Bourgeois v. Snow Time, Inc.
| Decision Date | 09 December 2020 |
| Docket Number | No. 50 MAP 2019,50 MAP 2019 |
| Parties | Ray M. BOURGEOIS and Mary Ann I. Bourgeois, Appellants v. SNOW TIME, INC. and Ski Roundtop Operating Corporation, Appellees |
| Court | Pennsylvania Supreme Court |
Michael Patrick Malvey, Esq., Philadelphia, for Appellants.
Anthony Wayne Hinkle, Esq., Blue Bell, for Appellees.
Joseph Z. Traub, Esq., Raynes Lawn Hehmeyer, P.C., Philadelphia, for Amicus Curiae.
OPINION
In this appeal by allowance, we consider whether the Superior Court erred in affirming the trial court order granting summary judgment in favor of Snow Time, Inc. and Ski Roundtop Operating Corp. (collectively Ski Roundtop). We conclude the Superior Court erred in failing to consider the evidence, specifically the expert reports, in the light most favorable to the non-moving parties, Ray M. Bourgeois and Mary Ann I. Bourgeois (collectively the Bourgeoises). Accordingly, we reverse and remand for further proceedings.
On February 17, 2013, Ray Bourgeois hyperextended his spinal cord, resulting in quadraplegia, at Roundtop Mountain Resort when the snow tube he was riding collided with a folded "deceleration mat" that the resort's employees had placed at the bottom of the snow tubing hill to slow down snow tubing patrons and prevent them from traveling beyond the run-out area. As further factual background,1 Ski Roundtop Operating Corporation, a wholly-owned subsidiary of Snow Time, Inc., operates Roundtop Mountain Resort in York County, Pennsylvania. Ski Roundtop's Brief at 2 n.1. In the winter season, Roundtop Mountain Resort offers skiing, snowboarding, and snow tubing. In 1995, Roundtop Mountain Resort introduced its snow tubing attraction, which it advertised as a "no experience necessary" activity. Snow tubing does not require experience because a patron cannot exercise much control over the speed, direction, or deceleration of their snow tube as it descends down the hill. Instead, a patron rides on top of an inflatable snow tube—in either a seated, feet-first position or a prone, head-first position—down the slope and the patron's speed is influenced by gravity and the conditions of the hill, similar to sledding.
Roundtop Mountain Resort's snow tubing slope is comprised of 14 adjacent lanes separated by berms, which are piles of snow that define each lane and prevent tubes traveling down one lane from crossing into adjacent lanes. Each lane terminates in a runout area, in which the snow tubes slow down and come to a controlled stop. Beyond the run-out area, there is a "mixing area," which is where patrons who have completed the snow tubing run get out of their tubes and walk towards the exit or the lift.
Since 1995, Roundtop Mountain Resort has modified its snow tubing hill several times. In 1996-97, it extended the riding lanes and the run-out area of the hill, and it also removed the reverse incline at the end of the run-out area. Next, in 2004, it added approximately 10 to 11 feet of elevation to the top of the hill in response to its patrons’ complaints that they frequently were not reaching the bottom of the hill because it was too slow, and it again expanded the run-out area. At the time of the incident in this case, the tubing hill was approximately 800 feet long and had a vertical drop of 80 feet.
In 2007, Ski Roundtop began using deceleration mats at the bottom of the hill to stop the snow tubes before they could enter the mixing area. The deceleration mats were not always deployed; instead, when a snow tubing supervisor determined the hill was running fast, the supervisor would instruct employees to place mats at the end of the lanes. Further, the deceleration mats were actually anti-slip, anti-fatigue mats that were marketed for use in commercial kitchens and not specifically designed for use as snow tube deceleration devices. The mats had uniform, circular perforations (drainage holes) and had two distinct sides, a top side that was relatively smooth and a bottom side that was rougher with "nubs" protruding to grip the surface of the kitchen floor and prevent the mat from slipping on the floor. Roundtop Mountain Resort borrowed its first set of mats from another ski resort. Subsequently, to obtain the mats, the resort's snow tubing manager would browse the internet for mats that were similar to those already in use at the resort or would consult the resort's "food and beverage guy" to learn where he acquired the mats used in the resort's kitchen. As a result, the resort used different brands and styles of mats in the snow tubing run-out area.
Roundtop Mountain Resort employed snow tubing supervisors and "safeties" to assist its patrons and monitor the conditions of the tubing hill. At the top of the hill, the resort had signs that advised its snow tubing patrons of the speed of the hill at any given time. The speeds were classified as very slow, slow, moderate, fast, or very fast, depending on the weather and the condition of the snow on the hill. The Safety's Training Manual instructed employees at the top of the snow tubing hill: Bourgeoises’ Opposition to Motion for Summary Judgment, Ex. K, R. 422a. Similarly, affixed to each snow tube was a warning label stating:
Id. , Ex. E, R. 305a. The Safety's Training Manual further advised employees at the bottom of the hill: Id. , R. 423a. Roundtop Mountain Resort did not have additional policies governing the use of deceleration mats, and it did not deploy the mats in a uniform manner, at times they were flat and at times they were folded over, "as necessary to address changing conditions on the Tubing Hill." Ski Roundtop's Answer & New Matter, 9/29/16, at ¶ 22.
The circumstances of Mr. Bourgeois's injury follow. On February 16, 2013, Mr. and Mrs. Bourgeois purchased a snow tubing season pass. The reverse side of the season pass contained a release agreement, which provided that snow tubing involves "inherent and other risks that could lead to serious injury or death." Id. , Ex. A, R. 95a. It then delineated a nonexclusive number of risks, including falling out of the tube, traveling at different speeds, colliding with other tubes, people, and "man-made objects such as: fencing, snowmaking and grooming equipment, collisions with natural objects, [and] collisions with associated equipment[.]" Id. The release provided that the signatory both assumed all the risks of snow tubing and released Ski Roundtop from liability. Id. Mr. Bourgeois skimmed the release agreement and signed it. That same day, the Bourgeoises made 16 to 20 runs down the tubing hill without incident.
In the afternoon of the next day, February 17, 2013, after completing several runs, Mr. Bourgeois rode his snow tube in a prone position, head-first down the hill. See Ski Roundtop's Answer & New Matter, 9/29/16, at ¶ 59 (). At the end of the run, Mr. Bourgeois's tube went over a flat deceleration mat, which did not slow him down. He then collided with a second, folded mat, which caused the tube to stop abruptly. With this sudden stop of the tube, Mr. Bourgeois's momentum propelled him, while still holding on to the tube's handles to avoid falling off the tube, forward head first over the front of the tube and face down into the snow. With his head stuck in the snow, the momentum of his body carried him forward, which hyperextended his neck causing quadriplegia
. Mr. Bourgeois came to a rest on his back with the snow tube upside down on his chest. As a direct result of Mr. Bourgeois's accident, Ski Roundtop performed an investigation and decided to stop using mats to assist snow tubers with deceleration. Instead, the resort decided to increase the amount of snow-making equipment near the run-out area so it could create a reverse incline to slow down riders.
On January 16, 2015, the Bourgeoises commenced this personal injury lawsuit with a writ of summons. The Bourgeoises’ July 24, 2015 complaint pled claims of negligence, gross negligence, recklessness, and loss of consortium. The Bourgeoises asserted that Ski Roundtop "knew or should have known that placement of deceleration mats at the base of the run, and particularly by folding over a portion of the mat to create a raised surface, would increase the likelihood of [a] tube making a sudden stop at a high rate of speed, which would in turn increase the risk of harm to a rider on said tube." Complaint, 7/24/15, at ¶ 23. Additionally, the Bourgeoises averred that Ski Roundtop's "conscious decision to operate the snow tubing lanes despite unsafe conditions, permitting [Mr. Bourgeois] to ride head first under the prevailing conditions, and employing inadequate deceleration methods [ ] created risks of harm not inherent to the activity of snow tubing, [and] directly caused the harm to [Mr.] Bourgeois." Id. at ¶ 69.
In its answer and new matter, Ski Roundtop admitted it used deceleration mats "as an aid to slow riders down at the base of the...
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