MATTHEW W. BRANN, District Judge.
Before the Court is Ski Shawnee, Inc.'s ("Defendant") motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari ("Plaintiffs"). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant's alleged negligence. See Pls.' Compl. 9-13, Jan. 6, 2012, ECF No. 1.
The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs' claims are barred by the Pennsylvania Skier's Responsibility Act, 42 Pa. C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.'s Br. Supp. Mot. Summ. J. 5-9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.'s Br.]. The Court hereby denies the Defendant's motion for summary judgment on both theories for the reasons that follow.
This case arises from an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.'s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.'s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.'s SOF ¶¶ 3-4; Pls.' Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.' SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.'s SOF ¶¶ 6-13.
The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.'s SOF ¶¶ 12-13; Pls.' SOF ¶¶ 10-11. There was a sign that read: "ATTENTION A Ticket or a Pass is Required to be on the Snow." Def.'s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.' SOF ¶ 19.
Mrs. Barillari was generally aware of the risks of collision between skiers.
Summary judgment is appropriate when the court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could find for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When the court considers the evidence on summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor." Id. at 255, 106 S.Ct. 2505.
The party moving for summary judgment bears the burden of establishing the nonexistence of a "genuine issue" of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir.2003) (internal quotations and citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party's claim, or demonstrating the other party's evidence is insufficient to establish an essential element of its claim. Id. at 331.
Once the moving party satisfies this initial burden, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." FED. R. CIV. P. 56(e). To do so, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Moreover, "[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant." Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir.2002) (internal quotations and citation omitted).
In deciding the merits of a party's motion for summary judgment, the court's role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. Credibility determinations are the province of the factfinder, not the district court. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992). Consequently, summary judgment may be granted only "if the movant shows 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. 54(a).
This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New
As this is a diversity action and Pennsylvania was the situs of the injury, this Court "must apply Pennsylvania law to the facts of this case." Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)).
The Defendant asserts that the Plaintiffs' claims are barred by the assumption of the risk doctrine. Def.'s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See 42 Pa. C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier's Responsibility Act, reads:
42 Pa.C.S.A. § 7102(c).
The RESTATEMENT (SECOND) OF TORTS, § 496A, summarizes the essence of the assumption of the risk doctrine: "[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm." As the Supreme Court of Pennsylvania elucidated, "[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a `no-duty' rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity." Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing RESTATEMENT (SECOND) OF TORTS, § 496A, cmt. C, 2).
Applying those principles to the Skier's Responsibility Act, that same court "made clear that this `no-duty' rule applies to the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that are `common, frequent, and expected,' and thus `inherent' to the sport of downhill skiing." Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343-44 (2000)). Consequently, "[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant — the Comparative Negligence Act is inapplicable — and there can be no recovery based on allegations of negligence." Id.
First, the Court considers whether Mrs. Barillari was "engaged in the sport of downhill skiing at the time of her injury." Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:
Hughes, 762 A.2d at 344.
In that case, the court held that a plaintiff who was skiing towards the chair lift through an area at the base of the mountain where several trails converged when she was struck from behind by another skier could not recover because the assumption of risk doctrine applied. Hughes, 762 A.2d at 340, 345. Although the plaintiff "was not in the process of skiing downhill, but rather was propelling herself towards the ski lift at the base of the mountain," the court found this action was within the scope of engaging "in the sport of downhill skiing." Id. at 344-45. The court noted that to decide otherwise would "interpret the Act, as well as the sport of downhill skiing, in an extremely narrow, hypertechnical and unrealistic manner." Id. at 344.
In Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (2010), the Supreme Court of Pennsylvania held that a skier's negligence action based on her fall from a ski lift was barred by the doctrine of assumption of the risk because she was engaged in the sport of downhill skiing and the fall was an inherent risk of that sport. Chepkevich, 2 A.3d at 1194-95. The court noted that "the clear legislative intent to preserve the assumption of the risk doctrine in this particular well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport." Id. at 1187-88.
A number of other courts have addressed the scope of the Skier's Responsibility Act as well. See, e.g., Bjorgung v. Whitetail Resort, L.P., 550 F.3d 263 (3d Cir.2008) (finding that a skier's claim based on the lack of safety netting, improper course plotting, or soft loose snow was barred because those were risks inherent in skiing); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir.1991) (interpreting Pennsylvania law to find ski resort had no duty of care to injured skier because a "double black diamond" slope with rocks and trees was an obvious inherent danger of skiing); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir.1983) (Aldisert, J.) (finding that a skier's claim was barred by assumption of the risk when he chose to ski a steep, icy expert slope with unpadded poles for snowmaking equipment); Lin v. Spring Mountain Adventures, Inc., CIV.
The case before the Court, however, is distinguishable from all of these cases — Mrs. Barillari was not "engaged in the sport of downhill skiing" at the time of her collision, as required by the statute.
If this Court were to include Mrs. Barillari as a person subject to the Skier's Responsibility Act, it would necessarily extend the confines of Pennsylvania's law beyond the scope of its current applicability. That is not this Court's place, and the Court declines to do so. Instead, the Court must apply the law as Pennsylvania's own Supreme Court has instructed. See, e.g., Hughes, 762 A.2d at 344-45. Consequently, the Court finds that the assumption of the risk doctrine, as articulated in the statute and interpreted by courts, does not apply to bar Mrs. Barillari's claim, because she was not "engaged in the sport of downhill skiing" at the time of her accident. See Hughes, 762 A.2d at 344-45.
The Defendant asserts that, in the alternative, the traditional common law defense of assumption of the risk should bar the claim. Def.'s Br., at 6. Although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing. See, e.g., Zinn v. Gichner Systems Grp., 880 F.Supp. 311 (M.D.Pa.1995) (Caldwell, J.) (holding assumption of the risk barred plaintiff's claim when he continued to work after landowner refused to cover opening in which he was injured); Howell v. Clyde,
Borrowing Justice Antonin Scalia's memorable phrase concerning a similarly limited but resurgent doctrine in another area of law, assumption of the risk survives "[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried." Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.
There are four different theoretical species of assumption of the risk-two of which are at issue in this case. See Hughes, 762 A.2d at 341-42; RESTATEMENT (SECOND) OF TORTS, § 496A, cmt. C. One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware. See Hughes, 762 A.2d at 342; RESTATEMENT (SECOND) OF TORTS, § 496A, cmt. C, 3.
A second related corollary of the assumption of risk doctrine
As Judge A. Richard Caputo articulated when considering a case involving voluntary assumption of the risk: "[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed." Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 WL 629391, at *5 (M.D.Pa. Feb. 27, 2012) (Caputo, J.). This assumption of risk defense is established as a matter of law "only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition." Barrett v. Fredavid Builders, Inc., 454 Pa.Super. 162, 685 A.2d 129, 131 (1996). Moreover, "[t]he mere fact one engages in activity that has some inherent
The dispositive analytical point in the case before this Court is determining what constitutes a plaintiff's conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. See Bolyard, 2012 WL 629391, at *6 (citing Handschuh v. Albert Dev., 393 Pa.Super. 444, 574 A.2d 693 (1990)). Rather, the plaintiff must be aware of "the particular danger" from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Id.
For example, in Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 WL 629391, at *5-6 (M.D.Pa. Feb. 27, 2012), Judge Caputo held, inter alia, that assumption of the risk did not apply to a plaintiff who went snow-tubing on an old ski slope, hit a rut, and crashed into a tree. Judge Caputo recognized that, while the plaintiff "was generally aware that snow tubing on a tree-lined trail was dangerous, there [was] no evidence in the record that she had any knowledge of the specific hazards of that particular slope." Bolyard, 2012 WL 629391, at *6. This was a material distinction, such that the elements of voluntary assumption of the risk remained unsatisfied — therefore, as a matter of law, the plaintiff did not assume the risk. Id.
Similarly, in Handschuh v. Albert Development, 393 Pa.Super. 444, 574 A.2d 693, 696 (1990), the court held that assumption of the risk did not apply when a plumbing contractor sustained injuries and died because a trench in which he was laying pipe collapsed. The court noted that the plaintiff was aware of the general risk of ditch collapses and that the particular job would be delicate. Handschuh, 574 A.2d at 694. Nevertheless, that awareness of the general risks was not sufficient "to compel a finding of a waiver of an individual's right to complain about a breach of duty of care to the risk taker." Id. at 696 (original punctuation altered).
In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered — namely, a skier crashing into a spectator. See Bolyard, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696; Pls.' SOF ¶ 5. It is undisputed that Mrs. Barillari was aware of the general risks and dangers inherent in the sport of skiing. She was aware collisions between skiers occurred and she "was worried about [her] children with that." Def.'s SOF, Oral Dep. Mrs. Barillari 23, Dec. 03, 2012, ECF No. 18, Exh. 5. There is not, however, anything in the record that indicates Mrs. Barillari was specifically aware of the danger that later befell her.
Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, "because [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn't standing with a bunch of skiers. [She] was standing with spectators." Id. at 63-64. Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Bolyard, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case. See id.
The "no-duty" theory, a corollary species of assumption of the risk discussed
The no-duty rule applies most prominently in the context of a spectator at a sporting event, such as a fan hit by a foul ball at a baseball game. See, e.g., Schentzel v. Philadelphia Nat'l League Club, 173 Pa.Super. 179, 96 A.2d 181 (1953). As the RESTATEMENT observes, "a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without precautions to protect him from being hit by the ball." RESTATEMENT (SECOND) OF TORTS, § 496A, cmt. C, 2.
"In Pennsylvania, the law imposes `no duty' to protect spectators from risks that are common, frequent, and expected [in the sport]." Petrongola v. Comcast-Spectacor, L.P., 789 A.2d 204, 210 (2001). "However, a facility may be held liable if the design of the facility deviates from the established custom in some relevant way." Id. "The central question, then, is whether [a plaintiff's] case is governed by the `no-duty' rule applicable to common, frequent and expected risks of [the sport] or by the ordinary rules applicable to all other risks which may be present [at a sporting facility]." Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 551 (1978).
For example, in Schentzel v. Philadelphia National League Club, 173 Pa.Super. 179, 96 A.2d 181, 186-87 (1953), the no-duty rule barred the claim of a plaintiff hit by a foul ball in the stands at a baseball game. The court noted that, even though there was scant evidence the plaintiff knew about the prevalence of foul balls, the defendant owed her no duty because foul balls are an inherent risk of attending a baseball game. Schentzel, 96 A.2d at 186-87.
In Loughran v. The Phillies, 888 A.2d 872, 876-77 (Pa.Super.Ct.2005), a majority of the court held that the no-duty rule barred a spectator's claim for injuries suffered in the stands at a baseball game. There, the center-fielder threw the ball into the stands after catching it for the final out of the inning — as is customarily done to provide souvenirs for fans — when the unsuspecting plaintiff was hit and injured by the ball. Loughran, 888 A.2d at 874. Although this was not the typical foul ball hit into the stands, the majority considered this custom to be inherent in the sport. Id. at 877. They noted that the plaintiff failed to establish the defendants "deviated from the common and expected practices of the game of baseball."
By contrast, in Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546, 548, 552-553 (1978), the court held that the no-duty rule did not apply because the patron was hit by a ball while using an interior walkway to the concessions
The Jones court also drew a distinction between risks that are merely inherent in the activity, and those risks that are not only inherent but also necessary to the activity. See id.; see also Loughran, 888 A.2d at 880 (Bender, J., dissenting) ("A careful reading of Jones, reveals that the no-duty rule applies not just when one's injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity."). For example, while foul balls in the stands are an inherent and necessary part of any baseball game, a bat flying into the stands is an inherent risk of baseball but not a necessary component of the game. Jones, 394 A.2d at 551; see also Schentzel, 96 A.2d at 182 ("There is a million foul balls, maybe three or four or five an inning, goes into the stand [sic].").
The court further illuminated this distinction with analogies, writing that: "[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand." Id. at 550-51. As Judge John T. Bender poignantly extrapolated in his Loughran dissent:
Loughran, 888 A.2d at 881.
According to the principles discussed in Jones and Loughran, the no-duty rule can be said to apply when, to avoid injury, a "place of amusement" must alter conditions at the facility in such a way that would change the very essence of the activity for which it is made. See Loughran, 888 A.2d at 881; Jones, 394 A.2d at 550-52. This does not affect the duty of sports facilities and places of amusement to protect patrons against foreseeable risks not inherent and necessary such that they are "common, frequent, and expected" in the very essence of that central activity. Jones, 394 A.2d at 551
Applying these principles to the case before the Court, the no-duty rule cannot protect the Defendant and bar Mrs. Barillari's claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball — Mrs. Barillari was a spectator by a ski slope that was hit by a skier. See Def.'s Br., at 8-10. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport. See Jones, 394 A.2d at 551-52.
A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands. See Schentzel, 96 A.2d at 182. The Court is not aware of a similar majority that assumes they will see
Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with "no-duty," will not in any way affect the essence of skiing. See Loughran, 888 A.2d at 881. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.
Therefore, the issues in this case do not present an instance where the "no-duty" rule applies. Rather, the existence of any negligence by either or both parties should be submitted to a jury.
For the foregoing reasons, Ski Shawnee Inc.'s motion for summary judgment is denied.
An appropriate Order follows.
AND NOW, this 12th day of November, 2013, it is hereby ORDERED, in accordance with a Memorandum of this same date, that the Defendant, Ski Shawnee, Inc.'s motion for summary judgment is hereby DENIED.
Loughran, 888 A.2d at 882.
