Barillari v. Ski Shawnee, Inc.

Decision Date12 November 2013
Docket NumberCiv. No. 3:12–CV–00034.
Citation986 F.Supp.2d 555
PartiesColleen BARILLARI and William Barillari, Plaintiffs, v. SKI SHAWNEE, INC., Defendant.
CourtU.S. District Court — Middle District of Pennsylvania

OPINION TEXT STARTS HERE

Edward Shensky, Michael C. Ksiazek, Stark & Stark, Yardley, PA, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA, for Plaintiffs.

MEMORANDUM

MATTHEW W. BRANN, District Judge.

Before the Court is Ski Shawnee, Inc.'s (Defendant) motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari (Plaintiffs). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant's alleged negligence. See Pls.' Compl. 9–13, Jan. 6, 2012, ECF No. 1.

The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs' claims are barred by the Pennsylvania Skier's Responsibility Act, 42 Pa.C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.'s Br. Supp. Mot. Summ. J. 5–9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.'s Br.]. The Court hereby denies the Defendant's motion for summary judgment on both theories for the reasons that follow.

I. BACKGROUND

This case arises from an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.'s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.'s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.'s SOF ¶¶ 3–4; Pls.' Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.' SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.'s SOF ¶¶ 6–13.

The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.'s SOF ¶¶ 12–13; Pls.' SOF ¶¶ 10–11. There was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” Def.'s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.' SOF ¶ 19.

Mrs. Barillari was generally aware of the risks of collision between skiers. Def.'s SOF ¶ 7. At the time, however, she was not worried about skiers colliding with her because she believed that she was close enough to the dividing tape and there were other spectators in the area. Def.'s SOF ¶¶ 15–17; Pls.' SOF ¶¶ 15–17. Unfortunately for Mrs. Barillari, a skier did collide with her and caused an injury to her left leg. Pls.' SOF, at 2. The Court considers the legal arguments in light of these facts.

II. DISCUSSIONA. LEGAL STANDARDS

1. Summary Judgment

Summary judgment is appropriate when the court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the court considers the evidence on summary judgment, [t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255, 106 S.Ct. 2505.

The party moving for summary judgment bears the burden of establishing the nonexistence of a “genuine issue” of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir.2003) (internal quotations and citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party's claim, or demonstrating the other party's evidence is insufficient to establish an essential element of its claim. Id. at 331.

Once the moving party satisfies this initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must “make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Moreover, [w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir.2002) (internal quotations and citation omitted).

In deciding the merits of a party's motion for summary judgment, the court's role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Credibility determinations are the province of the factfinder, not the district court. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992). Consequently, summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 54(a).

2. Pennsylvania Law Must Be Applied In This Case

This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New Jersey, the Defendant is a Pennsylvania corporation with a principal place of business in Pennsylvania, and the amount in controversy is alleged to be over $75,000—consequently, diversity jurisdiction is proper. See28 U.S.C. § 1332; Pls.' Compl., ¶¶ 1, 2, 46.

As this is a diversity action and Pennsylvania was the situs of the injury, this Court “must apply Pennsylvania law to the facts of this case.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir.2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).

B. THE PENNSYLVANIA SKIER'S RESPONSIBILITY ACT DOES NOT APPLY TO THIS CASE

The Defendant asserts that the Plaintiffs' claims are barred by the assumption of the risk doctrine. Def.'s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See42 Pa.C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier's Responsibility Act, reads:

(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). 1

42 Pa.C.S.A. § 7102(c).

The Restatement (Second) of Torts, § 496A, summarizes the essence of the assumption of the risk doctrine: [a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” As the Supreme Court of Pennsylvania elucidated, [t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2).

Applying those principles to the Skier's Responsibility Act, that same court “made clear that this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343–44 (2000)). Consequently, [w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant—the Comparative Negligence Act is inapplicable—and there can be no recovery based on allegations of negligence.” Id.

The Supreme Court of Pennsylvania 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 Hughes 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.

First, the Court considers whether Mrs. Barillari was “engaged in the sport of downhill skiing at the time of her injury.” Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:

the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities...

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