United States District Court, M.D. Pennsylvania
John E. Jones III Judge
are Quan Vu and his wife, May Siew.
(“Plaintiffs”). Defendants are Ski Liberty
Operating Corp. and Snow Time, Inc., operating as Liberty
Mountain Resort. (“Defendants”). This action
arises out of a skiing accident at Liberty Mountain that left
Mr. Vu severely injured. The complaint brings one count of
negligence on behalf of Mr. Vu and one count of loss of
consortium on behalf of Mrs. Siew, both alleging that the
accident was caused by the Defendants' negligence in
maintaining the ski slope and failing to warn Mr. Vu of the
slope's hazardous condition. (Doc. 1). Presently pending
before the Court is the Defendants' motion for summary
judgment. (the “Motion”) (Doc. 36). The Motion
has been fully briefed and is therefore ripe for our review.
(Docs. 38, 42, 43). For the reasons that follow, the Motion
shall be granted.
January 23, 2015, Mr. Vu was downhill skiing with his
daughter at Liberty Mountain. (Doc. 41, ¶ 24). Mr. Vu
was following his daughter from behind as they skied down the
Lover Heavenly trail, a blue square intermediate hill, when
he had his accident. (Id. at ¶¶ 24-25).
Due to his injuries, Mr. Vu does not recall much detail about
his accident. (Doc. 37, ¶ 11). Mr. Vu testified:
“I believe there was a snowboarder involved and I - the
snowboarder got - either cut me off or got awfully close and
I had a knee-jerk reaction to veer because the last thing I
want to do is ram into somebody. So I - my knee-jerk reaction
is to veer.” (Doc. 37, att. 1, pp. 65-66). However, Mr.
Vu could not recall what he saw that caused him to veer,
whether he veered to the right or to the left, or whether the
snowboarder was above or below him on the hill. (Id.
at pp. 65-66). The last thing that Mr. Vu remembered was
skiing with his daughter. (Id. at p. 66).
Vu's daughter testified: “I saw someone get really
close to him and he was trying to avoid them and it was
either ramming into him, the snowboarder, or person who was
trying to get really close to him, or veering off
path.” (Doc. 42, att. 2, p. 8). “He - there was
someone trying to kind of get really close to him. And he
didn't want to ram into him. So he - I don't really
understand - know what happened. But he tried to avoid it.
And there was like a big ditch or something there. And he
tried to stop and tried to avoid the person who was trying to
cut him off.” (Id.). “My dad was - the
snowboarder was - my dad was kind of like the ham in the
middle of a sandwich. Between the end of the trail, the edge
of the trail and the snowboarder.” (Id. at p.
9). “I just felt that the snowboarder was getting quite
close to my dad and I didn't want a collision to happen
or the snowboarder to ram into my dad.” (Id.
at p. 10).
whether he did so intentionally or not, Mr. Vu skied off of
the edge of the trail and suffered catastrophic injuries.
There was a drop-off at the edge of the ski trail of about
three to four feet. (Doc. 41, ¶ 32). Below that drop-off
was a large pile of rocks. (Id. at ¶ 31). Mr.
Vu skied off of the edge of the trail, off of the embankment,
and landed on the pile of rocks. (Doc. 37, ¶ 11).
was an experienced skier at the time of his accident. He had
skied for over twenty years and was capable of skiing black
diamond slopes. (Id. at ¶ 6). Mr. Vu testified
that he was familiar with the Skier's Responsibility Code
and understood that he was responsible for skiing in control
and in such a manner that he could stop or avoid other
skiers. (Id.). Mr. Vu also testified that he
understood that skiing is a dangerous sport and that he could
get hurt if he skied out of control or if he fell.
day of his accident, Mr. Vu's wife purchased his Liberty
Mountain Resort Lift Ticket. (Id. at ¶ 18). The
back of the lift ticket reads as follows:
Acceptance of this ticket constitutes a contract. The
conditions of the contract are stated on this ticket &
will prevent or restrict your ability to sue Liberty Mountain
Resort. If you do not agree with these conditions, then do
not use the facility. Snowsports in their various forms,
including the use of lifts, are dangerous sports with
inherent and other risks. These risks include but are not
limited to: variations in snow, steepness & terrain, ice
& icy conditions, moguls, rocks, trees & other forms
of forest growth or debris (above or below the surface), bare
spots, lift towers, utility lines & poles, fencing or
lack of fencing, snowmaking & snowgrooming equipment
& component parts, on-snow vehicles & other forms of
natural or man-made obstacles, and terrain features on or off
designated trails as well as collisions with equipment,
obstacles or other snowsport participants. Trail conditions
vary constantly because of weather changes and use. All the
inherent and other risks involved present the risk of
permanent catastrophic injury or death. In consideration of
using Liberty's facilities, the purchaser or
user of this ticket agrees to accept the risks of snowsports
and understands and agrees that they are hazardous and
further agrees NOT TO SUE Ski Liberty Operating Corp., its
owners or employees if injured while using the facilities
regardless of any negligence, including gross negligence, on
the part of the resort, and/or its employees or
agents. The purchaser or user of this ticket
voluntarily assumes the risk of injury while participating in
the sport, and agrees to report all injuries before leaving
the resort . . .
(Doc. 37, Ex. D) (emphasis in original). Though Mr. Vu was
uncertain if he read the language on the lift ticket on the
day of his accident, he testified that he had read it at some
point prior to his accident. (Doc. 37, ¶ 20). At his
deposition, Mr. Vu was asked to read portions of the lift
ticket and he had trouble doing so because the font was too
small. (Doc. 37, att. 1, p. 70).
and his wife initiated this action with the filing of a
complaint on October 27, 2016. (Doc. 1). Plaintiffs allege
that Defendants were negligent in the design, construction,
and maintenance of the ski slope, failure to warn Mr. Vu of
the dangerous condition, failure to construct a barrier to
stop skiers from going over the edge into the pile of rocks,
failure to inspect the scope and detect the defective
condition, and failure to repair that condition. Defendants
filed the instant motion for summary judgment on January 31,
2018. (Doc. 36).
judgment is appropriate if the moving party establishes
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A dispute is
“genuine” only if there is a sufficient
evidentiary basis for a reasonable jury to find for the
non-moving party, and a fact is “material” only
if it might affect the outcome of the action under the
governing law. See Sovereign Bank v. BJ's Wholesale
Club, Inc., 533 F.3d 162, 172 (3d Cir. 2008) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). A court should view the facts in the light most
favorable to the non-moving party, drawing all reasonable
inferences therefrom, and should not evaluate ...