• No Uphill Battle In Defense To Downhill Skiing Liability
  • January 3, 2011
  • Law Firm: Marshall Dennehey Warner Coleman Goggin - Philadelphia Office
  • Key Points:

    • Ski resort does not owe a duty to a skier injured while using a ski lift.

    • Allegations of employee negligence cannot overcome the express terms of a release barring suits for employee negligence.

    • Purported statements made by an employee immediately prior to accident do not supersede exculpatory provision signed by skier absolving resort of liability for negligent acts of employees.

    • In future disputes involving adhesion contracts, the issue may not be whether the contract is one of adhesion, but whether the contract as a whole is "unconscionable."

    The Pennsylvania Supreme Court held in Chepkevich v. Hidden Valley Resort, LP, 2010 Pa. LEXIS 1311 that a ski resort does not owe a duty to protect a skier from injuries sustained while falling from a ski lift.

    Laurie Chepkevich and her husband alleged personal injuries after a chairlift operator agreed to stop a ski lift so that her nephew could more easily board the lift, but failed to so, causing Chepkevich to fall. Prior to the incident, Chepkevich signed a form which indicated that by accepting a season pass, she accepted all risks and agreed not to sue the Resort or its employees if injured while using the facilities, "regardless of any negligence" of the Resort.

    The Resort filed a Motion for Summary Judgment with the Somerset County Court of Common Pleas, arguing that suit was barred by the signed release, which exempted the Resort from liability, and by Chepkevich's voluntary assumption of the risk pursuant to the Skier's Responsibility Act, 42 Pa.C.S. 7102(c) ("the Act"). Although holding that the Act did not bar suit because Chepkevich did not assume the risk of an activity inherent to the sport, the trial court granted Summary Judgment on the basis of the release alone.

    The Pennsylvania Superior Court reversed on appeal, holding that the release was "arguably" an adhesion contract as the term negligence was undefined and there were no examples of negligence in the release. The Superior Court determined that Summary Judgment was not appropriate because of a fact dispute as to what the lift operator said to Chepkevich immediately preceding the accident, that he would stop the lift. Subsequent oral representations made by the operator, as intimated by the Superior Court, may supersede the terms of the initial contract. The Superior Court further held that the Act did not bar suit because the negligent operation of a lift was not an act inherent to the sport.

    In overturning the Superior Court, the Pennsylvania Supreme Court first addressed the Act, which provided the statutory context upon which the release was based. The Court provided a detailed analysis of the assumption of the risk doctrine as it applied to sports and places of amusement, which is also described as the "no duty" rule. Under the "no duty" rule, an owner or operator of a place of amusement has no duty to protect the user from hazards inherent to the activity. In reaching its determination, the Court relied heavily upon Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 344 (Pa. 2000), where the Court previously held that the assumption of the risk doctrine barred a skier's lawsuit arising from a collision with another skier at the base of a ski slope because the activity was an inherent risk to downhill skiing. As opined by the Court, downhill skiing involves more than just skiing down a hill, it also encompasses those activities directly and necessarily incident to the act of skiing, such as boarding a ski lift, riding the lift, exiting the lift, etc. According to the Chepkevich Court, falling from a ski lift is a "general risk" that is common, frequent and expected in the sport.

    Although effectively disposing of the matter by holding that suit was barred by Chepkevich's assumption of the risk, the Court still addressed the appropriateness of the release, indicating that even if the Resort owed a duty to the skier, Summary Judgment was properly entered on the basis of the release since she absolved the Resort from liability for the negligence of its employees.

    An exculpatory provision contains language which excuses a party to a contract from liability for unintentional negligent acts or omissions. Although such provisions are strictly construed against the enforcing party and are not favored by law, an exculpatory provision is still valid where the contract does not contravene public policy; is between persons relating entirely to their own private affairs; and each party to the contract is a free bargaining agent to the agreement so that the contract is not one of adhesion. Where an exculpatory clause is found valid, it is still not enforceable unless the language of the parties is clear that one is relieved of liability for his negligent acts.

    The Court determined that the Superior Court erred in suggesting that the release was an unenforceable adhesion contract. Although this was not found to be an adhesion contract, the Court suggested that in future disputes, adhesion contracts, especially those involving voluntary hazardous activities, could be enforceable and that the relevant question may not be whether the contract is one of adhesion, but whether the contract as a whole is "unconscionable." Unconscionability, as suggested by the Court, should be based upon general principles.

    In upholding the contract's enforceability, the Court opined that the Resort made sufficient effort to inform Chepkevich with a full-page, detailed agreement written in normal font with the title "RELEASE FROM LIABILITY" to inform her that by signing and purchasing a lift ticket, she gave up any right she had to sue for damages arising from injuries caused even by negligence. The Court further opined that because an exculpatory agreement need not contain the word negligence in order to affectively bar suit (i.e. an exculpatory clause absolving a party of "any and all liability" covers negligence even though the word negligence does not appear in the contract), it would be illogical to deem an agreement inadequate that references negligence but does not define or illustrate the term. The Court further concluded that the use of a ski lift is a risk inherent to the sport of skiing, was properly encompassed by the exculpatory language of the release and the release explicitly encompassed the negligence of resort employees.