Chang v. Camelback Ski Corp.

43 Pa. D. & C.4th 81, 1999 Pa. Dist. & Cnty. Dec. LEXIS 83
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedAugust 30, 1999
Docketno. 37 Civil 1999
StatusPublished
Cited by2 cases

This text of 43 Pa. D. & C.4th 81 (Chang v. Camelback Ski Corp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chang v. Camelback Ski Corp., 43 Pa. D. & C.4th 81, 1999 Pa. Dist. & Cnty. Dec. LEXIS 83 (Pa. Super. Ct. 1999).

Opinion

WALLACH MILLER, J.,

VOLENTI: NON-FIT INJURIA

On January 7, 1997, 17 and a half year old Joseph Chang purchased a ski lift ticket and went skiing at Cam-elback Ski Area located in Tannersville, Monroe County, Pennsylvania. When he got off the ski lift and began skiing down a slope, he realized that the slope was covered with ice. He alleges the ice prevented him from having any control of the direction or speed of his skis. As a result of the icy slope, Chang claims he was propelled off the slope and crashed into a ski lift structure, suffering injuries.

[83]*83Chang further claims that since he was a novice and possessed only minimal skiing ability,1 he could not have known or reasonably foreseen the outrageously dangerous icy condition of the slope. He further alleges that the icy condition was caused due to a severe weather anomaly-

On January 5,1999, Chang and his parents filed a summons against Camelback followed by a complaint on February 17, 1999. The complaint included counts for negligence, breach of warranty, loss of filial consortium and a request for reimbursement for an adult child’s past and future medical bills. Camelback filed preliminary objections on March 2, 1999.

Plaintiffs filed an amended complaint on March 22, 1999, amending only paragraph one of the original complaint and pleading that Joseph Chang was a minor, and not an adult, as originally alleged.

Camelback again filed preliminary objections on April 12,1999 in the nature of a demurrer/motion to strike the negligence claim; a demurrer/motion to strike the second cause of action which is based on a breach of warranty that the ski slope was not reasonably safe and fit for the purposes for which it was used; and, a demurrer to the claims of plaintiff parents for loss of filial consortium.

After reviewing the parties’ briefs and hearing oral argument, we are prepared to rule on defendant’s preliminary objections.

A demurrer tests the legal sufficiency of the pleadings. In determining the legal sufficiency of a complaint, [84]*84at this stage of a proceeding, the court must accept as true every relevant fact sufficiently averred in the plaintiffs’ complaint together with every inference favorable to the non-moving party which is fairly deducible therefrom. Ganassi v. Buchanan Ingersoll PC, 373 Pa. Super. 9, 540 A.2d 272 (1988). However, we need not accept as true conclusions of law, inferences unwarranted by the admitted facts, argumentative allegations or expressions of opinion. Graham v. Harleysville Insurance Co., 429 Pa. Super. 444, 632 A.2d 939 (1993).

Since the sustaining of a demurrer results in a denial of a pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. If the facts as pleaded state a claim for which relief may be granted under any theory of law, then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. County of Allegheny v. Commonwealth of Pennsylvania, 507 Pa. 360, 490 A.2d 402 (1985).

Defendant argues that Count I of plaintiffs’ complaint fails to state a cause of action in negligence. To establish a viable cause of action in negligence, the pleader must aver in his complaint the following elements:

“(1) A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
“(2) A failure on the person’s part to conform to the standard[s] required: a breach of the duty.
“(3) A reasonably close causal connection between the conduct and the resulting injury.
[85]*85“(4) Actual loss or damage resulting to the interest of another.” Ferry v. Fisher, 709 A.2d 399, 402 (Pa. Super. 1998), citing Prosser & Keaton on Torts §30 (5th ed. 1984).

Moreover, the mere happening of an accident does not entitle the injured person to a verdict; a plaintiff must show that the defendant owed him a duty and that the duty was breached. Engel v. Parkway Co., 439 Pa. 559, 266 A.2d 685 (1970).

In reading the complaint and giving all the benefit, including inferences, to the plaintiffs, the non-moving party, we find they allege that Camelback owed a duty to them to inspect, test and warn plaintiff of the icy slope, to stop the plaintiff from using this icy slope because the defendant knew it was unreasonably dangerous in light of the icy conditions; to instruct and render assistance to the plaintiff once he was on the icy slope and to provide to plaintiff a slope that was safe and not defective (we infer this means no ice on the slope).

The thrust of Camelback’s demurrer is that it has no duty to protect skiers from the inherent risks of skiing and that icy slopes and icy conditions on the slopes are inherent risks in downhill skiing. They further argue that plaintiff was a voluntary participant, chose to ski that particular day and that a ski trail consisting of snow, can and will develop icy conditions through skier traffic, changes in temperature and other factors which affect the outdoors during the winter. Further, they argue that they have no control over the weather. Thus, we must determine if, under the law, there is a recognizable duty of defendant Cam-elback to protect a skier from an icy slope.

The Pennsylvania Legislature passed the “Skiing Responsibility Act” on March 27, 1980, P.L. 52 (no. 19). [86]*86This Act was repealed by section 222 of the JARA Continuation Act of October 5, 1980, P.L. 693 (no. 142). However, its substance was codified as subsection “c” of the Comparative Negligence Act, 42 Pa.C.S. § 1702(c) which provides:

“(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 non-residents 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 subsections (a) and (b).”

Assumption of risk is a legal doctrine which holds that a defendant, as a matter of law, does not owe a duty of care to a plaintiff who voluntarily exposes himself to the risks inherent in an activity. Jones v. Three Rivers Management Corp., 483 Pa. 75, 394 A.2d 546 (1978); Pagesh v. Ucman, 403 Pa. Super. 549, 589 A.2d 747

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Bluebook (online)
43 Pa. D. & C.4th 81, 1999 Pa. Dist. & Cnty. Dec. LEXIS 83, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chang-v-camelback-ski-corp-pactcomplmonroe-1999.