7102(c) provides:
(c) Downhill skiing.
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).
(c.1) Savings provisions. –(Unconstitutional).
(c.2) Savings provisions. –Nothing in this section shall be construed in any way to create, abolish or modify a cause of action or to limit a party’s right to join another potentially responsible party.
(d) Definitions. –As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Defendant or defendants.” –Includes impleaded defendants.
“Off-road vehicle.” –A motorized vehicle that is used off-road for sport or recreation. The term includes snowmobiles, all-terrain vehicles, motorcycles and four-wheel drive vehicles.
“Off-road vehicle riding area.” –Any area or facility providing recreational activities for off-road vehicles.
“Off-road vehicle riding area operator.” –A person or organization owning or having operational responsibility for any off-road vehicle riding area. The term includes:
(1) Agencies and political subdivisions of this Commonwealth.
(2) Authorities created by political subdivisions.
(3) Private companies.
Under the Act, Pennsylvania courts have found that ski areas have no duty to protect skiers (and snowboarders) from inherent risks, as expanded by the Act.
The plaintiff’s expert argued that the jumps in the terrain park were not designed according to industry standards established by the National Ski Area Association’s Freestyle Terrain Resource Guide. The guide was developed by the NSAA with the help of ski areas, but not as a binding standard. The NSAA is very specific in its work, and its guides are not created as standards.
The court found that even if the jumps were not in accordance with the guide, the risks remained inherent in skiing. Pennsylvania courts have interpreted the Act to include features, buildings, and structures created by the ski area as inherent risks of skiing: “a ski resort has no duty to place a jump in a way that minimizes the potential for snowboarders to lose control.”
Contrast the decision in Birl: under that interpretation, even a building constructed by a ski area and located at the bottom of a run could be considered an inherent risk of skiing under the Pennsylvania Skier Responsibility Act. Yet in Lin, the building and its construction were potentially grossly negligent, exposing the ski area to liability.
What is a ski area in Pennsylvania supposed to do? For the plaintiff, it is an easy decision: create jurisdictional issues and file in federal court. If this becomes the norm, a statute intended to apply uniformly to skiers and snowboarders in Pennsylvania may effectively apply differently depending on where the case is filed. Yahoo—more tourists may come to ski in Pennsylvania because it is easier to sue.
