Opinion
Civ. No. JFM-98-241.
September 8, 1999.
MEMORANDUM
Plaintiffs Stephen J. Troese and Sandra Troese, individually and as parents and guardians of their minor son, Joseph R. Troese ("Troese"), have sued defendant Seven Springs Farm, Inc. ("Seven Springs") for negligence. Defendant has filed a motion for summary judgment. Defendant's motion will be granted.
I.
This case arises out of injuries sustained by Troese while he was skiing at Seven Springs on the afternoon of January 27, 1996. Before discovery was taken, defendant moved for summary judgment, contending that it did not owe plaintiffs a duty to protect them from known or obvious dangers on the ski slope. At that point, plaintiffs alleged that the hazard Troese encountered was an icy patch on the ski slope. I denied defendant's motion and allowed discovery to proceed on whether defendant had a duty to protect Troese from such an icy patch. Discovery has revealed that Troese actually encountered a mound of snow, or "kicker," which was either built on the slope by other skiers or occurred due to the intersection of two ski trails.
II.
To establish that defendant owed a duty to warn or protect plaintiffs from a defective condition, plaintiffs must prove that: (1) the injury was not caused by "a risk inherent in the activity in question," and (2) the alleged defective condition of the premises was not "obvious." See, e.g., Jones v. Three Rivers Management Corp., 394 A.2d 546, 550 (Pa. 1978). Skiing is by its nature a hazardous activity, but that does not mean that all conditions on the slopes are risks inherent in skiing. In ruling on this issue, Pennsylvania courts have based their decisions on the plaintiffs' testimony that they knew of dangerous conditions on the slopes the day of their respective accidents. See, e.g., Burke v. Ski Am., Inc., 940 F.2d 95, 97 (4th Cir. 1991) (applying Pennsylvania law) ("[A]s evidenced by plaintiff's own testimony, she was aware that collisions with rocks and trees were a hazard of skiing that could result in injury or death."); Nielsen v. Jack Frost Mountain Co., 1988 WL 53149, at *1 (E.D. Pa. 1988) ("According to her deposition testimony, pausing before starting down the lower part of the slope . . . plaintiff observed that `it was full of ice chunks. It was in poor condition.'").
To prove that kickers are not a risk inherent in skiing, plaintiffs offer testimony from Seven Springs employee William Hunt that ski patrollers are instructed to take down any kickers they see during the day. Hunt stated that Seven Springs employees are instructed to rid the slopes of kickers because of the danger both to the skiers who jump over them and to the skiers in the area where the jumpers land.
However, the evidence in this case now indicates that Troese was well aware of the risks of moguls and jumps, and had in fact fallen when he had encountered them on previous skiing trips. He and his friends who skied with him that day recognized the dangers of uneven terrain and of ice on the slopes. Moreover, there is no evidence that the kicker Troese encountered was not obvious; rather, both of Troese's companions noticed that there was a significant rise on Blitzen trail where it crossed Deer Pass. In addition, Hunt testified that he saw the kicker, and that a group of kids had stopped uphill from the skier and were lining up to jump off of it. Plaintiffs have failed to prove that defendant had a duty to protect them from this mound of snow on Blitzen trail.
Assuming that defendant owed such a duty in this case, plaintiffs have offered no evidence of its breach. There is no evidence that Seven Springs was aware of the kicker at issue in this case until the time that the accident occurred. Hunt testified that he had seen a different kicker earlier in the day on Blitzen slope, but that the previous kicker was gone at 4:20 p.m. when he observed the accident. Hunt stated that he was attempting to approach the new kicker on his snowmobile, but he was prevented from doing so by large numbers of skiers crossing Blitzen trail on Deer Pass. It would therefore have been impossible for Seven Springs to destroy the kicker or place warnings on the slope prior to the accident.
Even assuming that plaintiffs could establish a duty and its breach by defendant, it is clear that Troese assumed the risk of encountering the kicker. The defendant bears the burden of proving assumption of risk, which it may sustain by proving that the plaintiff knew of the risk, appreciated its character, and voluntarily chose to accept it. Id. at 1008 (citing Jones, 394 A.2d at 552-53). Troese testified that he had encountered moguls and jumps in his previous skiing experiences, and that those were the conditions which would cause him to fall. Of course, it is not enough to show that he was generally aware of the existence of moguls or kickers on ski slopes. Courts applying Pennsylvania law have found assumption of the risk as a matter of law only when plaintiffs subjectively appreciated the risk of encountering the dangerous condition. See, e.g., Smith v. Seven Springs Farms, 716 F.2d 1002, 1007-08 (3d Cir. 1983).
After adopting a comparative negligence system in the late 1970s, the Pennsylvania legislature enacted the Skier's Responsibility Act in order to preserve the doctrine of assumption of risk in skiing litigation. The Act provides: "The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by [the Comparative Negligence Act]." 42 Pa. Cons. Stat. Ann. § 7102(c)(2). Subsequent case law has interpreted this provision to mean that the defense of assumption of the risk, as it is understood in Pennsylvania, is still available to defendants in negligence suits involving downhill skiing injuries. Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1007-08 (3d Cir. 1983) (applying Pennsylvania law).
Such proof is difficult here because Troese cannot remember the events of the day of the accident (presumably due to the head injuries he sustained that day). However, it is not impossible. The uncontradicted evidence from the only witness to the accident is that Troese approached the kicker and intentionally encountered it with the purpose of jumping into the air. On this record, I must find that Troese assumed the risk of encountering the kicker.
For these reasons, defendant's motion for summary judgment is granted. A separate order to this effect is being entered herewith.
ORDER
For the reasons stated in the memorandum entered herewith, it is, this 8th day of September, 1999
ORDERED that
1. Defendant's motion for summary judgment is granted; and
2. Judgment is entered in favor of defendant against plaintiffs.