United States District Court, M.D. Pennsylvania
June 27, 2005.
MICHAEL SAVARESE, Plaintiff,
CAMELBACK SKI CORP., Defendant.
The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
Before me is Defendant Camelback Ski Corporation's motion for
summary judgment. (Doc. 13.) Plaintiff, Michael Savarese, was
skiing at Camelback Ski Area on January 21, 2003 when he was
struck by the chair lift when he attempted to get out of the way
of the chairs. This occurred because as he lined himself up to
board the ski lift chair, the bottom of the chair was not folded
down for seating. He therefore sought to get out of the way of
that chair, and in so doing, was struck by it, causing a shoulder
Because use of the chair lift is part of downhill skiing, and
because the release Plaintiff signed and the exculpating
agreement included in the lift ticket are valid, summary judgment
will be entered in favor of the Defendant, Camelback Ski
STANDARD OF REVIEW
Summary judgment is appropriate 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." FED. R. CIV. P. 56 (c). A fact is
material if proof of its existence or non-existence might affect the outcome of the suit under the applicable
substantive law. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party
need only establish that it is entitled to judgment as a matter
of law. Where, however, there is a disputed issue of material
fact, summary judgment is appropriate only if the factual dispute
is not a genuine one. See id. at 248. An issue of material fact
is genuine if "a reasonable jury could return a verdict for the
nonmoving party." Id.
Where there is a material fact in dispute, the moving party has
the initial burden of proving that (1) there is no genuine issue
of material fact; and (2) the moving party is entitled to
judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR.
MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed.
1983). The moving party may present its own evidence or, where
the nonmoving party has the burden of proof, simply point out to
the court that "the nonmoving party has failed to make a
sufficient showing of an essential element of her case." Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material
fact must be resolved against the moving party, and the entire
record must be examined in the light most favorable to the
nonmoving party. See White v. Westinghouse Elec. Co.,
862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its
initial burden, the burden shifts to the nonmoving party to
either present affirmative evidence supporting its version of the
material facts or to refute the moving party's contention that
the facts entitle it to judgment as a matter of law. See
Anderson, 477 U.S. at 256-257.
The court need not accept mere conclusory allegations or
denials taken from the pleadings. See Schoch v. First Fidelity Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990). In deciding a motion for summary
judgment, "the judge's function is not himself to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Anderson,
477 U.S. at 249.
The issue in this case is whether Camelback is relieved of
liability by virtue of the Skier's Responsibility Act,
42 Pa.C.S.A. § 7102(c), the signed release and the exculpatory
language on the lift ticket. Plaintiff argues that what occurred
was not part of the activity of downhill skiing, and is therefore
not covered by the Act, the release, or the exculpatory language
on the lift ticket.
While the parties have not mentioned the Skier Responsibility
Act, 42 Pa.C.S.A. § 7102(c), I note it because the Pennsylvania
Supreme Court referred to how a court should read risks inherent
in "the sport of downhill skiing." See Hughes v. Seven Springs
Farm, Inc., 762 A.2d 339, 1344 (Pa. 2000). There, the court
Obviously the sport of downhill skiing encompasses
more than merely skiing down a hill. It includes
other activities directly and necessarily incident to
the act of downhill skiing. Such activities include
boarding the ski lift, riding the ski lift up the
mountain, alighting from the lift, skiing from the
lift to the trail . . .
Hughes v. Seven Springs Farm, Inc., 762 A.2d 339
, 1344 (Pa.
In Hughes, the plaintiff, who was struck by another skier at
the bottom of the run as she was making her way to the lift,
argued she was not downhill skiing at that time. The court, in
quoting the above, was noting that plaintiff's view would require
interpreting the sport of downhill skiing in "an extremely narrow,
hypertechnical and unrealistic manner." Id.
This interpretation carries over to the rental agreement and
the exculpatory language on the lift ticket. Moreover, each of
those note the inherent risks in skiing include "use of the
Plaintiff rented ski equipment on January 21, 2003. The rental
Rental Agreement And Release Of Liability PLEASE READ
* * *
I understand that there are inherent and other risks
of injury in the sport of skiing and/or
snowboarding/snowblading, including the use of lifts,
for which this equipment will be used. . . . I
further understand that these risks include the risk
of personal injury, that skiing, snowboarding and/or
snowblading is a DANGEROUS risk sport, and injuries
can be serious and even fatal. I HEREBY ACKNOWLEDGE,
ACCEPT, AND ASSUME ALL RISKS OF INJURY TO ANY PARTS
OF THIS USER'S BODY THAT CAN AND DO EXIST IN THE
SPORT OF SKIING, SNOWBOARDING AND/OR SNOWBLADING. I
AGREE THAT I WILL NOT SUE CAMELBACK OR ITS AGENTS OR
EMPLOYEES (EITHER ON MY OWN BEHALF OR ON BEHALF OF MY
SPOUSE, CHILD OR WARD) FOR INJURIES OR DAMAGES
RELATING TO SKIING, SNOWBOARDING AND/OR SNOWBLADING
AND/OR THE USE OF THIS EQUIPMENT, EVEN IF I CONTEND
THAT CAMELBACK WAS NEGLIGENT.
* * *
I have carefully read this AGREEMENT and RELEASE OF
LIABILITY and fully understand its contents. I am
aware this is a RELEASE OF LIABILITY and a
CONTRACT between myself and Camelback and I sign it
of my own free will. Plaintiff also purchased a lift ticket which provided in
PLEASE READ! Acceptance of this ticket constitutes a
contract. The conditions of this contract are set
forth below and will prevent or restrict your ability
to sue Camelback. Alpine, Nordic and snowboard
skiing, including the use of lifts, is a dangerous
sport with inherent and other risks. . . . In
consideration of using Camelback's ski facilities,
the purchaser or user of this ticket agrees to accept
the risks of skiing and agrees not to sue Camelback
or its employees if hurt while using the ski
facilities regardless of any negligence of Camelback
or its employees or agents.
The back of the lift ticket contains the following language:
IF YOU ARE NOT WILLING TO ASSUME THE RESPONSIBILITIES
DESCRIBED IN OUR BROCHURE AND POSTED AT OUR SKI AREA,
THEN DO NOT SKI HERE.
Before affixing this ticket or allowing this ticket
to be affixed to your clothing, please read and
understand your responsibility as a skier, and
understand that skiing is an inherently dangerous
sport that can result in a catastrophic injury, death
or property damage.
Plaintiff argues that the rental agreement and the lift ticket
focus on risks associated with actual skiing and the conditions
and obstacles one might encounter by doing so. There is no
mention of the risk of not having a seat on the chair lift. I
liken this language to the Pennsylvania Supreme Court's
interpretation of the sport of skiing in Hughes as one which
involves the use of the chair lift. To suggest that the chair
with the seat not in place is not an inherent risk is simply too
narrow a reading of the language of the release and the ticket.
I turn to whether the release and/or the exculpatory language
on the lift ticket are effective. Under Pennsylvania law, the validating of an exculpatory clause
is governed by the following: (1) The release or contract must
not contain any policy of the law; (2) it must be an agreement
between individuals relating to their private affairs; and, (3)
each party to the agreement must be a free bargaining agent, not
one drawn into an adhesion contract with no recourse but to
reject the entire transaction. Zimmer v. Mitchell and Ness,
385 A.2d 437, 439 (Pa.Super. 1978). In Zimmer, a release by a
skier who was injured when bindings failed to release was upheld
when the release was from "any liability for damage and injury to
myself . . . resulting from the use of this equipment, accepting
myself the full responsibility for any and all such damages and
injury." Id. at 438. Pennsylvania law further requires that
enforceability depends on strict construction against the party
seeking the benefit, and it must spell out the parties'
intentions with the "greatest particularity." Id. at 439.
Princeton Sportswear Corp. v. H & M Associates, 507 A.2d 339
(Pa. 1986). See also Kotovsky v. Ski Liberty Operating Corp.,
603 A.2d 663 (Pa.Super. 1992). Moreover, the court, when
considering an exculpatory clause, must take a common sense look
at the agreement as a whole. Zimmer at 439.
Applying these principles to the case at hand, I conclude that
the criteria set forth in Zimmer as well as the rule of strict
construction and utmost particularity are satisfied. Here the
release states that Plaintiff understands that "there are
inherent and other risks of injury in the sport of skiing . . .
including the use of lifts . . ." The release itself includes the
use of lifts in the "sport of skiing." Moreover, the Hughes
case would do so even absent the language of the release.
Plaintiff argues that the release deals with the act of skiing,
viz coming down the hill, and seeks a release of liability due to
conditions and obstacles. Plaintiff contends that even if one includes the use
of lifts, it does not cover the chair with the seat out of
position. I find Plaintiff's proffered construction too
restrictive. The release states Plaintiff will not sue for injury
or damage "relating" to skiing. The use of the lift is not only
mentioned as included in the sport of skiing, its use is
certainly related to skiing. Plaintiff argues that to allow the
release to exonerate Defendant here would give Defendant license
to use generally defective lifts, viz one without seats, and
further, would foster a policy of failing to inspect the chair
lifts. The release here seeks exoneration from negligence, not
intentional misconduct or gross negligence. The alternative
factual scenario offered by Plaintiff as a reason to construe the
release against the Defendant is tantamount to conduct which
would be best characterized as intentional misconduct or gross
While I am not prepared to hold that the notice at the window
where the lift ticket was purchased constitutes a release of the
Defendant, it does provide Plaintiff with repetitive notice of
the fact that skiing, "including the use of the lifts, is a
dangerous sport", and it repeats the condition that the purchase
of a lift ticket releases Defendant, even if negligent, and warns
not to purchase a lift ticket unless the purchaser agrees to the
release and to be bound by the language on the lift ticket.
Lift tickets with exculpatory language have been held to
satisfy Zimmer. See Nisbett v. Camelback Ski Corp., No. 2226
Civil 1992 (Monroe Co. 1996); Venn v. Shawnee Mtn. Ski Area,
No. 5109 Civil 2002 (Monroe Co. 2004). In this case, the lift
ticket purchased under these circumstances, viz the clear
language next to the window and the clear language on the lift
ticket, places the lift ticket on the level of being a valid
exculpatory agreement as well. CONCLUSION
For the foregoing reasons, Defendant's motion for summary
judgment will be granted.
An appropriate Order follows. ORDER
NOW, this 27th day of June, 2005, IT IS HEREBY ORDERED as
1. Defendant's Motion for Summary Judgment (Doc. 12)
2. The Clerk of Court is directed to enter judgment
in favor of Defendant, Camelback Ski Corp., and
against, Plaintiff, Michael Savarese.
3. The Clerk of Court is directed to mark this case
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