A federal judge from the Middle District of Pennsylvania has denied a ski resort’s motion for summary judgment in a case in which a woman sued the company for negligence after a skier collided with her, while she watched her husband and kids take skiing lessons.
The court was unmoved by Ski Shawnee, Inc.’s argument that it was shielded from liability by the Pennsylvania Skier’s Responsibility Act (Act), 42 Pa. C.S.A. § 7102(c), or, alternatively, “the traditional common law assumption of the risk doctrine.”
The incident in question occurred at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Plaintiff Colleen Barillari, who had skied previously, was not a ticketed skier that day. Instead, she had come to the ski area to watch her husband and her children take ski lessons.
Barillari was standing on the snow close to tape that divided a ski run from the instruction area, where her family was taking a lesson. Nearby was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” The court noted, however, that Ski Shawnee, Inc. employees admitted that “the sign may be ambiguous and that it’s stated policy was not routinely enforced.” Barillari believed she was safe. Unfortunately, a skier collided with her and caused an injury to her left leg. She subsequently sued.
In considering the defendant’s aforementioned arguments, the court first focused on the Skier’s Responsibility Act, which reads in pertinent part:
(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).
42 Pa. C.S.A. § 7102(c).
The Supreme Court of Pennsylvania has established a two-part analysis to determine whether a plaintiff was subject to the assumption of the risk doctrine adopted in the Skier’s Responsibility Act. See Huges v. Seven Springs Farm, Inc. 762 A.2d at 343-44. “First, this Court must determine whether the plaintiff was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . . .’ Id. at 344. If both of these prerequisites are met, then summary judgment is appropriate because, as a matter of law, the defendant would have had no duty to Mrs. Barillari. See id.”
The plaintiff “was not ‘engaged in the sport of downhill skiing’ at the time of her collision, as required by the statute,” wrote the court. She was “merely a spectator not engaged in the sport.”
Turning to the traditional common law defense of assumption of the risk should bar the claim, the court wrote that “although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing.
“Borrowing Justice Antonin Scalia’s memorable phrase concerning a similarly limited, but resurgent doctrine in another area of law, assumption of the risk survives ‘like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.’ Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.”
The court went on to note that “the dispositive analytical point in the case before this court is determining what constitutes a plaintiff’s conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. Rather, the plaintiff must be aware of the particular danger from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Bolyard v. Wallenpaupack Law Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6 (M.D. Pa. Feb. 27, 2012).
“In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered—namely, a skier crashing into a spectator. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6.
“Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, ‘because she was close enough to the ribbon and she was with other people that were just watching. She wasn’t standing with a bunch of skiers. She was standing with spectators. (She) did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case.”
Colleen Barillari and William Barillari v. Ski Shawnee, Inc.; M.D. Pa.; Civ. No. 3:12-CV-00034, 2013 U.S. Dist. LEXIS 161029; 11/12/13
Attorneys of Record: (for plaintiffs) Edward Shensky, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA.
