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Any angry injured guest or a creative attorney will try about anything to win. In this case, the New Jersey Consumer Fraud Act was used to bring a Pennsylvania Ski Area to court in New Jersey

The lawsuit failed, this time. However, the failure was due to  Pennsylvania law more than New Jersey law. The plaintiff argued it was a violation of the act to advertise to New Jersey residents to come skiing in Pennsylvania and now warn of the difficulty of suing for injury’s skiing.

Cole, et al., v. Camelback Mountain Ski Resort, et al., 2017 U.S. Dist. LEXIS 100183

State: Pennsylvania, United States District Court for the Middle District of Pennsylvania

Plaintiff: Gyl Cole, Ronald Cole, her husband

Defendant: Camelback Mountain Ski Resort

Plaintiff Claims: Violation of the New Jersey Consumer Fraud Act

Defendant Defenses: The statute did not apply

Holding: For the defendant 

Year: 2017 

Summary

In this case the plaintiff sued arguing, the New Jersey consumer Fraud Act was violated by the defendant ski area because it did not put a notice in its ad that was seen in New Jersey, that suing a Pennsylvania ski area was difficult, if not impossible, because of the Pennsylvania Skier’s Responsibility Act

However, there was nothing in the act that applied to advertising nor was there anything in the law requiring a defendant to inform the consumer about the law that might apply to any relationship between the guest and the ski area. 

Facts 

The plaintiff and her husband lived in Waretown New Jersey. They went skiing at defendant Camelback Mountain Ski Resort, which is located in Pennsylvania. Although not stated, allegedly they went skiing after reading an advertisement by Camelback.

While skiing on a black diamond run the plaintiff slammed into a six-inch metal pipe and sustained severe injuries.

The plaintiff sued, first in New Jersey state court. The case was transferred to the Federal District Court in New Jersey. How the case was transferred to the Pennsylvania Federal court that issued this opinion is not clear. 

The Pennsylvania Federal District Court dismissed the plaintiff’s complaint with the above captioned opinion.

Analysis: making sense of the law based on these facts.

The basis of the plaintiff’s complaint was that a ski area advertising in New Jersey needed to inform New Jersey residents that it was impossible to sue and win a lawsuit against a Pennsylvania ski area. Because the ads of the defendant ski area did not mention that fact, the plaintiffs claimed that the defendant had violated the New Jersey New Jersey Consumer Fraud Act.

All states have a Consumer Fraud Act. Each states act is different from any other state, but generally they were enacted to prevent scam artists from ripping people off. The New Jersey Act awards treble damages and attorney’s fees if a consumer could prove there was “(1) an unlawful practice, (2) an ascertainable loss, and (3) a causal relationship between the unlawful conduct and the ascertainable loss.…

Most state consumer fraud statutes include greater than simple damages as a penalty to keep fraudulent acts from happening. Many also include attorney fees and costs to encourage attorneys to take up these cases to defend the  consumer put fraudulent practices or business on notice or out of business.

Under the act, an unlawful practice was defined as: 

[t]he act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . .

An unlawful practice was defined as falling into one of three categories: “affirmative acts, knowing omissions, and regulation violations.” 

A failure to inform, the argument being made by the plaintiff, was an omission. You could sue based upon the omission if you could prove the defendant “(1) knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon the concealment.” 

The underlying duty on the part of the defendant was a duty to disclose. If there was no duty to disclose, then there was no omission. The plaintiffs argued, the Pennsylvania Skier’s Responsibility Act prevented lawsuits against ski areas, or as the
plaintiff’s argued, indemnified ski areas from lawsuits. That information the plaintiff argued needed to be included in the ad, or it violated the New Jersey Act. 

The court then looked at Pennsylvania Supreme Courts interpretations of the Pennsylvania Skier’s Responsibility
Act
. Those decisions stated the act did not create new law, but kept in place long standing principles of the common law. Meaning that the act reinforced the common law assumption of the risk defense that preceded the Pennsylvania Skier’s Responsibility Act
.

The common law in which the Act preserves, the doctrine of voluntary assumption of risk, “has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” In Pennsylvania, “this ‘no-duty’ rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.

Since the act did not create new law, only codified the law, there was little if any requirement of a duty to inform anyone of the law.

Going back to the New Jersey New Jersey Consumer Fraud Act, nothing in the act nor had any court decision interpreting the act held a requirement to inform any consumer of any law. In fact, the law is based on the fact that all people know and understand the law. (A tenet of the law that I personally find confusing. You must know the law; however, to give legal advice you must go to law school. After law school, I know I don’t know all the laws!)

Consequently, there can be no duty to tell a consumer what the law states because they already know law. “…a finding that Plaintiffs’ claim was cognizable under the NJCFA would run counter to a well-known legal maxim: “[a]ll citizens are presumptively charged with knowledge of the law.”

There are exceptions to this rule, when a statute specifically requires some type of notice be given to the consumer, but that was not the case here. 

Finally, the court held that to find in favor of the plaintiffs would create a never-ending liability on businesses. In that part of the US, an ad could be seen by someone living in Pennsylvania, New Jersey and New York. No ad could fully inform consumers in all three states about the possible laws that might be in play in that particular ad. “Indeed, the number of relevant legal concept that a business “omitted” from its advertisement would only be limited by the creativity and imagination of the lawyers involved.”

The case was dismissed. 

So Now What?

I don’t think you can simply think that this case has no value. You need to take a look, or have your attorney look, at your own state consumer fraud statute. Placing disclaimers in ads would not be logical, but making sure you don’t cross the line and violate your state consumer fraud law can keep you from being sued for violation of the statute in your own state. And damages can skyrocket in many cases once they are trebled and attorney fees, costs and interest are added.

 Remember, Marketing makes Promises Risk Management has to pay for©

What do you think? Leave a comment. 

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Pennsylvania AED Good Samaritan Act

Pennsylvania Consolidated Statutes

Title 42.  Judiciary and Judicial Procedure

Part VII.  Civil Actions and Proceedings

Chapter 83.  Particular Rights and Immunities

Subchapter C.  Immunities Generally

42 Pa.C.S. § 8331.2 (2016)

§ 8331.2.  Good Samaritan civil immunity for use of automated external defibrillator.

(a) General rule. —

Any person who in good faith acquires and maintains an AED or uses an AED in an emergency shall not be liable for any civil damages as a result of any acts or omissions by an individual using the AED, except if acts or omissions intentionally designed to harm or any grossly negligent acts or omissions result in harm to the individual receiving the AED treatment.

(b) Requirements. —

Any person who acquires and maintains an AED for use in accordance with this section shall:

(1) Ensure that expected AED users receive training pursuant to subsection (c).

(2) Maintain and test the AED according to the manufacturer’s operational guidelines.

(3) Provide instruction requiring the user of the AED to utilize available means to immediately contact and activate the emergency medical services system.

(4) Assure that any appropriate data or information is made available to emergency medical services personnel or other health care providers as requested.

(c) Training. —

For purposes of this section, expected AED users shall complete training in the use of an AED consistent with American Red Cross, American Heart Association or other national standards as identified and approved by the Department of Health in consultation with the Pennsylvania Emergency Health Services Council.

(d) Obstruction of emergency medical services personnel. —

Nothing in this section shall relieve a person who uses an AED from civil damages when that person obstructs or interferes with care and treatment being provided by emergency medical services personnel or a health professional.

(e) Exception. —

Any individual who lacks the training set forth in subsection (c) but who has access to an AED and in good faith uses an AED in an emergency as an ordinary, reasonably prudent individual would do under the same or similar circumstances shall receive immunity from civil damages as set forth in subsection (a).

(f) Definitions. —

As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Automated external defibrillator” or “AED.” –A portable device that uses electric shock to restore a stable heart rhythm to an individual in cardiac arrest.

“Emergency.” –A situation where an individual is believed to be in cardiac arrest or is in need of immediate medical attention to prevent death or serious injury.

“Good faith.” –Includes a reasonable opinion that the immediacy of the situation is such that the use of an AED should not be postponed until emergency medical services personnel arrive or the person is hospitalized.

HISTORY: Act 1998-126 (H.B. 1897), P.L. 949, § 11, approved Dec. 15, 1998, eff. Jan. 1, 1999; Act 2012-125 (S.B. 351), P.L. 1081, § 1, approved July 5, 2012, eff. in 60 days.

NOTES:

AMENDMENT NOTES.

The 2012 amendment rewrote (a); deleted “not be liable for civil damages provided that the person” at the end of the introductory language of (b); rewrote (c), which formerly read: “For purposes of this section, expected AED users shall complete training in the use of an AED provided by the American National Red Cross or the American Heart Association or through an equivalent course of instruction approved by the Department of Health in consultation with a technical committee of the Pennsylvania Emergency Health Services Council”; deleted (e); in (f), substituted “or is” for “and” in the definition of “Emergency”; and made related changes.

Go back to the top of LexisNexis (R) NotesCASE NOTES

1. Trial court properly entered summary judgment in favor of a tennis club in a negligence action by a stroke victim because neither the Emergency Medical Services Act nor the Good Samaritan Act imposed a duty upon the club to acquire, maintain, and use an automated external defibrillator. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 2002 Pa. LEXIS 2832 (Pa. 2002).

2. Unpublished decision: Court recommended the affirmance of its decision granting judgment to a health club in an executor’s suit brought after the club’s patron collapsed and died after suffering sudden cardiac arrest while exercising at the club. While the executor maintained that the club had a duty to have an automated external defibrillator (AED) on its premises, the court rejected this contention, noting that, under binding state supreme court precedent, a sports club had no duty under the Emergency Medical Services Act or the Good Samaritan Act to acquire, maintain, or use an AED. Goldin v. Bally Total Fitness Corp., 2011 Phila. Ct. Com. Pl. LEXIS 54 (Pa. C.P.), aff’d, 38 A.3d 931, 2011 Pa. Super. LEXIS 5470 (Pa. Super. Ct. 2011).

3946. Definitions, see20 Pa.C.S. § 5483.

3947. 28 Pa. Code § 1051.2(2014), PART EMERGENCY MEDICAL SERVICES.

3948. 28 Pa. Code § 1051.51(2014), PART EMERGENCY MEDICAL SERVICES.

3949. 36 P.L.E. NEGLIGENCE § 2, Pennsylvania Law Encyclopedia, Duty To Exercise Care, Copyright 2013, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

3950. 6-LIV Remick’s Pennsylvania Orphans’ Court Practice § 54.01, CHAPTER LIV Health Care, Living Wills, Health Care Agents and Representatives, and Out-of-Hospital Nonresuscitation Act.

 


The harder a court works to justify its decision the more suspect the reasoning. In this case, a ski area is liable for injuries to a spectator no matter what risks she knew and assumed.

Neither the Pennsylvania Skier’s Responsibility Act, assumption of the risk, nor the No Duty Rule were enough to stop this lawsuit. Spectators are always at risk. Either that or the defense attorneys failed to discover the necessary elements to prove their case in deposition.

Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029

State: Pennsylvania, US District Court for the Middle District of Pennsylvania

Plaintiff: Colleen Barillari and William Barillari

Defendant: Ski Shawnee, Inc.

Plaintiff Claims: negligence

Defendant Defenses: Pennsylvania Skier’s Responsibility Act and Assumption of the Risk

Holding: for the plaintiff

Year: 2013

The plaintiff was a skier. On the day in question she was not skiing but was watching her husband take a lesson. She was standing on the snow but not close enough, in her opinion, to be at risk. She was behind a tape that separated the ski run from the instruction area. She was standing on a ski run though.

The plaintiffs are residents of New Jersey; Ski Shawnee is located in Pennsylvania. Residents of two different states gave the Federal District Court jurisdiction for the case. The federal court system was created so residents of two different states involved in litigation did not feel like the home state was favoring the person who lived there.

Standing there a skier collided with her. She filed a complaint alleging negligence and her husband filed a claim for loss of consortium. The ski area filed a motion for summary judgment based on the Pennsylvania Skier’s Responsibility Act and assumption of the risk which the court denied with this decision.

Analysis: making sense of the law based on these facts.

The defense relied upon two distinct but similar theories for its case, The Pennsylvania Skier’s Responsibility Act and assumption of the risk. The court went through an extensive analysis of the law and other, mostly conflicting case law in its decision. What was even more interesting though was the court applied traditional definitions of assumption of the risk in its analysis of the Pennsylvania Skier’s Responsibility Act even though the act defines the risks assumed by a skier as under the doctrine of voluntary assumption of the risk.

(c)  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 (a.1).

The doctrine of voluntary assumption of risk has been defined by Pennsylvania courts as “where one, with full knowledge or full opportunity of knowledge, voluntarily-assumes a danger he is barred from recovery under the doctrine of voluntary assumption of risk:” As interpreted by another decision “plaintiff knew of the risk, appreciated its character and voluntarily chose to accept it.”

Here the court started with the RESTATEMENT (SECOND) OF TORTS, § 496A which defines the doctrine of assumption of risk as “”[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” The Restatement of Torts is a compendium of the law put together by experts, mostly legal professors who have reviewed the law of the states in their area of expertise and put it down in the restatement. It is the basis of research and provides a foundation for understanding the law on a particular subject. Rarely do courts adopt the restatement as is. It is modified and adapted based on prior case law in the state and how the state supreme court follows the law.

The court then stated that when this definition and defense, assumption of the risk, is applied to sport it is called the No Duty Rule, “the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”

Under Pennsylvania law when applied to ski areas this has been interpreted to mean “ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.”

Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.

The court stated Pennsylvania had a two-step analysis to determine whether a plaintiff is subject to the rule.

First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . .

The court then looked at several if not all the instances where Pennsylvania courts had determined someone was skiing and assumed the risk. At the end of the analysis, the court stated the plaintiff was a spectator at the time of the incident. Then the court stated that the plaintiff could assume the risk of a collision with another skier, but did not assume the risk of a collision with a skier when she was a spectator because she did not know she could be hit by a skier as a spectator…..standing on a run at the base of a hill.

Because the court found the spectator, who was a skier did not understand that standing on a ski run would subject to the possibility of being hit by another skier, she did not know the risk and therefore, could not assume the risk. Under the Pennsylvania Skier’s Responsibility Act the plaintiff did not assume the risk and the defendant would not rely on the protection it afforded.

The court then analyzed whether the plaintiff assumed the risk with a traditional definition.

The decision spent two paragraphs describing the defense as a hydra that would not die. Under Pennsylvania law, there are four different types of assumption of risk. The court defined two of them: “One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware.”

A second related corollary of the assumption of risk doctrine is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event.

The court determined the two remaining types of assumption of the risk did not apply in this case in a footnote.

The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable.

Under Pennsylvania law assumption of the risk is a three-step process (even though the decision stated earlier it was only two):

[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed. This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Moreover, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.”

The court focused on the knowledge of the plaintiff. “Rather, the plaintiff must be aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.”

Again, the court went through several Pennsylvania cases distinguishing the definition of assumption of the risk the judge wanted to use from the other cases in Pennsylvania. The court then held:

Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator.

This decision was based on the plaintiff’s statement:

Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.”

Under this logic, you would not know you could be hit skiing by a skier if you were standing in a group of trees……on the side of a run.

Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury.

The court then went back and looked at whether the No Duty Rule applied in this case. The No Duty Rule is defined as:

…the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.

Again, the court wove its way through the Pennsylvania case law, even at one point stating the No Duty Rule applied to spectators. However, the court found the rule did not apply in this case because there was a difference in the risk the rule applied to. The risk the rule applied to must be a necessary element of the sport, not just a possible risk.

Applying these principles to the case before the Court, the no-duty rule cannot protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport

The court summed up its decision by stating the burden on ski areas to protect spectators would not be that great.

Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.

So Now What?

Spectators will be protected because in the future I’m sure they will not be allowed anywhere near the slopes in Pennsylvania for fear of being sued.

One of the biggest holes in all ski area defenses is spectators. Either watching friends or loved one’s ski or attending an event or race, spectators are always subject to injury. I believe only the Colorado Skier Safety act has been interpreted broadly enough, because it is written broadly enough to protect the ski area from suits by spectators.

Not only do spectators get hit by skiers, they get knocked by racers who leave the trail and plow into them. The slip and fall getting on or off the slope, and they get lost hiking up or down the hill appearing suddenly on an open run or not appearing for hours.

This case is a great look at the law of Assumption of the Risk in Pennsylvania. Other than that, it is a judicial greased pig to reach a decision that the court wanted.

What do you think? Leave a comment.

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Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029

Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029

Colleen Barillari and William Barillari, Plaintiffs, v. Ski Shawnee, Inc., Defendant.

Civ. No. 3:12-CV-00034

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029

November 12, 2013, Decided

November 12, 2013, Filed

PRIOR HISTORY: Barillari v. Ski Shawnee, Inc., 2012 U.S. Dist. LEXIS 4998 (M.D. Pa., Jan. 17, 2012)

CORE TERMS: skiing, sport, downhill, skier, spectator, no-duty, summary judgment, ski, hit, ball, SKIER’S RESPONSIBILITY ACT DOES, risk doctrine, foul ball, amusement, matter of law, inherent risks, slope, baseball game, baseball, genuine, snow, ski lift, collision, mountain, ski resorts, risks inherent, nonmoving party, frequent, sporting, player

COUNSEL: [**1] For Colleen Barillari, William Barillari, h/w, Plaintiffs: Edward Shensky, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA.

JUDGES: Matthew W. Brann, United States District Judge.

OPINION BY: Matthew W. Brann

OPINION

[*557] MEMORANDUM

Before the Court is Ski Shawnee, Inc.’s (“Defendant”) motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari (“Plaintiffs”). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant’s alleged negligence. See Pls.’ Compl. 9-13, Jan. 6, 2012, ECF No. 1.

The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs’ claims are barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.’s Br. Supp. Mot. Summ. J. 5-9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.’s Br.]. The Court hereby denies the Defendant’s motion for summary judgment on both theories for the reasons that follow.

I. BACKGROUND

This case arises from [**2] an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.’s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.’s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.’s SOF ¶¶ 3-4; Pls.’ Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.’ SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.’s SOF ¶¶ 6-13.

The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.’s SOF ¶¶ 12-13; Pls.’ SOF ¶¶ 10-11. There was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” Def.’s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.’ SOF ¶ 19.

Mrs. Barillari was generally aware of the risks of collision between skiers. [*558] Def.’s SOF ¶ 7. At the time, however, she was not worried about skiers colliding with her because she believed [**3] that she was close enough to the dividing tape and there were other spectators in the area. Def.’s SOF ¶¶ 15-17; Pls.’ SOF ¶¶ 15-17. Unfortunately for Mrs. Barillari, a skier did collide with her and caused an injury to her left leg. Pls.’ SOF, at 2. The Court considers the legal arguments in light of these facts.

II. DISCUSSION

A. LEGAL STANDARDS

1. Summary Judgment

Summary judgment is appropriate when the court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When the court considers the evidence on summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.

The party moving for summary judgment bears the burden of establishing the nonexistence of a “genuine issue” of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (internal quotations and [**4] citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party’s claim, or demonstrating the other party’s evidence is insufficient to establish an essential element of its claim. Id. at 231.

Once the moving party satisfies this initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Moreover, “[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (internal [**5] quotations and citation omitted).

In deciding the merits of a party’s motion for summary judgment, the court’s role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Consequently, summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 54(a).

2. Pennsylvania Law Must Be Applied In This Case

This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New [*559] Jersey, the Defendant is a Pennsylvania corporation with a principal place of business in Pennsylvania, and the amount in controversy is alleged to be over $75,000–consequently, diversity jurisdiction is proper. See 28 U.S.C. § 1332; Pls.’ Compl., ¶¶ 1, 2, 46.

As this is a diversity action and Pennsylvania was the situs of the injury, this Court “must apply Pennsylvania law to the facts of [**6] this case.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).

B. THE PENNSYLVANIA SKIER’S RESPONSIBILITY ACT DOES NOT APPLY TO THIS CASE

The Defendant asserts that the Plaintiffs’ claims are barred by the assumption of the risk doctrine. Def.’s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See 42 Pa. C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier’s Responsibility Act, reads:

(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 (a.1). 1

42 Pa. C.S.A. § 7102(c).

1 As a general rule, subsections (a) and (a.1) [**7] supplant the assumption of the risk doctrine with a system of comparative fault in most negligence cases. Nevertheless, assumption of the risk was expressly preserved for injuries arising from downhill skiing, as noted. See 42 Pa. C.S.A. § 7102; Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341 (2000).

The Restatement (Second) of Torts, § 496A, summarizes the essence of the assumption of the risk doctrine: “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” As the Supreme Court of Pennsylvania elucidated, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2).

Applying those principles to the Skier’s Responsibility Act, that same court “made clear that this ‘no-duty’ rule applies to the operators of ski resorts, so that [**8] ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343-44 (2000)). Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.

[*560] The Supreme Court of Pennsylvania established a two-part analysis to determine whether a plaintiff was subject to the assumption of the risk doctrine adopted in the Skier’s Responsibility Act. See Huges v. Seven Springs Farm, Inc. 762 A.2d at 343-44. “First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . . .” Id. at 344. If both of these prerequisites are met, then summary judgment is appropriate because, as a matter of law, [**9] the Defendant would have had no duty to Mrs. Barillari. See id.

First, the Court considers whether Mrs. Barillari was “engaged in the sport of downhill skiing at the time of her injury.” Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:

the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.

Hughes, 762 A.2d at 344.

In that case, the court held that a plaintiff who was skiing towards the chair lift through an area at the base of the mountain where several trails converged when she was struck from behind by another skier could not recover because the assumption of risk doctrine applied. Hughes, 762 A.2d at 340, 345. Although the plaintiff “was not in the process of skiing downhill, but rather was propelling herself towards the ski lift at the base of the mountain,” the [**10] court found this action was within the scope of engaging “in the sport of downhill skiing.” Id. at 344-45. The court noted that to decide otherwise would “interpret the Act, as well as the sport of downhill skiing, in an extremely narrow, hypertechnical and unrealistic manner.” Id. at 344.

In Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (2010), the Supreme Court of Pennsylvania held that a skier’s negligence action based on her fall from a ski lift was barred by the doctrine of assumption of the risk because she was engaged in the sport of downhill skiing and the fall was an inherent risk of that sport. Chepkevich, 2 A.3d at 1194-95. The court noted that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Id. at 1187-88.

A number of other courts have addressed the scope of the Skier’s Responsibility Act as well. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008) (finding that a skier’s claim based on the lack of safety netting, improper course plotting, or [**11] soft loose snow was barred because those were risks inherent in skiing); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir. 1991) (interpreting Pennsylvania law to find ski resort had no duty of care to injured skier because a “double black diamond” slope with rocks and trees was an obvious inherent danger of skiing); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983) (Aldisert, J.) (finding that a skier’s claim was barred by assumption of the risk when he chose to ski a steep, icy expert slope with unpadded poles for snowmaking equipment); Lin v. Spring Mountain Adventures, Inc., CIV. [*561] A. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010) (holding that the Act barred a skier’s claim because colliding with snow making equipment was an inherent risk); Savarese v. Camelback Ski Corp., 417 F. Supp. 2d 663, (M.D. Pa. 2005) (Caputo, J.) (holding that a skier was barred from recovery where the injury occurred when he attempted to board the ski lift when the bottom of the chair was not folded down for seating); Bell v. Dean, 2010 PA Super 151, 5 A.3d 266 (Pa. Super. Ct. 2010) (finding that a skier assumed the risk of collision with a snowboarder such that the snowboarder could not be found negligent); [**12] Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. Ct. 2005) (holding that the risk of colliding with a drunk underage snowboarder was not a risk inherent in the sport of downhill skiing).

The case before the Court, however, is distinguishable from all of these cases–Mrs. Barillari was not “engaged in the sport of downhill skiing” at the time of her collision, as required by the statute. 2 Hughes, 762 A.2d at 344. Although someone wearing skis and standing in the area of Mrs. Barillari and the other spectators on a momentary pause in their run may well have been “engaged in the sport,” that is an entirely different matter from someone who is purely a spectator. See id. Even though a collision with a skier is a prominent injury considered to be inherent in the sport of skiing as contemplated by the statute and the courts, the fact remains that Mrs. Barillari was merely a spectator not engaged in the sport. See id.

2 The Court recognizes that “engaged” may be defined as “greatly interested,” which could suggest that spectators are “engaged in the sport of downhill skiing.” Merriam-Webster’s New International Dictionary (3d ed. 2013). As is apparent from the context of the [**13] relevant Supreme Court of Pennsylvania decisions, however, this is not the manner in which the court used the term “engaged.” See, e.g., Hughes, 762 A.2d at 344. Rather, the context surrounding the court’s usage of the term indicates a meaning closer to “occupied” or “employed” when using the phrase “engaged in the sport of downhill skiing.” See id.; Merriam-Webster’s New International Dictionary (3d ed. 2013).

If this Court were to include Mrs. Barillari as a person subject to the Skier’s Responsibility Act, it would necessarily extend the confines of Pennsylvania’s law beyond the scope of its current applicability. That is not this Court’s place, and the Court declines to do so. Instead, the Court must apply the law as Pennsylvania’s own Supreme Court has instructed. See, e.g., Hughes, 762 A.2d at 344-45. Consequently, the Court finds that the assumption of the risk doctrine, as articulated in the statue and interpreted by courts, does not apply to bar Mrs. Barillari’s claim, because she was not “engaged in the sport of downhill skiing” at the time of her accident. See Hughes, 762 A.2d at 344-45.

C. TRADITIONAL ASSUMPTION OF THE RISK DOES NOT BAR THE PLAINTIFFS’ CLAIMS

The Defendant [**14] asserts that, in the alternative, the traditional common law defense of assumption of the risk should bar the claim. Def.’s Br., at 6. Although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing. See, e.g., Zinn v. Gichner Systems Grp., 880 F. Supp. 311 (M.D. Pa. 1995) (Caldwell, J.) (holding assumption of the risk barred plaintiff’s claim when he continued to work after landowner refused to cover opening in which he was injured); Howell v. Clyde, [*562] 533 Pa. 151, 620 A.2d 1107 (1993) (finding that the plaintiff guest who helped secure gunpowder for a firework cannon and participate in lighting it assumed the risk of his injury); see also Rutter v. Ne. Beaver Cnty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1212 (1981) (Nix, C.J., dissenting) (“[T]his doctrine constitutes a necessary and viable component of tort law.”).

Borrowing Justice Antonin Scalia’s memorable phrase concerning a similarly limited but resurgent doctrine in another area of law, assumption of the [**15] risk survives “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.

There are four different theoretical species of assumption of the risk–two of which are at issue in this case. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c. One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3.

A second related corollary of the assumption of risk doctrine 3 is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3 [**16] . As both of these manifestations of that intractable doctrine are at issue here, the Court addresses them in turn, first analyzing voluntary assumption of the risk. 4

3 See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 531 (1988) (discussing the discrete conceptual differences between voluntary assumption of the risk as an affirmative defense to a breached duty and the “no-duty” theory with its inherent absence of a duty).

4 The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c, 1, 4.

1. Voluntary Assumption of the Risk Does Not Bar Plaintiff’s Claim in this Case

As Judge A. Richard Caputo articulated when considering a case involving voluntary assumption of the risk: “[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite [**17] the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed.” Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5 (M.D. Pa. Feb. 27, 2012) (Caputo, J.). This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (1996). Moreover, “[t]he mere fact one engages in activity that has some inherent [*563] danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 573 (Pa. Super. Ct. 2000).

The dispositive analytical point in the case before this Court is determining what constitutes a plaintiff’s conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at * 6 (citing Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693 (1990)). Rather, the plaintiff must be [**18] aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Id.

For example, in Bolyard v. Wallenpaupack Law Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6 (M.D. Pa. Feb. 27, 2012), Judge Caputo held, inter alia, that assumption of the risk did not apply to a plaintiff who went snow-tubing on an old ski slope, hit a rut, and crashed into a tree. Judge Caputo recognized that, while the plaintiff “was generally aware that snow tubing on a tree-lined trail was dangerous, there [was] no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *6. This was a material distinction, such that the elements of voluntary assumption of the risk remained unsatisfied–therefore, as a matter of law, the plaintiff did not assume the risk. Id.

Similarly, in Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693, 696 (1990), the court held that assumption of the risk did not apply when a plumbing contractor sustained injuries and died because a trench in which he was laying pipe collapsed. The court noted that the plaintiff was aware of the general [**19] risk of ditch collapses and that the particular job would be delicate. Handschuh, 574 A.2d at 694. Nevertheless, that awareness of the general risks was not sufficient “to compel a finding of a waiver of an individual’s right to complain about a breach of duty of care to the risk taker.” Id. at 696 (original punctuation altered).

In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696; Pls.’ SOF ¶ 5. It is undisputed that Mrs. Barillari was aware of the general risks and dangers inherent in the sport of skiing. She was aware collisions between skiers occurred and she “was worried about [her] children with that.” Def.’s SOF, Oral Dep. Mrs. Barillari 23, Dec. 03, 2012, ECF No. 18, Exh. 5. There is not, however, anything in the record that indicates Mrs. Barillari was specifically aware of the danger that later befell her.

Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [**20] [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.” Id. at 63-64. Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case. See id.

2. The “No-Duty” Rule Does Not Apply

The “no-duty” theory, a corollary species of assumption of the risk discussed [*564] previously in the context of the Skier’s Responsibility Act, applies at common law when: “the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Hughes, 762 A.2d at 341 (citing Restatement (Second) of Torts, §496A, cmt. c, 2). “Again the legal result is that the defendant is relieved of his duty to the plaintiff.” Id.

The no-duty rule applies most prominently in the context of a spectator [**21] at a sporting event, such as a fan hit by a foul ball at a baseball game. See, e.g., Schentzel v. Philadelphia Nat’l League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953). As the Restatement observes, “a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without precautions to protect him from being hit by the ball.” Restatement (Second) of Torts, §496A, cmt. c, 2.

“In Pennsylvania, the law imposes ‘no duty’ to protect spectators from risks that are common, frequent, and expected [in the sport].” Petrongola v. Comcast-Spectacor, L.P., 2001 PA Super 338, 789 A.2d 204, 210 (2001). “However, a facility may be held liable if the design of the facility deviates from the established custom in some relevant way.” Id. “The central question, then, is whether [a plaintiff’s] case is governed by the ‘no-duty’ rule applicable to common, frequent and expected risks of [the sport] or by the ordinary rules applicable to all other risks which may be present [at a sporting facility].” Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 551 (1978).

For example, in Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 186-92, 96 A.2d 181 (1953), [**22] the no-duty rule barred the claim of a plaintiff hit by a foul ball in the stands at a baseball game. The court noted that, even though there was scant evidence the plaintiff knew about the prevalence of foul balls, the defendant owed her no duty because foul balls are an inherent risk of attending a baseball game. Schentzel,173 Pa. Super. at 186-92.

In Loughran v. The Phillies, 2005 PA Super 396, 888 A.2d 872, 876-77 (Pa. Super. Ct. 2005), a majority of the court held that the no-duty rule barred a spectator’s claim for injuries suffered in the stands at a baseball game. There, the center-fielder threw the ball into the stands after catching it for the final out of the inning–as is customarily done to provide souvenirs for fans–when the unsuspecting plaintiff was hit and injured by the ball. Loughran, 888 A.2d at 874. Although this was not the typical foul ball hit into the stands, the majority considered this custom to be inherent in the sport. Id. at 877. They noted that the plaintiff failed to establish the defendants “deviated from the common and expected practices of the game of baseball.” 5 Id.

5 Judge John T. Bender dissented from this majority opinion, writing:

since the act of tossing a ball to fans [**23] as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not “assume the risk” of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the “no duty” rule to this practice. Rather, if a baseball player wants to go beyond the confines of the game . . . he should be charged with the obligation of doing it in a reasonably safe and prudent manner.

Loughran, 888 A.2d at 882.

By contrast, in Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546, 548, 552-553 (1978), the court held that the no-duty rule did not apply because the patron was hit by a ball while using an interior walkway to the concessions [*565] area, rather than while seated in the stands. The court noted that “in a ‘place of amusement’ not every risk is reasonably expected.” Jones, 394 A.2d at 551. That particular injury was due to a failure in the ballpark’s design such that the no-duty rule should not apply. Id. at 551-52.

The Jones court also drew a distinction between risks that are merely inherent in the activity, and those risks that are not only inherent but also necessary to the activity. See id.; [**24] see also Loughran, 888 A.2d at 880 (Bender, J., dissenting) (“A careful reading of Jones, reveals that the no-duty rule applies not just when one’s injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity.”). For example, while foul balls in the stands are an inherent and necessary part of any baseball game, a bat flying into the stands is an inherent risk of baseball but not a necessary component of the game. Jones, 394 A.2d at 551; see also Schentzel, 96 A.2d at 182 (“There is a million foul balls, maybe three or four or five an inning, goes into the stand [sic].”).

The court further illuminated this distinction with analogies, writing that: “[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand.” Id. at 550-51. As Judge John T. Bender poignantly extrapolated in his Loughran dissent:

if movie houses are made to lighten the theatres so that no one trips, the movie-going experience would be greatly diminished if not destroyed. If amusement parks are made to design roller coasters so as to eliminate all jerkiness and smooth out all changes [**25] in direction they would no longer be capable of being classified as “thrill rides” and the word “amusement” might be deleted from the term “amusement parks.” But if baseball players and their employers, are charged with exercising reasonable care in the practice of providing souvenir balls to patrons, the “Fall Classic” will remain a classic sporting contest and all those regular season and playoff games preceding it would still be played in a manner consistent with Abner Doubleday’s original intent.

Loughran, 888 A.2d at 881.

According to the principles discussed in Jones and Loughran, the no-duty rule can be said to apply when, to avoid injury, a “place of amusement” must alter conditions at the facility in such a way that would change the very essence of the activity for which it is made. See Loughran, 888 A.2d at 881; Jones, 394 A.2d at 550-52. This does not affect the duty of sports facilities and places of amusement to protect patrons against foreseeable risks not inherent and necessary such that they are “common, frequent, and expected” in the very essence of that central activity. Jones, 394 A.2d at 551

Applying these principles to the case before the Court, the no-duty rule cannot [**26] protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. See Def.’s Br., at 8-10. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport. See Jones, 394 A.2d at 551-52.

A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands. See Schentzel, 96 A.2d at 182. The Court is not aware of a similar majority that assumes they will see [*566] a number of skiers crash violently into spectators on a day trip to the mountain.

Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. See Loughran, 888 A.2d at 881. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.

Therefore, [**27] the issues in this case do not present an instance where the “no-duty” rule applies. Rather, the existence of any negligence by either or both parties should be submitted to a jury.

III. CONCLUSION

For the foregoing reasons, Ski Shawnee Inc.’s motion for summary judgment is denied.

An appropriate Order follows.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

ORDER

AND NOW, this 12th day of November, 2013, it is hereby ORDERED, in accordance with a Memorandum of this same date, that the Defendant, Ski Shawnee, Inc.’s motion for summary judgment is hereby DENIED.

BY THE COURT:

/s/ Matthew W. Brann

Matthew W. Brann

United States District Judge


Taylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491

Taylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491

This case was reversed and remanded without an opinion by the SUPERIOR COURT OF PENNSYLVANIA, Taylor, K. v. LA Fitness International, LLC, 32 A.3d 841; 2011 Pa. Super. LEXIS 4194

Kimberly Taylor and Andrew Taylor, h/w v. L.A. Fitness International, LLC d/b/a LA Fitness, USA PT, LLC, d/b/a Body of Change, c/o David White, Jr., Dorian Jefferson Hale

No. 2213

COMMON PLEAS COURT OF PHILADELPHIA COUNTY, PENNSYLVANIA, CIVIL TRIAL DIVISION

2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491

August 30, 2010, Decided

CASE SUMMARY:

JUDGES: [*1] Judge John M. Younge.

OPINION BY: John M. Younge

OPINION

[**493] Younge, J.

The Plaintiffs, Kimberly and Andrew Taylor, filed this appeal from this Court’s Order that granted a motion for summary judgment filed by the above-captioned Defendants. 1

1 The Plaintiffs, Kimberly and Andrew Taylor, will be referred to collectively as the Plaintiff throughout the remainder of this Opinion because Andrew Taylor does not assert an independent cause of action against the Defendants. His claim is based on loss of consortium.

Facts and Procedure:

This personal injury action was brought against the Defendants by the Plaintiff, Kimberly Taylor, who was a member of LA Fitness and a client of Body of Change. The Plaintiff was seriously injured in June of 2007 while exercising at the Huntingdon Valley location for the Defendant, LA Fitness. The Plaintiff alleged to have hired [**494] the Defendant, Body of Change, to provide personal trainers to assist her while exercising at LA Fitness. At the specific time of her injury, she alleged to have been exercising with the Defendant, Dorian Jefferson Hale, a personal trainer and agent of the Defendant, Body of Change. In her Complaint, she alleged that Defendant Hale taught her an improper exercise [*2] and failed to properly assist or spot her while exercising. She alleged that the negligence of Defendant Hale caused her shoulder injury. She alleged that Defendant Hale was an agent of LA Fitness and Body of Change. Her claim against Defendants, LA Fitness and Body of Change, was based on agency and vicarious liability under a theory of respondeat superior.

Following discovery, the Defendants filed the motion for summary judgment that is currently at issue in this appeal. In their motion, the Defendants asserted immunity from suit based on exculpatory clauses contained in the Membership Agreement that the Plaintiff entered into with LA Fitness and the Fitness Service Agreement and Release of Liability that the Plaintiff entered into with Body of Change. 2

2 After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed two motions to reconsider this Court’s Order that granted summary judgment. In one of her motions to reconsider, she argued for the first time that she did not sign the membership agreement with LA Fitness. For a complete discussion of why her motion for reconsideration was without merit and a discussion of the procedural history surrounding [*3] that motion see § F of this Opinion.

The Membership Agreement at issue contained an exculpatory clause that read as follows:

[**495] IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY

You hereby acknowledge and agree that Member’s use of L.A. Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of being permitted to enter any facility of L.A. Fitness (a “club”) for any purpose including, but not limited to, observation use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds L.A. Fitness, its directors, officers, employees, and agents harmless from all liability to Member and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member is in, upon, [*4] or about L.A. Fitness premises or using any L.A. Fitness facilities, services, or equipment. Member also hereby agrees to indemnify L.A. Fitness from any loss, liability, damage or cost L.A. Fitness may incur due to the presence of Member in, upon or about the L.A. Fitness premises or in any way observing or using any facilities or equipment of L.A. Fitness whether caused by the negligence of Member or otherwise.

You represent (a) that Member is in good physical condition and has no disability, illness, or other condition that could prevent Member from exercising without injury or impairment of member’s health, and (b) that Member has consulted a physician concerning an exercise [**496] program that will not risk injury to Member or impairment of Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; [*5] and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of Pennsylvania and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. Member has read this release and wavier of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement have been made.

(Defendants’ Motion for Summary Judgment, Exhibit B (July 6, 2009)).

The Fitness Service Agreement and Release of Liability with Body of Change contained two clauses that were relevant to the personal injury action brought by the Plaintiff. These clauses are entitled “Acknowledgement & Assumption of Risk” and “Limitation of Liability & Full Release of BOC” and read in relevant part:

Acknowledgement & Assumption of Risk: Client acknowledges that the Services purchased hereunder include participation in strenuous physical activities, including, but not limited to, aerobic dance, weight training, [*6] stationary bicycling, various aerobic conditioning [**497] machinery and various nutritional programs offered by BOC (the “Physical Activities”). Client acknowledges these Physical Activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after Client’s participation in the Physical Activities. Client further acknowledges that such risks include, but are not limited to, injuries caused by the negligence of an instructor or other person, defective or improperly used equipment, over-exertion of Client, slip and fall by Client, or an unknown health problem of Client. Client agrees to assume all risk and responsibility involved with Client’s participation in the Physical Activities. Client affirms that Client is in good physical condition and does not suffer from any disability that would prevent or limit participation in the Physical Activities. Client acknowledges participation will be physically and mentally challenging, and Client agrees that [*7] it is the responsibility of Client to seek competent medical or other professional advice, regarding any concerns or questions involved with the ability of Client to take part in the Physical Activities. By signing this agreement, Client asserts that Client is capable of participating in the Physical Activities. Client agrees to assume all risk and responsibility for Client’s exceeding her physical limits.

Limitation of Liability & Full Release of BOC: Client, his or her heirs, assigns and next of kin, agree to fully release BOC, its owners, employees, any related entities or authorized agents, including independent contractors from any and all liability, claims and/or litigation or [**498] other actions that Client may have for injuries, disability, or death or other damages of any kind, including but not limited to, direct, special, incidental, indirect, punitive or consequential damages whether arising in tort, contract, breach of warranty or arising out of participation in the Services, including, but not limited to the Physical Activities, even if caused by the negligence or fault of BOC, its owners, employees, any related entities or other authorized agents, including independent contractors. [*8] Client is urged to have this agreement reviewed by an attorney before signing.

(Defendants’ Motion for Summary Judgment, Exhibit C (July 6, 2009)).

Discussion:

This Court granted the Defendants’ Motion for Summary Judgment and dismissed the Plaintiff’s Complaint because the agreements that the Plaintiff entered into with the Defendants contained exculpatory clauses that relieved the Defendants from all liability for the injuries suffered by the Plaintiff. The Defendants went to great lengths to comply with Pennsylvania law when they drafted the exculpatory clauses at issue. The language used in these exculpatory clauses mirrored the language of the two exculpatory clauses that were enforced in Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992). 3

3 The plaintiff in Kotovsky was injured while participating in a downhill ski race. He specifically collided with a fencepost along the outside of the race course. The Court in Kotovsky affirmed a trial court order that granted a motion for judgment on the pleadings based on an exculpatory agreement entered into between the parties prior to the competition.

[**499] In Kotovsky the first exculpatory clause provided, in pertinent [*9] part, as follows:

I agree that I am alone responsible for my safety while participating in competitive events and/or training for competitive events and specifically acknowledge that the following persons or entities including the United States Ski Association, the United States Ski Team, the United States Ski Coaches Association, the ski area, the promoters, the sponsors, the organizers, the promoters, the sponsors, the organizers, the promoter clubs, the officials and any agent, representative, officer, director, employee, member or affiliate of any person or entity named above are not responsible for my safety. I specifically RELEASE and DISCHARGE, in advance, those parties from any and all liability whether, known or unknown, even though that liability may arise out of negligence or carelessness on the part of persons or entities mentioned above. I agree to accept all responsibility for the risks, conditions and hazards which may occur whether they now be known or unknown.

Being fully aware of the risks, conditions and hazards of the proposed activity as a competitor, coach or official, I HEREBY AGREE TO WAIVE, RELEASE AND DISCHARGE any and all claims for damages for death, personal [*10] injury or property damage which I may have or which may hereafter accrue to me as a result of my participation in competitive events or training for competitive events, against any person or entity mentioned above whether such injury or damage was foreseeable.

I further agree to forever HOLD HARMLESS and INDEMNIFY all persons and entities identified above, generally or specifically, from any and all liability for death and/ [**500] or personal injury or property damage result[ing] in any way from my participating in competitive events or training for competitive events.

This Acknowledgement of and Assumption of Risk and Release shall be binding upon my heirs and assigns. (Emphasis added)

Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 445, 603 A.2d 663, 664 (1992).

The second exculpatory clause in Kotovsky provided as follows:

If you do not accept fully the conditions below do not compete, officiate, coach or in any other way participate in any event. I, the undersigned, know that alpine and nordic skiing are action sports carrying significant risk of personal injury. Racing, jumping or freestyle competition is even more dangerous. I know that there are natural and man-made obstacles [*11] or hazards, surfaces and environmental conditions, and risks which in combination with my action can cause me very severe or occasionally fatal injury. I agree that I and not the ski area or its staff or American Ski Racing Alliance, Inc. “(ASRA”) or its staff, am responsible for my safety while I participate in, or train for these events.

I HEREBY RELEASE and discharge, on behalf of myself, my heirs, executors, personal representatives and assigns, ASRA, USSA, their affiliates and subsidiaries and their respective directors, officers, agents, employees, successors and assigns or any of them, from any and all actions, causes of action, claims, damages, demands, injuries and liabilities of any nature whatsoever. (including reasonable attorneys fees and interest) arising out of or in any manner [**501] connected with their involvement with ski races organized, promoted or operated by ASRA. (Emphasis in original).

Id.

The Court in Zimmer v. Mitchell, 253 PA. Super. 474, 385 A.2d 437 (1978), was confronted with an exculpatory clause that was contained in a rental agreement for ski equipment. 4 The exculpatory clause in that rental agreement read, in relevant part, as follows, “I furthermore release [*12] Mitchell and Ness from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury.” Id. at 478, 385 A.2d at 439. The court chose to enforce the agreement despite the fact that the language of the agreement did not release the defendant for liability based on its own negligence. A different result was reached in Brown where the Superior Court invalidated an exculpatory agreement because “The release in question [did] not spell out the intention of the parties with the necessary particularity. The language [did] not set forth in an unambiguous manner that the releaser, in signing the agreement, intend[ed] to absolve the releasee of liability for the releasee’s own negligence.” Brown v. Racquetball Centers. Inc., 369 Pa. Super. 13, 16, 534 A.2d 842, 843 (1987). 5

4 The plaintiff in Zimmer alleged to have been injured when the bindings on the ski equipment that he had rented from the defendant failed to properly release him. The Court in Zimmer affirmed an order that granted summary judgment based on an exculpatory clause contained in a rental agreement.

5 The plaintiff [*13] in Brown was a member of a health club who slipped when exiting the club’s shower facilities. The Court reversed a trial court order that granted summary judgment in favor of the health club based on an exculpatory clause contained in the application form signed by the plaintiff upon joining the health club. The exculpatory clause read, in relevant, part:

I, LeRoy F. Brown, voluntarily enter the Westend Racquet Club…to participate in the athletic, physical and social activities therein. I have inspected the premises and know of the risks and dangers involved in such activities as are conducted therein and that unanticipated and unexpected dangers may arise during such activities. I hereby and do assume all risks of injury to my person and property that may be sustained in connection with the stated and associated activities in and about those premises. (Emphasis added).

In consideration of the permission granted to me to enter the premises and participate in the stated activities, I hereby, for myself, my heirs, administrators and assigns, release, remise and discharge the owners, operators and sponsors of the premises and its activities and equipment and their respective servants, agents, [*14] officers, and all other participants in those activities of and from all claims, demands, actions and causes of action of any sort, for injury sustained to my person and/or property during my presence on the premises and my participation in those activities due to negligence or any other fault.

Id. at 14, 534 A.2d at 842.

[**502] In the case sub judice, the Defendants made every possible effort to draft exculpatory clauses with language that complied with Pennsylvania precedent. The exculpatory clauses drafted by the Defendants are linguistically similar to the exculpatory clauses quoted in Kotovsky, Zimmer and Brown. The Defendants specifically attempted to remedy the problem identified by the Court in Brown by including language that specifically released liability for injuries caused by the Defendants’ own negligence. Unlike the exculpatory agreement in Brown, in the case sub judice, the Plaintiff clearly and unequivocally agreed to release the Defendant, LA Fitness, from any and all claims whether caused “by the active or passive negligence of LA Fitness or otherwise.” (Defendants’ Motion for Summary Judgment, Membership [**503] Agreement Exhibit B (July 6, 2009)). Under the terms of the Fitness Service Agreement [*15] and Release of Liability, the Plaintiff clearly and unequivocally agreed to release the Defendants from any and all claims “even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.” (Id. Exhibit C). The Fitness Service Agreement and Release of Liability also provided that the “[Plaintiff] further acknowledges that such risks included, but are not limited to, injuries caused by the negligence of an instructor.” (Id).

In accordance with Pennsylvania precedent, the exculpatory clauses at issue were also highly visible and clearly noticeable within the Membership Agreement and Fitness Service Agreement and Release of Liability. Beck-Hummel v. Ski Shawnee, inc., 2006 PA Super 159, 902 A.2d 1266, 1274 (Pa. Super. 2006) (standing for the proposition that [HN1] an exculpatory clause should be conspicuous on the face of a document and espousing a three part test for determining whether a reasonable person should have noticed an exculpatory clause contained in a document as follows: (1) the disclaimer’s placement in the document, (2) the size of the disclaimer’s print, and (3) whether the disclaimer was [*16] highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document). A plain reading of the Membership Agreement and the Fitness Service Agreement and Release of Liability shows that exculpatory clauses were both written in a larger and different type than the type used in the rest of the contracts in which they appeared. The clauses were both separated and sectioned apart from all other contractual provisions and encased within a box. [**504] The membership Agreement with LA Fitness was entitled “IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY.” The exculpatory clauses in the Fitness Service Agreement and Release of Liability contained the titles, “Limitation of Liability & Full Release of BOC” and “Acknowledgement & Assumption of Risk.” Both titles were written in bold and in a larger print size than all other material on the page.

The Plaintiff was unable to cite a single valid reason for this Court to decline to enforce the exculpatory clauses at issue. In her response to the Defendants’ motion for summary judgment and her motions to reconsider, the Plaintiff cited six arguments in an attempt to persuade this Court to allow [*17] her to proceed to trial. These arguments were as follows:

A. Defendants’ failed to plead, in their answer and new matter, the defense of waiver and release with regard to the exculpatory clauses…

B. The exculpatory clauses are contracts of adhesion and, therefore, are unconscionable and unenforceable…

C. It is against public policy to enforce a consumer contract that waives negligence on the part of the vendor and its agents and employees…

D. The terms of the exculpatory clauses are ambiguous and, therefore, unenforceable…

E. There is no privity of contract between Defendant, Hale, and plaintiff.

(Plaintiffs’ Memorandum of Law in Support of their Response to Defendants’ Motion for Summary Judgment (August 5, 2009) (citing the topic headings [**505] to Plaintiff’s five arguments against the entry of summary judgment)).

F. [Plaintiff] respectfully requests that this Honorable Court will enter an order amending the record to state that [the Plaintiff] did not execute or sign any contract with [the] Defendant, L.A. Fitness, LLC, and rescind and reverse the…Order granting summary judgment.

(Plaintiffs’ Motion for Reconsideration Based on New Evidence of the… Order Granting Defendants’ Motion for Summary [*18] Judgment (September 22, 2009) (citing the wherefore clause in said motion)).

A. The Defendants’ specifically pled waiver and release in their answer and new matter filed on September 10, 2009

The Defendants’ filed a late answer with new matter on September 10, 2009. This Court allowed the Defendants’ to pursue the exculpatory agreement as a defense despite the late pleading because the Plaintiff was unable to show that she suffered prejudice as a result of the Defendants’ untimely pleading. In Blumenstock v. Gibson, 2002 PA Super 339, 811 A.2d 1029 (PA. Super. 2002), the court wrote:

[HN2] It is true that under Pennsylvania Rule of Civil Procedure 1030, release is an affirmative defense that ordinarily must be pled as new matter. Holmes v. Lankenau Hospital, 426 Pa. Super. 452, 627 A.2d 763, 765 (PA. Super. 1993). Under the Rule, if release is not pled as new matter, the right to assert the defense has been waived. Id. Nevertheless, our Rules of Civil Procedure must be liberally construed so that actions are resolved in a just, speedy and inexpensive manner consistent with Rule 126. Id. 765-66. [**506] The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding [*19] to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. PA. R.C.P. 126.

Where the rights of the plaintiff have not been prejudiced through the defendant’s failure to plead the defense of release prior to filing a motion for summary judgment, the trial court is not required to strictly enforce Rule 1030. Holmes, 627 A.2d at 766.

Id. at 1039.

In the case sub judice, the Plaintiff could not show prejudice because the Defendants inadvertent oversight had no influence on the litigation. The Defendants mailed a copy of their Answer and New Matter to the Plaintiff on November 13, 2008, but failed to file a copy of the same with the Prothonotary. The Plaintiff did not file a 10-day notice of intent to take a default judgment and a default judgment was never entered. The Defendants stated that they produced the Membership Agreement and the Fitness Service Agreement and Release of Liability in their response to the Plaintiff’s request for production of documents on February 6, 2009. At deposition, the Defendants specifically questioned the Plaintiff about whether [*20] she signed the Membership Agreement and the Fitness Service Agreement and Release of Liability, and she admitted that she signed both agreements. The Defendants then advanced their defense based on the exculpatory clauses at the appropriate stage by motioning for summary judgment at the close of discovery.

[**507] B. This Court’s Order granting summary judgment should be affirmed because the exculpatory clauses at issue did not constitute contracts of adhesion

The Plaintiff argued that the Membership Agreement and the Fitness Service Agreement and Release of Liability were contracts of adhesion and were, therefore, invalid. In support of this argument, she cited the fact that the Defendants openly admitted that the terms of the agreements were non-negotiable. The Plaintiff was presented with standardized boiler plate contracts that contained exculpatory clauses. She was given no opportunity to negotiate the terms of these agreements. If she wanted to exercise at LA Fitness under the supervision of personal trainers provided by Body of Change, she had to sign the agreements as presented.

The Membership Agreement and Fitness Service Agreement and Release of Liability were not contracts of adhesion [*21] because the Plaintiff had the ability to seek other forms of exercise. Pennington v. Lombardi-Martelli 42 Pa. D. & C.4th 425 (1999) (Affirming a trial court’s grant of summary judgments in favor of a stable owner and stating that the exculpatory agreement entered into prior to taking horse riding lessons was not a contract of adhesion because the plaintiff was free to select another riding school.). The Plaintiff chose to exercise at LA Fitness under the guidance of a personal trainer who worked for Body of Change. The Plaintiff could have exercised independently at home or at a variety of other locations including LA Fitness. The Plaintiff’s ability to choose the form of exercise that she would practice defeats her argument based on a theory of adhesion. For example, the Court enforced an exculpatory agreement against a [**508] Plaintiff who was injured in a down hill ski race in Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992). In Kotovsky, the Court stated that the exculpatory agreement was not one of adhesion because the Plaintiff “was not required to enter the contract, but did so voluntarily in order to participate in the downhill ski race.” Id. at 447, 603 A.2d at 665.

C. [*22] This Court’s Order granting summary judgment should be affirmed because Pennsylvania has a public policy of enforcing exculpatory agreements

Exculpatory agreements in the context of athletic events and fitness club memberships have previously been the subject of litigation in Pennsylvania. However, the Plaintiff is completely unable to cite to precedent to establish that exculpatory clauses in the nature of the type at issue in the case sub judice are invalid based on public policy grounds. Courts located in California and Kansas have enforced exculpatory agreements in personal injury actions where the plaintiff was a member of a fitness club and signed contract that contained an exculpatory clause. Fata v. LA Fitness International LLC., 2008 Cal. App. Unpub. LEXIS 7926 (2008); and Ko v. Bally Total Fitness Corp., 2003 U.S. Dist. Lexis 19378. In both Fata and Ko, there was no mention of public policy being violated by the enforcement of the exculpatory clauses contained in either membership agreement with the health club defendants in those cases. In Zipusch v. LA Workout. Inc., 155 Cal. App. 4th 1281, 66 Cal. Rptr. 3d 704 (2007), the Court chose to not enforce an exculpatory agreement; however, it did not [*23] base its decision on public policy grounds. The Plaintiff failed to support her argument that public policy prevents the enforcement of exculpatory [**509] agreements when the Plaintiff engages in athletic activities at a health club where the Plaintiff is a member.

This Court would like to call attention to the fact that its analysis would have been entirely different if the Plaintiff had been working under the supervision of a licensed physical therapist. In Leidy v. Deseret Enterprises, Inc., 252 Pa. Super. 162, 381 A.2d 164 (1977), the Court reversed a trial court order that granted a motion for judgment on the pleadings filed by the defendant (health spa) based on an exculpatory clause in a membership agreement entered into between the parties. In Leidy, the plaintiff alleged to have been “referred to the spa by her doctor as part of post-operative treatment following surgery on the lumbar area of her spine, but that the treatment she was in fact given was directly contrary to her doctor’s instructions to the spa.” Id. at 166, 381 A.2d at 166. The Court stated, “The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are in fact so qualified, and accept responsibility for their actions.” The Court stated, “The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are in fact so qualified, and accept responsibility for their actions.” Id. 170, 381 A.2d at 168.

The reasoning and logic of Leidy is inapplicable to the sub judice because no recognized statewide standard of care exists for health clubs like LA Fitness or health club employees like Defendant Hale. The legislature created the Broad of Physical Therapy to establish rules and procedures to regulate physical therapy throughout the state of Pennsylvania. See 63 P.S. § 1302.1. The Physical Therapy Practice Act, 63 P.S. § 1301 et seq., provides conclusive evidence of the public interest in protecting [**510] the health, safety and welfare of those who seek the services of a physical therapist. Therefore, this Court would have to be presented with an extremely unusual fact pattern before it would allow a physical therapist to escape liability based on an exculpatory agreement executed by his or her patient. It would be hard to believe that such an agreement truly regulated private interests. Yet at the same time, services provided by a personal [*25] trainer are substantially similar to the services provided by a physical therapist.

The fact pattern of the case sub judice highlights just one of the problems presented by the lack of legislative oversight of the health club and fitness industry in Pennsylvania. This Court would like to refer this matter on the legislature so that it can establish a system for regulation. The clear affect of this lack of legislative oversight means that national health club chains, like the Defendants, can be sued for negligence based upon a breach of an ordinary standard of care that could vary from county to county. Since an ordinary standard of care is applicable, the Defendants need the protection provided by the exculpatory agreement. Clearly, the establishment of a uniform standard of care is necessary. It would then be possible to establish a statewide standard of care that would subject entities and individuals involved in the fitness industry to liability. Legislative oversight would also bolster any argument that an exculpatory agreement should be invalid based on public policy grounds.

D. The terms of the exculpatory clauses are not ambiguous and are therefore enforceable.

As previously discussed, [*26] Plaintiff clearly and unequivocally agreed to release the Defendants from liability [**511] for personal injury. There was nothing ambiguous about the terms of either exculpatory clause. Both clauses specifically identified the types of personal injuries contemplated by the parties when they entered into the agreement. Under the terms of the Membership Agreement, the Plaintiff released LA Fitness from any risk of injury and agreed that:

Such risk of injury include[d] (but is not limited to): injuries arising from use by Member or others of exercises equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others…

The terms of the Fitness Service Agreement and Release of Liability, clearly stated that the,

Client acknowledges these Physical Activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower [*27] back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after Client’s participation in the Physical Activities.

The Plaintiff suffered injuries that were specifically encompassed within the description of injuries contemplated in the exculpatory clauses offered by the Defendants. The Plaintiff’s medical records state that she suffered an anteroinferior dislocation of the left shoulder that led to post-traumatic arthritis and contractures. The Plaintiff was a registered nurse at Magee Rehabilitation. [**512] She should have read and comprehended the ramifications of entering into the Membership Agreement and Fitness Service Agreement and Release of Liability. As a nurse, the Plaintiff should have also understood inherent danger in any exercise routine.

E. This Court’s Order granting summary judgment should be affirmed because privity of contract between the Plaintiff and the Defendant, Dorian Jefferson Hale, is a completely irrelevant issue

There was no dispute as to the fact that the Plaintiff entered into the Fitness Service Agreement and Release of Liability with Body of Change. 6 This agreement specifically states,

Client, his or her heirs, assigns [*28] and next of kin, agree to fully release BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that Client may have for injuries?even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.

6 See § F herein discussing the Plaintiffs motion to reconsider based on new evidence wherein she claims that she never signed the Membership Agreement with LA Fitness.

There was no dispute as to the fact that Defendant, Dorian Jefferson Hale, was an agent of Body of Change. Under the specific terms of the Fitness Service Agreement and Release of Liability, all agents of Body of Change were released from liability over to the Plaintiff. As with any other contract, the specific terms of this exculpatory [**513] clause should be enforce in accordance with the plain meaning of its language. For example, the Court in Maloney v. Valley Medical Facilities, Inc., 603 Pa. 399, 984 A.2d 478 (Pa. 2009), permitted a plaintiff to maintain an action against an agent of a principal [*29] despite the fact that the plaintiff had released the agent’s principal. In Maloney, the release that the plaintiff entered into with the principal specifically contained a reservation of rights clause that permitted the plaintiff to proceed against the agent. The Court discussed the application of traditional contract principles and the need to effectuate the intent of the parties who enter into contracts.

The case sub judice is factually distinguishable from Maloney; yet, the reasoning and logic used in Maloney clearly favored the entry of summary judgment in favor of Defendant Hale. The exculpatory clause found in the fitness service agreement and release of liability did not contain a reservation of rights clause whereby the Plaintiff retained the right to sue Defendant Hale. To the contrary, the specific language of the exculpatory clause released Defendant Hale from all liability. Based on the reasoning contained in Maloney, this Court placed great emphasis on the specific language of the exculpatory clause and decided to enforce the agreement as to Defendant Hale as well as the other Defendants.

F. Whether the Plaintiff signed the Membership Agreement with the Defendant, LA Fitness, [*30] is not relevant to the question of whether this Court’s Order granting summary judgment should be affirmed

After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed a motion to reconsider [**514] based on new evidence. She argued that this Court should vacate its Order granting summary judgment in favor of the Defendant, LA Fitness, because she did not sign the Membership Agreement that contained the exculpatory clause that it offered as an affirmative defense. A brief review of the pleadings and procedural history of this case illustrates the irrelevant and meritless nature of this issue.

Originally the Plaintiff filed a response to the Defendants’ motion for summary judgment that contained an affidavit wherein she admitted that she signed both the Membership Agreement and the Fitness Service Agreement and. Release of Liability. After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed a motion for reconsideration that contained a second affidavit that contradicted her pervious affidavit. In her second affidavit, she averred that she did not sign the Membership Agreement.

The inconsistencies in the Plaintiff’s case could have created [*31] a legal issue that would have required judicial attention. However, the Plaintiff did not attempt to establish a direct claim of liability against LA Fitness. The Plaintiff did not bring an independent cause of action against LA Fitness on a theory like negligent hiring or supervision. The Plaintiffs claim against LA Fitness was based agency or vicarious liability for the actions or omissions of Defendant Hale. LA Fitness could only be held liable if Defendant Hale was held liable. The action against Defendant Hale was barred based on the exculpatory clauses in the Fitness Service Agreement and Release of Liability. The Plaintiff openly admitted that she signed [**515] Fitness Service Agreement and Release of Liability which states:

Client, his or her heirs, assigns and next of kin, agree to fully release BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that Client may have for injuries…even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent [*32] contractors.

In reality, the Plaintiff’s signature on the Membership Agreement was really a mere technicality. A plain reading of both affidavits illustrates that the Plaintiff was aware that she had entered into an agreement that had been reduced to writing when she joined L A Fitness. She then proceeded to use the facilities provided by L A Fitness on multiple occasions prior to her accident. She should have read the Membership Agreement and her use of the facility was akin to accepting the terms of the Membership Agreement.

Conclusion:

The Defendants went to great lengths to draft exculpatory clauses that would comply with Pennsylvania law; therefore, this Court was required to enforce the exculpatory clauses contained in the Membership Agreement and Fitness Service Agreement and Release of Liability.

BY THE COURT

/s/ John M. Younge

Judge John M. Younge

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Pennsylvania Skier Safety Act

Pennsylvania Skier Safety Act

PENNSYLVANIA STATUTES, ANNOTATED BY LEXISNEXIS (R)

PENNSYLVANIA CONSOLIDATED STATUTES 

TITLE 42.  JUDICIARY AND JUDICIAL PROCEDURE 

PART VII.  CIVIL ACTIONS AND PROCEEDINGS 

CHAPTER 71.  GENERAL PROVISIONS

Go to the Pennsylvania Code Archive Directory

42 Pa.C.S. § 7102  (2012)

§ 7102.  Comparative negligence.

(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.

(a.1)  Recovery against joint defendant; contribution.

   (1) Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to 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 that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

   (2) Except as set forth in paragraph (3), a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.

   (3) A defendant’s liability in any of the following actions shall be joint and several, and the court shall enter a joint and several judgment in favor of the plaintiff and against the defendant for the total dollar amount awarded as damages:

      (i) Intentional misrepresentation.

      (ii) An intentional tort.

      (iii) Where the defendant has been held liable for not less than 60% of the total liability apportioned to all parties.

      (iv) A release or threatened release of a hazardous substance under section 702 of the act of October 18, 1988 (P.L. 756, No. 108), known as the Hazardous Sites Cleanup Act.

      (v) A civil action in which a defendant has violated section 497 of the act of April 12, 1951 (P.L. 90, No. 21), known as the Liquor Code.

   (4) Where a defendant has been held jointly and severally liable under this subsection and discharges by payment more than that defendant’s proportionate share of the total liability, that defendant is entitled to recover contribution from defendants who have paid less than their proportionate share. Further, in any case, any defendant may recover from any other person all or a portion of the damages assessed that defendant pursuant to the terms of a contractual agreement.

(a.2)  Apportionment of responsibility among certain nonparties and effect. –For purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier of fact upon appropriate requests and proofs by any party. A person whose liability may be determined pursuant to this section does not include an employer to the extent that the employer is granted immunity from liability or suit pursuant to the act of June 2, 1915 (P.L. 736, No. 338), known as the Workers’ Compensation Act. An attribution of responsibility to any person or entity as provided in this subsection shall not be admissible or relied upon in any other action or proceeding for any purpose. Nothing in this section shall affect the admissibility or nonadmissibility of evidence regarding releases, settlements, offers to compromise or compromises as set forth in the Pennsylvania Rules of Evidence. Nothing in this section shall affect the rules of joinder of parties as set forth in the Pennsylvania Rules of Civil Procedure.

(b)  Recovery against joint defendant; contribution. –(Deleted by amendment).

(b.1)  Recovery against joint defendant; contribution. –(Unconstitutional).

(b.2)  Apportionment of responsibility among certain nonparties and effect. –(Unconstitutional).

(b.3)  Off-road vehicle riding.

   (1) Off-road vehicle riding area operators shall have no duty to protect riders from common, frequent, expected and nonnegligent risks inherent to the activity, including collisions with riders or objects.

   (2) The doctrine of knowing voluntary assumption of risk shall apply to all actions to recover damages for negligence resulting in death or injury to person or property brought against any off-road vehicle riding area operator.

   (3) Nothing in this subsection shall be construed in any way to abolish or modify a cause of action against a potentially responsible party other than an off-road vehicle riding area operator.

(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 (a.1).

(c.1)  Savings provisions. –(Unconstitutional).

(c.2)  Savings provisions. –Nothing in this section shall be construed in any way to create, abolish or modify a cause of action or to limit a party’s right to join another potentially responsible party.

(d)  Definitions. –As used in this section the following words and phrases shall have the meanings given to them in this subsection:

“Defendant or defendants.” –Includes impleaded defendants.

“Off-road vehicle.” –A motorized vehicle that is used off-road for sport or recreation. The term includes snowmobiles, all-terrain vehicles, motorcycles and four-wheel drive vehicles.

“Off-road vehicle riding area.” –Any area or facility providing recreational activities for off-road vehicles.

“Off-road vehicle riding area operator.” –A person or organization owning or having operational responsibility for any off-road vehicle riding area. The term includes:

   (1) Agencies and political subdivisions of this Commonwealth.

   (2) Authorities created by political subdivisions.

   (3) Private companies.

§ 2051.  Punitive damages for downhill skiing accidents

(a) LEGISLATIVE STATEMENT. –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. The law of this Commonwealth being unclear with regard to the insurability against punitive damages, the operators of downhill skiing areas face uncertainty in securing insurance to indemnify against downhill skiing accidents.

(b) INSURABILITY. –It is not against the public policy of this Commonwealth for an insurance company to insure the operator of a downhill skiing area against punitive damages, other than those punitive damages arising from an intentional tort committed by such operator.

(c) OTHER CASES. –Nothing herein contained shall be construed to change or amend the public policy of this Commonwealth with respect to the insurability against punitive damages in cases arising other than from downhill skiing.


Pennsylvania Sales Representative

PENNSYLVANIA STATUTES ANNOTATED

PENNSYLVANIA STATUTES

TITLE 43. LABOR

CHAPTER 27. COMMISSIONED SALES REPRESENTATIVES

Go to the Pennsylvania Code Archive Directory

43 P.S. § 1471 (2012)

§ 1471. Definitions

The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:

“COMMISSION.” Compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the dollar of orders or sales.

“PRINCIPAL.” Any person who does all of the following:

(1) Engages in the business of manufacturing, producing, importing or distributing a product for sale to customers who purchase such products for resale.

(2) Utilizes sales representatives to solicit orders for such product.

(3) Compensates sales representatives, in whole or in part, by commission.

“SALES REPRESENTATIVE.” A person who contracts with a principal to solicit wholesale orders from retailers rather than consumers and who is compensated, in whole or in part, by commission. The term does not include one who places orders or purchases for his own account for resale or one who is an employee of a principal.

“TERMINATION.” The end of services performed by the sales representative for the principal. The term includes any action that concludes the relationship of the parties.

§ 1472. Contracts

(a) CONTENTS.—When a sales representative enters into an agreement with the principal for the solicitation of wholesale orders, a written contract shall be entered into setting forth the following:

(1) The form of payment and the method by which it is to be computed and made.

(2) A specified period for the performance of services.

(3) The manner and extent to which job-incurred expenses are to be reimbursed.

(4) A specified geographical territory or specified accounts.

(b) COPY OF CONTRACT.—The principal shall provide each sales representative with a signed copy of the con-tract.

§ 1473. Termination

A principal shall pay a sales representative all commission due at the time of termination within 14 days after termination.

§ 1474. Commissions on goods delivered after the end of the agreement

A principal shall pay a sales representative all commissions that become due after termination within 14 days of the date such commissions become due.

§ 1475. Noncompliance

(a) GENERAL.—A principal who willfully fails to comply with the provisions of section 3 or 4 shall be liable to the sales representative in a civil action for:

(1) All commissions due the sales representative, plus exemplary damages in an amount not to exceed two times the commissions due the sales representative.

(2) The cost of the suit, including reasonable attorney fees.

(b) FRIVOLOUS ACTIONS.—If judgment is entered for the principal and the court determines that the action was brought on frivolous grounds, the court shall award reasonable attorney fees and court costs to the principal.

§ 1475.1. When commissions become due

(a) CONTRACT.—The terms of the contract, whether or not in writing, between the principal and sales representative shall determine when commissions become due.

(b) CUSTOM AND USAGE.—If the time when commissions become due cannot be determined by a contract between the principal and sales representative, the past practices of the parties shall control, or, if there are no past practices, the custom and usage prevalent in this Commonwealth for the business that is the subject of the relationship be-tween the parties shall control.

§ 1476. Construction of act

Nothing in this act shall invalidate or restrict any other or additional right or remedy available to sales representatives or preclude sales representatives from seeking to recover in one action on all claims against a principal. The provisions of this act may not be waived. In applying the provisions of this act, the courts of this Commonwealth shall not recognize any purported waiver of the provisions of this act, whether by express waiver or by attempt to make a contract or agreement subject to the laws of another state.

§ 1477. Applicability

The provisions of this act shall apply to existing contracts which can be terminated at will and to contracts entered into or renewed after the effective date of this act. Nothing contained in this section is intended to violate section 17 of Article I of the Constitution of Pennsylvania, relative to impairing the obligations of contracts.

§ 1478. Compliance with requirements for contracts

Within 180 days after the effective date of this act, all contracts described in section 7 shall comply with the provisions of section 2.

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