Cahill v. Ski Liberty Operating Corp.

81 Pa. D. & C.4th 344
CourtPennsylvania Court of Common Pleas, Adams County
DecidedNovember 14, 2006
Docketno. 06-8-29
StatusPublished

This text of 81 Pa. D. & C.4th 344 (Cahill v. Ski Liberty Operating Corp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Adams County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cahill v. Ski Liberty Operating Corp., 81 Pa. D. & C.4th 344 (Pa. Super. Ct. 2006).

Opinion

GEORGE. J,

On January 17, 2004, Timothy Joseph Cahill2 was skiing at the Liberty Mountain Ski Resort located in Carroll Valley, Adams County, Pennsylvania.3 Cahill, an experienced skier, enjoyed skiing privileges at Ski Liberty through his purchase of a season pass. Cahill applied for the 2003-2004 season pass through a website operated by Ski Liberty. In order to complete the application, the website required Cahill to acknowledge that he agreed to the terms of a “season pass and advantage card release agreement” by clicking the “okay” box on the web page. The web page included an explanation of the terms which included a release and assumption of risk clause. Cahill’s application on the website was followed up with a writ[346]*346ten application which Cahill signed on January 11,2004. In a conspicuous location immediately above his signature, the written application provides that he agreed to be legally bound by the “Notice of risk”, “Assumption of risk”, “Release from liability”, and “Acknowledgement” provided to him by Ski Liberty.4

On the date in question, Cahill fell on an icy area while skiing near the bottom of Eastwind and Strata slopes. He claims that although he was unaware of ice in this area, Ski Liberty knew of the danger since, during the previous [347]*347evening, a snow-making water hydrant broke releasing water which ultimately froze into ice because of the cold conditions. As a result of his fall, Cahill claims to have severely injured his face, back, ribs and left hand. A complaint was filed on March 17, 2006, claiming that Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area. Ski Liberty has filed an answer with new matter alleging Cahill assumed the risk of his injuries and released Ski Liberty from all liability. Ski Liberty currently moves for judgment on the pleadings.

A motion for judgment on the pleadings is in the nature of a demurrer as it provides the means to test the legal sufficiency of the pleadings. All of the plaintiffs’ allegations must be taken as true for the purposes of judgment on the pleadings. Bata v. Central-Penn National Bank of Philadelphia, 423 Pa. 373, 378, 224 A.2d 174, 178 (1966). Unlike a motion for summary judgment, the power of the court to enter a judgment on the pleadings is limited by the requirement that the court consider only the pleadings themselves and any documents properly attached thereto. Nederostek v. Endicott-Johnson Shoe Co., 415 Pa. 136, 138, 202 A.2d 72, 73 (1964). Amotion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists and the moving party is entitled to judgment as a matter of law. Dunn v. Board of Property Assessment, Appeals and Review of Allegheny County, 877 A.2d 504, 510 n. 12 (Pa. Commw. 2005). Since I find that the release entitles Ski Liberty to judgment as a matter of law, the complaint will be dismissed.

[348]*348Although disfavored under Pennsylvania law, exculpatory agreements, or releases, are valid provided they comply with the safeguards enunciated by our Superior Court in Zimmer v. Mitchell and Ness, 253 Pa. Super. 474, 385 A.2d 437 (1978), aff’d, 490 Pa. 428, 416 A.2d 1010 (1980) as follows:

“The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction . . . [T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.” Id. at 478, 385 A.2d at 439. Applying this criteria, I find the releases executed by Cahill to be valid.

The pleadings support a conclusion that the present agreement is not one of adhesion. Cahill was not forced to enter into the contract, but did so voluntarily in order to ski at Liberty Mountain. The agreement between the parties related to Cahill’s engaging in a matter of personal choice without any evidence of coercion or inducement negating the volitional nature of his act. Clearly, this activity is not essential to Cahill’s personal Or economic well-being but, rather, was a purely recreational activity. S qq Kotovsky v. Ski Liberty Operating Corporation, 412 Pa. Super. 442, 603 A.2d 663 (1992) (holding that exculpatory agreement signed by skier injured in downhill race was valid).

[349]*349The releases also do not contravene public policy. The clauses were purely private in nature and in no way affect the rights of the public. In fact, releases such as that before the court are actually in furtherance of public policy. Our state legislature, in enacting 42 Pa.C.S. §7102(c) (relating to comparative negligence), specifically recognized that there are inherent risks in the sport of downhill skiing and specifically preserved the doctrine of assumption of risk as it applied to downhill skiing injuries and damages. 42 Pa.C.S. §7102(c). This suggests that it is the policy in this Commonwealth to enforce the doctrine of assumption of risk for persons knowingly engaging in downhill skiing. Kotovsky, supra at 448, 603 A.2d at 666.

The releases executed by Cahill are unambiguous in both their language and intent. The language spells out with particularity the intent of the parties. The captions clearly advise patrons of the contents and purpose of the document as both a notice of risk and a release of liability. The waiver uses plain language informing the skier that downhill skiing is a dangerous sport with inherent risks including ice and icy conditions as well as other forms of natural or man-made obstacles, the condition of which vary constantly due to weather changes and use. Importantly, after advising a patron of these dangers, the documents unequivocally, in both bold and capital letters, release Ski Liberty from liability for any injuries suffered while using the ski facilities regardless of any negligence on the part of Ski Liberty, its employees, or agents. The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

[350]*350Cahill received, and acknowledged receipt, of the release from liability on two separate occasions. Notably, the first occasion appears to have been well in advance of the sale thereby allowing him ample opportunity to read it before using the facilities.5 This factual background reveals that the intent of the parties was imminently clear and spelled out with the utmost particularity in plain language.

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Related

Dunn v. Board of Property Assessment
877 A.2d 504 (Commonwealth Court of Pennsylvania, 2005)
Zimmer v. Mitchell and Ness
385 A.2d 437 (Superior Court of Pennsylvania, 1978)
Crews v. Seven Springs Mountain Resort
874 A.2d 100 (Superior Court of Pennsylvania, 2005)
Zimmer v. Mitchell and Ness
416 A.2d 1010 (Supreme Court of Pennsylvania, 1980)
Bata v. Central-Penn Nat. Bank of Phila.
224 A.2d 174 (Supreme Court of Pennsylvania, 1966)
LITTLE v. Jarvis
280 A.2d 617 (Superior Court of Pennsylvania, 1971)
Kotovsky v. Ski Liberty Operating Corp.
603 A.2d 663 (Superior Court of Pennsylvania, 1992)
Scattaregia v. Shin Shen Wu
495 A.2d 552 (Supreme Court of Pennsylvania, 1985)
Keirs v. Weber National Stores, Inc.
507 A.2d 406 (Supreme Court of Pennsylvania, 1986)
Nederostek v. Endicott-Johnson Shoe Co.
202 A.2d 72 (Supreme Court of Pennsylvania, 1964)

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Bluebook (online)
81 Pa. D. & C.4th 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cahill-v-ski-liberty-operating-corp-pactcompladams-2006.