Appeal from the Order of the Superior Court dated September 4, 2008 at No. 1160 EDA 2006 reversing the order of the Court of Common Pleas of Monroe County, Civil Division, dated March 31, 2006 at No. 135 Civil 2005 and remanding the case 957 A.2d 281 (Pa. Super. 2008).
The opinion of the court was delivered by: Madame Justice Todd
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
In this appeal by allowance, we address, inter alia, whether it is against public policy to release reckless behavior in a pre-injury exculpatory clause. After careful review, we conclude that releasing recklessness in a pre-injury release is against public policy, and so we reverse the Superior Court in part, affirm in part, and remand.
Appellant Camelback Ski Corporation, Inc. ("Camelback") operates a ski resort in Tannersville, Pennsylvania that offers various winter activities, including skiing and snow tubing. Before permitting its patrons to enjoy snow tubing, Camelback requires each customer to sign a pre-printed release form ("Release"),*fn1 which states, in relevant part:
ACKNOWLEDGMENT OF RISKS AND AGREEMENT NOT TO SUE
THIS IS A CONTRACT - READ IT I understand and acknowledge that snow tubing, including the use of lifts, is a dangerous, risk sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries. I understand that part of the thrill, excitement and risk of snow tubing is that the snow tubes all end up in a common, runout area and counter slope at various times and speeds and that it is my responsibility to try to avoid hitting another snowtuber and it is my responsibility to try to avoid being hit by another snowtuber, but that, notwithstanding these efforts by myself and other snowtubers, there is a risk of collisions.
IN CONSIDERATION OF THE ABOVE AND OF BEING ALLOWED TO PARTICIPATE IN THE SPORT OF SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND ALL LIABILITY CAMELBACK SKI CORPORATION IF I OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT SUCH INJURIES ARE THE RESULT OF NEGLIGENCE OR ANY OTHER IMPROPER CONDUCT ON THE PART OF THE SNOWTUBING FACILITY.
Release (Exhibit A to Appellants Motion for Summary Judgment) (R.R. at 14a).*fn2
Camelback offers its customers two different methods of snow tubing. One set of snow tubing slopes grants snow tubers relatively uncontrolled access down the mountain and deposits them in a common receiving area. Alternatively, customers can enjoy two snow tubing slopes identified as "family" tubing slopes. These family tubing slopes are separated from the other snow tubing slopes, and the flow of snow tubers is controlled by a Camelback employee, who discharges them from the summit once the previous snow tubers have cleared the receiving area at the bottom. The receiving area for the family tubing slopes is segregated from the common receiving area connected to the other slopes.
On December 20, 2003, Appellee Barbara Lichtman Tayar ("Tayar") and her family visited Camelback's facility in the early afternoon.*fn3 After observing the snow tubing slopes for a period of time, Tayar and her family decided to join in, and, pursuant to Camelback's requirement, Tayar signed the Release. Tayar and her family elected to use the family tubing slopes, and completed four successful runs down the mountain, with Appellant Brian Monaghan ("Monaghan"), a Camelback employee, releasing them from the summit safely each time.
Tayar's fifth adventure down the mountain began just as the others, with Monaghan giving her a slight push to start her down the slope. Once she reached the receiving area at the bottom of the slope, however, Tayar exited her snow tube and was immediately struck by another snow tuber coming down the family tubing slope. Camelback employees rushed to assist Tayar out of the receiving area, when yet another snow tuber narrowly missed striking her. At this point, several Camelback employees were yelling and gesturing up the mountain to Monaghan to stop sending snow tubers down the slope until they could safely remove Tayar from the receiving area. As a result of the collision, Tayar suffered multiple comminuted factures of her right leg, for which she underwent surgery and required two metal plates and 14 screws to stabilize her ankle.
Tayar filed a complaint against Camelback and Monaghan (collectively "Appellants") in the Court of Common Pleas of Monroe County on January 6, 2005. Appellants filed an answer and new matter, and thereafter moved for summary judgment, asserting Tayar's claims against Camelback and Monaghan were barred by the Release. On March 31, 2006, the trial court granted Appellants' motion, reasoning the Release covered Camelback and thereby released it from any liability associated with Tayar's injuries. Additionally, the court determined that it did not need to address whether the Release encompassed Monaghan in his personal capacity because, in any event, the release printed on the lift ticket relieved Monaghan of liability. See supra note 1. Further, while the court concluded the evidence demonstrated Monaghan acted negligently by sending snow tubers down the mountain too early, it did not suggest he ...