Smith v. Seven Springs Farm, Inc.

• Decision Date: 12 September 1983
• Docket Number: No. 82-5691,82-5691
• Citation: 716 F.2d 1002
• Parties: Peter SMITH, Appellant, v. SEVEN SPRINGS FARM, INC., t/d/b/a Seven Springs Ski Resort.
• Court: U.S. Court of Appeals — Third Circuit

Page 1002

716 F.2d 1002

Peter SMITH, Appellant, v. SEVEN SPRINGS FARM, INC., t/d/b/a Seven Springs Ski Resort.

No. 82-5691.

United States Court of Appeals Third Circuit.

Argued Aug. 8, 1983.

Decided Sept. 12, 1983.

Allen L. Rothenberg, Marc Weinberg (argued), Ezra Wohlgelernter, Philadelphia, Pa., for appellant.

Gerard J. Cipriani (argued), Murovich, Reale, Fossee & Ferry, P.C., Pittsburgh, Pa., for appellee.

Before ALDISERT and WEIS, Circuit Judges, and RE, Chief Judge. ^*

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This diversity case, governed by Pennsylvania law, asks us to interpret the Pennsylvania Skier's Responsibility Act, 42 Pa.Cons.Stat.Ann. Sec. 7102 (Purdon Supp.1982), to decide whether appellant Peter Smith assumed the risk of skiing injuries sustained at Seven Springs Ski Resort so as to discharge the resort from its duty of care and preclude a finding that it was negligent. The district court found that Smith assumed the risk as a matter of law and granted summary judgment in favor of Seven Springs. We affirm.

I.

Appellant Peter Smith is no novice to the sport of downhill skiing. He has skied for over thirteen years and characterizes himself as an advanced intermediate skier.

On February 2, 1980, Smith skied at Seven Springs for the first time. He went to the top of the mountain to ski the North Face, a trail that consists of two short, gentle slopes, one at the top of the mountain and one at the bottom with a steep headwall in between. A sign is posted at the beginning of the trail displaying the international skiing symbol of a black diamond below which are printed the words "MOST DIFFICULT." Heeding the sign and deciding not to take a less difficult trail that branches off to the side at the top of the mountain, Smith began his descent down North Face. As he approached the headwall, he stated that he was aware that the headwall was icy and that skiers ahead of him were having trouble negotiating its steep slope. ¹ He also stated that he was aware that a series of unprotected telephone-like poles, part of the resort's snowmaking apparatus, lined the center of the headwall. ²

These conditions, however, did not prompt Smith to change course. Although he had the option to stop, turn around, and side-step back uphill to a gentler slope, he instead proceeded to traverse the headwall. Seconds later, he encountered the icy conditions and attempted to move to the center of the slope, toward the snowmaking apparatus, in search of less icy terrain. The maneuver was unsuccessful. He fell, lost his skis, and slid into one of the telephone-like poles and two nearby snowmaking pipes. As a result, he sustained serious and permanent injuries to his right knee.

Smith brought the present negligence action seeking to recover for his injuries. The district court, relying in part on the Pennsylvania Skier's Responsibility Act, 42 Pa.Cons.Stat.Ann. Sec. 7102(c) (Purdon Supp.1982), ruled against him in summary judgment, concluding that, as a matter of law, he had assumed the risk of injury so as to discharge Seven Springs from its duty of care. Smith appeals, contending: (1) that the district court erred in its interpretation of Pennsylvania law and thereby erroneously defined the applicable doctrine of assumption of risk; ³ and (2) that it was improper for the court to grant summary judgment when material facts as to his knowledge, appreciation, and voluntary acceptance of the risk remained in dispute. As to his first contention, our review is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir.1981). As to his second, we must view the evidence in a light most favorable to appellant and only uphold the district court's ruling if we find that there was no genuine issue of material fact and that the movant was entitled to judgment as a matter of law. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976).

II.

The law of assumption of risk, generally, is not free from confusion. Pennsylvania law is no exception. The complexity of the doctrine and the consequent difficulty of its application are well illustrated by three disparate meanings given the term by the courts:

In its simplest form, assumption of risk means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk....

A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk ....

In a third type of situation the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it.

* * *

Restatement (Second) of Torts Sec. 496A comment c (1965).

For our purposes, however, we believe these three situations give rise to two types of assumption of risk defenses. It may be that plaintiff's conduct in voluntarily encountering a known risk was reasonable. If so, the defense of assumption of risk in its primary sense operates to deny the defendant's negligence by denying the duty of care element of that offense; plaintiff does not recover because defendant's conduct is not a legal wrong as to him. See Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479, 484 (3d Cir.1965) (smoking cigarettes), cert. denied, 382 U.S. 987, 86 S.Ct. 549, 15 L.Ed.2d 475 (1966); Elliott v. Philadelphia Transportation Co., 160 Pa.Super. 291, 294, 50 A.2d 537, 539 (1947); Prosser, Law of Torts Sec. 68, at 440 (4th ed. 1971). But if plaintiff's conduct was unreasonable, the defense of assumption of risk in its secondary sense operates to bar his recovery for two reasons--because he implicitly consented to accept the risk, and on the policy grounds that it would be inappropriate to impose on the defendant a loss for which plaintiff's own negligence was in part responsible. See Pritchard, 350 F.2d at 484; Stephenson v. College Misericordia, 376 F.Supp. 1324 (M.D.Pa.1974); Restatement (Second) of Torts Sec. 496A comment c(4) (1965).

In its secondary sense, therefore, the defense of assumption of risk overlaps with the defense of contributory negligence. Elliott, 160 Pa.Super. at 294-95, 50 A.2d at 539.

Where [these defenses] have been distinguished, the traditional basis has been that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable man, however unaware, unwilling, or even protesting the plaintiff may be. Obviously the two may co-exist, when the plaintiff makes an unreasonable choice to incur the risk; but either may exist without the other. The significant difference, when there is one, is likely to be one between risks which were in fact known to the plaintiff and risks which he merely might have discovered by the exercise of ordinary care.

Prosser, Law of Torts Sec. 68, at 441 (4th ed. 1971) (emphasis added); see also Koshorek v. Pennsylvania Railroad Co., 318 F.2d 364, 367 (3d Cir.1963).

Thus, if a distinction must be made, it is that assumption of risk involves the meeting of a subjectively known risk, whereas contributory negligence may involve the plaintiff exposing himself to a danger of which he was subjectively unaware but which would have been apparent had he used due care. With the former, plaintiff's conduct may be quite reasonable because its advantages outweigh its risks; but regardless, if plaintiff is injured, defendant is not liable. With the latter, plaintiff's conduct may be considered in itself unreasonable; if plaintiff is injured, he is barred from recovering because of his failure to exercise due care.

III.

In the past, there was no need to distinguish among the defenses of assumption of risk in its primary sense, assumption of risk in its secondary sense, and contributory negligence; each defense, if successfully asserted, would have barred plaintiff's recovery for negligence. With the enactment of Pennsylvania's comparative negligence statute, however, the previously blurred distinctions among the defenses acquired renewed significance. That statute provides:

(a) General rule.--

In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.

(b) Recovery against joint defendant; contribution.--

Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.

(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 (b).

42 Pa.Cons.Stat.Ann. Sec. 7102 (Purdon Supp.1982) (...