The opinion of the court was delivered by: James M. Munley United States District Court
Before the court is defendants' motion in limine regarding the snowtubing release of liability signed by plaintiff (Doc. 14). Having been fully briefed, the matter is ripe for disposition.
This case arises out of a slip-and-fall accident that occurred on February 5, 2005 at the Fernwood Hotel & Resorts snowtubing facility in Bushkill, Pennsylvania. (Complaint (Doc. 1) (hereinafter "Complt." at ¶¶ 9-10). Plaintiffs were guests at the resort on that evening, and had spent the day snowtubing. (Id. at ¶ 9). At some point while leaving the snowtubing area, Plaintiff Warren LaValle slipped on ice and fell, breaking his left ankle and injuring his shoulder and hip. (Id. at ¶ 10). The parties disagree about whether plaintiff fell on blacktop in the resort's parking lot or closer to the snowtubing facility. (See Defendants' Motion in Limine Regarding the Release of Snowtubing Liability (Doc. 14) at ¶ 1; Plaintiffs' Response to Defendants' Motion in Limine (Doc. 16) at ¶ 1). They agree, however, that plaintiff was "exiting" the snow-tubing area when he fell. (See Defendants' Motion in Limine at ¶ 2 (claiming that "[a]s plaintiff was exiting the snowtubing area, he claims he slipped and fell on ice"); Plaintiffs Brief in Opposition to Defendants' Motion in Limine (Doc. 16) at 3).*fn1
Before engaging in snowtubing, Plaintiff Warren LaValle signed a "Release of Liability for Snowtubing" in which he agreed to "release Operator and its owners, agents, affiliates, parent companies, and employees, as well as the equipment manufacturers and distributors, from any and all liability to me or my property resulting from acts of negligence" in relation to plaintiff's participation in snowtubing. (Release of Liability for Snowtubing (hereinafter "Release"), Exh. A to Defendants' Motion in Limine). Defendants argue that a question of fact exists over whether this release should apply to plaintiff's accident and that the question should be decided by a jury. They seek to have the document admitted into evidence at trial. Jurisdiction
The plaintiffs are citizens of New Jersey. Defendants are businesses incorporated in Pennsylvania or states other than New Jersey, and have their principle place of business in Pennsylvania. The amount in controversy exceeds $75,000. This court therefore has jurisdiction pursuant to 28 U.S.C. § 1332.
The issue in this case is whether a jury should be allowed to decide if the release in question applies to the events that led to the Plaintiff Warren LaValle's injuries. As we are sitting in diversity, we apply Pennsylvania's substantive law to the controversy. Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). Under Pennsylvania law, "exculpatory clauses" like the release in question are "admittedly not favored in the law." Zimmer v. Mitchell and Ness, 385 A.2d 437, 439 (Pa. Super. Ct. 1978). Despite this disfavor and the fact that such releases "must be strictly construed against parties asserting them," they "are enforceable as long as the following requirements are met: 1) the release does not undermine any legal policy; 2) the release is a contract amongst individuals relating to their private affairs; 3) each party to the release was a free bargaining agent; and 4) the release spells the intent of the parties with particularity." Wang v. Whitetail Mt. Resort, 933 A.2d 110, 113 (Pa. Super. Ct. 2007). Courts are to use common sense when interpreting such agreements. Zimmer, 385 A.2d at 439.
"[A] release covers only those matters which may be fairly said to have been within the contemplation of the parties when the release was given." Restifo v. McDonald, 230 A.2d 199, 201 (Pa. 1967). "[O]rdinarily the words of a release should not be construed to extend beyond the express consideration mentioned so as to make a release for the parties which they never intended or contemplated." In re Brill's Estate, 12 A.2d 50, 52 (Pa. 1940). In interpreting a release, the "effect" of such a document "must be determined from its language, given its ordinary meaning unless a different meaning was clearly intended." In re Estate of Bodnar, 372 A.2d 746, 748 (Pa. 1977).
The release in question here operates to excuse defendants from liability for any snowtubing injuries that are the result of the operator's negligence or the snowtuber's actions while engaged in that activity. The release applies to "Operator and its owners, agents, affiliates, parent companies, and employees, as well as the equipment manufacturers and distributers." (Release). Construed strictly against the party asserting the applicability of the release, however, the release is limited to the plaintiff's participation in the actual activity of snowtubing. In signing the release, LaValle affirmed that "I understand and am aware that snowtubing is a HAZARDOUS ACTIVITY. I understand that snowtubing and the use of snowtubes involves a risk of injury to any and all parts of my body. I hereby freely and expressly assume and accept responsibility for any and all risks of injury or death while participating in that activity." (Id.). (emphasis added). The ordinary meaning of "participating" is "to take part." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (10th Ed.). An activity is "a pursuit in which a person is active." The release's description of the potential sources of injuries indicate that the activity in question includes riding a snowtube down a hill, dismounting from that tube at the bottom of the run, and riding a chair lift or using a rope tow, and we take these to be what the lease describes as snowtubing.*fn2
We would find that the release applies to this incident if the plaintiff had been injured while snowtubing, including dismounting from the tube at the end of the snowtubing run or making his way to the lift or rope tow. Here, however, plaintiff had left the tubing area and ceased the activity of tubing. Both sides agree that plaintiff's injury came not while he was snowtubing, but after he had finished with that activity and was outside of the runs where snowtubing occurred. He was therefore not engaged in the activity of snowtubing. We disagree with the defendants that a jury should decide this question. There are no questions of fact about whether plaintiff was engaged in the activity of snowtubing while he was injured, and the release cannot apply. We will therefore deny the defendants' motion in limine to allow the introduction of the release into evidence. Because the release does not cover plaintiff's slip-and-fall, it does ...