West Virginia Supreme Court upholds a release signed to obtain a season pass at a ski area

The plaintiff’s inability to produce any evidence to support his allegations also went a long way in defeating his claims.

Citation: Addis v. Snowshoe Mountain, Inc., a West Virginia corporation, 2013 W. Va. LEXIS 1353 (W. Va. 2013)

State: West Virginia, Supreme Court of West Virginia

Plaintiff: Glen Addis and Pamela Addis

Defendant: Snowshoe Mountain, Inc., a West Virginia corporation

Plaintiff Claims: Negligence

Defendant Defenses: West Virginia Skiing Responsibility Act and Release

Holding: For the Defendants

Year: 2013

Summary

Injury received by experienced season pass holder and former ski instructor was barred by the West Virginia Skiing Responsibility Act and a release he had signed when he bought his season pass.

Facts

Plaintiff was a former ski instructor and a season pass holder at Snowshoe Mountain ski area in Southern West Virginia. On the second run on Lower Shay’s revenge, a double black diamond, he fell, slid into some trees and was severely injured. His argument was based on the idea that the snow making equipment was shooting water rather than snow because of the temperature creating extremely icy conditions.

On the first run down Lower Shay’s Revenge, he noticed the icy conditions, but he did not notify anyone of the conditions.

The plaintiff lost at the trial court level after the defendant Snowshoe Mountain filed a motion for summary judgment, and the plaintiff appealed.

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

The court first looked at the application of the West Virginia Skiing Responsibility Act to this incident. The plaintiff argued:

…respondent lost the protection of the Act by failing to monitor weather information, failing to stop malfunctioning snowmaking equipment, failing to train ski patrol, and failing to mark hazards.

(Respondent meaning the ski area.) This argument was predicated on the temperatures that day being above freezing. The snow making equipment was shooting water rather than snow according to the plaintiff.

Central to each of petitioners’ assertions is their supposition that the air temperature was warmer than 32 degrees Fahrenheit at key times on the days around the petitioner’s accident, causing respondents snowmaking equipment to blow water, rather than snow, which created ice on the trail.

The court throughout the weather argument because the plaintiff did not produce any exhibits or evidence that proved the weather that day caused the issues or that the ski area’s snow making equipment malfunctioned because of the temperatures.

The only evidence of the temperature, however, is a three-page climate data report of the National Weather Service setting out the minimum and maximum daily area temperatures for the month of January of 2009. While that report shows that the maximum temperature reached 42 degrees Fahrenheit on the day of petitioner’s accident, there is no evidence that respondent’s equipment malfunctioned as a result of that temperature, or that the equipment was improvidently used.

The court found the West Virginia Skiing Responsibility Act protected the defendant ski area, because the plaintiff could not prove the resort’s equipment malfunctioned.

The second argument was the release should fail. West Virginia has a history of finding releases void for narrow reasons. In fact, I’ve listed West Virginia as a state where releases are suspect. See States that do not Support the Use of a Release.

Here the plaintiff argued because the West Virginia Skiing Responsibility Act had been violated, the release was void. A negligence per se argument that a release cannot protect against violation of a rule, regulations or statute designed to protect someone. Since the court found the statute had not been violated, the Supreme Court upheld the release.

Their sole argument before this Court is that the circuit court failed to recognize, based on Murphy v. North American River Runners, Inc, that exculpatory clauses do not provide immunity to operators who violate a statutory safety standard. Inasmuch as we have determined herein that there is no evidence of respondents acting contrary to its duty set forth in the West Virginia Skiing Responsibility Act, petitioners cannot prevail on this ground.

So Now What?

What makes this case so interesting is the decision by the WV Supreme Court to uphold a release. In numerous release cases that have come before the court over the past decades, the court has uniformly found the releases void.

Of course, it helps if the plaintiff fails to place into evidence any information or facts that can support his or her case.

What do you think? Leave a comment.

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Addis v. Snowshoe Mountain, Inc., a West Virginia corporation, 2013 W. Va. LEXIS 1353 (W. Va. 2013)

Addis v. Snowshoe Mountain, Inc., a West Virginia corporation, 2013 W. Va. LEXIS 1353 (W. Va. 2013)

Glen Addis and Pamela Addis, Plaintiffs Below, Petitioners

v.

Snowshoe Mountain, Inc., a West Virginia corporation, Defendant Below, Respondent

No. 12-1537

Supreme Court of West Virginia

November 22, 2013

(Pocahontas County 10-C-69)

MEMORANDUM DECISION

Petitioners Glen and Pamela Addis, by counsel John F. McCuskey, Roberta F. Green, and Heather B. Osborn, appeal the order of the Circuit Court of Pocahontas County, entered November 28, 2012, granting summary judgment in favor of Respondent Snowshoe Mountain, Inc. Respondent appears by counsel Robert M. Steptoe, Amy M. Smith, and Matthew B. Hansberry.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioners filed a complaint and amended complaint in the Circuit Court of Kanawha County based on injuries Petitioner Glen Addis received after skiing over and slipping on ice on a double black diamond trail called Lower Shay’s Revenge at respondent’s ski resort.[1] The civil action was transferred to the Circuit Court of Pocahontas County upon the court’s grant of respondent’s motion to dismiss for improper venue, or in the alternative, transfer. Respondent filed a motion for summary judgment after the close of discovery, and the circuit court granted the motion by order entered November 28, 2012, on the grounds that petitioners’ claims are barred by the West Virginia Skiing Responsibility Act and by release and waiver language contained in an agreement signed by petitioner.[2] Petitioners appealed the grant of summary judgment to this Court.

The material facts are not in dispute. Petitioner Glen Addis entered respondent’s resort the day of his accident using a season pass. In obtaining that pass, petitioner signed the following agreement:

I understand and accept the fact that skiing, snowboarding, bicycling, and golf in their various forms are INHERENTLY DANGEROUS AND HAZARDOUS sports that have many dangers and risks. I realize that injuries are a common and ordinary occurrence of these sports. I agree, as a condition of being allowed to use the resort’s facilities and premises, that I freely accept and voluntarily assume all risks of personal injury or death or property damage, and release Snowshoe Mountain, Inc. and its agents, employees, directors, officers, and shareholders from any and all liability for personal injury or property damage which results in any way from negligence, conditions on or about the premises and facilities, the operations of the resort including, but not limited to, grooming, snowmaking, ski lift operations, trail maintenance, golf operations, the actions or omissions of employees or agents of Snowshoe or my participation in skiing or other activities in the area, accepting myself the full responsibility for any and all such damage or injury of any kind which may result.

I further understand and accept that there may be exposure to other dangers or hazards including, but not limited to, the following: riding and disembarking the ski lifts, changing weather conditions, loss of balance or control, rocks, roots, stumps, trees, forest debris, creeks and streams, natural and manmade objects, bare spots, blind spots, reduced visibility (for any reason), and the actions of other guests or employees.

I, the undersigned, have read, understood, and agree to accept the terms of this RELEASE AND AGREEMENT NOT TO SUE. I am signing it freely and of my own accord realizing it is binding upon my heirs, my assigns, and myself. . . .

I shall support the Responsibility Code and understand that skiing, snowboarding, bicycling and golf are inherently dangerous sports and I freely and voluntarily accept all of the inherent risks and responsibilities associated with these sports.

Petitioner is an experienced skier and former ski instructor, and he had skied Lower Shay’s Revenge many times prior to the accident that is the subject of this claim. His fall occurred on his second run on that trail on the morning of January 24, 2009. On his earlier run, petitioner observed that the trail was not well-groomed, was icy, and had large mounds of snow.[3]He did not, however, report the condition of the trail to ski patrol. Petitioner approached an icy mound on his second run, and his right ski became dislodged. He then stopped on a “very steep slope” and, while attempting to put his ski back on, he slipped on ice, over a drop-off, and into the nearby wooded area. Petitioner struck a tree, fracturing both femurs and his pelvis.

On appeal, petitioners assert two assignments of error. First, they argue that the circuit court improperly construed the West Virginia Skiing Responsibility Act. Second, they argue that the circuit court misapplied West Virginia law on pre-injury exculpatory clauses and thereby violated their constitutional rights in granting summary judgment. “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192, W.Va. 189, 451 S.E.2d 755 (1994). The non-moving party may only defeat a motion for summary judgment by offering some concrete evidence from which a reasonable fact finder could return a verdict in his favor. See Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). Mindful of this standard, we consider petitioners’ arguments.

The West Virginia Skiing Responsibility Act provides in part:

§20-3 A-3. Duties of ski area operators with respect to ski areas. Every ski area operator shall:

(8) Maintain the ski areas in a reasonably safe condition, except that such operator shall not be responsible for any injury, loss or damage caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any components thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with subdivision (2) of this section.

§20-3 A-5. Duties of skiers.

(a) It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken. Each skier expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in the sport of skiing including, but not limited to, any injury, loss or damage caused by the following: Variations in terrain including freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with section three of this article. Each skier shall have the sole individual responsibility for knowing the range of his or her own ability to negotiate any ski slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone. If while actually skiing, any skier collides with any object or person, except an obviously intoxicated person of whom the ski area operator is aware, the responsibility for such collision shall be solely that of the skier or skiers involved and not that of the ski area operator.

Petitioners argue that respondent lost the protection of the Act by failing to monitor weather information, failing to stop malfunctioning snowmaking equipment, failing to train ski patrol, and failing to mark hazards. We find no evidence in the record to support any such asserted failure, and petitioners direct our attention to none.[4] Central to each of petitioners’ assertions is their supposition that the air temperature was warmer than 32 degrees Fahrenheit at key times on the days around petitioner’s accident, causing respondent’s snowmaking equipment to blow water, rather than snow, which created ice on the trail. The only evidence of the temperature, however, is a three-page climate data report of the National Weather Service setting out the minimum and maximum daily area temperatures for the month of January of 2009. While that report shows that the maximum temperature reached 42 degrees Fahrenheit on the day of petitioner’s accident, there is no evidence that respondent’s equipment malfunctioned as a result of that temperature, or that the equipment was improvidently used.

Petitioners liken their situation to Hardin v. Ski Venture, Inc., 848 F.Supp. 58 (N.D. W.Va. 1994), a case in which a defendant ski resort was denied summary judgment because there was evidence that defendant’s malfunctioning snowmaking equipment blew “excessively wet snow” into plaintiff’s goggles, obstructing his vision and ultimately causing the collision that rendered him quadriplegic.[5] But here, where petitioners have made only broad accusations of “failure, ” and offered unsupported conjecture, petitioners have presented no facts to significantly distinguish this case from Pinson v. Canaan Valley Resorts, Inc., 196 W.Va. 436, 473 S.E.2d 151 (1996), wherein a plaintiff sued a ski resort for injuries she received while skiing on ungroomed, natural snow. In that case, we ultimately determined that “skiers, rather than ski area operators, are responsible for injuries caused by ‘variations in terrain; surface or subsurface snow or ice conditions’ and that such variations or conditions . . . caused the injury to” that plaintiff. Similarly, we find that petitioner is responsible for his injury, inasmuch as the evidence shows only that it was caused by conditions of the terrain.

Petitioners’ second assignment of error is that the circuit court misapplied our law on pre-injury exculpatory clauses. Their sole argument before this Court is that the circuit court failed to recognize, based on Murphy v. North American River Runners, Inc., 186 W.Va. 310, 412 S.E.2d 504 (1991), that exculpatory clauses do not provide immunity to operators who violate a statutory safety standard. Inasmuch as we have determined herein that there is no evidence of respondent’s acting contrary to its duty set forth in the West Virginia Skiing Responsibility Act, petitioners cannot prevail on this ground.

For the foregoing reasons, we affirm.

Affirmed.

CONCURRED IN BY:

Chief Justice Brent D. Benjamin Justice Robin Jean Davis Justice Margaret L. Workman Justice Menis E. Ketchum Justice Allen H. Loughry II

Notes:

[1]The “double black diamond” designation indicates that the trail is “extremely difficult” and is intended for “advanced” skiers.

[2]The sole claim of Petitioner Pamela Addis was loss of consortium. The circuit court correctly noted that it was entirely derivative of her husband’s claims.

[3]Petitioner was also aware, however, that other nearby trails were groomed, inasmuch as he had skied several earlier that morning.

[4]Petitioners’ citations to their own pleadings or arguments below, rather than specific testimony or evidence, to establish the events giving rise to this action is insufficient.

[5]In their reply brief, petitioners state that they, like the Hardin plaintiffs, “had retained an expert who was prepared to identify the operator’s failures that led to the injuries alleged.” They further explain that it was that expert testimony in Hardin that created a factual dispute concerning the cause of the accident. The Court has been unable to find such expert testimony in the appendix record for this case.


Minnesota Supreme Court allows skier v. skier lawsuits in MN. Colliding with a tree is an inherent risk but colliding with a person is not?

NSSA website that describes skiing as safe if done under control contributes to the reasoning that skiers should be able to sue other skiers in a sport.

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

State: Minnesota; Supreme Court of Minnesota

Plaintiff: Julie A. Soderberg

Defendant: Lucas Anderson

Plaintiff Claims: Negligence

Defendant Defenses: Primary Assumption of the Risk

Holding: For the Plaintiff

Year: 2019

Summary

Primary Assumption of the Risk does not apply to collisions between skiers on the slopes in Minnesota. Any collision between two people using a ski area will now result in lawsuits.

The Minnesota Supreme Court believed that skiing, and snowboarding were not inherently dangerous because they could be done with common sense and awareness to reduce the risk, as quoted from the NSAA website.

Facts

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.” Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law.

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

The court first looked at Assumption of the risk and the differences between Primary Assumption of the Risk and Secondary Assumption of the Risk.

Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Therefore, primary assumption of risk precludes liability for negligence, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'”

The court found the ski instructor did not assume the risk of being hit. “Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So, the issue is whether she assumed the risk by implication.”

This first step in the analysis, that the ski instructor did not assume the risk of being hit, which the defense agreed to, sealed the fate of the decision. I think now days; most people consider the risk of a collision to be possible on the slopes.

So, the court then went through the history of primary assumption of the risk in Minnesota and how it was applied in baseball, skating and other sports. It then related why it has not applied primary assumption of the risk to snowmobiling.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity.

The court found that although skiers do collide with each other, it is not so frequent that it is considered an inherent risk of the sport.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .”

The National Ski Area Association, (NSAA) has this statement on their website:

Common Sense, it’s one of the most important things to keep in mind and practice when on the slopes. The National Ski Areas Association (NSAA) believes education, helmet use, respect and common sense are very important when cruising down the mountain. NSAA developed Your Responsibility Code to help skiers and boarders be aware that there are elements of risk in snowsports that common sense and personal awareness can help reduce.

The National Ski Patrol, which probably has a better understanding of the risks of skiing does not have that statement on its website. The good news is both the NSAA, and the NSP now at least have the same code on their websites. That was not true in the past.

The court then stated it just did not want to extend primary assumption of the risk to another activity.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.”

Finally, the court stated that it did not believe this decision would lead to fewer Minnesotans skiing. It will, but not by much. However, what it will do will be to increase litigation amount skiers and boarders. And if you are looking at going to a state to ski, knowing you can be sued if you hit someone else on the slopes might have you ski in another state.

Minnesota now joins Colorado in having billboards you can see leaving the ski areas asking if you have been hurt while skiing.

So Now What?

The court used an interesting analysis coupled with language from the NSAA website to determine that skiing was like snowmobiling and totally controllable, therefore, it was not a sport where you assume the risk of your injuries.

This is a minority opinion. Something this court did not even consider in its opinion. Most states you assume the risk of a collision. This decision was clearly written to increase the litigation in the state.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

If you like this let your friends know or post it on FB, Twitter or LinkedIn

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Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Soderberg, v. Anderson, 906 N.W.2d 889, 2018 Minn. App. LEXIS 47 (Minn. Ct. App., Jan. 16, 2018)

Julie A. Soderberg, Respondent, v. Lucas Anderson, Appellant.

No. A17-0827

Supreme Court of Minnesota

January 23, 2019

Court of Appeals Office of Appellate Courts

James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota; and Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for respondent.

Nathan T. Cariveau, Eden Prairie, Minnesota; and John M. Bjorkman, Larson King, LLP, Saint Paul, Minnesota, for appellant.

Brian N. Johnson, Peter Gray, Nilan, Johnson, Lewis, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Ski Areas Association.

Peter F. Lindquist, Jardine, Logan & O’Brien, P.L.L.P., Lake Elmo, Minnesota; and Thomas P. Aicher, Cleary Shahi & Aicher, P.C., Rutland, Vermont, for amicus curiae National Ski Areas Association.

Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota, for amicus curiae Minnesota Defense Lawyers Association.

Matthew J. Barber, James Ballentine, Schwebel, Goetz & Sieben, P.A., Minneapolis, Minnesota, for amicus curiae Minnesota Association for Justice.

SYLLABUS

The doctrine of implied primary assumption of risk does not apply to a claim in negligence for injuries arising out of recreational downhill skiing and snowboarding.

Affirmed.

OPINION

LILLEHAUG, JUSTICE.

In 2016, a ski area outside Duluth, Spirit Mountain, was the scene of an accident that caused severe injuries to a ski instructor. While teaching a young student, the instructor was struck by an adult snowboarder performing an aerial trick. The instructor sued the snowboarder for negligence, but the district court dismissed her claim based on the doctrine of implied primary assumption of risk, which is a complete bar to tort liability. The court of appeals reversed. Soderberg v. Anderson, 906 N.W.2d 889 (Minn.App. 2018). This appeal requires that we decide, for the first time, whether to extend that doctrine to recreational skiing and snowboarding. We decide not to extend it and, therefore, affirm the court of appeals’ decision, though on different grounds.

FACTS

On the morning of January 3, 2016, appellant Lucas Anderson, age 35, went snowboarding at Spirit Mountain near Duluth. Spirit Mountain welcomes both skiers and snowboarders to enjoy runs marked “easiest,” “more difficult,” and “difficult.” Anderson considered himself to be an expert snowboarder. He began skiing in elementary school and took up snowboarding when he was 15.

When Anderson snowboarded at Spirit Mountain, he typically warmed up by going down less challenging runs. That morning, Anderson went down part of a “more difficult” run called Scissor Bill, which merges with an “easiest” run called Four Pipe. As he left Scissor Bill and entered Four Pipe, Anderson slowed down, looked up for other skiers and snowboarders coming down the hill, and proceeded downhill.

Anderson then increased his speed, used a hillock as a jump, and performed an aerial trick called a backside 180. To perform the trick, Anderson-riding his snowboard “regular”-went airborne, turned 180 degrees clockwise, and prepared to land “goofy.”[1]Halfway through the trick, Anderson’s back was fully facing downhill. He could not see what was below him.

Respondent Julie Soderberg was below him. A ski instructor employed by Spirit Mountain, she was giving a lesson to a six-year-old child in an area of Four Pipe marked “slow skiing area.” At the moment when Anderson launched his aerial trick, Soderberg’s student was in the center of the run. Soderberg was approximately 10 to 15 feet downhill from, and to the left of, her student. She was looking over her right shoulder at her student.

As Anderson came down from his aerial maneuver, he landed on Soderberg, hitting her behind her left shoulder. Soderberg lost consciousness upon impact. She sustained serious injuries.

Soderberg sued Anderson for negligence. Anderson moved for summary judgment, arguing that, based on undisputed facts and the doctrine of implied primary assumption of risk, he owed Soderberg no duty of care and was entitled to judgment as a matter of law. The district court granted summary judgment in Anderson’s favor.

The court of appeals reversed and remanded. Soderberg, 906 N.W.2d at 894. Based on its own precedent of Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790 (Minn.App. 2007), rev. denied (Minn. Aug. 21, 2007), the court of appeals assumed that the doctrine of implied primary assumption of risk generally applies to actions between skiers. Soderberg, 906 N.W.2d at 892. The court then held that material fact issues precluded summary judgment as to whether Soderberg appreciated the risk that she could be crushed from above in a slow skiing area, and whether Anderson’s conduct “enlarged the inherent risks of skiing.” Id. at 893-94. Concluding that the district court erred in granting summary judgment to Anderson, the court of appeals remanded the case to the district court. Id. at 894. We granted Anderson’s petition for review and directed the parties to specifically address whether Minnesota should continue to recognize the doctrine of implied primary assumption of risk.

ANALYSIS

Anderson argues that he owed no duty of care to Soderberg based on the doctrine of implied primary assumption of risk. The doctrine of primary assumption of risk is part of our common law. Springrose v. Willmore, 192 N.W.2d 826, 827-28 (Minn. 1971). The application or extension of our common law is a question of law that we review de novo. See Gieseke ex rel. Diversified Water Diversion, Inc. v. IDCA, Inc., 844 N.W.2d 210, 214 (Minn. 2014).

In Springrose, we clarified the distinction between primary and secondary assumption of risk. Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence. Springrose, 192 N.W.2d at 827. Secondary assumption of risk is “an aspect of contributory negligence,” and is part of the calculation of comparative fault. Id.

By contrast, primary assumption of risk is not a defense and applies only in limited circumstances. Daly v. McFarland, 812 N.W.2d 113, 120-21 (Minn. 2012); Springrose, 192 N.W.2d at 827 (explaining that primary assumption of risk “is not . . . an affirmative defense”). Unlike secondary assumption, primary assumption of risk “completely bars a plaintiff’s claim because it negates the defendant’s duty of care to the plaintiff.” Daly, 812 N.W.2d at 119. Therefore, primary assumption of risk precludes liability for negligence, Springrose, 192 N.W.2d at 827, and is not part of the calculation of comparative fault. Primary assumption of risk “arises ‘only where parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks.'” Bjerke v. Johnson, 742 N.W.2d 660, 669 (Minn. 2007) (quoting Olson v. Hansen, 216 N.W.2d 124, 127 (Minn. 1974)); see Armstrong v. Mailand, 284 N.W.2d 343, 351 (Minn. 1979) (noting that the application of primary assumption of risk “is dependent upon the plaintiff’s manifestation of consent, express or implied, to relieve the defendant of a duty”).

Here, the parties agree that Soderberg did not expressly assume the risk of being hit by Anderson. So the issue is whether she assumed the risk by implication.

We first considered the applicability of the doctrine of implied primary assumption of risk to sporting events in Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706 (Minn. 1913), a case in which a spectator at a baseball game was injured by a fly ball. Id. at 707. We rejected the proposition that spectators assume the risk of injury if seated behind the protective screen between home plate and the grandstand. Id. at 707-08. We determined that the ball club was “bound to exercise reasonable care” to protect them by furnishing screens of sufficient size. Id. at 708 (citation omitted) (internal quotation marks omitted).

Nineteen years later, we held that a spectator assumed the risk of injury of being hit by a foul ball by sitting outside the screened-in area. Brisson v. Minneapolis Baseball & Athletic Ass’n, 240 N.W. 903, 904 (Minn. 1932). We concluded that the ball club had provided enough screened-in seating “for the most dangerous part of the grand stand.” Id. We later clarified in Aldes v. Saint Paul Ball Club, Inc., 88 N.W.2d 94 (Minn. 1958), that a baseball patron “assumes only the risk of injury from hazards inherent in the sport, not the risk of injury arising from the proprietor’s negligence.” Id. at 97. Thus, the doctrine applies to “hazards inherent in the sport.” Id.

We applied our flying-baseball cases to flying golf balls in Grisim v. TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874 (Minn. 1987). We held that injury from a flying golf ball was an inherent danger of the sport. Id. at 875. The tournament’s sole duty, we said, was to provide the spectator with “a reasonable opportunity to view the participants from a safe area.” Id. But we did not say that recreational golfing negligence claims are barred by the doctrine. Nor did we cast doubt on our decision in Hollinbeck v. Downey, 113 N.W.2d 9, 12-13 (Minn. 1962), which held that if a golfer knows that another person is in the zone of danger, the golfer should either give the other a warning or desist from striking the ball. See Grisim, 415 N.W.2d at 875-76 (distinguishing the facts in Grisim from those in Hollinbeck, 113 N.W.2d at 12-13, and therefore declining to apply Hollinbeck).

We have also extended the doctrine to two forms of ice skating: hockey and figure skating. Flying pucks are part of the inherently dangerous game of hockey, we held in Modec v. City of Eveleth, 29 N.W.2d 453, 456-57 (Minn. 1947). We stated that “[a]ny person of ordinary intelligence cannot watch a game of hockey for any length of time without realizing the risks involved to players and spectators alike.” Id. at 455.[2]

We applied the doctrine to recreational figure skating in Moe v. Steenberg, 147 N.W.2d 587 (Minn. 1966), in which one ice skater sued another for injuries arising out of a collision on the ice. Id. at 588. We held that the plaintiff” ‘assumed risks that were inherent in the sport or amusement in which she was engaged, such as falls and collisions with other skaters. . . .'” Id. at 589 (quoting Schamel v. St. Louis Arena Corp., 324 S.W.2d 375, 378 (Mo.Ct.App. 1959)). But we excluded from the doctrine skating that is “so reckless or inept as to be wholly unanticipated.” Id. Along the same lines, in Wagner v. Thomas J. Obert Enterprises, 396 N.W.2d 223 (Minn. 1986), we counted roller skating among other “inherently dangerous sporting events” in which participants assume the risks inherent in the sport. Id. at 226. We made clear, however, that “[n]egligent maintenance and supervision of a skating rink are not inherent risks of the sport itself.” Id.

Recreational snowmobiling, though, is a different matter. We have consistently declined to apply the doctrine to bar claims arising out of collisions between snowmobilers. In Olson v. Hansen, 216 N.W.2d 124 (Minn. 1974), we observed that, although snowmobiles can tip or roll, such a hazard “is one that can be successfully avoided. A snowmobile, carefully operated, is no more hazardous than an automobile, train, or taxi.” Id. at 128. Similarly, we “refused to relieve [a] defendant of the duty to operate his snowmobile reasonably and analyzed the defendant’s conduct under the doctrine of secondary assumption of risk.” Daly v. McFarland, 812 N.W.2d, 113, 120-21 (Minn. 2012) (citing Carpenter v. Mattison, 219 N.W.2d 625, 629 (Minn. 1974)). In 2012, we reaffirmed that snowmobiling is not an inherently dangerous sporting activity. Id. at 121-22.

The closest we have come to discussing the application of implied primary assumption of risk to recreational downhill skiing was in Seidl v. Trollhaugen, Inc., 232 N.W.2d 236 (Minn. 1975). That case involved a claim by a ski area patron who had been struck by a ski instructor. Id. at 239-40. The cause of action arose before Springrose. Id. at 240 n.1. We did not analyze the question of whether the doctrine of primary assumption of risk applied to recreational skiing and snowboarding. See id. at 240 & n.1. Instead, we affirmed the district court’s decision not to submit to the jury, for lack of evidence, the issue of secondary assumption of risk. Id. at 240-41.

With this case law in mind, we turn now to the question of whether to follow the example of the court of appeals in Peterson, 733 N.W.2d 790, and extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding.[3] To do so would relieve skiers and snowboarders (collectively, “skiers”) of any duty of care owed to others while engaged in their activity. We decide not to do so, for three reasons.

First, although there is no question that skiers can and do collide with one another, the record does not substantiate that injurious collisions between skiers are so frequent and damaging that they must be considered inherent in the sport. As the National Ski Areas Association has recognized through its seven-point Responsibility Code (adopted by Spirit Mountain), skiing and snowboarding contain “elements of risk,” but “common sense and personal awareness can help reduce” them. This recognition counsels against a flat no-duty rule that would benefit those who ski negligently. As the Connecticut Supreme Court has explained, “If skiers act in accordance with the rules and general practices of the sport, at reasonable speeds, and with a proper lookout for others on the slopes, the vast majority of contact between participants will be eliminated. The same may not be said of soccer, football, basketball and hockey . . . .” Jagger v. Mohawk Mountain Ski Area, Inc., 849 A.2d 813, 832 (Conn. 2004). We relied on similar reasoning in our line of recreational snowmobiling cases, in which we noted that the hazard “is one that can be successfully avoided.” Olson, 216 N.W.2d at 128.

Second, even though today we do not overrule our precedent regarding flying sports objects and slippery rinks, we are loathe to extend the doctrine of implied primary assumption to yet another activity. “The doctrine of assumption of risk is not favored, and should be limited rather than extended.” Suess v. Arrowhead Steel Prods. Co., 230 N.W. 125, 126 (Minn. 1930). Our most recent case considering implied primary assumption of risk, Daly, reflects that reluctance.[4] See 812 N.W.2d at 119-22. Similarly, the nationwide trend has been toward the abolition or limitation of the common-law doctrine of implied primary assumption of risk. See Leavitt v. Gillaspie, 443 P.2d 61, 68 (Alaska 1968); 1800 Ocotillo, LLC v. WLB Grp., Inc., 196 P.3d 222, 226-28 (Ariz. 2008); Dawson v. Fulton, 745 S.W.2d 617, 619 (Ark. 1988); P.W. v. Children’s Hosp. Colo., 364 P.3d 891, 895-99 (Colo. 2016); Blackburn v. Dorta, 348 So.2d 287, 291-92 (Fla. 1977); Salinas v. Vierstra, 695 P.2d 369, 374-75 (Idaho 1985); Pfenning v. Lineman, 947 N.E.2d 392, 403-04 (Ind. 2011); Simmons v. Porter, 312 P.3d 345, 354-55 (Kan. 2013); Murray v. Ramada Inns, Inc., 521 So.2d 1123, 1132-33 (La. 1988); Wilson v. Gordon, 354 A.2d 398, 401-02 (Me. 1976); Abernathy v. Eline Oil Field Servs., Inc., 650 P.2d 772, 775-76 (Mont. 1982) (holding that “the doctrine of implied assumption of risk is no longer applicable in Montana”); McGrath v. Am. Cyanamid Co., 196 A.2d 238, 239-41 (N.J. 1963); Iglehart v. Iglehart, 670 N.W.2d 343, 349-50 (N.D. 2003); Christensen v. Murphy, 678 P.2d 1210, 1216-18 (Or. 1984); Perez v. McConkey, 872 S.W.2d 897, 905-06 (Tenn. 1994); Nelson v. Great E. Resort Mgmt., Inc., 574 S.E.2d 277, 280-82 (Va. 2003); King v. Kayak Mfg. Corp., 387 S.E.2d 511, 517-19 ( W.Va. 1989) (modifying the defense “to bring it in line with the doctrine of comparative contributory negligence”); Polsky v. Levine, 243 N.W.2d 503, 505-06 (Wis. 1976); O’Donnell v. City of Casper, 696 P.2d 1278, 1281-84 (Wyo. 1985).

Third, we are not persuaded that, if we do not apply the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, Minnesotans will be deterred from vigorously participating and ski operators will be adversely affected. No evidence in the record suggests that the prospect of negligent patrons being held liable chills participation in skiing and snowboarding. Logically, it seems just as likely that the prospect of an absolute bar to recovery could deter the participation of prospective victims of negligent patrons.[5]

Although we decline to further extend the doctrine of implied primary assumption of risk, we also decline to overrule our precedent by abolishing the doctrine in its entirety. We ordered briefing on the question of abolition, and we appreciate the well-researched submissions and arguments of the parties and amici. But, as we said in Daly, in which we declined to extend the doctrine to snowmobiling,” ‘[w]e are extremely reluctant to overrule our precedent . . . . ‘” 812 N.W.2d at 121 (quoting State v. Martin, 773 N.W.2d 89, 98 (Minn. 2009)). And we still see a role-limited as it may be-for this common-law doctrine in cases involving the sports to which it has been applied.

Because we decline to extend the doctrine of implied primary assumption of risk to recreational downhill skiing and snowboarding, we need not reach the question of whether the court of appeals, which assumed the doctrine applied, [6] erroneously concluded that genuine issues of material fact preclude summary judgment. Instead, we affirm the court of appeals’ disposition-reversal and remand-on a different ground.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.

ANDERSON, J., took no part in the consideration or decision of this case.

———

Notes:

[1] Riding a snowboard “regular” means that the rider’s left foot is in the front of the snowboard, the rider’s right foot is in the back, and the rider is facing right. Riding “goofy” means that the rider’s right foot is in the front, the rider’s left foot is in the back, and the rider is facing left.

[2] In Diker v. City of St. Louis Park, 130 N.W.2d 113, 118 (Minn. 1964), and citing Modec, we stated the general rule of assumption of risk in hockey, but did not apply the rule to “a boy only 10 years of age.”

[3] In Peterson, the court of appeals affirmed the decision of the district court, which granted summary judgment to a defendant on the plaintiff’s negligence claim stemming from a collision between the two on a ski hill. 733 N.W.2d at 791. Based on other decisions in which “courts have applied primary assumption of the risk to actions between sporting participants,” the court of appeals held that “primary assumption of the risk applies to actions between skiers who knew and appreciated the risk of collision.” Id. at 792-93.

[4] That reluctance is also reflected in another case decided today, Henson v. Uptown Drink, LLC, N.W.2d (Minn. Jan. 23, 2019), in which we decline to extend the doctrine of implied primary assumption of risk to the operation and patronage of bars.

[5] Spirit Mountain (like many ski operators) relies on the doctrine of express primary assumption of risk. It requires patrons to execute forms and wear lift tickets whereby patrons expressly assume all risks of injury and release their legal rights.

[6] Based on our decision here, the court of appeals’ decision in Peterson, 733 N.W.2d 790, holding that implied primary assumption of risk applies to collisions between skiers, is overruled.

 


Decision supporting PA ski area when skier skied off the trail supported by the US Court of Appeals for the Third Circuit

The Federal District Court case, Vu v. Ski Liberty Operating Corp., et. al., 2018 U.S. Dist. LEXIS 49013 and reviewed in Under Pennsylvania law, a collision with other skiers or boarders is an inherent risk of skiing. Skiing off the trail because of the collision is also an inherent risk of skiing was upheld

Citation: Vu v. Ski Liberty Operating Corp., (the decision is so new, not id numbers have been assigned to it yet.

State: Pennsylvania

Plaintiff: Quan Vu and his spouse May Siew

Defendant: Ski Liberty Operating Corp., doing business as Liberty Mountain Resort; Snow Time, Inc.

Plaintiff Claims: negligent for, among other things, failing to keep the slope free from unsafe conditions, warn Vu of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the large rocks below and alleged loss of consortium

Defendant Defenses: No duty under the Pennsylvania Skier’s Responsibility Act (PSRA)

Holding: For the Defendant upholding the lower court decision

Year: 2019

Summary

A lower Federal District Court held that a skier assumed the risk when he skied off the trail and over a 3′-4′ embankment. The skier appealed and the Third Circuit Court of Appeals upheld the lower court holding the Pennsylvania Skier Responsibility Act created no duty on the part of the ski area.

Facts

On the evening of January 23, 2015, Vu was skiing down a trail at the Liberty Mountain Resort in Pennsylvania. At some point, Vu encountered a snowboarder, who “either cut [him] off or got awfully close” to him. To avoid colliding with the snowboarder, Vu “had a knee-jerk reaction to veer,” which led him toward the edge of the trail. Id. Vu skied over the edge, left the slope, and landed among a pile of rocks. He suffered multiple serious injuries, which he alleges were caused by his skiing over an unmarked, “artificial three to four-foot cliff at the slope’s edge” that was created by “the Defendants’ snowmaking and snow grooming practices.”

Vu’s daughter, who was skiing with him, testified that she did not see Vu ski off of the slope, but she did find him laying off of the trail. She stated that to get to her father, she had to exercise caution due to the height difference between the artificial snow and the natural terrain. She also testified that she had no “difficulty that evening discerning the edge of the trail.”

Dawson Disotelle was also present on the slope and witnessed the incident. He testified that he was snowboarding behind Vu and Vu’s daughter, and he saw that Vu’s “skis went to the left and his body went with [them] and he just went straight off the run.” Thereafter, Disotelle attempted to render assistance to Vu, which required Disotelle to “hop[] down” to where Vu was laying. According to Disotelle, the elevation change from the slope to where Vu landed was “[t]hree or four feet maybe,” and “it wasn’t a challenge to get down there.” Like Vu’s daughter, Disotelle testified that he was able to “easily” distinguish the skiable trail from off trail.

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

The appellate court simply looked at the Pennsylvania Skiers Responsibility Act (PSRA) and found the ski area had no duty to the Plaintiff Vu.

The PSRA establishes a “no-duty” rule for skiing injuries, relieving ski resorts of the “duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport.” The no-duty rule applies in this context when: (1) the plaintiff was “engaged in the sport of downhill skiing at the time of her injury”; and (2) the risk of the injury at issue “is one of the ‘inherent risks’ of downhill skiing.” When both prongs are met, summary judgment is warranted in favor of the ski resort “because, as a matter of law, [the plaintiff] cannot recover for her injuries.”

The court did have to look at case law and commented on the fact the Pennsylvania act did not identify risks that were inherent in skiing like most other skier safety acts did. “The PSRA “is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing….”

The court identified several cases that held that “…snow and ice, elevation, contour, speed and weather conditions, and falling from a ski lift…” where inherent to skiing.

Nor does the PRSA require proof that a skier assumed the risk, only that the injury “arose from a “general risk” inherent to the sport….” Consequently, the court found the risk of skiing off the edge of the trail over a three to four feet drop was inherent to skiing.

Not only does this risk appear to fall under the umbrella of elevation or contour (or both), which have been identified by Pennsylvania courts as inherent risks, but also other courts have recognized the more general risk of skiing off a trail as inherent to downhill skiing,

The court then added as support for its finding that what the Plaintiff Vu encountered was an inherent risk but that Vu had been skiing for twenty years and was skiing black diamond runs or the most difficult slopes.

So Now What?

The Pennsylvania Skiers Responsibility Act is the weakest of most of the ski area statutes because it does not define what the inherent risks of skiing are. However, the courts in Pennsylvania have done a fairly good job of determining, based on case law and statutes from other states what are the inherent risks of skiing.

However, because the inherent risks are not defined, the plaintiffs are going to continue to test the issues because there is a chance they can win.

What do you think? Leave a comment.

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Vu v. Ski Liberty Operating Corp.,

Vu v. Ski Liberty Operating Corp.,

Quan Vu; May Siew, Appellants

v.

Ski Liberty Operating Corp., doing business as Liberty Mountain Resort; Snow Time, Inc.

No. 18-1769

United States Court of Appeals, Third Circuit

February 12, 2019

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) January 22, 2019

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1:16-cv-02170) District Judge: Hon. John E. Jones, III

Before: CHAGARES and BIBAS, Circuit Judges, and SÁNCHEZ, Chief District Judge [+].

OPINION [*]

CHAGARES, CIRCUIT JUDGE.

Appellants Quan Vu and his spouse, May Siew (collectively, “the plaintiffs”), brought this action against the defendants, Ski Liberty Operating Corporation, d/b/a Liberty Mountain Resort and Snow Time, Inc., for damages relating to injuries Vu suffered while skiing at Liberty Mountain Resort. The defendants successfully moved for summary judgment, and the plaintiffs now appeal. Because we conclude that the plaintiffs’ cause of action is barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. Cons. Stat. § 7102(c) (“PSRA”), we will affirm.

I.

We write principally for the parties and therefore recite only those facts necessary to our decision. On the evening of January 23, 2015, Vu was skiing down a trail at the Liberty Mountain Resort in Pennsylvania. At some point, Vu encountered a snowboarder, who “either cut [him] off or got awfully close” to him. Appendix (“App.”) 314. To avoid colliding with the snowboarder, Vu “had a knee-jerk reaction to veer,” which led him toward the edge of the trail. Id. Vu skied over the edge, left the slope, and landed among a pile of rocks. He suffered multiple serious injuries, which he alleges were caused by his skiing over an unmarked, “artificial three to four-foot cliff at the slope’s edge” that was created by “the Defendants’ snowmaking and snow grooming practices.” Vu Br. 4.

Vu’s daughter, who was skiing with him, testified that she did not see Vu ski off of the slope, but she did find him laying off of the trail. She stated that to get to her father, she had to exercise caution due to the height difference between the artificial snow and the natural terrain. She also testified that she had no “difficulty that evening discerning the edge of the trail.” App. 74-75.

Dawson Disotelle was also present on the slope and witnessed the incident. He testified that he was snowboarding behind Vu and Vu’s daughter, and he saw that Vu’s “skis went to the left and his body went with [them] and he just went straight off the run.” App. 124-25. Thereafter, Disotelle attempted to render assistance to Vu, which required Disotelle to “hop[] down” to where Vu was laying. App. 143. According to Disotelle, the elevation change from the slope to where Vu landed was “[t]hree or four feet maybe,” and “it wasn’t a challenge to get down there.” Id. Like Vu’s daughter, Disotelle testified that he was able to “easily” distinguish the skiable trail from off trail. App. 129.

The plaintiffs filed a two-count complaint in October 2016. The first count alleged that the defendants were negligent for, among other things, failing to keep the slope free from unsafe conditions, warn Vu of the dangerous condition, and erect a fence or boundary marker to prevent skiers “from skiing over the edge and into the large rocks below.” App. 902-03. In the second count, Siew alleged loss of consortium.

The defendants moved for summary judgment, arguing in part that the plaintiffs’ action was barred because “skiing off trail and colliding into rocks . . . is an inherent risk” of downhill skiing. App. 784. The District Court agreed and granted the motion. The plaintiffs now appeal.

II.

The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the grant of summary judgment, Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 268 (3d Cir. 2008), and must ascertain whether the movant has “show[n] 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. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and a fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In conducting this analysis, we “view the facts in the light most favorable to the non-moving party.” Bjorgung, 550 F.3d at 268.

III.

In this action based on diversity jurisdiction, we apply Pennsylvania law. See Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000). The statute upon which this case turns is the PSRA, which acknowledges that “there are inherent risks in the sport of downhill skiing,” 42 Pa. Cons. Stat. § 7102(c)(1), and, for that reason, “preserves assumption of risk as a defense to negligence suits stemming from downhill skiing injuries,” Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1007 (3d Cir. 1983).

The PSRA establishes a “no-duty” rule for skiing injuries, relieving ski resorts of the “duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010). The no-duty rule applies in this context when: (1) the plaintiff was “engaged in the sport of downhill skiing at the time of her injury”; and (2) the risk of the injury at issue “is one of the ‘inherent risks’ of downhill skiing.” Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). When both prongs are met, summary judgment is warranted in favor of the ski resort “because, as a matter of law, [the plaintiff] cannot recover for her injuries.” Id.

The PSRA “is unusual in its brevity and failure to give any definition of an ‘inherent’ risk of skiing,” Chepkevich, 2 A.3d at 1188 n.15, so we turn to caselaw for guidance. The Pennsylvania Supreme Court has identified collisions with other skiers, “snow and ice, elevation, contour, speed and weather conditions,” Hughes, 762 A.2d at 344, and falling from a ski lift, Chepkevich, 2 A.3d at 1188, as inherent risks. It has also instructed other courts to adopt “a practical and logical interpretation of what risks are inherent to the sport,” id. at 1187-88, and explained that invocation of the PSRA does not require proof that the injured skier assumed the “specific risk” that caused injury – only that the injury arose from a “general risk” inherent to the sport, id. at 1188.

Applying this guidance, we conclude that the plaintiffs’ action is barred by the PSRA. The plaintiffs do not dispute that the first prong – “engaged in the sport of downhill skiing,” Hughes, 762 A.2d at 344 – is met. Only the “inherent risk” prong is at issue on appeal, and it is also satisfied.

The risk identified by the plaintiffs as causing Vu’s injuries is skiing off of a trail edge that was three to four feet above the natural terrain, which we conclude is inherent to the sport of downhill skiing.[1] Cf. Smith-Wille v. Ski Shawnee, Inc., 35 Pa. D. & C. 5th 473, 475, 484 (Pa. Ct. Com. Pl. 2014) (holding, where a skier was injured after losing control on an icy slope and crashing into a fence running along the edge of a ski trail, that “[t]he edge of the ski slope . . . [is an] inherent risk[] of skiing,” as is “[s]triking a protective fence designating and protecting skiers from the edge of the trail”). Not only does this risk appear to fall under the umbrella of elevation or contour (or both), which have been identified by Pennsylvania courts as inherent risks, Hughes, 762 A.2d at 344, but also other courts have recognized the more general risk of skiing off a trail as inherent to downhill skiing, see Nutbrown v. Mount Cranmore, Inc., 671 A.2d 548, 553 (N.H. 1996) (holding that when “the chief cause of [the plaintiff’s] injuries” was the “quintessential risk . . . that a skier might lose control and ski off the trail,” he “may not recover against a ski area operator for resulting injuries”); cf. Bjorgung, 550 F.3d at 265, 269 (holding that the PSRA barred a competitive skier’s cause of action where he was injured after he skied into the woods off of a trail because the failure to set safety netting or “fix a race course in a way that minimizes the potential for the competitors to lose control” were inherent risks of ski racing).

Given “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,” the District Court correctly concluded that skiing over a slope edge and leaving the trail is an inherent risk of downhill skiing from which the defendants had no duty to protect Vu. Chepkevich, 2 A.3d at 1187. That is particularly true because Vu – who had been skiing for more than twenty years as of January 2015 and could ski black diamond, or the “most difficult,” slopes, App. 908, 1025 – acknowledges “that downhill skiing is a dangerous, risk sport” and “that if he skied off trail, he could encounter trees[ and] rocks,” App. 909, 911, 1025, 1027, and because Vu’s daughter and Disotelle both testified that they had no trouble discerning the slope edge, and on trail from off trail, on January 23, 2015.

The plaintiffs unsuccessfully make four related arguments, which we briefly address. To begin, they make much of the fact that the elevation difference between the slope edge and the natural terrain “was not a naturally occurring condition” but rather the result of the defendants’ grooming or making artificial snow. Vu Br. 5. This distinction is of no import for two reasons. First, the PSRA is concerned with the general, not the specific, risk that allegedly caused injury. Chepkevich, 2 A.3d at 1188. The general risk at issue is skiing over a slope edge (natural or not) and encountering off-trail conditions. Second, the PSRA bars recovery not only for injuries due to naturally occurring conditions, but also for injuries due to any “common, frequent, and expected” risk. Id. at 1186. Indeed, it has been invoked to preclude actions relating to PVC piping on a fence, Smith-Wille, 35 Pa. D. & C. 5th at 484, snowmaking equipment, Glasser v. Seven Springs Mountain Resort, 6 Pa. D. & C. 5th 25, 29 (Pa. Ct. Com. Pl. 2008), aff’d, 986 A.2d 1290 (Pa. Super. Ct. 2009), a ski lift, Chepkevich, 2 A.3d at 1188, and “wheel ruts on a ski slope created by an ATV,” Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974, 980-81 (Pa. Super. Ct. 2018). Although none of those causes of injury are naturally occurring conditions, they were all found to be inherent risks of downhill skiing.

Second, the plaintiffs contend that the “unguarded existence” of this slope made of artificial snow “is a deviation from the standard of care in the skiing industry,” apparently attempting to invoke the exception to the no-duty rule explained in Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978). Vu Br. 14. Pursuant to Jones, although sports facilities and amusement parks have no duty to protect against inherent risks, a plaintiff may recover from one such establishment for injury caused by an inherent risk if she “introduces adequate evidence that the amusement facility . . . deviated in some relevant respect from established custom.” Jones, 394 A.2d at 550-51. The plaintiffs have not provided support for this assertion beyond their expert’s report, [2] which does not clearly identify any industry standard from which the defendants are supposed to have deviated, but instead merely asserts that they violated generally accepted practices within the industry.[3]

Third, the plaintiffs seem to assert that the District Court improperly resolved a disputed issue of material fact in the defendants’ favor because reasonable jurors could disagree whether a slope edge with a three to four-foot elevation difference is an inherent risk. We reject this argument because the record citation provided does not support the plaintiffs’ contention, and the cases upon which the plaintiffs rely are inapposite, one involving the application of Vermont law and the other (predating Hughes and Chepkevich) applying a no-duty standard different from the standard espoused in those two cases.

Fourth, the plaintiffs also contend that the legislative intent behind the PSRA could not have been to encourage “the creation of artificial, Defendant-made ‘cliffs’ along . . . trail edges.” Vu Br. 6. For all of the reasons already discussed, we reject this argument as well.

In sum, we conclude that the plaintiffs’ injuries were caused by risks inherent to downhill skiing, satisfying the second prong of the Hughes test. Because it is undisputed that Vu was “engaged in the sport of downhill skiing at the time of [his] injur[ies],” the first prong is also met, such that summary judgment in favor of the defendants was properly granted. Hughes, 762 A.2d at 344.

IV.

For the aforementioned reasons, we will affirm the judgment of the District Court.

Notes:

[+] The Honorable Juan Sánchez, Chief United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

[*]This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

[1] To the extent that the plaintiffs allege that Vu’s injuries resulted from his attempt to avoid a collision with a snowboarder, we conclude that that risk is also inherent to downhill skiing. See Hughes, 762 A.2d at 345.

[2] The defendants argue that the expert report is unsworn and therefore may not be considered on a motion for summary judgment. Given our conclusion, we need not address this contention.

[3] The plaintiffs also point to evidence of “other skiers being injured at [Liberty Mountain Resort] in the exact same manner” on other slopes during previous seasons. Vu Br. 11-12. Such evidence does not identify any industry custom or Liberty Mountain Resort’s deviation from it.


Act Now & Stop this Minnesota bill

Minnesota Legislation is considering a bill that would eliminate releases (waivers) in Minnesota for recreational activities.

What the legislature does not understand is this bill will eliminate recreational activities in Minnesota.

Again, the Minnesota Senate and the House have introduced bills to ban releases in MN for recreational activities. Here is a copy of the Senate bill.

A bill for an act relating to civil actions; voiding a waiver of liability for ordinary negligence involving a consumer service; amending Minnesota Statutes 2018, section 604.055, subdivision 1.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2018, section 604.055, subdivision 1, is amended to read:

Subdivision 1.

Certain agreements are void and unenforceable.

An agreement between parties for a consumer service, including a recreational activity, that purports to release, limit, or waive the liability of one party for damage, injuries, or death resulting from conduct that constitutes new text begin ordinary negligence or new text end greater than ordinary negligence is against public policy and void and unenforceable.

The agreement, or portion thereof, is severable from a release, limitation, or waiver of liability for damage, injuries, or death resulting from deleted text begin conduct that constitutes ordinary negligence or for deleted text end risks that are inherent in a particular activity.

EFFECTIVE DATE.

This section is effective August 1, 2019, and applies to agreements first signed or accepted on or after that date.

Without the defenses supplied by releases in Minnesota:

  • Insurance costs will skyrocket. After OR outlawed releases some premiums jumped 2.5 times.
  • Insurance for many activities will be impossible to find.
  • Either because of the costs or the lack of premium recreation business will close.
  • The first group of recreation businesses to go will be those serving kids. They get hurt easy, and their parents sue easy.
  • Minnesota courts will back log because the only defense available will be assumption of the risk. Assumption of the risk is determined in the vast majority of cases by the jury. Consequently, it will take years to get to trial and prove the injured plaintiff assumed the risk.

Do Something

Contact your Senator and Representative and tell them you are opposed to this bill. Do it by telephone and in writing.

Find other organizations, trade associations and the like and join with them to give them more power because they have more people they represent.

Explain the bill to your friends and neighbors, so they can voice their opinion. Encourage them to do so.

Become politically aware so you know what is going on with the legislature and how to fight bills like this.

What do you think? Leave a comment.

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By Recreation Law    Rec-law@recreation-law.com    James H. Moss

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