Chepkevich v. Resort

• Decision Date: 21 June 2010
• Citation: 2 A.3d 1174
• Parties: Lori T. CHEPKEVICH and Jeff Chepkevich, Appellees v. HIDDEN VALLEY RESORT, L.P., Appellant
• Court: Pennsylvania Supreme Court

2 A.3d 1174

Lori T. CHEPKEVICH and Jeff Chepkevich, Appellees

v.HIDDEN VALLEY RESORT, L.P., Appellant

Supreme Court of Pennsylvania.

Argued March 3, 2008.

Decided June 21, 2010.

Jamie Lynn Lenzi, Gerard J. Cipriani, Cipriani & Werner, P.C., for Hidden Valley Resort, L.P.

Templeton Smith, Jr., Richard E. Rush, Thomson, Rhodes & Cowie, P.C., for Lori T. Chepkevich and Jeff Chepkevich.

Barbara Axelrod, The Beasley Firm, L.L.C., for amicus curiae Pennsylvania Ass'n for Justice.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

OPINION

Chief Justice CASTILLE.

This Court granted allocatur to address the issue of whether a skier may maintain a negligence action against a ski resort for injuries sustained while skiing or whether suit is barred by statute and/or a release signed by the skier. For the reasons that follow, we reverse the order of the Superior Court and reinstate the trial court's order granting summary judgment in favor of the appellant ski resort.

I. FACTUAL AND PROCEDURAL BACKGROUND ¹

On December 31, 2001, appellee Lori Chepkevich and various family members, including her husband, appellee Jeff Chepkevich, were skiing on the slopes of appellant Hidden Valley Resort, L.P. (“Hidden Valley”). Lori was a season pass holder at Hidden Valley and an experienced skier. After the family had been skiing for several hours, Lori's six-year-old nephew Nicholas had to return to the condominium where the family was staying because he was cold. Lori volunteered to return with Nicholas while the rest of the family continued skiing.

To return to the condominium, Lori and Nicholas planned to ride the “Blizzard” ski lift. Because Lori was concerned that Nicholas would have difficulty boarding the chair lift due to his small size and inexperience, she asked the lift operator to slow the lift before it reached them so she could ensure that Nicholas boarded safely. The operator replied that this lift had only one speed and could not be slowed. ² According to Lori, the operator then agreed to stop the lift two times to allow them to board: first, when the chair was behind the bull wheel, to allow Lori and Nicholas to move out of the line of skiers waiting to board and position themselves in the path of the chair; then, a second time, just before the chair reached them, to allow them to board. After the lift was stopped the first time, Lori and Nicholas moved from the line and into the path of the chair. However, as the lift came around, the operator did not stop it again. Nevertheless, Lori safely boarded the lift, and the operator attempted to help Nicholas onto the moving seat by grabbing his shoulder and hoisting him up. Unfortunately, Nicholas was not properly seated, and he began to slip off the chair. Lori, who was seated, reached over and attempted to pull Nicholas onto the seat while shouting for the operator to stop the lift. The lift continued moving, and Lori and Nicholas fell. Nicholas was not seriously injured. Lori, however, suffered a dislocated shoulder and a fractured hip.

Appellees filed a lawsuit in the Somerset County Court of Common Pleas against Hidden Valley to recover damages for Lori's injuries and Jeff's loss of consortium. Appellees alleged that the damages were caused “solely and proximately” by Hidden Valley's negligence through its employee, the chair lift operator who stopped the lift the first time but not the second time. Hidden Valley filed an Answer and New Matter, alleging, inter alia, that appellees' lawsuit was barred by the assumption of the risk doctrine applicable to the sport of downhill skiing through Pennsylvania's Skier's Responsibility Act, 42 Pa.C.S. § 7102(c) (the “Act”), ³ and the Release from Liability that Lori signed when she purchased her season pass to ski at Hidden Valley (the “Release”).

The Release, printed on a single page and titled “RELEASE FROM LIABILITY,” stated:

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.

R.R. 58a. Hidden Valley moved for summary judgment and, following oral argument, the trial court granted the motion solely on the basis of the Release.

a. Trial Court

In its opinion, the trial court first examined whether summary judgment should be granted based on assumption of the risk as embodied in the Act. The court determined that summary judgment was inappropriate under the Act because Lori had not assumed the risk of her injury. The trial court considered and distinguished this Court's opinion in Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (2000), where we held that the doctrine of assumption of risk barred a skier's lawsuit for damages arising out of a collision with another skier at the base of a ski slope, a risk determined to be inherent to the sport of downhill skiing.

The trial court found the Superior Court's decision in Crews v. Seven Springs Mountain Resort, 874 A.2d 100 (Pa.Super.2005), appeal denied, 586 Pa. 726, 890 A.2d 1059 (2005), more relevant to this case than Hughes. In Crews, the panel majority held that the risk of injuries arising out of a collision with an underage drinker on a snowboard was not inherent to the sport of skiing because, the majority reasoned, that particular risk could be “removed ‘without altering the nature of the sport.’ ” 874 A.2d at 104 (quoting Knight v. Jewett, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, 709 (1992)). ⁴ The trial court reasoned that a skier assumes only the risk of injuries that: (1) occur while the skier is engaged in the sport of skiing; and (2) arise from risks inherent to the sport. The trial court concluded that Lori was engaged in the sport of skiing at the time of her injury but, under Crews, Lori did not assume the risk of lift operator negligence because that risk is not inherent to skiing. The trial court concluded that this specific risk “could be removed without altering the fundamental nature of skiing,” and thus the Act did not bar appellees' lawsuit. Trial Ct. Slip Op. at 7.

The trial court then turned to the question of whether Hidden Valley was entitled to summary judgment on the basis of the Release. The trial court held that Lori was barred from recovery as a matter of law because the terms of the Release expressly exempted Hidden Valley from liability for the negligent acts of its employees. The trial court noted that the Release “disclaims any liability” for “injuries suffered while engaged in the activity detailed in the release, which specifically includes riding the chair lift.” Trial Ct. Slip. Op. at 13.

Responding to appellees' assertion that the Release was invalid as against public policy, the trial court applied the test articulated by this Court in Topp Copy Prods. Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993). In Topp Copy, this Court held that an exculpatory clause is valid where it does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion. 626 A.2d at 99. Strictly construing the Release against Hidden Valley as the party pursuing immunity under it, the trial court held that the Release did not contravene public policy, related entirely to the parties' private affairs, and was not a contract of adhesion. The trial court concluded that the Release was enforceable because it expressly disclaimed liability for the negligent acts of Hidden Valley's employees, and thus “relieves [Hidden Valley] from all liability for any negligence by its employee in the operation of the ski lift.” Trial Ct. Slip. Op. at 14.

b. Superior Court

On appeal, the Superior Court reversed and remanded in a published opinion. Chepkevich v. Hidden Valley Resort, L.P., 911 A.2d 946 (Pa.Super.2006). Before the Superior Court, appellees maintained that the trial court correctly concluded that the Act did not preclude recovery because the alleged negligence of a lift operator is not an inherent risk of skiing. However, appellees argued that the trial court erred in holding that the Release barred their lawsuit. ⁵ Appellees averred that the plain language of the Release barred recovery for injuries caused by employee negligence only when the risk that led to the injury was inherent to the sport of skiing. Appellees argued that the risk that led to Lori's injuries was lift operator negligence, a risk not inherent to the sport of skiing, and therefore a risk not covered by the Release. Appellees maintained that, although the risk of falling off a ski lift may be inherent to the sport, the risk that a lift operator would expressly agree to stop the lift twice to enable a small child to board and then fail to do so, is not. Further, appellees argued that the trial court erred by failing to hold, in the alternative, that even if the Release had been otherwise applicable, the lift operator's alleged agreement to stop the lift a second time to allow Lori and Nicholas to board “superseded” the Release and rendered Hidden Valley liable for its employee's negligent “breach of an express promise.”

In its response to appellees' Superior Court arguments, Hidden Valley asserted that the trial court correctly granted summary judgment based on the...