Kibler v. Blue Knob Recreation, Inc. ( 2018 )

J. A30039/17
2018 PA Super 89PATRICK KIBLER AND KATHRYN : IN THE SUPERIOR COURT OF
KIBLER, HUSBAND AND WIFE, : PENNSYLVANIA
:
Appellants :
:
v. :
:
BLUE KNOB RECREATION, INC., :
A PENNSYLVANIA CORPORATION, :
T/D/B/A BLUE KNOB ALL SEASONS : No. 903 WDA 2017
RESORT, AND BLUE KNOB RESORT, :
INC., A PENNSYLVANIA CORPORATION :
Appeal from the Order, May 24, 2017,
in the Court of Common Pleas of Bedford County
Civil Division at No. 2015-183
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED APRIL 19, 2018
Patrick and Kathryn Kibler (collectively “appellants” 1) appeal from the
May 24, 2017 order of the Court of Common Pleas of Bedford County granting
Blue Knob Recreation, Inc. and Blue Knob Resort, Inc.’s (hereinafter,
collectively “defendants”) motion for summary judgment. After careful
review, we affirm.
The trial court provided the following synopsis of the facts:
On March 21, 2014, [appellant] applied for a season
ski pass for the 2014-2015 ski season at Blue Knob
Ski Resort. [Appellant] signed and dated the season
1For clarity, we will refer to Mr. Kibler as “appellant” throughout this
memorandum.
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pass/application agreement, which contained
information and guidelines about the Blue Knob
season pass. The bottom half of said document
contains the following exculpatory language:
PLEASE READ THE FOLLOWING
BEFORE SIGNING!!
Snowboarding, skiing and other snow
related activities, like many other sports,
contain inherent risks including, but not
limited to, the risk of personal injury,
death or property damage, which may be
caused by: variation in terrain or weather
conditions, surface or subsurface, snow,
ice, bare spots, thin cover, moguls, ruts,
bumps, forest growth, debris, other
persons using the facilities, branches,
trees, roots, stumps, rocks, and other
natural or man made objects that are
incidental to the provision or maintenance
of the facility. For the use of Blue Knob
Ski Area, the holder assumes all risks of
injury and releases Blue Knob Recreation
from all liability THEREFORE: Not
withstanding the foregoing, if I sue Blue
Knob Recreation ET AL I agree that I will
only sue it, whether on my own behalf or
on behalf of a family member, in the Court
of Common Pleas of Bedford County or in
the United States District Court for the
District of Pittsburgh, Pennsylvania and
further agree that any and all disputes
which might arise between Blue Knob
Recreation ET AL and myself shall be
litigated exclusively in one of said courts.
See Blue Knob All Seasons Resort
Information/Guidelines.
On December 21, 2014 at 9:00 a.m., [appellant]
arrived at Blue Knob to ski with friends. Prior to
arriving at the resort, [appellant] learned that five
slopes were open to ski. [Appellant] eventually would
ski on two of these five open slopes. After skiing down
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a slope identified as “Lower Mambo,” [appellant]
stopped to look for his skiing companions, who were
snowboarding on another slope. In an attempt to
rejoin them without walking back up the slope,
[appellant] intended to ski toward the middle of
“Lower Mambo Valley” in order to reach a ski lift.
While traversing this area, [appellant] ran over
“trenches” he avers were four-to-six inches deep and
six-to-eight inches wide, which extended halfway
across the ski slope. Defendants’ employees
identified the trenches as being caused by an
all-terrain-vehicle operated by a resort employee.
[Appellant] fell when encountering these trenches,
causing him to fracture his left tibia and fibula.
Trial court opinion, 5/23/17 at 2-3.
On February 15, 2015, appellants filed a civil complaint with the trial
court sounding in negligence. Following discovery, defendants filed a motion
for summary judgment with an accompanying memorandum of law on
January 23, 2017. Appellants filed a motion for summary judgment on
March 17, 2017. Oral arguments were held before the trial court on April 18,
2017. On May 24, 2017, the trial court granted defendants’ motion for
summary judgment, dismissing appellants’ complaint with prejudice, and
denied appellants’ motion for summary judgment.
On June 16, 2017, appellants filed a timely notice of appeal with this
court. The trial court ordered appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellants
complied on July 18, 2017. The trial court filed an opinion on August 10,
2017, pursuant to Pa.R.A.P. 1925(a) in which it incorporated the content of
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its May 24, 2017 order and opinion granting defendants’ motion for summary
judgment.
Appellants raise the following issues for our review:
A. Was the hazard encountered by [appellant]
inherent to the dangers of downhill skiing, when
[defendants’] Director of Maintenance testified
that the hazard was out of the ordinary, not
common, and [appellant] should not have
expected to encounter the hazard?
B. Is the Blue Knob All Seasons Resort 2014-2015
Season Pass Holder Information/Guidelines
document a valid exculpatory release, where
the top half of the document only discusses the
requirements to be a season pass holder, and
the lower half is ambiguous, the word “releases”
is located 75% down the page, lacks
conspicuity, without print of a size and boldness
that draws the attention of an ordinary person,
and where no evidence exists that [appellant]
read this document?
C. Is a claim for injuries caused by the grossly
negligent and/or reckless acts of a ski resort
barred by an alleged exculpatory sentence in
Blue Knob’s season pass?
D. Did [appellant] voluntarily assume the risk of
injury when he encountered a hazard at
[defendants’] resort for which he was unaware,
and for which [defendants’] Director of
Maintenance testified that [appellant] had no
reason to anticipate or know of the hazard’s
existence?
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Appellant’s brief at 4-5.2
In reviewing an appeal from the trial court’s granting of a motion for
summary judgment, we are governed by the following standard of review:
[O]ur standard of review of an order
granting summary judgment requires us
to determine whether the trial court
abused its discretion or committed an
error of law. Our scope of review is
plenary. In reviewing a trial court’s grant
of summary judgment, we apply the same
standard as the trial court, reviewing all
the evidence of record to determine
whether there exists a genuine issue of
material fact. We view the record in the
light most favorable to the non-moving
party, and all doubts as to the existence
of a genuine issue of material fact must
be resolved against the moving party.
Only where there is no genuine issue as
to any material fact and it is clear that the
moving party is entitled to a judgment as
a matter of law will summary judgment be
entered. All doubts as to the existence of
a genuine issue of a material fact must be
resolved against the moving party.
***
Upon appellate review, we are not bound
by the trial court’s conclusions of law, but
may reach our own conclusions.
Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798
(Pa.Super. 2012) (internal citations omitted).
2 Appellants’ four issues address two overarching issues: voluntary
assumption of risk and the validity of the release attached to the season pass
provided by defendants. Accordingly, for the purposes of our review, we shall
address issues A and D together and issues B and C together.
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Rule of Civil Procedure 1035 governs motions for
summary judgment and provides, in relevant part, as
follows:
After the relevant pleadings are closed,
but within such time as not to
unreasonably delay trial, any party may
move for summary judgment in whole or
in part as a matter of law
(1) Whenever there is no genuine
issue of any material fact as
to a necessary element of the
cause of action or defense
which could be established by
additional discovery or expert
report, or
(2) If, after the completion of
discovery relevant to the
motion, including the
production of expert reports,
an adverse party who will
bear the burden of proof at
trial has failed to produce
evidence of facts essential to
the cause of action or defense
which in a jury trial would
require the issues to be
submitted to a jury.
Pa.R.C.P. 1035.2. This Court has explained the
application of this rule as follows:
Motions for summary judgment
necessarily and directly implicate the
plaintiff’s proof of the elements of a cause
of action. Summary judgment is proper
if, after the completion of discovery
relevant to the motion, including the
production of expert reports, an adverse
party who will bear the burden of proof at
trial has failed to produce evidence of
facts essential to the cause of action or
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defense which in a jury trial would require
the issues to be submitted to a jury. In
other words, whenever there is no
genuine issue of any material fact as to a
necessary element of the cause of action
or defense, which could be established by
additional discovery or expert report and
the moving party is entitled to judgment
as a matter of law, summary judgment is
appropriate. Thus, a record that supports
summary judgment either (1) shows the
material facts are undisputed or
(2) contains insufficient evidence of facts
to make out a prima facie cause of action
or defense.
Petrina, 46 A.3d at 798.
Criswell v. Atlantic Richfield Co., 115 A.3d 906, 909-910 (Pa.Super. 2015).
Voluntary Assumption of the Risk
Appellants’ first and fourth issues on appeal address the voluntary
assumption of the risk associated with downhill skiing. The General Assembly
directly addressed this issue when it passed the Pennsylvania Skier’s
Responsibility Act (hereinafter, “the Act”). The Act provides, in relevant 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.
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(2) The doctrine of voluntary assumption of
the risk as it applies to downhill skiing
injuries and damages is not modified by
subsections (a) and (a.1).[3]
42 Pa.C.S.A. § 7102(c).
In light of the Act, our supreme court established the following standard
when reviewing grants of summary judgment in cases involving downhill
skiing:
First, this Court must determine whether [appellant]
was engaged in the sport of downhill skiing at the time
of [his] injury. If that answer is affirmative, we must
then determine whether the risk [encountered] is one
of the “inherent risks” of downhill skiing, which
[appellant] must be deemed to have assumed under
the Act. If so, then summary judgment was
appropriate because, as a matter of law, [appellant]
cannot recover for [his] injuries.
Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). In
the context of downhill skiing, our supreme court stated that both common
law assumption of the risk doctrine and the court’s decision in Hughes “direct
that inherent risks are those that are ‘common, frequent, or expected’ when
one is engaged in a dangerous activity, and against which the defendant owes
no duty to protect.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d
1174, 1187 n.14 (Pa. 2010).
3 Subsections (a) and (a.1) address contributory negligence and joint and
several liability.
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In the instant appeal, it is beyond dispute that appellant was engaged
in the sport of downhill skiing at the time of his injury. Indeed, as noted by
the Hughes court,
Obviously, the sport of downhill skiing encompasses
more than merely skiing down a hill. It includes those
other activities directly and necessarily incident to the
act of downhill skiing. Such activities include boarding
the ski lift, riding the lift up the mountain, alighting
from the lift, skiing from the lift to the trail and, after
a run is completed, skiing towards the ski lift to start
another run or skiing toward the base lodge or other
facility at the end of the day.
Hughes, 762 A.2d at 344. Therefore, our paramount inquiry is whether
encountering wheel ruts on a ski slope created by an ATV operated by an
employee of defendants is an inherent risk to downhill skiing.
Appellants make the argument that operating an ATV up the middle of
a ski slope is not an inherent aspect of the sport, and should therefore not be
considered an inherent risk as contemplated by the Act. (See appellants’ brief
at 32.) Appellants specifically cite the deposition testimony of Craig Taylor,
defendants’ director of maintenance, in which Mr. Taylor stated that it would
not be common or expected by a skier to encounter wheel ruts made by an
ATV on the ski slope. (See notes of testimony, 10/21/15 at 28.) Defendants
aver that the cause of the alleged condition is not relevant to whether the
condition itself, in this case wheel ruts left by operating an ATV up the middle
of a ski slope, constitutes an inherent risk associated with downhill skiing.
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As noted by the Chepkevich court, “Pennsylvania’s Act is unusual in its
brevity and failure to give any definition of an ‘inherent’ risk of skiing,”
especially when compared to other states in which skiing constitutes a
“significant industry.” Chepkevich, 2 A.3d at 1188 n.15. Of the states
referenced by the Chepkevich court, the most instructive is New York.
In Schorpp v. Oak Mountain, LLC, 143 A.D.3d 1136 (N.Y. App. Div.
2016), the New York Supreme Court, Appellate Division4 reversed the trial
court’s denial of summary judgment in a negligence cause of action. Id. at
1137. The plaintiff in this case “skied into a ‘depression’ that was filled with
snow. The skis got caught in the depression causing [the plaintiff] to flip over
and fall out of his skis.” Id. The appellate court held that under New York’s
assumption of the risk doctrine as it pertains to downhill skiing, “an individual
‘assumes the inherent risk of personal injury caused by ruts, bumps or
variations in the conditions of the skiing terrain.’” Id., quoting Ruepp v.
West Experience, 272 A.D.2d 673, 674 (N.Y. App. Div. 2000) (emphasis
added). Unlike its Pennsylvania counterpart, the New York State Legislature
specifically identified ruts as an inherent risk of downhill skiing. N.Y. General
Obligations Law § 18-101.
Given that our cases do not directly address an injury incurred while
engaged in downhill skiing caused by wheel ruts in the terrain on the slope,
we find the New York statute and case law to be the most instructive in the
4 This court is the intermediate court of appeals in New York.
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instant appeal. Moreover, the language of the release signed by appellant,
which we further discuss infra, is nearly identical to the language of the
New York statute.5 We agree with the holding of the Appellate Division of the
New York Supreme Court, and find that wheel ruts in the terrain are an
inherent risk to the sport of downhill skiing. Accordingly, we hold that
appellants cannot recover damages as a matter of law, and that the trial court
properly granted defendants’ motion for summary judgment.
5 The New York statute provides, in relevant part:
§ 18-101. Legislative purpose
The legislature hereby finds that alpine or downhill
skiing is both a major recreational sport and a major
industry within the state of New York. The legislature
further finds: (1) that downhill skiing, like many other
sports, contains inherent risks including, but not
limited to, the risks of personal injury or death or
property damage, which may be caused by variations
in terrain or weather conditions; surface or subsurface
snow, ice, bare spots or areas of thin cover, moguls,
ruts, bumps; other persons using the facilities; and
rocks, forest growth, debris, branches, trees, roots,
stumps or other natural objects or man-made objects
that are incidental to the provision or maintenance of
a ski facility in New York state . . . .
N.Y. General Obligations Law § 18-101.
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Validity of Release6
Appellants’ second issue pertains to the release appellant signed when
he purchased his season pass. Specifically, appellant avers that the release
in question is “not a valid exculpatory release” due to the fact that the release
is ambiguous, the release is “without print of a size and boldness that draws
the attention of an ordinary person,” and there is no evidence that appellant
actually read the release. (Appellants’ brief at 33.)
When considering the validity of exculpatory releases, we are governed
by the following standard:
It is generally accepted that an exculpatory clause is
valid where three conditions are met. First, the clause
must not contravene public policy. Secondly, the
contract must be between persons relating entirely to
their own private affairs and thirdly, each party must
be a free bargaining agent to the agreement so that
the contract is not one of adhesion. Princeton
Sportswear Corp. v. H & M Associates, 507 A.2d
339 (Pa. 1986); Employers Liability Assurance
Corp. v. Greenville Business Men’s Association,
224 A.2d 620 (Pa. 1966). In Dilks v. Flohr
Chevrolet, 192 A.2d 682 (Pa. 1963), [our supreme
court] noted that once an exculpatory clause is
determined to be valid, it will, nevertheless, still be
unenforceable unless the language of the parties is
clear that a person is being relieved of liability for his
own acts of negligence. In interpreting such clauses
6 As noted by Justice Baer in his concurring opinion in Chepkevich, a review
of the release issued by defendants and signed by appellant is not wholly
necessary. Chepkevich, 2 A.3d at 1198 (Baer, J., concurring). The majority
stated that, “consideration of alternative holdings is subject to prudential
concerns, and we believe there are prudential concerns to consider the
Release here.” Id. at 1188 n.16. We will follow the lead of the majority and
analyze both issues as they have both been briefed and argued before this
court.
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we listed as guiding standards that: 1) the contract
language must be construed strictly, since
exculpatory language is not favored by the law; 2) the
contract must state the intention of the parties with
the greatest particularity, beyond doubt by express
stipulation, and no inference from words of general
import can establish the intent of the parties; 3) the
language of the contract must be construed, in cases
of ambiguity, against the party seeking immunity from
liability; and 4) the burden of establishing the
immunity is upon the party invoking protection under
the clause. Dilks, 192 A.2d at 687.
Topp Copy Products, Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993), cited
by Chepkevich, 2 A.3d at 1189.
In the context of exculpatory releases used for downhill skiing, we find
the rationale behind the Chepkevich court’s decision to be highly instructive
to the instant appeal.7
7 The release before the Chepkevich court was printed on an 8½ by 11-inch
sheet of paper entitled “RELEASE FROM LIABILITY” and contained the
following language:
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.
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As we have stated, downhill skiing . . . is a voluntary
and hazardous activity, and that fact is acknowledged
in the Act as discussed above. Moreover, an
exculpatory agreement conditioning the use of a
commercial facility for such activities has not been
construed as a typical contract of adhesion. The
signer is under no compulsion, economic or otherwise,
to participate, much less to sign the exculpatory
agreement, because it does not relate to essential
services, but merely governs a voluntary recreational
activity. The signer is a free agent who can simply
walk away without signing the release and
participating in the activity, and thus the contract
signed under such circumstances is not
unconscionable. Moreover, the absence of a definition
or illustration of negligence does not render this
Release an invalid contract of adhesion; that factor
simply does not relate to the concerns implicated by
adhesion contracts.
Chepkevich, 2 A.3d at 1191 (internal citations omitted).
Facial Validity
Similar to the Chepkevich court, we must first look to the facial validity
of the release. In Chepkevich, our supreme court found that the release
signed by the plaintiff did not “contravene any policy of the law. Indeed, the
clear policy of this Commonwealth, as articulated by the Act, is to encourage
the sport [of downhill skiing] and place the risks of skiing squarely on the
skier.” Id., citing 42 Pa.C.S.A. § 7102(c)(2). The court also stated that,
“Pennsylvania courts have upheld similar releases respecting skiing and other
inherently dangerous sporting activities.” Id. (collecting cases). Finally, our
Chepkevich, 2 A.3d at 1176.
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supreme court held that the release the plaintiff signed was a contract
between Hidden Valley and the plaintiff, “relating to their private affairs,
specifically [the plaintiff’s] voluntary use of the resort’s facilities.” Id.
Our discussion in the instant appeal is comparable to the analysis
employed by the Chepkevich court. Here, the release signed by appellant
does not contravene any policy of the law. Similar to the release used by
defendant Hidden Valley in Chepkevich, the release before us relates to the
private affairs of appellant and defendants--namely, appellant’s voluntary use
of defendants’ facilities. Accordingly, we find that the release signed by
appellant is facially valid.
Enforceability
Similar to the Chepkevich court, we must now look to the release’s
enforceability. “[T]he Topp Copy/Employers Liability standard requires us
to construe the release strictly against [defendants] to determine whether it
spells out the intention of the parties with particularity and shows to the intent
to release [defendants] from liability by express stipulation, recognizing that
is [defendants’] burden to establish immunity.” Id., citing Topp Copy, 626
A.2d at 99.
In the instant appeal, appellants aver that the release was ambiguous,
lacked conspicuity, and “was without print of a size and boldness that draws
the attention of an ordinary person.” (Appellant’s brief at 33.) Appellants
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further aver that there is no evidence that appellant read the release before
signing it. (Id.) We shall address each of these claims individually.
Appellants first aver that the language of the release was ambiguous.
Specifically, appellants allege that the release failed to “clearly and
unequivocally intend for the defendant[s] to be relieved from liability, using
language understandable to an ordinary and knowledgeable person so
participants know what they have contracted away.” (Id. at 39.) Appellants
then allege that the release failed include any reference to the risk
encountered by appellant. (Id. at 43.) Appellants specifically argue that “the
risk [appellant] encountered, i.e., deep and wide frozen trenches in the middle
of a beginner’s slope, are not stated because it is nonsensical to contend such
a serious hazard is inherent to the sport.” (Id.) This argument misses the
mark. To the contrary, as noted supra, one of the inherent risks explicitly
referenced in the release is the presence of ruts on the ski slope.
Merriam-Webster defines “rut” as “a track worn by a wheel or by habitual
passage.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 2 Jan.
2018. Roget’s Thesaurus identifies “trench” as a synonym of “rut.”
Thesaurus.com. Roget’s 21st Century Thesaurus, Third Edition, n.d. Web.
2 Jan. 2018. We therefore find that defendants’ release was not ambiguous,
and that it explicitly referenced the risk encountered by appellant.
We now turn to appellants’ claim that the release lacked conspicuity and
“was without print of a size and boldness that draws the attention of an
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ordinary person.” (Appellants’ brief at 33.) As noted above, the release
appellant signed contained information regarding his season ski pass.
Following the ski pass information, in a paragraph labeled “PLEASE READ THE
FOLLOWING BEFORE SIGNING!![,]” defendants’ release contained the
exculpatory language before us for review. (Id. at 34.)
The Pennsylvania Uniform Commercial Code8 defines “conspicuous” as
“so written, displayed, or presented that a reasonable person against which it
is to operate ought to have noticed it.” 13 Pa.C.S.A. § 1201(b)(10). The Code
specifically states that a conspicuous term includes the following:
(i) A heading in capitals equal to or greater in size
than the surrounding text, or in contrasting
type, font or color to the surrounding text of the
same or lesser size.
(ii) Language in the body of a record or display in
larger type than the surrounding text, in
contrasting type, font or color to the
surrounding text of the same size, or set off
from surrounding text of the same size by
symbols or other marks that call attention
to the language.
Id. at § 1201(b)(10)(i-ii) (emphasis added).
Here, the release issued by defendants and signed by appellant meets
the definition of conspicuous as set forth by the Pennsylvania Uniform
8 As in prior cases, we note that the Uniform Commercial Code is applicable
to the sale of goods, while this case pertains to the sale of services;
“nevertheless, we find the UCC’s warrant disclaimer provision in Article 2, and
its interpreting caselaw, provides guidance in the instant case.”
Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266, 1274 n.12 (Pa.Super.
2006).
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Commercial Code. The exculpatory language of the release is preceded by a
heading that is written in all capital letters in a size of text equal to the
exculpatory language of the release. The heading also contains two
exclamation points that call attention to the language of the heading, pursuant
to the Code. Accordingly, we find that appellants’ argument that the release
lacked conspicuity and “was without print of a size and boldness that draws
the attention of an ordinary person” is without merit, as defendants’ release
is conspicuous under the Pennsylvania Uniform Commercial Code.
Finally, we address appellants’ averment that that there is no evidence
that appellant read the release before signing it. Our cases provide that
“failure to read an agreement before signing it does not render the agreement
either invalid or unenforceable.” Toro v. Fitness International LLC, 150
A.3d 968, 975 (Pa.Super. 2016), citing Hinkal v. Pardoe, 133 A.3d 738, 743
(Pa.Super. 2016), appeal denied, 141 A.3d 481 (Pa. 2016). See also
Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174
(E.D. Pa. 1990) (“The law in Pennsylvania is clear. One who is about to sign
a contract has a duty to read that contract first”). In the instant appeal,
appellant was not excused of his duty to read the Release before signing it.
Therefore, appellant’s argument that there is no evidence that he read the
release before signing is without merit.
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Gross Negligence and Reckless Conduct
Finally, appellant avers that the release does not protect defendants
from liability for acts of gross negligence and/or reckless conduct. Our
supreme court has held that exculpatory releases of reckless behavior are
contrary to public policy, “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.” Tayar v. Camelback Ski
Corp., Inc., 47 A.3d 1190, 1203 (Pa. 2012), citing Hall v. Amica Mut. Ins.
Co., 648 A.2d 755, 760 (Pa. 1994). Therefore, our inquiry centers on whether
the conduct alleged by appellants—operating an ATV on a ski slope and
creating wheel ruts on the slope—constituted gross negligence and/or reckless
conduct.
This court has observed the following pertaining to gross negligence:
In Ratti v. Wheeling Pittsburgh Steel Corp., 758
A.2d 695 (Pa.Super. 2000), appeal denied, 785 A.2d
90 (Pa. 2001), we indicated that when courts have
considered the concept of “gross negligence” in
various civil contexts, they have concluded uniformly
that there is a substantive difference between
“ordinary negligence” and “gross negligence.” Id. at
703. “The general consensus finds [that] 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.” Id. at 704 (relying in part on bailment cases
and in part on the definition of “gross negligence” as
applied to the [Mental Health Procedures Act 9]).
Gross negligence may be deemed to be a lack of slight
diligence or care compromising a conscious, voluntary
9 50 P.S. §§ 7101-7503.
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act or omission in “reckless disregard” of a legal duty
and the consequences to another party. Id. at 704-
705 (citing Black’s Law Dictionary 1057 (7th ed.
1999)).
In re Scheidmantel, 868 A.2d 464, 485-486 (Pa.Super. 2005).
While it is generally true that the issue of whether 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.
Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525-526
(Pa.Super. 2003) (en banc), quoting Albright v. Abington Memorial
Hospital, 696 A.2d 1159, 1164-1165 (Pa. 1997).
The Tayar court provided the following comparison of recklessness with
ordinary negligence:
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. In Fitsko v. Gaughenbaugh, 69 A.2d
76 (Pa. 1949), [our supreme court] cited with
approval the Restatement ([First]) of Torts[10]
definition of “reckless disregard” and its explanation
of the distinction between ordinary negligence and
recklessness. Specifically, the Restatement (Second)
of Torts defines “reckless disregard” as follows:
The actor’s conduct is in reckless
disregard of the safety of another if he
does an act or intentionally fails to do an
act which it is his duty to the other to do,
10 The Restatement (Second) of Torts was published in 1965.
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knowing or having reason to know of facts
which would lead a reasonable man to
realize, not only that his conduct creates
an unreasonable risk of physical harm to
another, but also that such risk is
substantially greater than that which is
necessary to make his conduct negligent.
Restatement (Second) of Torts § 500 (1965). The
Commentary to this Section emphasizes that
“[recklessness] must not only be unreasonable, but it
must involve a risk of harm to others substantially in
excess of that necessary to make the conduct
negligent.” Id., cmt. a. Further, as relied on in
Fitsko, the Commentary contrasts negligence and
recklessness:
Reckless misconduct differs from
negligence in several important
particulars. If differs from that form of
negligence which consists in mere
inadvertence, incompetence,
unskillfulness, or a failure to take
precautions to enable the actor
adequately to cope with a possible or
probable future emergency, in that
reckless misconduct requires a conscious
choice of a course of action, either with
knowledge of the serious danger to others
involved in it or with knowledge of facts
which would disclose this danger to any
reasonable man. . . . The difference
between reckless misconduct and conduct
involving only such a quantum of risk as
is necessary to make it negligent is a
difference in the degree of risk, but this
difference of degree is so marked as to
amount substantially to a difference in
kind.
Id., cmt. g; see also AMJUR Negligence § 274
(“Recklessness is more than ordinary negligence and
more than want of ordinary care; it is an extreme
departure from ordinary care, a wanton or heedless
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indifference to consequences, and indifference
whether or not wrong is done, and an indifference to
the rights of others”). Our criminal laws similarly
distinguish recklessness and negligence on the basis
of the consciousness of the action or inaction. See
18 Pa.C.S.A. § 302(b)(3), (4) (providing that a person
acts recklessly when he “consciously disregards a
substantial and unjustifiable risk,” while a person acts
negligently when he “should be aware of a substantial
and unjustifiable risk”).
This conceptualization of recklessness as requiring
conscious action or inaction not only distinguishes
recklessness from ordinary negligence, but aligns it
more closely with intentional conduct.
Tayar, 47 A.3d at 1200-1201.
Here, we find as a matter of law, that the record does not reflect gross
negligence or reckless conduct on the part of defendants. Specifically, we
agree with the trial court’s following conclusion:
[Appellants] aver that Defendants’ snow-making crew
created the “trenches” by operating an
all-terrain-vehicle across part of the ski-slope, rather
than entirely along the sides of the
slopes.[Footnote 7] While apparently against normal
maintenance policy and procedures and arguably
negligent, we do not believe these actions amount to
gross negligence or recklessness. Defendants’
employees were engaged in the normal and expected
process of maintaining the ski slopes and did so in a
careless fashion, producing a condition that—although
possibly dangerous—was not inherently unexpected
upon a ski slope. We view such conduct to be a matter
of “. . . mere inadvertence, incompetence,
unskillfulness, or a failure to take precautions” rather
than recklessness.
[Footnote 7] Defendants seemingly
concede the cause of the “trenches” and
Defendants’ employees conceded that
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such actions were improper in normal
slope maintenance process.
Trial court opinion, 5/24/17 at 8-9.
Accordingly, we find that defendants did not engage in grossly negligent
or reckless conduct, and that the Release provided by defendants and signed
by appellant is enforceable.
Order affirmed.
Bowes, J. joins this Opinion.
Stabile, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2018
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