Tayar v. Camelback Ski Corp.

• Decision Date: 18 July 2012
• Citation: 47 A.3d 1190
• Parties: Barbara Lichtman TAYAR, Appellee v. CAMELBACK SKI CORPORATION, INC. and Brian Monaghan, Appellants.
• Court: Pennsylvania Supreme Court

47 A.3d 1190

Barbara Lichtman TAYAR, Appellee

v.CAMELBACK SKI CORPORATION, INC. and Brian Monaghan, Appellants.

Supreme Court of Pennsylvania.

Argued May 11, 2011.

Decided July 18, 2012.

Hugh M. Emory, Ryan, Emory & Ryan, L.L.P., Paoli, for Camelback Ski Corporation, Inc. and Brian Monaghan.

Barbara Axelrod, Philadelphia, James Emmett Foerstner Jr., Beasley Law Firm, L.L.C., for Barbara Lichtman Tayar.

Marcy L. Colkitt, Colkitt Law Firm, P.C., Andrew J. Kennedy, Indiana, for Appellee Amicus Curiae, Sarah Scott.

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

OPINION

Justice TODD.

In this appeal by allowance, we address, inter alia, whether it is against public policy to release reckless behavior in a pre-injury exculpatory clause. After careful review, we conclude that releasing recklessness in a pre-injury release is against public policy, and so we reverse the Superior Court in part, affirm in part, and remand.

I. Background

Appellant Camelback Ski Corporation, Inc. (“Camelback”) operates a ski resort in Tannersville, Pennsylvania that offers various winter activities, including skiing and snow tubing. Before permitting its patrons to enjoy snow tubing, Camelback requires each customer to sign a pre-printed release form (“Release”),¹ which states, in relevant part:

CAMELBACK SNOW TUBING

ACKNOWLEDGMENT OF RISKS AND AGREEMENT NOT TO SUE

THIS IS A CONTRACT–READ IT

I understand and acknowledge that snow tubing, including the use of lifts, is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. I understand that part of the thrill, excitement and risk of snow tubing is that the snow tubes all end up in a common, runout area and counter slope at various times and speeds and that it is my responsibility to try to avoid hitting another snowtuber and it is my responsibility to try to avoid being hit by another snowtuber, but that, notwithstanding these efforts by myself and other snowtubers, there is a risk of collisions.

* * *

IN CONSIDERATION OF THE ABOVE AND OF BEING ALLOWED TO PARTICIPATE IN THE SPORT OF SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND ALL LIABILITY CAMELBACK SKI CORPORATION IF I OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT SUCH INJURIES ARE THE RESULT OF NEGLIGENCE OR ANY OTHER IMPROPER CONDUCT ON THE PART OF THE SNOWTUBING FACILITY.

Release (Exhibit A to Appellants Motion for Summary Judgment) (R.R. at 14a). ²

Camelback offers its customers two different methods of snow tubing. One set of snow tubing slopes grants snow tubers relatively uncontrolled access down the mountain and deposits them in a common receiving area. Alternatively, customers can enjoy two snow tubing slopes identified as “family” tubing slopes. These family tubing slopes are separated from the other snow tubing slopes, and the flow of snow tubers is controlled by a Camelback employee, who discharges them from the summit once the previous snow tubers have cleared the receiving area at the bottom. The receiving area for the family tubing slopes is segregated from the common receiving area connected to the other slopes.

On December 20, 2003, Appellee Barbara Lichtman Tayar (“Tayar”) and her family visited Camelback's facility in the early afternoon.³ After observing the snow tubing slopes for a period of time, Tayar and her family decided to join in, and, pursuant to Camelback's requirement, Tayar signed the Release. Tayar and her family elected to use the family tubing slopes, and completed four successful runs down the mountain, with Appellant Brian Monaghan (“Monaghan”), a Camelback employee, releasing them from the summit safely each time.

Tayar's fifth adventure down the mountain began just as the others, with Monaghan giving her a slight push to start her down the slope. Once she reached the receiving area at the bottom of the slope, however, Tayar exited her snow tube and was immediately struck by another snow tuber coming down the family tubing slope. Camelback employees rushed to assist Tayar out of the receiving area, when yet another snow tuber narrowly missed striking her. At this point, several Camelback employees were yelling and gesturing up the mountain to Monaghan to stop sending snow tubers down the slope until they could safely remove Tayar from the receiving area. As a result of the collision, Tayar suffered multiple comminuted fractures of her right leg, for which she underwent surgery and required two metal plates and 14 screws to stabilize her ankle.

Tayar filed a complaint against Camelback and Monaghan (collectively “Appellants”) in the Court of Common Pleas of Monroe County on January 6, 2005. Appellants filed an answer and new matter, and thereafter moved for summary judgment, asserting Tayar's claims against Camelback and Monaghan were barred by the Release. On March 31, 2006, the trial court granted Appellants' motion, reasoning the Release covered Camelback and thereby released it from any liability associated with Tayar's injuries. Additionally, the court determined that it did not need to address whether the Release encompassed Monaghan in his personal capacity because, in any event, the release printed on the lift ticket relieved Monaghan of liability. See supra note 1. Further, while the court concluded the evidence demonstrated Monaghan acted negligently by sending snow tubers down the mountain too early, it did not suggest he acted recklessly or with gross negligence. Thus, the trial court determined the Release and lift ticket relieved Appellants of liability and compelled entry of summary judgment in their favor. Tayar appealed to the Superior Court.

On appeal, a three-judge panel affirmed in a divided decision. Thereafter, Tayar requested the Superior Court rehear the matter en banc, and her request was granted. Upon rehearing, the en banc Superior Court reversed the trial court in a 5–4 decision. Tayar v. Camelback Ski Corp., Inc., 957 A.2d 281 (Pa.Super.2008). Construing the Release strictly against Appellants, the majority concluded the Release did not encompass Monaghan in his personal capacity because he failed to demonstrate the Release exculpated him with the “greatest particularity.” Id. at 289. As the Release did not mention employees, but only Camelback, the majority reasoned that reading the Release to encompass Monaghan in his personal capacity would require inserting language into the Release. The majority also determined that the Release encompassed only negligent conduct because its language was not specific enough to release acts of greater culpability: the Release “had to explicitly state that the releasor was waiving claims based upon allegations of recklessness and intentional conduct” in order for such conduct to be validly released. Id. at 292. Thus, the majority determined the Release was valid only with respect to Camelback, and relieved Camelback from liability for only negligent conduct. As the majority further found there existed a material question concerning whether Monaghan acted recklessly or negligently, the majority concluded the trial court erred by entering summary judgment in favor of Appellants, and remanded for further proceedings.

Judge Mary Jane Bowes authored a Dissenting Opinion, which was joined by Judge, now Justice, Orie Melvin, as well as Judges John T. Bender and Susan Peikes Gantman. Judge Bowes concluded the Release did release Monaghan from liability, reasoning a corporation may not act but through its employees, and noting Monaghan was acting within the scope of his employment when he sent the snow tubers down the mountain. Moreover, Judge Bowes concluded the Release was not against public policy and encompassed reckless conduct, as it referred to “negligence or any other improper conduct.” Id. at 297 (Bowes, J., dissenting) (quoting Release). In any event, Judge Bowes viewed Monaghan's actions as nothing more than garden variety negligence, which was unquestionably covered by the Release. Accordingly, Judge Bowes would have affirmed the trial court's grant of summary judgment in favor of Appellants.

Appellants petitioned this Court for review, which we granted to address three issues: (1) whether employees are encompassed by a release which only mentions the employer; (2) whether public policy permits releases of reckless behavior; and (3) if so, the language necessary to achieve such a release.⁴Tayar v. Camelback Ski Corp., Inc., 607 Pa. 460, 8 A.3d 299 (2010) (order).

II. Analysis

A. Does the Release cover employees of Camelback?

Appellants first argue the Superior Court erred by concluding that Monaghan was not covered by the Release. Appellants note that it is well accepted that a corporation may not act but through its employees, and claim the intent of the Release, therefore, was to release both Camelback and its employees, specifically Monaghan. Appellants allege the final phrase of the Release supports this conclusion, as it states that Tayar was releasing claims for injuries caused by negligence or other improper conduct “on the part of the snowtubing facility.” Appellants aver that, because Camelback could not act but through its employees, a common sense reading of this statement serves to release employees acting in the course of their employment as well as Camelback itself. Lastly, Appellants note that Monaghan was, in fact, acting within the scope of his employment at the time of Tayar's injury, and, therefore, is indemnified by, and considered the same party as, Camelback for purposes of this suit.

Tayar avers the Release does not shield Monaghan. Tayar notes the Release refers only to “Camelback Ski Corporation,” and never mentions employees. She alleges the Release did not describe, or even mention, injuries resulting from acts an employee could commit,...