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Kozlowski v. JFBB SKI Areas, Inc.

United States District Court, M.D. Pennsylvania

December 12, 2019

JAMES KOZLOWSKI, Plaintiff,
v.
JFBB SKI AREAS, INC., d/b/a JACK FROST and BIG BOULDER SKI RESORTS, Defendant.

          MEMORANDUM OPINION

          ROBERT D. MARIANI JUDGE

         I. INTRODUCTION

         The Motion for Summary Judgment on Behalf of Defendant JFBB Ski Areas, Inc., (Doc. 30) is pending before the Court. The above captioned matter stems from a skiing accident that occurred on January 15, 2017, at Big Boulder Ski Resort ("Big Boulder"). (Doc. 30 ¶ 1.) Plaintiff's Amended Complaint (Doc. 24), the operative Complaint in this action, contains two counts: Count I for Negligence (id. at 5) and Count II for Gross Negligence/Recklessness (id. at 9). Plaintiff states that he was skiing at Big Boulder and, as he came to an intersection of trails, he followed tracks which led to an embankment at the edge of a catwalk. (Doc. 24 ¶¶ 14-17.) Plaintiff asserts that, as he skied down the embankment, he suddenly and unexpectedly collided with partially exposed snowmaking pipes which could not be seen from a reasonably safe distance in the area where he was skiing. (id. ¶¶ 18-20.) He alleges that he was rendered unconscious as a result of the collision and had to be dug out from under the pipes before he was transported to the hospital by ambulance. (Id. ¶ 21.)

         With the pending motion, Defendant seeks judgment in its favor on all claims. (Doc. 30 at 3.) Defendant specifically asserts that Plaintiffs claims are barred by the Pennsylvania Skier's Responsibility Act, 42 Pa. C.S.A. § 7102(c) ("the Act"), the common law construing the Act, and the Release found on Big Boulder's ski lift ticket. (Id. ¶¶ 6, 7.) For the reasons that follow, this Court will deny Defendant's motion.

         II. STATEMENT OF UNDISPUTED MATERIAL FACTS[1]

         On January 15, 2017, Plaintiff traveled with his family and others to the Big Boulder Ski Area to ski for the day. (Doc. 32 ¶¶ 1-2; Doc. 37 ¶¶ 1-2.) The weather was clear and the temperature was approximately 28 degrees Fahrenheit. (Doc. 32 ¶ 4; Doc. 37 ¶ 4.) Plaintiff had never before visited or skied at Big Boulder. (Doc. 37 ¶ 36; Doc. 41 ¶ 36.) He did not execute or sign a release form prior to skiing at Big Boulder on January 15, 2017. (Doc. 37 ¶ 65; Doc. 41 ¶ 65.) A member of Plaintiffs family purchased his lift ticket for him to ski that day. (Doc. 37 ¶ 66; Doc. 41 ¶ 66.) Plaintiff did not read the back of his lift ticket before his incident on January 15, 2019. (Doc. 37 ¶ 67; Doc. 41 ¶ 67.)

         Plaintiff was an experienced skier who had skied for over forty years. (Doc. 32 ¶ 3; Doc. 37 ¶ 3.) On the run involving the accident, Plaintiff was skiing down the Draufganger trail, slightly to the left side, until the trail intersected with the Bunny Schuss trail. (Doc. 32 ¶ 5; Doc. 37 ¶ 5.) Prior to the accident, Plaintiff had no problem skiing the Draufganger trail. (Doc. 32 ¶ 6; Doc. 37 ¶ 6.) At the intersection of the Draufganger and Bunny Schuss trails, Plaintiff made a decision to head toward the ski lift to the right and "'headed towards the slope."' (Doc. 32 ¶ 7 (quoting Kozlowski Dep. 72:25-73:1 (Doc. 32-1 at 20)); Doc. 37 ¶ 7.) Plaintiff saw ski tracks in the snow and headed towards the chairlift. (Doc. 32 ¶ 8; Doc. 37 ¶ 8.)[2] The tracks led to an embankment at the edge of the catwalk. (Doc. 32 ¶ 9; Doc. 37 ¶ 9.)[3] Plaintiff skied to that area intentionally and, in doing so, ultimately skied off the trail and into a ravine where the snowmaking pipes were located. (Doc. 37 ¶ 41; Doc. 41 ¶ 41.) Plaintiff and his family members testified that the snowmaking pipes appeared to be on the trail identified as lower Bunny Schuss/Draufganger. (Doc. 37 ¶ 46; Doc. 41 ¶ 46.)

         Big Boulder's ski patrol uses bamboo, rope, fencing, and signs to alert skiers to potential hazards. (Doc. 37 ¶ 52; Doc. 41 ¶ 52.) There is no shortage of bamboo, rope, fencing, and blue buckets at Big Boulder. (Doc. 37 ¶ 54; Doc. 41 ¶ 54.) At the time of Plaintiffs accident, no orange markers were placed uphill of the snowmaking pipes to warn patrons of their location. (Doc. 37 ¶ 57; Doc. 41 ¶ 57.) Big Boulder's ski patrol can also mitigate hazards on the slope by contacting the slope groomers or mountain operation personnel. (Doc. 37 ¶ 58; Doc. 41 ¶ 58.) Big Boulder admitted the pipes were marked after Plaintiffs accident. (Doc. 37 ¶ 60; Doc. 41 ¶ 60.)

         Plaintiff was familiar with the Skier's Responsibility Code and understood he was responsible for skiing in control. (Doc. 32 ¶ 12; Doc. 37 ¶ 12.) Plaintiff understood it was his responsibility to stay on the trail. (Doc. 32 ¶ 13; Doc. 37 ¶ 13.) Plaintiff understood he could fall and suffer injury while skiing. (Doc. 32 ¶ 14; Doc. 37 ¶ 14.) Plaintiff knew he should be alert for natural and man-made objects. (Doc. 32 ¶ 15; Doc. 37 ¶ 15.)

         Ski Patroller Michael Dodge prepared a Winter Incident Report, took photographs, and prepared a diagram of the scene. (Doc. 32 ¶ 16; Doc. 37 ¶ 16.) Plaintiffs family also took photographs of the scene on the day of the accident. (Doc. 32 ¶ 25; Doc. 37 ¶ 25.)

         III. STANDARD OF REVIEW

         Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed.R.Civ.P. 56(a). "As to materiality, .... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

         The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S. at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record ... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed.R.Civ.P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert, denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

         However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

         "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of evidence." Anderson, 477 U.S. at 255. Therefore, when evidentiary facts are in dispute, when the credibility of witnesses may be in issue, or when conflicting evidence must be weighed, a full trial is usually necessary.

         IV. ANALYSIS

         With the pending summary judgment motion, Defendant argues the following: Plaintiff assumed, as a matter of law, the inherent risk of skiing off trail into snowmaking equipment; Plaintiff's claims are barred by the exculpatory release on the Big Boulder lift ticket; and Plaintiff's claims for gross negligence and recklessness are barred because the record does not support the elements of a claim for ordinary negligence. (Doc. 31 at 9-10.) The Court will address each argument in turn.

         A. Inherent Risks of Skiing

         Defendant contends that Plaintiffs negligence claim is barred by the assumption of the risk doctrine as preserved by the Skier's Responsibility Act, 42 Pa. C.S. § 7102(c). (Doc. 31 at 10-11.) Plaintiff principally asserts that he did not know or fully appreciate the specific risk of colliding with the hidden snowmaking pipes and the risks created by Big Boulder are not inherent to skiing. (Doc. 38 at 9-22.) The Court concludes that although Plaintiffs subjective appreciation of the risk involved is not germane to the relevant inquiry, Defendant has not established as a matter of law that the risk at issue in this case is inherent in the sport of downhill skiing.

         As in a case decided this year by a panel of the Third Circuit Court of Appeals, Vu v. Ski Liberty Operating Corp., 763 Fed.Appx. 178 (2019) (not precedential), the Pennsylvania statute which codifies the Pennsylvania Skier's Responsibility Act ("PSRA"), 42 Pa. C.S. § 7102(c), is central to the Court's consideration of Plaintiffs negligence claim. The provision states as follows:

(c) Downhill skiing.--
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by ...

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