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SAVARESE v. CAMELBACK SKI CORP.

June 27, 2005.

MICHAEL SAVARESE, Plaintiff,
v.
CAMELBACK SKI CORP., Defendant.



The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge

MEMORANDUM

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 injury.

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 Corporation.

  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.

  DISCUSSION

  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 said:
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. 2000).

  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 ...


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