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JOSEPH ZIMMER v. MITCHELL AND NESS (04/13/78)

decided: April 13, 1978.

JOSEPH ZIMMER, APPELLANT,
v.
MITCHELL AND NESS, APPELLEE, AND CAMELBACK SKI CORPORATION, DEFENDANT, AND G. P. I., INC. AND HEAD SKI CO., DIV. OF A. M. F. AND RIEKER SKI EQUIPMENT CORPORATION, ADDITIONAL DEFENDANTS



COUNSEL

Charles Sovel, Philadelphia, for appellant.

Jonathan D. Herbst, Philadelphia, for appellee, Mitchell and Ness.

No appearance entered nor briefs submitted for appellees, Camelback, G. P. I., Inc., Head Ski Co., and Rieker Ski Equipment Corp.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 253 Pa. Super. Page 476]

This is an appeal from the order of the court below granting appellee, Mitchell and Ness, summary judgment. Because the record discloses no genuine issue of material fact and because appellee was entitled to judgment as a matter of law, we affirm.

On January 6, 1973, appellant went to appellee's rental shop at the Camelback Ski area to rent skis, boots and poles. Appellant signed a rental agreement before accepting the ski equipment. Later, while descending the beginners'

[ 253 Pa. Super. Page 477]

    slope, appellant fell. The bindings on appellant's skis did not release, thereby causing him to sustain numerous injuries. Appellant commenced this action on January 3, 1975 against appellee and Camelback Ski Corporation alleging negligence, violation of ยง 402A of the Restatement (Second) of Torts and breach of warranty. Appellee filed an answer and new matter alleging that appellant signed a rental agreement which fully released appellee from liability. In his reply, appellant admitted signing the agreement, but generally denied that it released appellee from liability. After the parties took depositions, appellee moved for summary judgment, which the lower court granted on October 29, 1976. For the reasons that follow, we affirm.

Rule 1035(b) of the Pennsylvania Rules of Civil Procedure provides:

"[summary] judgment . . . shall be rendered 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."

No material facts are in issue. Appellant admits that he signed the rental agreement which provides:

"RENTAL AGREEMENT AND RECEIPT

I accept for use as is the equipment listed on this form and accept full responsibility for the care of the equipment while it is in my possession, and agree to reimburse Mitchell and Ness Ski Shop for any loss or damage other than reasonable wear resulting from use.

I understand that insurance coverage applies to equipment breakage only, not lost, misplaced or stolen equipment.

I understand that so-called safety bindings furnished herewith are releasable bindings designed to reduce the risk or degree of injuries from falling and that these bindings will not release under ...


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