Hlad v. Hirsch, 2025 U.S. Dist. LEXIS 267967, 2025 LX 611567

Posted: April 6, 2026 | Author: Recreation Law | Filed under: Assumption of the Risk, Legal Case, Pennsylvania | Tags: Airbnb, Negligence, Premises Liability, renter, Trespasser | Leave a comment

To See a Review of this case go to: Plaintiff assumed the risk walking behind an Airbnb and not following the trail.

Hlad v. Hirsch, 2025 U.S. Dist. LEXIS 267967 *; 2025 LX 611567

United States District Court for the Middle District of Pennsylvania

December 31, 2025, Decided; December 31, 2025, Filed

CIVIL ACTION NO. 3:23-CV-00785

Reporter

2025 U.S. Dist. LEXIS 267967 *; 2025 LX 611567

TERESA HLAD and STEVEN HLAD, Plaintiffs, v. YOEL HIRSCH, SARAH HIRSCH, AIRBNB, INC., JOHN DOE 1-10 and ABC CO. 1-10, XYZ CORPORATIONS 1-10, Defendants.

Prior History: Hlad v. Hirsch, 2024 U.S. Dist. LEXIS 49743, 2024 WL 1197516 (Mar. 20, 2024)

Counsel:[*1] For Teresa Hlad, Steven Hlad, Plaintiffs: Christopher Bradley, LEAD ATTORNEY, Brandon J. Broderick, Attorney at Law, LLC, Ewing, NJ; Sami Zeka, LEAD ATTORNEY, Brandon J. Broderick, LLC, Ewing, NJ.

For Yoel Hirsch, Defendant: Kamela Devole, Sarah E Connor, LEAD ATTORNEYS, Wood Smith Henning & Berman LLP, Philadelphia, PA.

For Airbnb, Defendant: Emily Wasserman, PRO HAC VICE, Davis Graham & Stubbs LLP, Denver, CO; Kelly J. Fox, Gerolamo, McNulty, Divis & Lewbart, Philadelphia, PA.

For Sarah Hirsch, Defendant: Kamela Devole, Sarah E Connor, LEAD ATTORNEYS, Wood Smith Henning & Berman LLP, Philadelphia, PA.

Judges: KAROLINE MEHALCHICK, United States District Judge.

Opinion by: KAROLINE MEHALCHICK

Opinion

MEMORANDUM

Plaintiffs Teresa Hlad and Steven Hlad initiated this action by filing a complaint against Defendants Sarah Hirsch, Yoel Hirsch, and Airbnb, Inc. (“Airbnb”) (together “Defendants”) on April 13, 2023. (Doc. 35-3). Before the Court is a motion for summary judgment filed by Sarah and Yoel Hirsch and a motion for summary judgment filed by Airbnb. (Doc. 35; Doc. 39). For the following reasons, Defendants’ motions for summary judgment will be GRANTED.

Factual Background and Procedural History

The following background[*2] is taken from Defendants’ statements of material facts and exhibits.¹ Teresa and Steven Hlad were visiting Lackawaxen, PA to spend Christmas with their family and friends from December 22, 2022 to December 28, 2022. (Doc. 37, ¶ 2). Nicole Gignac, a friend of the Hlads’ daughter, rented the subject property (the “Property”) on Airbnb’s platform. (Doc. 37, ¶ 3). Sarah and Yoel Hirsch own the Property and listed it for rent on Airbnb. (Doc. 37, ¶ 4). Airbnb did not operate, own, control, offer, manage, inspect or even have the right to access the Property. (Doc. 41, ¶ 7-8).

On the morning of December 25, 2022, Teresa Hlad and her son decided to go for a walk and take pictures. (Doc. 37, ¶ 5). Teresa Hlad exited out the back door of the house on the Property and saw a bridge in the woods in the distance. (Doc. 37, ¶ 7). Assuming a trail was near the bridge, she started walking towards the bridge. (Doc. 37, ¶ 7). However, as Teresa Hlad entered the woods, she knew she was not walking on a trail and appreciated that the ground was “uneven” and had “leaves, snow, logs, and. . . was hilly.” (Doc. 37, ¶ 8, 9). Before walking over the bridge, Teresa Hlad noticed that there was no trail and[*3] that the ground was uneven, choppy, and leafy. (Doc. 37 ¶¶ 10-11). Teresa Hlad testified that she walked carefully in the woods because “it was pretty lumpy out there,” but the lighting was sufficient, and nothing was obstructing her ability to see where she was walking. (Doc. 37. ¶¶ 12-14).

Teresa Hlad testified that she crossed the bridge and decided to turn around when she realized there was no trail over the bridge. (Doc. 35-4, at 17). When she turned around, she was on a “little bit of a hill” and her left foot “kind of went into the ground” causing her to fall. (Doc. 35-4, at 9). Teresa Hlad testified that the hill was “dingy” and the “dirt was all uneven,” which caused her to fall. (Doc. 35-4, at 18). The fall happened between 11:15 and 11:30 a.m., and the weather was clear and sunny. (Doc. 37, at ¶ 6). Teresa Hlad was unable to provide the location of her fall, stating that if she marked the location, it would be a guess. (Doc. 35-4, at 20).

Teresa Hlad’s daughter, testified that there was a trail opening near the rear of the house on the Property with signs indicating where the trail was. (Doc. 37, ¶ 16). Teresa Hlad never asked her daughter where the trails were on the Property,[*4] and she failed to follow the signs which clearly indicated where the trail was. (Doc. 37, ¶ 17). Teresa Hlad never contacted her Airbnb host to ask where the trail was located. (Doc. 37, ¶ 18).

Airbnb is an online marketplace that provides an opportunity for individuals who wish to offer accommodations to connect with individuals seeking to book accommodations. (Doc. 41, ¶ 2). Airbnb is not a party to or a participant in the agreements for booking entered between hosts and guests. (Doc. 41, ¶ 4). Hosts are solely responsible for listing their accommodations and determining on what material terms they will offer for their accommodations. (Doc. 41, ¶ 5). Airbnb had no notice of any prior incidents involving a fall at the subject property. (Doc. 41, ¶ 11). Regardless, Airbnb does not “guarantee. . . the existence, quality, safety, sustainability, or legality of any Listings or Host Services.” (Doc. 41, ¶ 10).

Teresa and Steven Hlad initiated this lawsuit by filing a complaint in the Pike County Court of Common Pleas on April 13, 2023. Therein Teresa Hlad alleged Count I — Negligence against Defendants, and Steven Hlad alleged Count II — Loss of Consortium against Defendants. (Doc. 35-5,[*5] at 7-9). On May 11, 2023, Sarah and Yoel Hirsch removed the matter to this Court. (Doc. 1). On April 1, 2025, Sarah and Yoel Hirsch filed a motion for summary judgment, brief in support, and statement of facts. (Doc. 35; Doc. 36; Doc. 37). On April 2, 2025, Airbnb filed a motion for summary judgment, brief in support, and statement of the facts. (Doc. 39; Doc. 40; Doc. 41). On May 19, 2025, Teresa and Steven Hlad filed their brief in opposition. (Doc. 43). On June 2, 2025, Defendants filed their respective reply briefs. (Doc 45; Doc. 46). Accordingly, the motions for summary judgment are ripe for disposition.

Legal Standards
Motion for Summary Judgment Standard

Summary judgment should be granted only if “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 fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s[*6] evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994). However, a party opposing a summary judgment motion must comply with Local Rule 56.1, which specifically directs the oppositional party to submit a “statement of the material facts, responding to the numbered paragraphs set forth in the statement required[to be filed by the movant], as to which it is contended that there exists a genuine issue to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the statement required to be served by the moving party will be deemed to be admitted.” M.D. Pa. L.R. 56.1.

A federal court should grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). In deciding a motion for summary judgment, the court’s function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.

The party seeking summary judgment “bears the initial responsibility[*7] of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the movant makes such a showing, the non-movant must go beyond the pleadings with affidavits or declarations, answers to interrogatories, or the like to demonstrate specific material facts which give rise to a genuine issue. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The non-movant must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323. Furthermore, mere conclusory allegations and self-serving testimony, whether made in the complaint or a sworn statement, cannot be used to obtain or avoid summary judgment when uncorroborated and contradicted by other evidence of record. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); see also Thomas v. Delaware State Univ., 626 F. App’x 384, 389 n.6 (3d Cir. 2015) (not precedential) (“[U]nsupported deposition testimony, which is contradicted by the record, is insufficient to defeat summary judgment.”); NLRB v. FES, 301 F.3d 83, 95 (3d Cir. 2002) (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s[*8] burden of proof on summary judgment.”).

III. Discussion

Summary Judgment is Warranted on Teresa Hlad’s Negligence Claim Against Sarah and Yoel Hirsch.

Sarah and Yoel Hirsch contend that they owed no duty to Teresa Hlad, who voluntarily assumed the risk of her actions, arguing that Teresa Hlad should have noticed the risks of walking off-trail in snow, which were open and obvious with an exercise of normal perception, intelligence, and judgment. (Doc. 36, 11-12). Additionally, Sarah and Yoel Hirsch submit that because Teresa Hlad provided no evidence of the location of the fall, Plaintiffs cannot meet their burden of showing a viable claim for negligence. (Doc. 36, at 12-13). Teresa Hlad counters that Sarah and Yoel Hirsch’s motion specifically points to genuine issues of fact in this case to be decided by a jury. (Doc. 43, ¶ 16).

To survive summary judgment on a negligence claim under Pennsylvania law, a plaintiff must demonstrate genuine dispute of material fact regarding “(1) the existence of a duty or obligation recognized by law; (2) a breach of the duty; (3) causal connection between the breach of duty and the resulting injury; and (4) actual loss or damage.” Pace v. Wal-Mart Stores East, LP, 337 F. Supp. 3d 513, 519 (E.D. Pa. 2018). The parties dispute[*9] whether Sarah and Yoel Hirsch owed a duty to Teresa Hlad. (Doc. 36, at 11; Doc. 43, at 6). The standard of care owed by an owner or occupier depends on whether the person on the premises is a trespasser, licensee, or business invitee. See McDowell v. Moran Foods, LLC, 680 F. App’x 72, 72 (3d Cir. 2017). Business invitees are owed the highest standard of care. Falcone v, Speedway LLC, No. 14-2188, 2017 U.S. Dist. LEXIS 7324, 2017 WL 220326, at *2 (E.D. Pa. Jan 19, 2017) (citing Truax v. Roulhac, 2015 PA Super 217, 126 A.3d 991, 997 (Pa. Super Ct. 2015)); Pusateri v. Wal-Mart Stores East, L.P., 646 F. Supp. 3d 650, 653 (W.D. Pa. 2022) (citing Campisi v. Acme Markets, Inc., 2006 PA Super 368, 915 A.2d 117, 119 (Pa. Super Ct. 2006). A business invitee is “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Falcone, 2017 U.S. Dist. LEXIS 7324, 2017 WL 220326, at *2 (quoting Charlie v. Erie Ins. Exch., 2014 PA Super 188, 100 A.3d 244, 253 (Pa. Super Ct. 2014)). An Airbnb guest is considered a business invitee. See Parsons v. Drake, 347 Pa. 247, 32 A.2d 27 (1943) (citing Restatement Second, Torts § 332) (finding guests of inns, hotels, motels, and similar establishments are business invitees); see Montaperto v. Split Rock Resort, 765 F. Supp. 852, 853-54 (M.D. Pa. 1991) (identifying a guest at a resort as a business invitee). A possessor of land must protect a business invitee not only from known dangers, but also from “dangers that might be discoverable with reasonable care.” Truax, 126 A.3d at 997. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land only if he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees, and (b) should expect that they will not[*10] discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

Neve v. Insalaco’s, 2001 PA Super 71, 771 A.2d 786, 790 (Pa. Super. 2001) (quoting Restatement (Second) of Torts § 343).

Furthermore, a possessor of land will not owe a duty to a business invitee if the business invitee assumed the risk of their actions. Kaplan v. Exxon Corp., 126 F.3d 221, 224-25 (3d Cir. 1997); Dalton v. Little Lion, No. 19-5358, 2021 U.S. Dist. LEXIS 67100, 2021 WL 1293424, at *4 (E.D. Pa. April 7, 2021); Carrender v. Fitterer, 503 Pa. 178, 188, 469 A.2d 120 (Pa. 1983) (“to say that the invitee assumed the risk of injury from a known and avoidable danger is simply another way of expressing the lack of any duty on the part of the possessor to protect the invitee against such dangers”). A defendant is relieved of their duty of care when the plaintiff has voluntarily and deliberately proceeded to take a known and obvious risk. Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (Pa. Super. Ct. 1996); Restatement (Second) of Torts § 343. A danger is obvious when both the condition and the risk are apparent and would be recognized by a reasonable person, exercising normal perception intelligence and judgment. DeMolick v. United States, 593 F. Supp. 3d 165, 171 (M.D. Pa. 2022) (citing Carrender, 469 A.2d at 123).

Assumption of the risk is analyzed in the context of determining whether a defendant owed a plaintiff a duty. Kaplan, 126 F.3d at 224-25. As such, assumption of the risk is a question for the jury “unless reasonable minds could not disagree.” Kaplan, 126 F.3d, at 225. To grant summary judgment on assumption of the risk, the Court must find—conclusively and beyond question—that: “(1)[the plaintiff][*11] consciously appreciated the risks attending her action; (2) she assumed the risk of injury by engaging in the action despite appreciating its risks; and (3) the injury she sustained was the same as that which she appreciated and assumed.” Dalton, 2021 U.S. Dist. LEXIS 67100, 2021 WL 1293424, at *4; see Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 573 (Pa. Super. Ct. 2000); see also Murphy v. Excel Site Rentals, LLC, No. 4:17-CV-02353, 2019 U.S. Dist. LEXIS 125048, 2019 WL 3387661, at *6 (M.D. Pa. July 26, 2019). Summary judgment is appropriate “[o]nly where the evidence reveals a scenario so clear as to void all questions of material fact concerning the plaintiff’s own conduct. . .” Montagazzi v. Crisci, 2010 PA Super 78, 994 A.2d 626, 636 (Pa. Super. Ct. 2010).

For the first element, the evidence must “conclusively[establish] that the plaintiff was subjectively aware of the risk.” Roessing v. United States, No. 3:19-cv-161, 2021 U.S. Dist. LEXIS 81479, 2021 WL 1663590, at *6 (W.D. Pa. April 28, 2021) (citing Barrett, 685 A.2d at 131); Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013) (citing Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693, 695 (Pa. Super. Ct. 1990)). “The plaintiff must be aware of the ‘particular danger’ from which she is subsequently injured in order to voluntarily assume that risk as a matter of law.” Roessing, 2021 U.S. Dist. LEXIS 81479, 2021 WL 1663590, at *6 (citing Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555, 563 (M.D. Pa. 2013)). For the second element, the plaintiff must voluntarily assume the risk. Kaplan, 126 F.3d at 226 (citing Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107, 1112 (Pa. 1993)). There is no assumption of risk when a plaintiff has no reasonable alternative to encountering the risk. Kaplan, 126 F.3d at 226-27 (citing Prosser and Keeton on Torts § 68 at 490-91); see also Roessing, 2021 U.S. Dist. LEXIS 81479, 2021 WL 16635900, at *7 (citing Howell, 620 A.2d at 1112).

Here, there is no dispute of fact that Teresa Hlad consciously and subjectively appreciated the risks of walking off-trail in the snowy woods. Teresa Hlad knew that she was not walking on a[*12] trail when she entered the woods. (Doc. 37, ¶ 8; Doc. 43-1, at 17). She was aware that the ground was “uneven” and had “leaves, snow, logs, and was hilly. . .” (Doc. 37, ¶ 9, Doc. 43-1, at 17). Teresa Hlad testified that she was walking carefully because “it was pretty lumpy out there” (Doc. 37, ¶ 12; Doc. 43-1, at 27) and that when she was walking, the lighting was sufficient to see where she was going and nothing was obstructing her view. (Doc. 37, ¶¶ 13-14; Doc. 43-1, at 14). Accordingly, reasonable minds could not disagree that Teresa Hlad consciously appreciated the risks attending her action. See Roessing, 2021 U.S. Dist. LEXIS 81479, 2021 WL 1663590, at *6 (finding plaintiff consciously appreciated the risk of slipping and falling when she saw the snow heap prior to stepping on it and affirmatively considered where to cross before stepping on it); see also Kaplan, 126 F.3d at 226 (finding a snow mound was a known and obvious risk).

It is also undisputed that Teresa Hlad voluntarily walked off-trail in the snowy woods despite appreciating the risks. Teresa Hlad’s daughter testified that there were signs marking the trails on the premises. (Doc. 37, ¶ 16). Despite the availability of marked trails, Teresa Hlad voluntarily chose to walk on a path that did not contain[*13] a walking trail. As such, reasonable minds could not disagree that Teresa Hlad’s assumption of risk was voluntary. See Kaplan, 126 F.3d 221, 226 (finding a plaintiff assumes a risk voluntarily she elects to encounter the risk despite the existence of safe alternatives); see also Roessing, 2021 U.S. Dist. LEXIS 81479, 2021 WL 1663590, at *7 (“the question under this factor is whether there was a safe alternative to encountering the risk, not whether the plaintiff was subjectively aware of a safe alternative”).

Finally, it is undisputed that Teresa Hlad’s injury was the result of her assuming the risk of walking off-trail in the snowy woods.² Teresa Hlad testified that while on her walk she turned around, her left foot went into the ground causing her to fall and injure her ankle. (Doc. 35-4, at 9). The risk of walking off-trail in the snowy woods is the possibility of slipping and falling. See Roessing, 2021 U.S. Dist. LEXIS 81479, 2021 WL 1663590, at *8. As there are no disputes of fact regarding Teresa Hlad’s assumption of risk, Sarah and Yoel Hirsch’s motion for summary judgment on Teresa Hlad’s claim of negligence is GRANTED. (Doc. 35).

Summary Judgment is Warranted on Teresa Hlad’s Negligence Claim Against Airbnb.

Airbnb contends it is entitled to summary judgment on Teresa Hlad’s negligence claim against[*14] it because there is no evidence that Airbnb owed Teresa Hlad any duty of care regarding the condition of the property. (Doc. 40, at 5). Airbnb asserts that it does not own, possess, or control the Property, nor did it have notice of the allegedly dangerous condition on the property (Doc. 40, at 6-7). Teresa Hlad counters that the jury must determine what duty, if any, Airbnb owes to prospective renters to insure the properties they rent are suitable for their purpose and pose no unreasonable hazards. (Doc. 43, at 4).

Under Pennsylvania law, “the duty to protect against known dangerous conditions falls upon the possessor of the land.” Estate of Zimmerman v. SEPTA, 168 F.3d 680, 684-85 (3d Cir. 1999). One is a possessor of land if they occupy the land with the intent to control it. Estate of Zimmerman, 168 F.3d at 684 (citing Restatement (Second) of Torts § 328). Liability is primarily based on possession and control, rather than ownership of land. Brown v. End Zone, Inc., 2021 PA Super 135, 259 A.3d 473, 491 (Pa. Super. Ct. 2021). A possessor of land is only liable if they know or should have known of a dangerous condition on the premises. Gutteridge v. A.P. Green Services, Inc., 2002 PA Super 198, 804 A.2d 643, 656 (Pa. Super. Ct. 2002). Other jurisdictions find that Airbnb’s enforcement of certain policies and guidelines for property owners on its marketplace does not amount to possession or control over their hosts’ properties. Matthew-Ajayi Airbnb, Inc., No. ADC-23-3035, 2025 U.S. Dist. LEXIS 26653, 2025 WL 487572, at *3 (D. Md. Feb. 13, 2025) (finding Airbnb had no liability for slip in fall that occurred[*15] in host’s property because Airbnb did not have possession or control over the property); Carroll v. Am. Empire Surplus Lines Ins. Co., 289 F. Supp. 3d 767, 775 (E.D. La. 2017) (finding Airbnb does not have custody or control over host’s property because they do not have the right to alienate the property, authorize repairs, or access the property at will; comparing Airbnb’s general duty to that of a travel agency); see Hofer v. Gap, Inc., 516 F. Supp. 2d 161, 176-78 (D. Mass. 2007) (finding online travel agents are generally not liable for the negligence or dangerous conditions of third-party hotel or travel operators).

Here, Airbnb provides an affidavit from its legal investigations associate stating that “Airbnb does not own, control, or possess any of the accommodations listed on its marketplace, and does not have the right to access the property where[Teresa] Hlad allegedly sustained injuries.” (Doc. 39-3, at 3; Doc. 41, ¶ 7). Airbnb also provides their terms and conditions, which state that Airbnb “do[es] not and cannot control the conduct of Guests and Hosts.” (Doc. 39-4, at 15). Teresa Hlad failed to respond to Airbnb’s statement of the facts or to provide any evidence controverting Airbnb’s evidence that they do not own, control, or possess the subject property. See M.D. Pa. L.R. 56.1 (“[a]ll material facts set forth in the statement required[*16] to be served by the moving party will be deemed to be admitted.”). Teresa Hlad merely provides unsupported, conclusory statements arguing that Airbnb does have control over the subject property and notice of the hazardous conditions that caused Teresa Hlad’s injuries. (Doc. 43, at 8). See Nat’l Labor Rel. Bd., 301 F.3d at 95. (“[The plaintiff’s] testimony . . . amounts to an unsupported, conclusory assertion, which we have held is inadequate to satisfy the movant’s burden of proof on summary judgment.”). Nevertheless, the court need not address whether Airbnb had possession or control over the subject property creating a duty of care because even if Airbnb did owe Teresa Hlad a duty of care, as explained fully in supra Section III.A, it is undisputed that Teresa Hlad assumed the risk of her actions, negating the duty of care owed by the possessors of the subject property. Accordingly, Airbnb’s motion for summary judgment on Teresa Hlad’s claim of negligence is GRANTED.³ (Doc. 35).

Conclusion

Based on the forgoing, Defendants’ motions for summary judgment are GRANTED. (Doc. 35; Doc. 39). Teresa and Steven Hlad’s claims of negligence and loss of consortium are DISMISSED. The Clerk of Court is directed to[*17] CLOSE this case. An appropriate Order follows.

Dated: December 31, 2025

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge

ORDER

AND NOW, this 31st day of December, 2025, for the reasons set forth in the Memorandum Opinion concurrently filed herewith, IT IS HEREBY ORDERED that:

Sarah and Yoel Hirsch’s motion for summary judgment (Doc. 35) is GRANTED;
Airbnb Inc.’s motion for summary judgment (Doc. 39) is GRANTED;
Count I and Count II of Teresa and Steven Hlad’s complaint (Doc. 15) are to be DISMISSED; and
The Clerk of Court is directed to CLOSE this case.

BY THE COURT:

/s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge

End of Document

¹Teresa and Steven Hlad have not filed a response to Defendants’ statements of material facts, as required by Local Rule 56.1. Accordingly, “[a]ll material facts set forth in the statement[s] required to be served by the moving part[ies] will be deemed to be admitted.” M.D. Pa. L.R. 56.1; see Fed. R. Civ. P. 56(e)(2); United States v. Alberto, No. 3:18-CV-1014, 2020 U.S. Dist. LEXIS 25049, 2020 WL 730316, at *2 (M.D. Pa. Feb. 13, 2020) (concluding that the “[f]ailure to file this [responsive statement of material facts] results in admission of the moving party’s statement of facts”).

²Sarah and Yoel Hirsch assert that because Teresa Hlad was unable to identify exactly where the slip and fall occurred, she cannot meet her burden of showing negligence. (Doc. 36, at 13). Teresa Hlad counters that she identified the location of her fall to the best of her ability, providing a photograph marking where she fell. (Doc. 43, at 8; Doc. 43-3). The exact location of Teresa Hlad’s fall is not a material fact because, as explained fully in supra Section III.A, it is undisputed that Teresa Hlad consciously and subjectively appreciated the risks of walking on uneven, hilly ground covered in logs, leaves, and snow. See Kaplan, 126 F.3d at 227 n.5 (considering exact location of fall in proximate cause analysis of negligence claim; omitting consideration of exact location of fall in assumption of the risk analysis); see also Dalton, 2021 U.S. Dist. LEXIS 67100, 2021 WL 1293424, at *2-*3, *5 (finding parties’ disagreement on the exact location of the fall was immaterial to the assumption of the risk analysis).

³Steven Hlad’s loss of consortium claim is a derivate claim, based upon the outcome of Teresa Hlad’s negligence claim. Sprague v. Kaplan, 392 Pa. Super. 257, 572 A.2d 789, 790 (Pa. Super. 1990) (“Loss of consortium has been recognized [Pennsylvania] as a right evolving out of the marriage relationship and is grounded on the loss of a spouse’s service after injury.”); Suniaga v. Downingtown Area Sch. Dist., 504 F. Supp. 3d 430, 455 (E.D. Pa. 2020) (finding a claim for loss of consortium is a derivative claim, meaning it is based upon the outcome of other claims in the suit). As Defendants’ motions for summary judgment on Teresa Hlad’s negligence claims are GRANTED, Defendants’ motions for summary judgment on Steven Hlad’s derivate loss of consortium claim are likewise GRANTED. (Doc. 35; Doc. 39).

Plaintiff assumed the risk walking behind an Airbnb and not following the trail.

Posted: April 6, 2026 | Author: Recreation Law | Filed under: Assumption of the Risk, Pennsylvania | Tags: Airbnb, assumption of the risk, Land Owner, Negligence, Pennsylvania, Trespasser | Leave a comment

Airbnb did not possess the land

Hlad v. Hirsch, 2025 U.S. Dist. LEXIS 267967, 2025 LX 611567

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

Plaintiff: Teresa Hlad and Steven Hlad

Defendants: SarahHirsch,YoelHirsch,andAirbnb,Inc.

Plaintiff Claims: Negligence against Defendants, and Steven Hlad, Loss of Consortium

Defendant Defenses: Assumption of the Risk

Holding: For the Defendants

Year: 2025

Summary

Plaintiffs were visiting Pennsylvania for the holidays and staying at an Airbnb rented for them. During the state, one of the plaintiffs went out the back door of the home and proceeded to walk towards a breach and across. She knew she was not walking on a trail and turned to go back when she fell, suffering injuries.

The plaintiff knew she was not on the trail. As such, by proceeding, she assumed the risk of her injuries, relieving the defendants of any duty under Pennsylvania law.

Facts

On the morning of December 25, 2022, Teresa Hlad and her son decided to go for a walk and take pictures. Teresa Hlad exited out the back door of the house on the Property and saw a bridge in the woods in the distance. Assuming a trail was near the bridge, she started walking towards the bridge. However, as Teresa Hlad entered the woods, she knew she was not walking on a trail and appreciated that the ground was “uneven” and had “leaves, snow, logs, and. . . was hilly.” Before walking over the bridge, Teresa Hlad noticed that there was no trail and that the ground was uneven, choppy, and leafy. Teresa Hlad testified that she walked carefully in the woods because “it was pretty lumpy out there,” but the lighting was sufficient, and nothing was obstructing her ability to see where she was walking.

Teresa Hlad testified that she crossed the bridge and decided to turn around when she realized there was no trail over the bridge. When she turned around, she was on a “little bit of a hill” and her left foot “kind of went into the ground” causing her to fall. Teresa Hlad testified that the hill was “dingy” and the “dirt was all uneven,” which caused her to fall. The fall happened between 11:15 and 11:30 a.m., and the weather was clear and sunny. Teresa Hlad was unable to provide the location of her fall, stating that if she marked the location, it would be a guess.

Teresa Hlad’s daughter, testified that there was a trail opening near the rear of the house on the Property with signs indicating where the trail was. Teresa Hlad never asked her daughter where the trails were on the Property,[*4] and she failed to follow the signs which clearly indicated where the trail was. Teresa Hlad never contacted her Airbnb host to ask where the trail was located.

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

The defense argued that they owed no duty to the plaintiffs because the plaintiff knew or should have known that she was not walking on a trail. The fact that the plaintiff was not on a trial was open and obvious. The plaintiff’s own testimony indicated she knew she was not on a trail, which is why she turned back.

The plaintiffs, under Pennsylvania law and the law of the majority of states, were business invitees. As business invitees, the defendants owed them the highest degree of care.

A business invitee is “a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”

The defendant owner of the Airbnb’s degree of care to the plaintiff is to protect the plaintiff from known dangers and from dangers that might be discoverable with reasonable care. To be liable, the possessor of land, not necessarily the land owner, must inform the business invitee of the risks that it knows of or could identify by a reasonable inspection.

A possessor of land must protect a business invitee not only from known dangers, but also from “dangers that might be discoverable with reasonable care.” A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land only if he:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

However, no duty is owed if the plaintiff assumed the risk presented by the dangers. “Furthermore, a possessor of land will not owe a duty to a business invitee if the business invitee assumed the risk of their actions.”

A defendant is relieved of their duty of care when the plaintiff has voluntarily and deliberately proceeded to take a known and obvious risk. A danger is obvious when both the condition and the risk are apparent and would be recognized by a reasonable person, exercising normal perception intelligence and judgment.

Normally, whether or not the plaintiff assumed the risk is a question for the trier of fact, the jury. If the court feels that there was no other way a jury could decide, then the court may rule on the issue.

Here, the court found:

(1)[the plaintiff] consciously appreciated the risks attending her action; (2) she assumed the risk of injury by engaging in the action despite appreciating its risks; and (3) the injury she sustained was the same as that which she appreciated and assumed….

The court found the plaintiff’s statements about where she was walking proved she knew and appreciated the risks, relieving the possessor of any liability because she assumed the risk.

Possessor of land is a distinction only a lawyer could love. A possessor of land is not necessarily the landowner. A tenant occupying an apartment does not own the apartment or apartment building, but is the possessor of land. The definition is based on liability and control of the land, not ownership. So an owner of land cannot be liable if he has no control of the land. In most cases, this occurs through a contract with a third party who wants to do something with the land, and the landowner gives up most rights in the land when doing so.

Here, Airbnb was not the possessor of the land. Airbnb did not exercise control over the land. The owner of the land gave that control to the person who rented the Airbnb.

Airbnb does not own, control, or possess any of the accommodations listed on its marketplace, and does not have the right to access the property where[Teresa] Hlad allegedly sustained injuries

So Now What?

The defendant’s motion for summary judgment was granted, and the plaintiff’s lawsuit was dismissed. IF you open your land to others, you need to make sure that any dangers on the land are identified to someone on the land. How they are on the land determines how much you, as the possessor, have to notify that person of the risks.

Consequently, most people feel that not allowing access to their land is the safest way to be. The duty owed to a trespasser is much lower than the duty owed to someone you invite on your land.

The sole issue for a possessor of land then becomes whether that duty is abrogated by some law or statute which might afford protection to them. In most cases, the best protection is the state Recreational Use Act. Generally, these acts say that if you allow someone on your land for recreational purposes and do NOT charge them for that access, then you are not liable for their injuries. However, each state has its own act, and the courts in each state have interpreted that act in numerous ways. If you are the possessor of land and want to have people on the land, you should find out what your duty to those people might be in advance.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

Posted: December 30, 2016 | Author: Recreation Law | Filed under: Colorado, Health Club, Legal Case, Release (pre-injury contract not to sue) | Tags: Colorado Premises Liability Act, Health club, Invitee, Licensee, Premises, Premises Liability Act, Release, Trespasser | Leave a comment

* Formatting in this case maybe different when finalized by the Court.

Stone v. Life Time Fitness, Inc., 2016 Colo. App. LEXIS 1829

Wendy Jane Stone, Plaintiff-Appellant, v. Life Time Fitness, Inc., a Minnesota corporation doing business in the State of Colorado, d/b/a Life Time Fitness; Life Time Fitness Foundation; and LTF Club Operations Company, Inc., Defendants-Appellees.

Court of Appeals No. 15CA0598

COURT OF APPEALS OF COLORADO, DIVISION I

2016 Colo. App. LEXIS 1829

December 29, 2016, Decided

OPINION

[*1] City and County of Denver District Court No. 14CV33637 Honorable R. Michael Mullins, Judge

Opinion by JUDGE MILLER

Taubman and Fox, JJ., concur

Announced December 29, 2016

Charles Welton P.C., Charles Welton, Denver, Colorado, for Plaintiff-Appellant

Markusson Green & Jarvis, John T. Mauro, H. Keith Jarvis, Denver, Colorado, for Defendants-Appellees

¶ 1 In this action seeking recovery for personal injuries sustained at a fitness club, plaintiff, Wendy Jane Stone, appeals the summary judgment entered in favor of defendants, Life Time Fitness, Inc.; Life Time Fitness Foundation; and LTF Club Operations Company, Inc. (collectively, Life Time), on Stone’s negligence and Premises Liability Act (PLA) claims based on injuries sustained when she tripped on a hair dryer cord after washing her hands. The principal issue presented on appeal is whether the district court correctly ruled that Stone’s claims are contractually barred based on assumption of risk and liability release language contained in a member usage agreement (Agreement) she signed when she became a member of Life Time.

¶ 2 We disagree with the district court’s conclusion that the exculpatory provisions of the Agreement are valid as applied [*2] to Stone’s PLA claim. Consequently, we reverse the judgment as to that claim and remand the case for further proceedings. We affirm the district court’s judgment on the negligence claim.

I. Background

¶ 3 Stone was a member of a Life Time fitness club located in Centennial. According to the complaint, she sustained injuries in the women’s locker room after finishing a workout. Stone alleged that she had washed her hands at a locker room sink and then “turned to leave when she tripped on the blow dryer cord that was, unbeknownst to her, hanging to the floor beneath the sink and vanity counter top.” She caught her foot in the cord and fell to the ground, fracturing her right ankle.

¶ 4 Stone alleged that allowing the blow dryer cord to hang below the sink counter constituted a trip hazard and a dangerous condition and that, by allowing the condition to exist, Life Time failed to exercise reasonable care. She asserted a general negligence claim and also a claim under Colorado’s PLA, section 13-21-115, C.R.S. 2016.

¶ 5 Life Time moved for summary judgment, relying on assumption of risk and liability release language contained in the Agreement Stone signed when she joined Life Time. Life Time argued that the Agreement was [*3] valid and enforceable, that it expressly covered the type and circumstances of her injuries, and that it barred Stone’s claims as a matter of law. A copy of the Agreement appears in the Appendix to this opinion.

¶ 6 After full briefing, the district court granted Life Time’s motion, concluding that the Agreement was “valid and enforceable” and that Stone had released Life Time from all the claims asserted in the complaint.

II. Discussion

¶ 7 She contends that the district court, therefore, erred in entering summary judgment and dismissing her action.

A. Summary Judgment Standards

¶ 8 Summary judgment is appropriate if the pleadings and supporting documents establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Gagne v. Gagne, 2014 COA 127, ¶ 24; see C.R.C.P. 56(c). We review de novo an order granting a motion for summary judgment. Gagne, ¶ 24; see Ranch O, LLC v. Colo. Cattlemen’s Agric. Land Tr., 2015 COA 20, ¶ 12.

B. Negligence Claim

¶ 9 In her complaint, Stone alleged common law negligence and PLA claims, and she pursues both claims on appeal. The trial court’s summary judgment ruled in favor of Life Time without distinguishing between Stone’s negligence and PLA claims. It simply concluded that the [*4] exculpatory clauses in the Agreement were “valid and enforceable” and released Life Time from all claims asserted against it.

¶ 10 We turn to the negligence claim first because we may affirm a correct judgment for reasons different from those relied on by the trial court. English v. Griffith, 99 P.3d 90, 92 (Colo. App. 2004).

¶ 11 The parties agree that the PLA applies to this case. In section

13-21-115(2), the statute provides:

In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section.

The PLA thus provides the sole remedy against landowners for injuries on their property. Vigil v. Franklin, 103 P.3d 322, 328-29 (Colo. 2004); Wycoff v. Grace Cmty. Church of Assemblies of God, 251 P.3d 1260, 1265 (Colo. App. 2010). Similarly, it is well

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

Section 13-21-115(1), C.R.S. 2016, defines “landowner” as including “a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.” In its answer, Life Time admitted that it owned and operated the club where Stone was injured and that the PLA governs her [*5] claims.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

established that the PLA abrogates common law negligence claims against landowners. Legro v. Robinson, 2012 COA 182, ¶ 20, aff’d, 2014 CO 40.

¶ 12 Accordingly, albeit for reasons different from those expressed by the trial court, we conclude that Stone could not bring a claim for common law negligence, and the trial court therefore correctly ruled against her on that claim. We now turn to the effect of the exculpatory clauses in the Agreement on Stone’s PLA claim.

C. Application of Exculpatory Clauses to PLA Claim

¶ 13 As we understand Stone’s contentions, she does not dispute that the exculpatory language in the Agreement would preclude her from asserting claims under the PLA for any injuries she might sustain when working out on a treadmill, stationary bicycle, or other exercise equipment or playing racquetball. We therefore do not address such claims. Instead, Stone argues that the exculpatory clauses do not clearly and unambiguously apply to her injuries incurred after washing her hands in the women’s locker room. We agree.

1. Law

¶ 14 “Generally, exculpatory agreements have long been disfavored.” B & B Livery, Inc. v. Riehl, 960 P.2d 134, 136 (Colo. 1998). Determining the sufficiency and validity of an exculpatory agreement is a question of law for the court. Id.; Jones [*6] v. Dressel, 623 P.2d 370, 375 (Colo. 1981). This analysis requires close scrutiny of the agreement to ensure that the intent of the parties is expressed in clear, unambiguous, and unequivocal language. Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Our supreme court has explained:

To determine whether the intent of the parties is clearly and unambiguously expressed, we have previously examined the actual language of the agreement for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

Id.

¶ 15 Under Jones, a court must consider four factors in determining whether an exculpatory agreement is valid: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties was expressed in clear and unambiguous language. 623 P.2d at 375.

2. Analysis

a. The First Three Jones Factors

¶ 16 The first three Jones factors provide little help for Stone’s position. The supreme court has specified that no public duty is implicated if a business provides recreational services. See Chadwick, 100 P.3d at 467 (addressing guided hunting services and noting that providers of recreational activities owe “no special duty [*7] to the public”); Jones, 623 P.2d at 376-78 (skydiving services); see also Hamill, 262 P.3d at 949 (addressing recreational camping services and noting supreme court authority).

¶ 17 With regard to the second factor, the nature of the services provided, courts have consistently deemed recreational services to be neither essential nor a matter of practical necessity. See Chadwick, 100 P.3d at 467; Hamill, 262 P.3d at 949; see also Brooks v. Timberline Tours, Inc., 941 F. Supp. 959, 962 (D. Colo. 1996) (snowmobiling not a matter of practical necessity), aff’d, 127 F.3d 1273 (10th Cir. 1997); Lahey v. Covington, 964 F. Supp. 1440, 1445 (D. Colo. 1996) (whitewater rafting not an essential service), aff’d sub nom. Lahey v. Twin Lakes Expeditions, Inc., 113 F.3d 1246 (10th Cir. 1997). Stone attempts to distinguish those cases by asserting that people join fitness centers “to promote their health, not for the thrill of a dangerous recreational activity.” She cites no authority for such a distinction, and we are not persuaded that such activities as camping and horseback riding, at issue in the cases cited above, are engaged in for a dangerous thrill as opposed to the healthful benefits of outdoor exercise. Consequently, the recreational nature of the services Life Time provides does not weigh against upholding or enforcing the Agreement.

¶ 18 With respect to the third factor, a contract is fairly entered into if one party [*8] is not at such an obvious disadvantage in bargaining power that the effect of the contract is to place that party at the mercy of the other party’s negligence. See Hamill, 262 P.3d at 949; see also Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1989). Possible examples of unfair disparity in bargaining power include agreements between employers and employees and between common carriers or public utilities and members of the public. See Heil Valley Ranch, Inc., 784 P.2d at 784. However, this type of unfair disparity is generally not implicated when a person contracts with a business providing recreational services. See id.; see also Hamill, 262 P.3d at 949-50.

¶ 19 In evaluating fairness, courts also examine whether the services provided could have been obtained elsewhere. Hamill, 262 P.3d at 950. Nothing in the record indicates that Stone could not have taken her business elsewhere and joined a different fitness club or recreation center. Nor is there any other evidence that the parties’ relative bargaining strengths were unfairly disparate so as to weigh against enforcing the Agreement.

¶ 20 We therefore turn to the fourth prong of the Jones test – whether the intention of the parties was expressed in clear and unambiguous language. [*9]

b. The Fourth Jones Factor

¶ 21 The validity of exculpatory clauses releasing or waiving future negligence claims usually turns on the fourth Jones factor – whether the intention of the parties is expressed in clear and unambiguous language. Wycoff, 251 P.3d at 1263 (applying the Jones factors to a PLA claim). This case also turns on that factor.

¶ 22 The issue is not whether a detailed textual analysis would lead a court to determine that the language, even if ambiguous, ultimately would bar the plaintiff’s claims. Instead, the language must be clear and unambiguous and also “unequivocal” to be enforceable. Chadwick, 100 P.3d at 467; see also Threadgill v. Peabody Coal Co., 34 Colo. App. 203, 209, 526 P.2d 676, 679 (1974), cited with approval in Jones, 623 P.2d at 378.

¶ 23 We conclude that the Agreement fails this test for numerous reasons.

¶ 24 First, as explained by the New York Court of Appeals, “a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” Gross v. Sweet, 400 N.E.2d 306, 309 (N.Y. 1979), cited with approval in Jones, 623 P.2d at 378. Here, the Agreement consists of extremely dense fine print, for which a great many people would require a magnifying glass or magnifying reading glasses.

¶ 25 Second, the two clauses are replete with legal jargon, using phrases and terms such as “affiliates, subsidiaries, [*10] successors, or assigns”; “assumption of risk”; “inherent risk of injury”; “includes, but is not limited to”; and “I agree to defend, indemnify and hold Life Time Fitness harmless.” The use of such technical legal language militates against the conclusion that the release of liability was clear and simple to a lay person.

¶ 26 Third, the first of the two clauses relied on by Life Time bears the following heading: “under Chapter 458, 459, 460, or Chapter 461 ASSUMPTION OF RISK.” At oral argument, counsel for Life Time conceded that the reference to multiple chapters was ambiguous and confusing, and he could not explain to what the chapters referred. Our research has not enlightened us on the subject. Conscientious lay persons could reasonably have skipped over the fine print appearing under that heading, believing it did not apply to them because they would have no reason to understand that chapters 458, 459, 460, or 461 had any relevance to their situation. Thus, the assumption of risk heading was not clear and unambiguous.

¶ 27 Fourth, the dominant focus of the Agreement is on the risks of strenuous exercise and use of exercise equipment at the fitness center:

The opening paragraph [*11] of the Agreement contains the following warning: “All members are strongly encouraged to have a complete physical examination by a medical doctor prior to beginning any work out program or strenuous new activity. If I have a history of heart disease, I agree to consult a physician before becoming a Life Time Fitness member.”
Under the confusing assumption of risk heading, the first sentence states, “I understand that there is an inherent risk of injury, whether caused by me or someone else, in the use of or presence at a Life Time Fitness Center, the use of equipment and services at a Life Time Fitness Center, and participation in Life Time Fitness’ programs.”
There then follows a listing of types of risks, including the use of “indoor and outdoor pool areas with waterslides, a climbing wall area, ball and racquet courts, cardiovascular and resistance training equipment,” and other specified programs, as well as
“[i]njuries arising from the use of Life Time Fitness’ centers or equipment” and from activities and programs sponsored by Life Time; “[i]njuries or medical disorders resulting from exercise at a
Life Time Fitness center, including, but not limited to heart attacks, strokes, [*12] heart stress, spr [sic] broken bones and torn muscles or ligaments”; and “[i]njuries resulting from the actions taken or decisions made regarding medical or survival procedures.”

¶ 28 Fifth, the term “inherent risk of injury” that appears in the assumption of risk clause has been applied in various Colorado statutes and case law to address waivers of liability only for activities that are dangerous or potentially dangerous. Thus, the General Assembly has provided for releases from liability in circumstances such as activities involving horses and llamas, section 13-21-119, C.R.S. 2016; being a spectator at baseball games, section 13-21-120, C.R.S. 2016; agricultural recreation or agritourism activities (including hunting, shooting, diving, and operating a motorized recreational vehicle on or near agricultural land), section 13-21-121, C.R.S. 2016; skiing, section 33-44-109, C.R.S. 2016; and spaceflight activities, section 41-6-101, C.R.S. 2016. Significantly, not one of these statutory exemptions from liability extends to the use of locker rooms, rest rooms, or dressing rooms associated with these activities. Rather, the releases of liability extend only to the dangerous or potentially dangerous activities themselves.

¶ 29 Colorado’s published cases concerning the term “inherent risks” similarly concern dangerous or potentially [*13] dangerous activities. For example, the term “inherent risks” has been addressed in cases involving skiing, Graven v. Vail Assocs., Inc., 909 P.2d 514, 519 (Colo. 1995); horseback riding, Heil Valley Ranch, Inc., 784 P.2d at 782; medical procedures or surgical techniques, Mudd v. Dorr, 40 Colo. App. 74, 78-79, 574 P.2d 97, 101 (1977); and attendance at roller hockey games, Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707, 710 (Colo. App. 2000). Thus, in reported cases, the term “inherent risks” has been limited to dangerous or potentially dangerous activities, rather than accidents occurring in more common situations, such as using locker rooms.

¶ 30 In light of this statutory and case law backdrop, the use of the inherent risk language in the assumption of risk clause, and the Agreement’s focus on the use of exercise equipment and facilities and physical injuries resulting from strenuous exercise, one could reasonably conclude that by signing the Agreement he or she was waiving claims based only on the inherent risks of injury related to fitness activities, as opposed to washing one’s hands. Indeed, Stone so stated in her affidavit submitted in opposition to the motion for summary judgment.

¶ 31 Sixth, Life Time contends that the only relevant language we need consider is that set forth in the second exculpatory clause, labeled “RELEASE OF LIABILITY.” That provision begins [*14] by stating that “I waive any and all claims or actions that may arise against Life Time . . . as a result of any such injury.” (Emphasis added.) The quoted language, however, is the first use of the term “injury” in the release of liability clause. So the scope of the release can be determined only by referring back to the confusing assumption of risk clause. It is not surprising then that Life Time’s counsel characterized the release’s reference to “such injury” as “squirrely.” In any event, all of the ambiguities and confusion in the assumption of risk clause necessarily infect the release clause.

¶ 32 Seventh, the exculpatory clauses repeatedly use the phrases “includes, but is not limited to” and “including and without limitation,” as well as simply “including.” The repeated use of these phrases makes the clauses more confusing, and the reader is left to guess whether the phrases have different meanings. The problem is compounded by conflicting views expressed by divisions of this court on whether the similar phrase “including, but not limited to” is expansive or restrictive. Compare Maehal Enters., Inc. v. Thunder Mountain Custom Cycles, Inc., 313 P.3d 584, 590 (Colo. App. 2011) (declining to treat the phrase as restrictive and citing Bryan A. Garner, A Dictionary of Modern [*15] Legal Usage 432 (2d ed. 1995)), with Ridgeview Classical Sch. v. Poudre Sch. Dist., 214 P.3d 476, 483 (Colo. App. 2008) (declining to conclude that the phrase took the statute out of the limiting rule of ejusdem generis). For purposes of deciding this case we need not resolve this conflict; the relevance of the conflict for present purposes is that it creates another ambiguity.

¶ 33 That ambiguity – expansive versus restrictive – is critical because nothing in the Agreement refers to risks of using sinks or locker rooms. The assumption of risk clause refers to the “risk of loss, theft or damage of personal property” for the member or her guests while “using any lockers” at a Life Time fitness center. That is quite a separate matter, however, from suffering a physical injury in a locker room.

¶ 34 Significantly, when Life Time intends to exclude accidental injuries occurring in locker rooms, it knows how to draft a clear waiver of liability doing so. In Geczi v. Lifetime Fitness, 973 N.E.2d 801, 803 (Ohio Ct. App. 2012), the plaintiff entered into a membership agreement with Life Time in 2000 (eleven years before Stone entered into the Agreement), which provided in relevant part:

[T]he undersigned agrees to specifically assume all risk of injury while using any of the [*16] Clubs[‘] facilities, equipment, services or programs and hereby waives any and all claims or actions which may arise against LIFE TIME FITNESS or its owners and employees as a result of such injury. The risks include, but are not limited to

. . . .

(4) Accidental injuries within the facilities, including, but not limited to the locker rooms, . . . showers and dressing rooms.

Id. at 806. Life Time chose not to include similar language in the Agreement signed by Stone.

c. The Agreement Is not Clear, Unambiguous, and Unequivocal

¶ 35 Based on the foregoing discussion, and after scrutinizing the exculpatory clauses, we conclude that the Agreement uses excessive legal jargon, is unnecessarily complex, and creates a likelihood of confusion or failure of a party to recognize the full extent of the release provisions. See Chadwick, 100 P.3d at 467. Accordingly, the Agreement does not clearly, unambiguously, and unequivocally bar Stone’s PLA claim based on the injuries she alleges she sustained after she washed her hands in the women’s locker room.

III. Conclusion

¶ 36 The judgment on Stone’s negligence claim is affirmed, the judgment on her PLA claim is reversed, and the case is remanded for further proceedings on that claim.

JUDGE [*17] TAUBMAN and JUDGE FOX concur.

Colorado Premises Liability Act

Posted: March 30, 2016 | Author: Recreation Law | Filed under: Colorado | Tags: Invitee, Landowner, Licensee, Premises Liability, Premises Liability Act, Trespasser | Leave a comment

COLORADO REVISED STATUTES

TITLE 13. COURTS AND COURT PROCEDURE

DAMAGES AND LIMITATIONS ON ACTIONS

ARTICLE 21.DAMAGES

PART 1. GENERAL PROVISIONS

C.R.S. 13-21-115 (2015)

13-21-115. Actions against landowners

(1) For the purposes of this section, “landowner” includes, without limitation, an authorized agent or a person in possession of real property and a person legally responsible for the condition of real property or for the activities conducted or circumstances existing on real property.

(1.5) The general assembly hereby finds and declares:

(a) That the provisions of this section were enacted in 1986 to promote a state policy of responsibility by both landowners and those upon the land as well as to assure that the ability of an injured party to recover is correlated with his status as a trespasser, licensee, or invitee;

(b) That these objectives were characterized by the Colorado supreme court as “legitimate governmental interests” in Gallegos v. Phipps, No. 88 SA 141 (September 18, 1989);

(c) That the purpose of amending this section in the 1990 legislative session is to assure that the language of this section effectuates these legitimate governmental interests by imposing on landowners a higher standard of care with respect to an invitee than a licensee, and a higher standard of care with respect to a licensee than a trespasser;

(d) That the purpose of this section is also to create a legal climate which will promote private property rights and commercial enterprise and will foster the availability and affordability of insurance;

(e) That the general assembly recognizes that by amending this section it is not reinstating the common law status categories as they existed immediately prior to Mile Hi Fence v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971) but that its purpose is to protect landowners from liability in some circumstances when they were not protected at common law and to define the instances when liability will be imposed in the manner most consistent with the policies set forth in paragraphs (a), (c), and (d) of this subsection (1.5).

(2) In any civil action brought against a landowner by a person who alleges injury occurring while on the real property of another and by reason of the condition of such property, or activities conducted or circumstances existing on such property, the landowner shall be liable only as provided in subsection (3) of this section. Sections 13-21-111, 13-21-111.5, and 13-21-111.7 shall apply to an action to which this section applies. This subsection (2) shall not be construed to abrogate the doctrine of attractive nuisance as applied to persons under fourteen years of age. A person who is at least fourteen years of age but is less than eighteen years of age shall be presumed competent for purposes of the application of this section.

(3) (a) A trespasser may recover only for damages willfully or deliberately caused by the landowner.

(b) A licensee may recover only for damages caused:

(I) By the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or

(II) By the landowner’s unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.

(c) (I) Except as otherwise provided in subparagraph (II) of this paragraph (c), an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.

(II) If the landowner’s real property is classified for property tax purposes as agricultural land or vacant land, an invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew.

(3.5) It is the intent of the general assembly in enacting the provisions of subsection (3) of this section that the circumstances under which a licensee may recover include all of the circumstances under which a trespasser could recover and that the circumstances under which an invitee may recover include all of the circumstances under which a trespasser or a licensee could recover.

(4) In any action to which this section applies, the judge shall determine whether the plaintiff is a trespasser, a licensee, or an invitee, in accordance with the definitions set forth in subsection (5) of this section. If two or more landowners are parties defendant to the action, the judge shall determine the application of this section to each such landowner. The issues of liability and damages in any such action shall be determined by the jury or, if there is no jury, by the judge.

(5) As used in this section:

(a) “Invitee” means a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.

(b) “Licensee” means a person who enters or remains on the land of another for the licensee’s own convenience or to advance his own interests, pursuant to the landowner’s permission or consent. “Licensee” includes a social guest.

(6) If any provision of this section is found by a court of competent jurisdiction to be unconstitutional, the remaining provisions of the section shall be deemed valid.

HISTORY: Source: L. 86: Entire section added, p. 683, § 1, effective May 16.L. 90: (1.5), (3.5), (5), and (6) added and (3) and (4) amended, p. 867, § 1, effective April 20.L. 2006: (2) amended, p. 344, § 1, effective April 5.

Editor’s note: Subsections (5)(a) and (5)(c), as they were enacted in House Bill 90-1107, were relettered on revision in 2002 as (5)(c) and (5)(a), respectively.

RECENT ANNOTATIONS

A seller of property pursuant to an installment land contract is not a “landowner” and not responsible for injury to a third party on the property despite being the record title holder of the property if the seller is not in possession of the property at the time of the injury and is not otherwise legally responsible for the conditions, activities, or circumstances on the property pursuant to the contract. Lucero v. Ulvestad, 2015 COA 98, — P.3d — [published July 16, 2015].

ANNOTATION

Law reviews. For article, “Legal Aspects of Health and Fitness Clubs: A Healthy and Dangerous Industry”, see 15 Colo. Law. 1787 (1986). For article, “The Landowners’ Liability Statute”, see 18 Colo. Law. 208 (1989). For article, “The Changing Boundaries of Premises Liability after Gallegos”, see 18 Colo. Law. 2121 (1989). For article, “Recreational Use Of Agricultural Lands”, see 23 Colo. Law. 529 (1994). For article, “The Colorado Premises Liability Statute”, see 25 Colo. Law. 71 (May 1996). For article, “Stealth Statute: The Unexpected Reach of the Colorado Premises Liability Act”, see 40 Colo. Law. 27 (March 2011).

Constitutionality. The phrase “deliberate failure to exercise reasonable care” found in subsection (3)(c) is not unconstitutionally vague. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

This section does not violate article II, § 6, of the state constitution since that provision is a mandate to the judiciary and not the legislature. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

This section does not violate article V, section 25 of the state constitution since this provision applies uniformly to all landowners. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

This section does not violate equal protection since the provision of limited protection to landowners is reasonably related to the protection of the state economy. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

Unconstitutionality. This section violates both the federal and state constitutional guarantees of equal protection of the laws. Gallegos v. Phipps, 779 P.2d 856 (Colo. 1989); Klausz v. Dillion Co., Inc., 779 P.2d 863 (Colo. 1989) (disagreeing with Giebink v. Fischer cited above) (decided prior to 1990 amendments).

The Colorado Premises Liability Act provides the exclusive remedy against a landowner for physical injuries sustained on the landowner’s property. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003); Vigil v. Franklin, 103 P.3d 322 (Colo. 2004); Anderson v. Hyland Hills Park & Recreation Dist., 119 P.3d 533 (Colo. App. 2004); Sweeney v. United Artists Theater Circuit, 119 P.3d 538 (Colo. App. 2005).

Section applies to conditions, activities, and circumstances on a property that the landowner is liable for in its capacity as a landowner. Defendant, in its capacity as a landowner, was responsible for the activities conducted and conditions on its premises, including the process of assisting a customer with loading a freezer he had purchased from defendant. Larrieu v. Best Buy Stores, L.P., 2013 CO 38, 303 P.3d 558.

This section preempts the common law creation of both landowner duties and defenses to those duties. Consequently, the open and obvious danger doctrine cannot be asserted by a landowner as a defense to a premises liability law suit. Vigil v. Franklin, 103 P.3d 322 (Colo. 2004).

Section does not require that damages resulting from landowner’s negligence be assessed without regard to negligence of the injured party or fault of a nonparty. Union Pac. R.R. v. Martin, 209 P.3d 185 (Colo. 2009).

Section does not abrogate statutorily created defenses, which were available to landowners before the 2006 amendment and afterward. The trial court correctly allowed defendants’ affirmative defenses of comparative negligence and assumption of the risk. Tucker v. Volunteers of Am. Colo. Branch, 211 P.3d 708 (Colo. App. 2008), aff’d on other grounds sub nom. Volunteers of Am. v. Gardenswartz, 242 P.3d 1080 (Colo. 2010).

Premises Liability Act never expressly excluded the statutory defense of comparative negligence from its coverage, and limiting the statutory protection provided to landowners would tend to increase liability rather than protect landowners from liability. DeWitt v. Tara Woods Ltd. P’ship, 214 P.3d 466 (Colo. App. 2008) (decided under law in effect prior to 2006 amendment).

Statute does not have to expressly bar waiver by contract for the contract provision to be invalid because it is contrary to public policy. Stanley v. Creighton Co., 911 P.2d 705 (Colo. App. 1996).

Holding title to property is not dispositive in determining who is a landowner under subsection (1). Wark v. U.S., 269 F.3d 1185 (10th Cir. 2001).

The term “landowner” is no more expansive than the common law definition. Wark v. U.S., 269 F.3d 1185 (10th Cir. 2001).

A landowner is any person in possession of real property and such possession need not necessarily be to the exclusion of all others. Therefore, for purposes of this section, a landowner can be an independent contractor. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002).

This section offers its protection to a person who is legally conducting an activity on the property or legally creating a condition on the property. Such person or entity is responsible for the activity or condition and, therefore, prospectively liable to an entrant onto the property. Pierson v. Black Canyon Aggregates, Inc., 48 P.3d 1215 (Colo. 2002); Wycoff v. Grace Cmty. Church, 251 P.3d 1260 (Colo. App. 2010).

Defendant is not a “landowner” where there is no evidence that it was in possession of the sidewalk or that it was responsible for creating a condition on the sidewalk or conducting an activity on the sidewalk that caused plaintiff’s injuries. Jordan v. Panorama Orthopedics & Spine Ctr., PC, 2013 COA 87, — P.3d –.

The test for determining if a victim is an invitee is whether she or he was on the premises to transact business in which the parties are mutually interested. Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003).

Trial court erred in ruling that plaintiff was defendant’s licensee rather than invitee. Therefore, jury instructions minimized the duties defendant owed to plaintiff under the Premises Liability Act. Wycoff v. Seventh Day Adventist Ass’n, 251 P.3d 1258 (Colo. App. 2010).

If the victim was on the premises at an employee’s invitation for either the employee’s benefit, victim’s benefit, or their mutual benefit, then she or he was a licensee or trespasser not an invitee. Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003).

Volunteers are generally classified as licensees. Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003); Rieger v. Wat Buddhawararam of Denver, Inc., 2013 COA 156, 338 P.3d 404.

So long as a landowner retains possession of its property, it cannot delegate the duties imposed on it by subsection (1). Jules v. Embassy Props., Inc., 905 P.2d 13 (Colo. App. 1995).

When a landowner is vicariously liable under the nondelegability doctrine for acts or omissions of other defendants, the trial court should instruct the jury to determine the respective shares of fault of the landowner and the other defendants. But, in entering a judgment, the court shall aggregate the fault of the landowner with any other defendants for whom the landowner is vicariously liable. Reid v. Berkowitz, 2013 COA 110M, 315 P.3d 185.

But possession of property is not dependent upon title and need not be exclusive. Under this section, a party not an owner or lessee may nevertheless be a “landowner” if the party either maintains control over the property or is legally responsible for either the condition of the property or for activities conducted on the property. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003).

However, a contractor who would otherwise be categorized as a “landowner” during time of work on property is not liable if, at the time of the accident in question, the contractor was neither in possession of the property nor conducting any activity related to the property. In such a case, the plaintiff is not required to prove that defendant contractor had actual knowledge of the alleged dangerous condition. Land-Wells v. Rain Way Sprinkler & Lands., 187 P.3d 1152 (Colo. App. 2008); Collard v. Vista Paving Corp., 2012 COA 208, 292 P.3d 1232.

Contractor who had a legal responsibility for the condition of the premises and who was potentially liable for injuries resulting from that condition held to be a “landowner” for purposes of this section. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003).

When a public entity provides a public building for public use, it owes a nondelegable duty to protect invitees from an unreasonable risk to their health and safety due to a negligent act or omission in constructing or maintaining the facility. Springer v. City & County of Denver, 13 P.3d 794 (Colo. 2000).

Owner of property adjacent to public sidewalk does not have a duty to pedestrians to clear sidewalk of snow merely because it complied with snow removal ordinance from time to time and on a voluntary basis in order to avoid the imposition of penalties. Burbach v. Canwest Invs., LLC, 224 P.3d 437 (Colo. App. 2009).

Snow removal ordinance does not make public sidewalks the “property of” adjacent property owners. The court therefore properly granted summary judgement since owner of property adjacent to public sidewalk was not legally responsible for the condition of the sidewalk. Burbach v. Canwest Invs., LLC, 224 P.3d 437 (Colo. App. 2009).

A landlord retaining sufficient control over an area or instrumentality has a duty to exercise due care in maintaining that area or instrumentality. Nordin v. Madden, 148 P.3d 218 (Colo. App. 2006).

In effect, this section establishes two separate elements for landowner liability: (1) Breach of a duty to use reasonable care to protect against a danger on the property, and (2) actual or constructive knowledge of the danger. Sofford v. Schindler Elevator Corp., 954 F. Supp. 1459 (D. Colo. 1997).

Statute’s requirement that the landowner “knew or should have known” of the danger can be satisfied by actual or constructive knowledge. Lombard v. Colo. Outdoor Educ. Ctr., 187 P.3d 565 (Colo. 2008).

Plaintiff presented sufficient evidence to overcome defendant’s motion for summary judgment on the issue of knowledge because, as the builder, defendant had actual or constructive knowledge of the violation of a building code provision that was intended to ensure the safety of those on the premises, such as plaintiff. Lombard v. Colo. Outdoor Educ. Ctr., 187 P.3d 565 (Colo. 2008).

Plaintiff may overcome summary judgment on the issue of a landowner’s unreasonable failure to exercise reasonable care by presenting evidence that the landowner violated a statute or ordinance that was intended to protect the plaintiff from the type of injury plaintiff suffered. Lombard v. Colo. Outdoor Educ. Ctr., 187 P.3d 565 (Colo. 2008).

A plaintiff may recover against the landowner pursuant to the statute only and not under any other theory of negligence. The language of the premises liability statute makes clear that a party may no longer bring a negligence per se claim against a landowner to recover for damages caused on the premises. Lombard v. Colo. Outdoor Educ. Ctr., 187 P.3d 565 (Colo. 2008).

Building code violation may be evidence that owners failed to use reasonable care. Trial court did not err in tendering to a jury an instruction that included this statement, while rejecting other jury instructions that misstated the relationship between the common law and the premises liability act. Lombard v. Colo. Outdoor Educ. Ctr., Inc., 266 P.3d 412 (Colo. App. 2011).

No lessor liability for injuries. Under this section, as under common law, a lessor who has transferred possession and control over the leased premises to a lessee has no liability for injuries resulting from a dangerous condition of the premises absent proof as to one of the exceptions. Perez v. Grovert, 962 P.2d 996 (Colo. App. 1998).

Under this section, a landlord who has transferred control of the premises to a tenant is no longer a “person in possession” of the real property and is not liable for injuries resulting from a danger on the premises unless the landlord had actual knowledge of the danger before the transfer. Wilson v. Marchiondo, 124 P.3d 837 (Colo. App. 2005).

And no landowner liability for injuries occurring on that portion of an easement exclusively owned, maintained, and controlled by easement holder. deBoer v. Jones, 996 P.2d 754 (Colo. App. 2000); deBoer v. Ute Water Conservancy Dist., 17 P.3d 187 (Colo. App. 2000).

The reservation of the right of inspection and the right of maintenance and repairs is generally not a sufficient attribute of control to support imposition of tort liability on the lessor for injuries to the tenant or third parties. Wilson v. Marchiondo, 124 P.3d 837 (Colo. App. 2005).

This section does not reflect an intention to extend the application of the premises liability doctrine to the negligent supply of a chattel by a landowner. Geringer v. Wildhorn Ranch, Inc., 706 F. Supp. 1442 (D. Colo. 1988).

This section does not apply to ski accident cases which are governed by the Ski Safety Act, article 44 of title 33, C.R.S. Calvert v. Aspen Skiing Co., 700 F. Supp. 520 (D. Colo. 1988).

This section would apply to ski accident cases which involve dangerous conditions that are not ordinarily present at ski areas since the Ski Safety Act, article 44 of title 33, C.R.S., protects skiers against only those dangerous conditions that are commonly present at ski areas. Giebink v. Fischer, 709 F. Supp. 1012 (D. Colo. 1989).

Claim of spectator injured by flying puck at hockey rink governed by this section. The common law “no duty” rule for injuries suffered by spectators at sporting events was superceded by this section. Teneyck v. Roller Hockey Colo., Ltd., 10 P.3d 707 (Colo. App. 2000).

Subsection (2) does not apply when plaintiff is a co-owner of the area where the injuries were sustained, because the injury could not have occurred on the real property of another. Acierno v. Trailside Townhome Ass’n, Inc., 862 P.2d 975 (Colo. App. 1993).

Jury instructions presenting a general negligence theory with regard to an invitee was not prejudicial error, even if there is a meaningful difference between a failure to exercise reasonable care, in the instruction, and an unreasonable failure to exercise reasonable care, from the statute. Lawson v. Safeway, Inc., 878 P.2d 127 (Colo. App. 1994); Thornbury v. Allen, 991 P.2d 335 (Colo. App. 1999).

Because plaintiff is a landowner, trial court should have applied the standard of care in this section rather than the standard of care for operators of amusement devices contained in the jury instructions. Anderson v. Hyland Hills Park & Recreation Dist., 119 P.3d 533 (Colo. App. 2004).

The provisions of this act do not apply to the common areas of a townhome complex that are owned by a townhome owners association, because the townhome owners have a continuing right of access to the common areas in the townhome complex by virtue of their status as owners, regardless of whether the association has given consent. Trailside Townhome Ass’n, Inc. v. Acierno, 880 P.2d 1197 (Colo. 1994).

Rather, the relationship between the townhome owners association and the townhome owners is controlled by the duties specified in the operative documents creating the townhome complex and the association, to the extent those duties are consistent with public policy. Trailside Townhome Ass’n, Inc. v. Acierno, 880 P.2d 1197 (Colo. 1994).

Under this section, a tenant is classified as an invitee, as a customer of the landlord in a continuing business relationship that is mutually beneficial, regardless of the particular activity in which the tenant was engaged when injured. Maes v. Lakeview Assocs., Ltd., 892 P.2d 375 (Colo. App. 1994), aff’d, 907 P.2d 580 (Colo. 1995); Pedge v. RM Holdings, Inc., 75 P.3d 1126 (Colo. App. 2002).

Plaintiff who paid admission was invitee and not a social guest. Social hosts do not typically require their guests to sign permission slips and pay for their hospitality. Wycoff v. Grace Cmty. Church, 251 P.3d 1260 (Colo. App. 2010).

Cyclist was an invitee at the time of the accident. While there was no evidence that cyclist was on a bike path in response to landowner’s express representation that the public was requested, expected, or intended to enter or remain on the property, there was evidence of an implied representation of this through “Bicycle Path, No Motorized Vehicles” signs. Nelson v. United States, 20 F. Supp. 3d 1108 (D. Colo. 2014).

Cyclist was a licensee where there was evidence of a course of conduct and usage in connection with a bike path before cyclist’s accident that showed that the landowner knew that people were using the path for recreational purposes and did not affirmatively preclude them from its use. Nelson v. United States, 20 F. Supp. 3d 1108 (D. Colo. 2014).

A social guest of a tenant is a licensee absent a showing that the guest entered the premises to transact business with the landlord or that the landlord represented that the guest was expected to enter or remain. Wilson v. Marchiondo, 124 P.3d 837 (Colo. App. 2005).

Contractor with legal responsibility for the condition of the premises owes an employee of a lessor of the premises a duty of care which this section imposes upon a landowner with respect to an invitee. Henderson v. Master Klean Janitorial, Inc., 70 P.3d 612 (Colo. App. 2003).

The liability of a landowner to a licensee under this section is to be limited to situations in which the landowner possesses an active awareness of the dangerous condition. Wright v. Vail Run Resort Cmty. Ass’n, 917 P.2d 364 (Colo. App. 1996); Grizzell v. Hartman Enters., Inc., 68 P.3d 551 (Colo. App. 2003).

Attractive nuisance doctrine applies to all children, regardless of their classification within the trespasser-licensee-invitee trichotomy. S.W. v. Towers Boat Club, Inc., 2013 CO 72, 315 P.3d 1257.

Summary judgment in favor of landlord proper in absence of any evidence concerning landlord’s knowledge of alleged defect. Casey v. Christie Lodge Owners Ass’n, 923 P.2d 365 (Colo. App. 1996).

Section covers claims for negligent supervision and retention when a claim relates to the condition of property. Casey v. Christie Lodge Owners Ass’n, 923 P.2d 365 (Colo. App. 1996).

Section does not abrogate claims that also arise under dog bite statute. Plaintiff bitten by defendant’s dogs on property where defendant qualified as a “landowner” could bring a claim under this section. Legro v. Robinson, 2012 COA 182, 328 P.3d 238, aff’d on other grounds, 2014 CO 40, 325 P.3d 1053.

The term “consent” includes both express and implied consent. The fact that the term “express or implied” is used with respect to an “invitee” but not with respect to a “licensee” or a “trespasser” does not preclude implied consent from being sufficient to make one entering property a “licensee” and not a “trespasser”. Corder v. Folds, 2012 COA 174, 292 P.3d 1177.

Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.

Posted: March 14, 2016 | Author: Recreation Law | Filed under: Minors, Youth, Children, New Jersey, Ski Area | Tags: Duty of care, Hazard, New Jersey, New Jersey Skier Safety Act, ski area, Toboggan, Trespasser, Ultra Hazard, Warning | Leave a comment

However, the courts in this case seemed to want the plaintiffs to win no matter what.

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

State: New Jersey, Superior Court of New Jersey, Appellate Division

Plaintiff: Patrick Brett and Elisa Ramundo

Defendant: Great American Recreation, Inc. et al.

Plaintiff Claims: Negligence

Defendant Defenses: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute.

Holding: For the plaintiff’s

Year: 1995

This is an old decision; however, it explains how a statute created to and passed to protect an activity, can be used to hold the operators of the activity liable.

There are numerous claims, cross claims, third party claims and claimants. Several parties were dismissed prior to trial. Basically, everyone who was brought into the lawsuit also made claims against the people bringing them in and anyone else that could have any liability.

Thirteen college friends intended to spend the weekend in a condo owned by the uncle of one of the thirteen. The condo was sitting next to the Great Gorge North ski area. Between the ski area and the condos was a vacant strip of land. The land is owned by two condo associations, including one of the plaintiffs were staying in.

During the day, the vacant strip of land is used by the ski area as a bunny hill. When the ski hill is closed the lights are turned off. However, the lights are turned back on later in the night for the groomers to operate.

One of the party of 13 found in the condo a toboggan. After the lights were turned back on, several of the thirteen went tobogganing on the bunny hill. They were not alone tobogganing; other people were tobogganing, sledding and using the hill after it had closed but with the lights on.

Different people in the group used the toboggan at different times; taking turns because the toboggan could only hold six at a time. On the third run, the toboggan was launched higher up the hill.

The toboggan went down the bunny hill across a fifty to sixty foot flat section of land, over a flattened snow fence then over the edge of a 20’ embankment landing in the parking lot below. One of the six was able to fall off the toboggan before it went over the embankment. The five remaining riders were seriously injured landing in the parking lot and hitting a light pole.

Security guards were employed by the defendant condo association. Part of their duties included keeping people off the bunny hill. However, this night the security guards were shorthanded, and hill was not checked. The plaintiff’s even argued that the defendants were negligent because they failed to eject people on the bunny hill.

Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers.

The case proceeded to trial, and the plaintiffs were awarded $2,475,000 among the five of them. The damages were apportioned under comparative negligence as: plaintiffs 22%, defendant 54% and Stonehill 24% (one of the condo associations).

The defendants appealed.

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

The court first pointed out that even if the plaintiffs were found to be trespassers that did not mean, under New Jersey law that no duty was owed to the trespassers. If the land contained a dangerous instrumentality, then a duty is owed to a trespasser to warn them of the danger.

Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous.

In this case, the court concluded that next to a bunny hill, an embankment is a dangerous instrumentality. The court’s opinion of the situation is pretty clear in the next discussion when the embankment is called a fatal trap.

Here, on one side of that relationship are young people attracted to a condominium because of its proximity to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, was a near-fatal trap to those using the trail to toboggan.

New Jersey has a Skier Safety Act. The court found that the New Jersey Skier Safety Act applied to this case.

To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, 1 and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies.

Once it is determined the act applies, the court, or jury, determines if the injuries of the plaintiff were caused by the ski operators violation of the act. If so the plaintiff recovers.

If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence.

The court also found the plaintiff’s violated one statute of the New Jersey Skier Safety Act. The plaintiff’s failed to maintain control of their toboggan and did not know their abilities.

Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies. [HN7] N.J.S.A. 5:13-4d provides:

A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise traverse any trail, slope or other area which is beyond the skier’s ability to negotiate.

The court also found the plaintiff’s assumed the risk because they still went down the slope. However, this assumption of the risk, the court found was not a complete bar, but only proved the plaintiffs contributed to their injuries. Which is contrary to how the assumption of risk provision reads and is somewhat contrary to earlier statements in the case?

It is important to note that these statutory violations and risk assumptions do not affect the percentage of a skier’s comparative negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

This interpretation of the statute effectively render’s the inherent risk section of the statute void. An inherent risk is a risk that is part of the activity. In inherent risk is something that cannot be removed from the activity without rendering the activity moot. You cannot sue for an injury you receive from an inherent risk of the activity, allegedly. Skier Safety Acts are written to broaden the risks that are inherent and to make them, if assumed an absolute bar to a claim, in most states.

However, in New Jersey, this is not the case.

The case took a somewhat amusing turn. The court reviewed the plaintiff’s claim that a stronger fence should have been built and that the defendants were liable because they had not built a fence strong enough to keep the plaintiff’s from going over the embankment. Aren’t the injuries going to be different when a toboggan going fast enough to over an embankment hits a fence, but still severe?

The argument then went back to the New Jersey Skier Safety Act. The act differentiates between manmade hazards and natural ones. The statute defines a ski area as real property “…”utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.”

However, the court simply stated, “Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.”

Then the court looked at the hazard and determined the act required removal of a hazard. If the hazard could not be removed, then the plaintiff’s had to be warned of the hazard.

Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed all posted warnings.”

The decision then went back to the duty owed to trespassers. The defendants argued the New Jersey Skier Safety Act does not apply to trespassers. However, the court stated that even if the plaintiffs were trespassers a high duty was owed with or without the New Jersey Skier Safety Act.

We already suggested that even at common law, defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable.

The court then summed out the analysis it was making to allow a recovery by the plaintiffs.

Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.

The statutory responsibility was the failure to remove the embankment or post a warning about it.

A major issue at trial was whether defendant violated any of its statutory responsibilities. The focus was on the meaning of [HN10] N.J.S.A. 5:13-3, which provides in relevant part:

a. It shall be the responsibility of the operator to the extent practicable, to:

* * * *

(3) Remove as soon as practicable obvious, man-made hazards.

The appellate court upheld the jury’s decision and award at trial.

So Now What?

In New Jersey, you must make your property safe for all users of the property, even if they are doing so without our permission. If you cannot remove the hazard, you must post a warning of the hazard, if the hazard is considered ultra-hazardous.

Simply put, risk management is not controlling what people are expected to do at your program or business. Risk Management is looking at all aspects of the operation and finding ways that people can be hurt doing things other than what they came for.

The Zip Line may be perfect but is someone can mistake an anchor for a zip line you will be sued. See Federal court voids release in Vermont based on Vermont’s unique view of release law. Someone uses the equipment incorrectly, and the court is going to hold you to the fire. See Sometimes you get screwed; here Petzl was shafted by the court.

However, a person can use a piece of equipment, try a ride, climb up or down; they will do it wrong, be hurt and sue.

Risk Management is looking at things from every point of view, for every age group, for every activity, if you don’t think those people, those age groups or that activity can be done.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

Outdoor Recreation Insurance, Risk Management and Law

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

Posted: March 13, 2016 | Author: Recreation Law | Filed under: Legal Case, New Jersey, Ski Area | Tags: Duty of care, Hazard, New Jersey, New Jersey Skier Safety Act, ski area, Toboggan, Trespasser, Ultra Hazard, Warning | Leave a comment

To Read an Analysis of this decision see Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.

Brett, v. Great American Recreation, Inc., et al., 279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

Patrick Brett and Elisa Ramundo, Plaintiffs-Respondents, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association, Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Defendant/Third-Party-Plaintiff/Respondent, v. Denise Mcdade, Nancy Morgan, Third-Party-Defendants. Karen Furman, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stonehill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, v. Rudolph Maurizzi, Third-Party-Defendant/Respondent. Donald Pisarcik, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants, and Rudolph Maurizzi, Defendant-Respondent. Megan Russell, Plaintiff-Respondent, v. Great American Recreation, Inc., Defendant-Appellant, and Stone Hill Property Owners Association Inc., Hotel Section Condominium Council, Inc., Defendants/Third-Party-Plaintiffs, and Rudolph Maurizzi, Lisa Carmelitano, Third-Party-Defendants/Respondents, and Karen Furman, Third-Party-Defendant.

A-4010-92T3

SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION

279 N.J. Super. 306; 652 A.2d 774; 1995 N.J. Super. LEXIS 53

November 29, 1994, Argued

February 8, 1995, Decided

SUBSEQUENT HISTORY: [***1] Approved for Publication February 8, 1995. As Amended.

Certification granted Brett v. Great Am. Recreation, 141 N.J. 97, 660 A.2d 1196, 1995 N.J. LEXIS 379 (1995)

Affirmed by Brett v. Great Am. Rec., 144 N.J. 479, 677 A.2d 705, 1996 N.J. LEXIS 787 (1996)

PRIOR HISTORY: On appeal from Superior Court of New Jersey, Law Division, Union County.

COUNSEL: Samuel A. DeGonge argued the cause for appellant Great American Recreation, Inc. (Samuel J. McNulty, on the brief).

Philip G. Auerbach argued the cause for respondents Patrick Brett, Elisa Ramundo, Karen Furman and Donald Pisarcik (Auerbach & Cox, attorneys; Mr. Auerbach, on the brief).

John P. Doran argued the cause for respondent Megan Russell.

Anthony P. Pasquarelli argued the cause for respondent Rudolph Maurizzi (Methfessel & Werbel, attorneys; Jared E. Stolz, of counsel and on the brief).

Kevin J. Decoursey argued the cause for respondent Lisa Carmelitano (O’Toole & Couch, attorneys; Michael Della Rovere, on the brief).

JUDGES: Before Judges BRODY, LONG and ARNOLD M. STEIN. The opinion of the Court was delivered by BRODY, P.J.A.D.

OPINION BY: Warren Brody

OPINION

[*310] [**776] The opinion of the Court was delivered by

BRODY, P.J.A.D.

Plaintiffs in this consolidated personal injury action are five of thirteen college friends, then twenty and twenty-one years old, who had planned to be together for a winter weekend at a condominium in Vernon Township. The owner of the condominium, third-party defendant Rudolph Maurizzi, is the uncle of third-party defendant [***2] Lisa Carmelitano, one of the group. He allowed the group to use his condominium, which is one of many such buildings built along the slope of Great Gorge North on either side of a vacant strip of land. During the winter, the vacant strip, which is about a thousand feet long, is the Bunny Buster ski trail. Defendants Stonehill Property Owners Association, Inc. and Hotel [*311] Section Condominium Council, Inc. (Stonehill) own the land that contains the condominiums and the Bunny Buster trail. Defendant Great American Recreation, Inc. (defendant) operates the trail as a business under the terms of an easement from Stonehill.

Members of the group arrived on Friday at different times. Early arrivals spent part of the day skiing along various trails in the area. When they finished skiing, some of those returning to the condominium used or crossed the Bunny Buster trail even though defendant had turned off the lights on the trail because by then it had closed for the day. Between ten and eleven o’clock that night, after everyone in the group had arrived at the condominium, defendant turned on the Bunny Buster trail lights to enable its employees to groom the trail for the next day. Grooming [***3] is accomplished by using motor vehicles to pull heavy rollers over the trail to tamp down the snow.

Earlier that day, one member of the group discovered a toboggan that Maurizzi had stored in his condominium with other snow equipment. After the lights were turned on, the group decided to slide down part of the trail on the toboggan. There was evidence that other people at the time were using the trail for sledding and tobogganing. The toboggan could hold no more than six people so members of the group took turns riding it. The first two runs were uneventful.

[**777] The third run, with six on board, was a disaster. Starting from a point a bit higher than where the first two runs had begun, the toboggan slid down the trail, across a fifty- to sixty-foot flat expanse of snow at the base of the trail, over a flattened snow fence, and then over the edge of a twenty-foot dirt embankment to a parking lot below. One of the six fell off the toboggan before it dropped over the edge, thereby escaping injury. The other five, the plaintiffs, were seriously injured as their bodies hit the embankment, the parking lot and a parking-lot light pole. There was evidence that, at the time of the rescue operation, [***4] other people, not associated with plaintiffs’ group, who were tobogganing [*312] escaped injury by tumbling off their toboggan just before it dropped over the edge.

Claims against all third-party defendants were dismissed on their motions for partial summary judgment. Plaintiffs settled with Stonehill before trial. The jury found that under the New Jersey Ski Statute (Statute), N.J.S.A. 5:13-1 et seq., plaintiffs as a group, defendant and Stonehill were all negligent. The jury apportioned the negligence as follows: plaintiffs 22%, defendant 54% and Stonehill 24%. The jury found that fair and adequate total compensation to all plaintiffs would be $ 2,475,000.

Defendant’s main arguments are: (1) defendant owed no duty to plaintiffs under either the common law or the Statute because they were trespassers at the time of the accident, and (2) even if plaintiffs were not barred from recovery as trespassers, the facts of this case do not render defendant liable under the terms of the Statute. Defendant raised these issues when it moved, unsuccessfully, for involuntary dismissal upon the conclusion of plaintiffs’ presentation of evidence, R. 4:37-2(b), and for judgment at the close [***5] of all evidence, R. 4:40-1. For reasons that follow, we conclude that defendant is liable under the Statute and that the Statute does not bar the claims of trespassers.

Before discussing those issues, we note that, contrary to defendant’s contention, although plaintiffs were trespassers at the time of the accident their claims would not necessarily be barred at common law. ” [HN1] Traditionally, a landowner owed no duty to a trespasser other than to refrain from acts willfully injurious.” Renz v. Penn Cent. Corp., 87 N.J. 437, 461, 435 A.2d 540 (1981). The Court held, however, that even traditionally there was a higher standard of care due a trespasser “when the property owned by the landowner can be classified as a dangerous instrumentality.” Id. at 462, 435 A.2d 540. Here, the design of the Bunny Buster trail rendered it unexpectedly dangerous. As this accident demonstrated, tobogganers who reached the bottom of the trail would be carried by momentum over the edge of a twenty-foot embankment resulting in serious injury.

[*313] The Court in Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 625 A.2d 1110 (1993), [***6] signaled its movement away from the rigid common-law distinctions among the standards of care due trespassers, licensees and invitees. There the Court held that a real estate broker owed a duty of reasonable care to a prospective home buyer who was injured when she failed to notice a step and fell while viewing the premises. She was there to attend an “open house” conducted by the broker. In imposing a duty of care on the broker, thereby departing from the common-law requirement that only the property owner had such a duty, the Court said:

The inquiry should be not what common law classification or amalgam of classifications most closely characterizes the relationship of the parties, but . . . whether in light of the actual relationship between the parties under all of the surrounding circumstances the imposition on the broker of a general duty to exercise reasonable care in preventing foreseeable harm to its open-house customers is fair and just. That approach is itself rooted in the philosophy of the common law.

[Id. at 438, 625 A.2d 1110]

Here, on one side of that relationship are young people attracted to a condominium because of its proximity [***7] to snow trails and who, not unexpectedly, used defendant’s adjacent lighted trail to toboggan after skiing hours. On the other side of the relationship is the operator of the trail, which, as designed, [**778] was a near-fatal trap to those using the trail to toboggan. Without having to decide the question, we suggest that even if the Ski Statute did not apply, the operator would have a common-law duty to take reasonable measures to warn such trespassers of that latent danger.

Indeed, such an obligation was recognized by defendant in its cross-claim against Stonehill. Stonehill employed security personnel to police the entire condominium area, including the Bunny Buster trail. That policing included keeping trespassers off the trail at night, but the security force was short-handed that night and failed to police the trail. Defendant’s attorney argued in his summation that Stonehill was negligent because it failed to have its security force eject after-hours trespassers. We add that [HN2] the duty of an owner or occupier of land to warn of such a serious [*314] danger may not be delegable. Hopkins, supra, at 441, 625 A.2d 1110 (citing Sanna v. National Sponge Co., 209 N.J.Super. 60, 506 A.2d 1258 (App.Div.1986)). [***8]

The Legislature enacted the Ski Statute in 1979 in response to a decision by the Vermont Supreme Court that deprived operators of ski areas of the absolute defense of assumption of risk. Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978), held that in adopting comparative negligence by statute the legislature of that state intended to replace the absolute defense of assumption of risk with the defense of plaintiff’s comparative negligence. Our Legislature was thus moved to consider whether its adoption of the doctrine of comparative negligence in 1973 left ski area operators unfairly vulnerable to personal injury actions caused by accidents that are an inherent risk of skiing and related sports such as toboganning. See generally Reisman v. Great Am. Recreation, 266 N.J.Super. 87, 92-95, 628 A.2d 801 (App.Div.), certif. denied, 134 N.J. 560, 636 A.2d 519 (1993).

[HN3] Actions against a ski operator for personal injuries sustained by a skier on its ski slope are governed by common-law negligence principles unless the Ski Statute applies. Reisman, supra,266 N.J. Super. at 97, 628 A.2d 801. [***9] The Statute, however, has wide application.

To determine whether it applies to the exclusion of common-law principles, one must look at two sections of the Statute: N.J.S.A. 5:13-4, which lists the duties of skiers, ¹ and N.J.S.A. 5:13-5, which describes the risks that a skier is deemed to have assumed. If a factfinder finds that a skier was injured because he or she had violated one or more of those statutory duties or is deemed by the Statute to have assumed one or more of the stated risks of skiing, the Statute applies. The common law, and not the Statute, was applied in Reisman because there the skier’s injury [*315] was the result of neither the violation of a statutory duty nor the assumption of a statutory risk. He was injured while properly proceeding slowly down a beginner’s slope when a drunken skier knocked him to the ground.

1 [HN4] N.J.S.A. 5:13-2c defines “skier” to include “a person utilizing the ski area for recreational purposes such as . . . operating toboggans.”

[HN5] Once it is determined that the [***10] Statute applies, one must look at N.J.S.A. 5:13-3, which lists the responsibilities of the ski operator. ² If the factfinder finds that the injuries were not proximately caused by the ski operator’s violation of any of its statutory responsibilities, the Statute bars the injured skier from recovering compensation from the operator. If the factfinder finds that the injuries were proximately caused by the ski operator’s violation of one or more of its statutory responsibilities, the skier is entitled to recover under principles of comparative negligence. N.J.S.A. 5:13-6.

2 [HN6] N.J.S.A. 5:13-2a defines “operator” to include “a person . . . who . . . manages . . . the operation of an area where individuals come to . . . operate . . . toboggans.”

Here it is obvious that plaintiffs violated at least one of the statutory duties and therefore the Statute applies. [HN7] N.J.S.A. 5:13-4d provides:

A skier shall be the sole judge of his ability to negotiate any trail, slope, or uphill track and shall not attempt to ski or otherwise [***11] traverse any trail, slope or other [**779] area which is beyond the skier’s ability to negotiate.

Plaintiffs were not able to negotiate the Bunny Buster trail. It is also obvious that plaintiffs are deemed to have assumed at least one statutory risk. [HN8] N.J.S.A. 5:13-5 provides in part:

Each skier is assumed to know the range of his ability, and it shall be the duty of each skier to conduct himself within the limits of such ability, to maintain control of his speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of himself or others.

Given that assumption, plaintiffs acted in a manner that contributed to their own injury.

It is important to note that these [HN9] statutory violations and risk assumptions do not affect the percentage of a skier’s comparative [*316] negligence. That determination is left to the factfinder if it finds that the skier contributed to his or her own injuries by violating one or more of the skier’s responsibilities. The skiers’ statutory violations and risk assumptions initially serve merely to invoke application of the Statute.

A major issue at trial was whether [***12] defendant violated any of its statutory responsibilities. The focus was on the meaning of [HN10] N.J.S.A. 5:13-3, which provides in relevant part:

a. It shall be the responsibility of the operator to the extent practicable, to:

* * * *

(3) Remove as soon as practicable obvious, man-made hazards.

Much of the confusion in arguing the liability issue at trial was caused by the next subsection of the Statute, which expressly excuses an operator from certain specific responsibilities to skiers. In that regard, [HN11] N.J.S.A. 5:13-3 provides in relevant part:

b. No operator shall be responsible to any skier or other person because of its failure to comply with any provisions of subsection 3.a. if such failure was caused by:

* * * *

(3) Subject to the provisions of subsection 3.a.(3), the location of man-made facilities and equipment necessary for the ordinary operation of the ski area, such as . . . fencing of any type. . . .

Plaintiffs argued that the man-made hazard for which defendant was responsible was fencing. At first they seemed to suggest that the snow fence was a direct cause of the accident because it constituted a ramp that “launched” the toboggan down the embankment. Defendant [***13] responded by claiming the benefit of subsection -3b(3), which relieved it of any responsibility for the “location” of “fencing” “necessary for the ordinary operation of the ski area.”

As plaintiffs developed their case with expert testimony, however, it became apparent that they were not claiming that the flimsy snow fence was a cause of the accident, but rather that a cause of the accident was defendant’s failure to erect a more resistant fence that would restrain a toboggan and its passengers from [*317] going over the edge of the embankment. Aside from whether such a fence would effectively reduce injury or be “practicable” (a requirement of section -3a), defendant argued that the absence of a stronger fence was still related to the location of fencing and therefore not actionable because of subsection -3b(3).

The trial judge rejected defendant’s argument when he denied its motions. He interpreted “man-made hazards” comprehensively to include the design of the trail, which directed toboggans, known to be difficult if not impossible to control, over the edge of the twenty-foot embankment and down to the parking lot and light pole. As he understood the Legislature’s intent, the requirement [***14] that operators “remove . . . man-made hazards” was broad enough to include warning people not to use the trail for tobogganing. The judge instructed the jury that “remove” not only means “to . . . uproot” but also means “to eliminate or reduce or obviate.” This left the jury free to decide whether the hazard of falling over the edge of the embankment could be removed by warnings. We agree with the trial judge.

[**780] [HN12] An obvious man-made hazard, as contemplated in N.J.S.A. 5:13-3a(3), is a man-made danger, obvious to an operator, that is not an inherent risk of using a “ski area.” A ski area is defined in part by N.J.S.A. 5:13-2b as real property “utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season.” Being borne off an embankment after reaching the bottom of a trail is not an inherent risk of tobogganing.

Where physical removal of a hazard is not possible, reasonable warnings of the hazard may constitute its practicable removal. The Statute impliedly contemplates that an operator at least has a duty to post suitable warnings of danger. It will be recalled that N.J.S.A. 5:13-5 expressly charges skiers with the reciprocal duty “to heed [***15] all posted warnings.”

Defendant argues alternatively that even if plaintiffs may recover under the Ski Statute, the Statute does not apply to trespassers. We already suggested that even at common law, [*318] defendant may owe plaintiffs a duty of reasonable care because their presence on the lighted trail was reasonably foreseeable, the risk of grave injury was great and the duty of care was not delegable. We find nothing in the statute that suggests that the Legislature meant to supplant the common law in that respect. The Statute does not exempt trespassers from the definition of skiers to whom operators have a limited responsibility. We quote the [HN13] N.J.S.A. 5:13-2c definition in full:

“Skier” means a person utilizing the ski area for recreational purposes such as skiing or operating toboggans, sleds or similar vehicles, and including anyone accompanying the person. Skier also includes any person in such ski area who is an invitee, whether or not said person pays consideration.

[Emphasis added.]

Plaintiffs were not merely “in” the ski area; they were “utilizing the ski area for recreational purposes such as . . . operating toboggans.” They were therefore skiers entitled to recover [***16] under principles of comparative negligence if defendant violated any of its limited statutory responsibilities.

Our understanding of the Legislature’s intent is fortified by a change in the Assembly bill before it became the Statute. The bill originally contained a section that read:

No operator shall be liable to any person who is a trespasser, which shall include, but not be limited to, persons using the facilities who fail, when required to do so, to pay lift fees or other fees required in connection with the use of these facilities. The operator shall be liable to skiers and others only as specified in this section.

[A. 1650, 198th Leg., 1st Sess. § 3(c) (1978).]

That provision was deleted before the Statute was adopted. The Statement accompanying the final version of the bill stated in part, “The complete removal of liability on the part of a ski area operator to trespassers would be eliminated.” Assembly Judiciary, Law, Public Safety and Defense Committee Statement to Assembly No. 1650 (November 20, 1978).

The two remaining arguments that we will briefly address are that the motion judge erroneously granted partial summary judgments to Maurizzi and to Carmelitano. [***17] The motions were properly granted.

[*319] There was no evidence presented in opposition to Maurizzi’s motion that he authorized plaintiffs to use his toboggan, which he had stored in his home. There was no evidence that a toboggan is so inherently dangerous that Maurizzi should have secured it from use by adults. There was no evidence that Maurizzi knew that using the toboggan on the Bunny Buster trail would be especially dangerous.

As to Carmelitano, although there was evidence, presented in opposition to her motion, that some members of the group drank beer at the condominium before the accident, there was no evidence that Carmelitano served the beer, much less that she served it to anyone who was visibly intoxicated. Indeed, there was no evidence that beer-drinking was a cause of the accident. See Gustavson v. Gaynor, 206 N.J.Super. 540, 503 A.2d 340 (App.Div.1985), certif. denied, 103 N.J. 476, 511 A.2d 655 (1986).

[**781] We are satisfied from a careful reading of this record that the remaining issues that defendant has raised in its brief are clearly without merit and therefore require no discussion. R. 2:11-3(e)(1)(E).

[***18] Affirmed.

It's not what I write, It's what you Learn

To See a Review of this case go to: Plaintiff assumed the risk walking behind an Airbnb and not following the trail.

Hlad v. Hirsch, 2025 U.S. Dist. LEXIS 267967 *; 2025 LX 611567

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Airbnb did not possess the land

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

Plaintiff: Teresa Hlad and Steven Hlad

Defendants: SarahHirsch,YoelHirsch,andAirbnb,Inc.

Plaintiff Claims: Negligence against Defendants, and Steven Hlad, Loss of Consortium

Defendant Defenses: Assumption of the Risk

Holding: For the Defendants

Year: 2025

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To Read an Analysis of this decision see Tobogganing is added to the NJ Skier Safety Act, yet in this case, it allows the ski area to be sued.

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