PATRICK KIBLER AND KATHRYN KIBLER, HUSBAND AND WIFE, Appellants
BLUE KNOB RECREATION, INC., A PENNSYLVANIA CORPORATION, T/D/B/A BLUE KNOB ALL SEASONS RESORT, AND BLUE KNOB RESORT, INC., A PENNSYLVANIA CORPORATION
from the Order, May 24, 2017, in the Court of Common Pleas of
Bedford County Civil Division at No. 2015-183
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
and Kathryn Kibler (collectively
"appellants") appeal from the May 24, 2017 order of the
Court of Common Pleas of Bedford County granting Blue Knob
Recreation, Inc. and Blue Knob Resort, Inc.'s
(hereinafter, collectively "defendants") motion for
summary judgment. After careful review, we affirm.
trial court provided the following synopsis of the facts:
On March 21, 2014, [appellant] applied for a season ski pass
for the 2014-2015 ski season at Blue Knob Ski Resort.
[Appellant] signed and dated the season pass/application
agreement, which contained information and guidelines about
the Blue Knob season pass. The bottom half of said document
contains the following exculpatory language:
PLEASE READ THE FOLLOWING BEFORE SIGNING!! Snowboarding,
skiing and other snow related activities, like many other
sports, contain inherent risks including, but not limited to,
the risk of personal injury, death or property damage, which
may be caused by: variation in terrain or weather conditions,
surface or subsurface, snow, ice, bare spots, thin cover,
moguls, ruts, bumps, forest growth, debris, other persons
using the facilities, branches, trees, roots, stumps, rocks,
and other natural or man made objects that are incidental to
the provision or maintenance of the facility. For the use of
Blue Knob Ski Area, the holder assumes all risks of injury
and releases Blue Knob Recreation from all liability
THEREFORE: Not withstanding the foregoing, if I sue Blue Knob
Recreation ET AL I agree that I will only sue it, whether on
my own behalf or on behalf of a family member, in the Court
of Common Pleas of Bedford County or in the United States
District Court for the District of Pittsburgh, Pennsylvania
and further agree that any and all disputes which might arise
between Blue Knob Recreation ET AL and myself shall be
litigated exclusively in one of said courts.
See Blue Knob All Seasons Resort
On December 21, 2014 at 9:00 a.m., [appellant] arrived at
Blue Knob to ski with friends. Prior to arriving at the
resort, [appellant] learned that five slopes were open to
ski. [Appellant] eventually would ski on two of these five
open slopes. After skiing down a slope identified as
"Lower Mambo, " [appellant] stopped to look for his
skiing companions, who were snowboarding on another slope. In
an attempt to rejoin them without walking back up the slope,
[appellant] intended to ski toward the middle of "Lower
Mambo Valley" in order to reach a ski lift. While
traversing this area, [appellant] ran over
"trenches" he avers were four-to-six inches deep
and six-to-eight inches wide, which extended halfway across
the ski slope. Defendants' employees identified the
trenches as being caused by an all-terrain-vehicle operated
by a resort employee. [Appellant] fell when encountering
these trenches, causing him to fracture his left tibia and
court opinion, 5/23/17 at 2-3.
February 15, 2015, appellants filed a civil complaint with
the trial court sounding in negligence. Following discovery,
defendants filed a motion for summary judgment with an
accompanying memorandum of law on January 23, 2017.
Appellants filed a motion for summary judgment on March 17,
2017. Oral arguments were held before the trial court on
April 18, 2017. On May 24, 2017, the trial court granted
defendants' motion for summary judgment, dismissing
appellants' complaint with prejudice, and denied
appellants' motion for summary judgment.
16, 2017, appellants filed a timely notice of appeal with
this court. The trial court ordered appellants to file a
concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b), and appellants complied on July 18,
2017. The trial court filed an opinion on August 10, 2017,
pursuant to Pa.R.A.P. 1925(a) in which it incorporated the
content of its May 24, 2017 order and opinion granting
defendants' motion for summary judgment.
raise the following issues for our review:
A. Was the hazard encountered by [appellant] inherent to the
dangers of downhill skiing, when [defendants'] Director
of Maintenance testified that the hazard was out of the
ordinary, not common, and [appellant] should not have
expected to encounter the hazard?
B. Is the Blue Knob All Seasons Resort 2014-2015 Season Pass
Holder Information/Guidelines document a valid exculpatory
release, where the top half of the document only discusses
the requirements to be a season pass holder, and the lower
half is ambiguous, the word "releases" is located
75% down the page, lacks conspicuity, without print of a size
and boldness that draws the attention of an ordinary person,
and where no evidence exists that [appellant] read this
C. Is a claim for injuries caused by the grossly negligent
and/or reckless acts of a ski resort barred by an alleged
exculpatory sentence in Blue Knob's season pass?
D. Did [appellant] voluntarily assume the risk of injury when
he encountered a hazard at [defendants'] resort for which
he was unaware, and for which [defendants'] Director of
Maintenance testified that [appellant] had no reason to
anticipate or know of the hazard's existence?
brief at 4-5.
reviewing an appeal from the trial court's granting of a
motion for summary judgment, we are governed by the following
standard of review:
[O]ur standard of review of an order granting summary
judgment requires us to determine whether the trial court
abused its discretion or committed an error of law. Our scope
of review is plenary. In reviewing a trial court's grant
of summary judgment, we apply the same standard as the trial
court, reviewing all the evidence of record to determine
whether there exists a genuine issue of material fact. We
view the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue
of material fact must be resolved against the moving party.
Only where there is no genuine issue as to any material fact
and it is clear that the moving party is entitled to a
judgment as a matter of law will summary judgment be entered.
All doubts as to the existence of a genuine issue of a
material fact must be resolved against the moving party.
Upon appellate review, we are not bound by the trial
court's conclusions of law, but may reach our own
Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798
(Pa.Super. 2012) (internal citations omitted).
Civil Procedure 1035 governs motions for summary judgment and
provides, in relevant part, as follows:
the relevant pleadings are closed, but within such time as
not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) Whenever there is no genuine issue of any material fact
as to a necessary element of the cause of action or defense
which could be established by additional discovery or expert
(2) If, after the completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial has
failed to produce evidence of facts essential to the cause of
action or defense which in a jury trial would require the
issues to be submitted to a jury.
1035.2. This Court has explained the application of this rule
Motions for summary judgment necessarily and directly
implicate the plaintiff's proof of the elements of a
cause of action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including the
production of expert reports, an adverse party who will bear
the burden of proof at trial has failed to produce evidence
of facts essential to the cause of action or defense which in
a jury trial would require the issues to be submitted to a
jury. In other words, whenever there is no genuine issue of
any material fact as to a necessary element of the cause of
action or defense, which could be established by additional
discovery or expert report and the moving party is entitled
to judgment as a matter of law, summary judgment is
appropriate. Thus, a record that supports summary judgment
either (1) shows the material facts are undisputed or (2)
contains insufficient evidence of facts to make out a prima
facie cause of action or defense.
Petrina, 46 A.3d at 798.
Criswell v. Atlantic Richfield Co., 115 A.3d 906,
909-910 (Pa.Super. 2015).