184 A.3d 974
Pa. Super. Ct.2018Background
- On March 21, 2014 Patrick Kibler purchased a 2014–2015 season ski pass at Blue Knob and signed a printed season-pass form containing an exculpatory paragraph listing inherent risks (including ruts) and a forum-selection clause.
- On December 21, 2014 Kibler fell on a slope after running over wheel ruts/trenches (4–6 inches deep, 6–8 inches wide) allegedly created by an ATV operated by resort employees; he fractured his left tibia and fibula.
- Kiblers sued in negligence; after discovery defendants moved for summary judgment and the trial court granted it, dismissing the complaint with prejudice.
- On appeal Kibler challenged (1) whether the trench/ATV-created ruts were an "inherent risk" of downhill skiing and (2) the validity/enforceability of the season-pass release (conspicuity, ambiguity, and whether it covers gross negligence/recklessness).
- The Superior Court reviewed summary judgment de novo, applied the Skier’s Responsibility Act framework (ask whether plaintiff was skiing and whether the risk was inherent), and analyzed exculpatory-release law and standards for gross negligence/recklessness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether wheel ruts/trenches created by an ATV are an "inherent risk" of downhill skiing | Kibler: ATV ruts are not common or expected; director of maintenance testified skiers should not anticipate them | Blue Knob: The condition (ruts/terrain variations) itself is an inherent skiing risk irrespective of its cause | Held: Wheel ruts/trenches are an inherent risk of skiing; summary judgment for defendants (no recovery as a matter of law) |
| Whether the printed season-pass release is a valid, enforceable exculpatory clause (facial validity) | Kibler: Release ambiguous and lacks conspicuity; no evidence he actually read it | Blue Knob: Release is facially valid, conspicuous, and part of a voluntary recreational contract | Held: Release is facially valid and not contrary to public policy; conspicuous under UCC definition; duty to read applies |
| Whether the release is enforceable (clarity/scope re: the specific hazard) | Kibler: Release fails to specify the risk encountered and is ambiguous about releasing negligence liability | Blue Knob: Release lists ruts/terrain variations explicitly and must be construed for particularity against the defendant; burden on defendant met | Held: Release is not ambiguous as to ruts/terrain; it expressly covers the encountered risk and is enforceable against Kibler |
| Whether the release cannot bar claims for gross negligence or reckless conduct | Kibler: ATV use across slope was grossly negligent/reckless and thus not waivable | Blue Knob: ATV operation was at most ordinary negligence/maintenance carelessness, not reckless or grossly negligent | Held: Record does not support gross negligence/recklessness as a matter of law; conduct was ordinary negligence at most, so release bars recovery |
Key Cases Cited
- Petrina v. Allied Glove Corp., 46 A.3d 795 (Pa. Super. 2012) (summary-judgment standard and plaintiff-burden principles)
- Criswell v. Atlantic Richfield Co., 115 A.3d 906 (Pa. Super. 2015) (summary judgment discussion re: plaintiff failure to produce essential evidence)
- Hughes v. Seven Springs Farm, Inc., 762 A.2d 339 (Pa. 2000) (Skier’s Responsibility Act framework: was plaintiff skiing and was the risk inherent)
- Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174 (Pa. 2010) (analysis of exculpatory releases in ski context and treatment of inherent risks)
- Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012) (exculpatory releases cannot bar claims for reckless conduct; recklessness vs. negligence distinction)
- Topp Copy Products, Inc. v. Singletary, 626 A.2d 98 (Pa. 1993) (standards for construing exculpatory clauses strictly against party seeking immunity)
- Dilks v. Flohr Chevrolet, 192 A.2d 682 (Pa. 1963) (release must clearly and unequivocally relieve party of liability for negligence)
- Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695 (Pa. Super. 2000) (discussion of gross negligence standard)
- Downey v. Crozer-Chester Medical Center, 817 A.2d 517 (Pa. Super. 2003) (when gross negligence/recklessness may be decided as matter of law)