J. A30039/17

2018 PA Super 89

PATRICK KIBLER AND KATHRYN

KIBLER, HUSBAND AND WIFE,

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

Appellants :

:

v. :

:

BLUE KNOB RECREATION, INC.,

A PENNSYLVANIA CORPORATION,

T/D/B/A BLUE KNOB ALL SEASONS

RESORT, AND BLUE KNOB RESORT,

INC., A PENNSYLVANIA CORPORATION

:

:

:

:

:

No. 903 WDA 2017

Appeal from the Order, May 24, 2017,

in the Court of Common Pleas of Bedford County

Civil Division at No. 2015-183

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.

OPINION BY FORD ELLIOTT, P.J.E.: FILED APRIL 19, 2018

Patrick and Kathryn Kibler (collectively “appellants”1) appeal from the

May 24, 2017 order of the Court of Common Pleas of Bedford County granting

Blue Knob Recreation, Inc. and Blue Knob Resort, Inc.’s (hereinafter,

collectively “defendants”) motion for summary judgment. After careful

review, we affirm.

The trial court provided the following synopsis of the facts:

On March 21, 2014, [appellant] applied for a season

ski pass for the 2014-2015 ski season at Blue Knob

Ski Resort. [Appellant] signed and dated the season

1 For clarity, we will refer to Mr. Kibler as “appellant” throughout this

memorandum.
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pass/application agreement, which contained

information and guidelines about the Blue Knob

season pass. The bottom half of said document

contains the following exculpatory language:

PLEASE READ THE FOLLOWING

BEFORE SIGNING!!

Snowboarding, skiing and other snow

related activities, like many other sports,

contain inherent risks including, but not

limited to, the risk of personal injury,

death or property damage, which may be

caused by: variation in terrain or weather

conditions, surface or subsurface, snow,

ice, bare spots, thin cover, moguls, ruts,

bumps, forest growth, debris, other

persons using the facilities, branches,

trees, roots, stumps, rocks, and other

natural or man made objects that are

incidental to the provision or maintenance

of the facility. For the use of Blue Knob

Ski Area, the holder assumes all risks of

injury and releases Blue Knob Recreation

from all liability THEREFORE: Not

withstanding the foregoing, if I sue Blue

Knob Recreation ET AL I agree that I will

only sue it, whether on my own behalf or

on behalf of a family member, in the Court

of Common Pleas of Bedford County or in

the United States District Court for the

District of Pittsburgh, Pennsylvania and

further agree that any and all disputes

which might arise between Blue Knob

Recreation ET AL and myself shall be

litigated exclusively in one of said courts.

See Blue Knob All Seasons Resort

Information/Guidelines.

On December 21, 2014 at 9:00 a.m., [appellant]

arrived at Blue Knob to ski with friends. Prior to

arriving at the resort, [appellant] learned that five

slopes were open to ski. [Appellant] eventually would

ski on two of these five open slopes. After skiing down
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a slope identified as “Lower Mambo,” [appellant]

stopped to look for his skiing companions, who were

snowboarding on another slope. In an attempt to

rejoin them without walking back up the slope,

[appellant] intended to ski toward the middle of

“Lower Mambo Valley” in order to reach a ski lift.

While traversing this area, [appellant] ran over

“trenches” he avers were four-to-six inches deep and

six-to-eight inches wide, which extended halfway

across the ski slope. Defendants’ employees

identified the trenches as being caused by an

all-terrain-vehicle operated by a resort employee.

[Appellant] fell when encountering these trenches,

causing him to fracture his left tibia and fibula.

Trial court opinion, 5/23/17 at 2-3.

On February 15, 2015, appellants filed a civil complaint with the trial

court sounding in negligence. Following discovery, defendants filed a motion

for summary judgment with an accompanying memorandum of law on

January 23, 2017. Appellants filed a motion for summary judgment on

March 17, 2017. Oral arguments were held before the trial court on April 18,

2017. On May 24, 2017, the trial court granted defendants’ motion for

summary judgment, dismissing appellants’ complaint with prejudice, and

denied appellants’ motion for summary judgment.

On June 16, 2017, appellants filed a timely notice of appeal with this

court. The trial court ordered appellants to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and appellants

complied on July 18, 2017. The trial court filed an opinion on August 10,

2017, pursuant to Pa.R.A.P. 1925(a) in which it incorporated the content of
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its May 24, 2017 order and opinion granting defendants’ motion for summary

judgment.

Appellants raise the following issues for our review:

A. Was the hazard encountered by [appellant]

inherent to the dangers of downhill skiing, when

[defendants’] Director of Maintenance testified

that the hazard was out of the ordinary, not

common, and [appellant] should not have

expected to encounter the hazard?

B. Is the Blue Knob All Seasons Resort 2014-2015

Season Pass Holder Information/Guidelines

document a valid exculpatory release, where

the top half of the document only discusses the

requirements to be a season pass holder, and

the lower half is ambiguous, the word “releases”

is located 75% down the page, lacks

conspicuity, without print of a size and boldness

that draws the attention of an ordinary person,

and where no evidence exists that [appellant]

read this document?

C. Is a claim for injuries caused by the grossly

negligent and/or reckless acts of a ski resort

barred by an alleged exculpatory sentence in

Blue Knob’s season pass?

D. Did [appellant] voluntarily assume the risk of

injury when he encountered a hazard at

[defendants’] resort for which he was unaware,

and for which [defendants’] Director of

Maintenance testified that [appellant] had no

reason to anticipate or know of the hazard’s

existence?
J. A30039/17

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Appellant’s brief at 4-5.2

In reviewing an appeal from the trial court’s granting of a motion for

summary judgment, we are governed by the following standard of review:

[O]ur standard of review of an order

granting summary judgment requires us

to determine whether the trial court

abused its discretion or committed an

error of law. Our scope of review is

plenary. In reviewing a trial court’s grant

of summary judgment, we apply the same

standard as the trial court, reviewing all

the evidence of record to determine

whether there exists a genuine issue of

material fact. We view the record in the

light most favorable to the non-moving

party, and all doubts as to the existence

of a genuine issue of material fact must

be resolved against the moving party.

Only where there is no genuine issue as

to any material fact and it is clear that the

moving party is entitled to a judgment as

a matter of law will summary judgment be

entered. All doubts as to the existence of

a genuine issue of a material fact must be

resolved against the moving party.

* * *

Upon appellate review, we are not bound

by the trial court’s conclusions of law, but

may reach our own conclusions.

Petrina v. Allied Glove Corp., 46 A.3d 795, 797-798

(Pa.Super. 2012) (internal citations omitted).

2 Appellants’ four issues address two overarching issues: voluntary

assumption of risk and the validity of the release attached to the season pass

provided by defendants. Accordingly, for the purposes of our review, we shall

address issues A and D together and issues B and C together.
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Rule of Civil Procedure 1035 governs motions for

summary judgment and provides, in relevant part, as

follows:

After the relevant pleadings are closed,

but within such time as not to

unreasonably delay trial, any party may

move for summary judgment in whole or

in part as a matter of law

(1) Whenever there is no genuine

issue of any material fact as

to a necessary element of the

cause of action or defense

which could be established by

additional discovery or expert

report, or

(2) If, after the completion of

discovery relevant to the

motion, including the

production of expert reports,

an adverse party who will

bear the burden of proof at

trial has failed to produce

evidence of facts essential to

the cause of action or defense

which in a jury trial would

require the issues to be

submitted to a jury.

Pa.R.C.P. 1035.2. This Court has explained the

application of this rule as follows:

Motions for summary judgment

necessarily and directly implicate the

plaintiff’s proof of the elements of a cause

of action. Summary judgment is proper

if, after the completion of discovery

relevant to the motion, including the

production of expert reports, an adverse

party who will bear the burden of proof at

trial has failed to produce evidence of

facts essential to the cause of action or
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defense which in a jury trial would require

the issues to be submitted to a jury. In

other words, whenever there is no

genuine issue of any material fact as to a

necessary element of the cause of action

or defense, which could be established by

additional discovery or expert report and

the moving party is entitled to judgment

as a matter of law, summary judgment is

appropriate. Thus, a record that supports

summary judgment either (1) shows the

material facts are undisputed or

(2) contains insufficient evidence of facts

to make out a prima facie cause of action

or defense.

Petrina, 46 A.3d at 798.

Criswell v. Atlantic Richfield Co., 115 A.3d 906, 909-910 (Pa.Super. 2015).

Voluntary Assumption of the Risk

Appellants’ first and fourth issues on appeal address the voluntary

assumption of the risk associated with downhill skiing. The General Assembly

directly addressed this issue when it passed the Pennsylvania Skier’s

Responsibility Act (hereinafter, “the Act”). The Act provides, in relevant part,

(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.
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(2) The doctrine of voluntary assumption of

the risk as it applies to downhill skiing

injuries and damages is not modified by

subsections (a) and (a.1).[

3]

42 Pa.C.S.A. § 7102(c).

In light of the Act, our supreme court established the following standard

when reviewing grants of summary judgment in cases involving downhill

skiing:

First, this Court must determine whether [appellant]

was engaged in the sport of downhill skiing at the time

of [his] injury. If that answer is affirmative, we must

then determine whether the risk [encountered] is one

of the “inherent risks” of downhill skiing, which

[appellant] must be deemed to have assumed under

the Act. If so, then summary judgment was

appropriate because, as a matter of law, [appellant]

cannot recover for [his] injuries.

Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). In

the context of downhill skiing, our supreme court stated that both common

law assumption of the risk doctrine and the court’s decision in Hughes “direct

that inherent risks are those that are ‘common, frequent, or expected’ when

one is engaged in a dangerous activity, and against which the defendant owes

no duty to protect.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d

1174, 1187 n.14 (Pa. 2010).

3 Subsections (a) and (a.1) address contributory negligence and joint and

several liability.
J. A30039/17

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In the instant appeal, it is beyond dispute that appellant was engaged

in the sport of downhill skiing at the time of his injury. Indeed, as noted by

the Hughes court,

Obviously, the sport of downhill skiing encompasses

more than merely skiing down a hill. It includes those

other activities directly and necessarily incident to the

act of downhill skiing. Such activities include boarding

the ski lift, riding the lift up the mountain, alighting

from the lift, skiing from the lift to the trail and, after

a run is completed, skiing towards the ski lift to start

another run or skiing toward the base lodge or other

facility at the end of the day.

Hughes, 762 A.2d at 344. Therefore, our paramount inquiry is whether

encountering wheel ruts on a ski slope created by an ATV operated by an

employee of defendants is an inherent risk to downhill skiing.

Appellants make the argument that operating an ATV up the middle of

a ski slope is not an inherent aspect of the sport, and should therefore not be

considered an inherent risk as contemplated by the Act. (See appellants’ brief

at 32.) Appellants specifically cite the deposition testimony of Craig Taylor,

defendants’ director of maintenance, in which Mr. Taylor stated that it would

not be common or expected by a skier to encounter wheel ruts made by an

ATV on the ski slope. (See notes of testimony, 10/21/15 at 28.) Defendants

aver that the cause of the alleged condition is not relevant to whether the

condition itself, in this case wheel ruts left by operating an ATV up the middle

of a ski slope, constitutes an inherent risk associated with downhill skiing.
J. A30039/17

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As noted by the Chepkevich court, “Pennsylvania’s Act is unusual in its

brevity and failure to give any definition of an ‘inherent’ risk of skiing,”

especially when compared to other states in which skiing constitutes a

“significant industry.” Chepkevich, 2 A.3d at 1188 n.15. Of the states

referenced by the Chepkevich court, the most instructive is New York.

In Schorpp v. Oak Mountain, LLC, 143 A.D.3d 1136 (N.Y. App. Div.

2016), the New York Supreme Court, Appellate Division4 reversed the trial

court’s denial of summary judgment in a negligence cause of action. Id. at

1137. The plaintiff in this case “skied into a ‘depression’ that was filled with

snow. The skis got caught in the depression causing [the plaintiff] to flip over

and fall out of his skis.” Id. The appellate court held that under New York’s

assumption of the risk doctrine as it pertains to downhill skiing, “an individual

‘assumes the inherent risk of personal injury caused by ruts, bumps or

variations in the conditions of the skiing terrain.’” Id., quoting Ruepp v.

West Experience, 272 A.D.2d 673, 674 (N.Y. App. Div. 2000) (emphasis

added). Unlike its Pennsylvania counterpart, the New York State Legislature

specifically identified ruts as an inherent risk of downhill skiing. N.Y. General

Obligations Law § 18-101.

Given that our cases do not directly address an injury incurred while

engaged in downhill skiing caused by wheel ruts in the terrain on the slope, we find the New York statute and case law to be the most instructive in the

4 This court is the intermediate court of appeals in New York.
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instant appeal. Moreover, the language of the release signed by appellant,

which we further discuss infra, is nearly identical to the language of the

New York statute.5 We agree with the holding of the Appellate Division of the

New York Supreme Court, and find that wheel ruts in the terrain are an

inherent risk to the sport of downhill skiing. Accordingly, we hold that

appellants cannot recover damages as a matter of law, and that the trial court

properly granted defendants’ motion for summary judgment.

5 The New York statute provides, in relevant part:

§ 18-101. Legislative purpose

The legislature hereby finds that alpine or downhill

skiing is both a major recreational sport and a major

industry within the state of New York. The legislature

further finds: (1) that downhill skiing, like many other

sports, contains inherent risks including, but not

limited to, the risks of personal injury or death or

property damage, which may be caused by variations

in terrain or weather conditions; surface or subsurface

snow, ice, bare spots or areas of thin cover, moguls,

ruts, bumps; other persons using the facilities; and

rocks, forest growth, debris, branches, trees, roots,

stumps or other natural objects or man-made objects

that are incidental to the provision or maintenance of

a ski facility in New York state . . . . N.Y. General Obligations Law § 18-101.
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Validity of Release6

Appellants’ second issue pertains to the release appellant signed when

he purchased his season pass. Specifically, appellant avers that the release

in question is “not a valid exculpatory release” due to the fact that the release

is ambiguous, the release is “without print of a size and boldness that draws

the attention of an ordinary person,” and there is no evidence that appellant

actually read the release. (Appellants’ brief at 33.)

When considering the validity of exculpatory releases, we are governed

by the following standard:

It is generally accepted that an exculpatory clause is

valid where three conditions are met. First, the clause

must not contravene public policy. Secondly, the

contract must be between persons relating entirely to

their own private affairs and thirdly, each party must

be a free bargaining agent to the agreement so that

the contract is not one of adhesion. Princeton

Sportswear Corp. v. H & M Associates, 507 A.2d

339 (Pa. 1986); Employers Liability Assurance

Corp. v. Greenville Business Men’s Association, 224 A.2d 620 (Pa. 1966). In Dilks v. Flohr

Chevrolet, 192 A.2d 682 (Pa. 1963), [our supreme

court] noted that once an exculpatory clause is

determined to be valid, it will, nevertheless, still be

unenforceable unless the language of the parties is

clear that a person is being relieved of liability for his

own acts of negligence. In interpreting such clauses

6 As noted by Justice Baer in his concurring opinion in Chepkevich, a review

of the release issued by defendants and signed by appellant is not wholly

necessary. Chepkevich, 2 A.3d at 1198 (Baer, J., concurring). The majority

stated that, “consideration of alternative holdings is subject to prudential

concerns, and we believe there are prudential concerns to consider the

Release here.” Id. at 1188 n.16. We will follow the lead of the majority and

analyze both issues as they have both been briefed and argued before this

court.
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we listed as guiding standards that: 1) the contract

language must be construed strictly, since

exculpatory language is not favored by the law; 2) the

contract must state the intention of the parties with

the greatest particularity, beyond doubt by express

stipulation, and no inference from words of general

import can establish the intent of the parties; 3) the

language of the contract must be construed, in cases

of ambiguity, against the party seeking immunity from

liability; and 4) the burden of establishing the

immunity is upon the party invoking protection under

the clause. Dilks, 192 A.2d at 687.

Topp Copy Products, Inc. v. Singletary, 626 A.2d 98, 99 (Pa. 1993), cited

by Chepkevich, 2 A.3d at 1189. In the context of exculpatory releases used for downhill skiing, we find

the rationale behind the Chepkevich court’s decision to be highly instructive

to the instant appeal.7

7 The release before the Chepkevich court was printed on an 81⁄2 by 11-inch

sheet of paper entitled “RELEASE FROM LIABILITY” and contained the

following language:

Skiing, Snowboarding, and Snowblading, including

the use of lifts, is a dangerous sport with inherent and

other risks which include but are not limited to

variations in snow and terrain, ice and icy conditions,

moguls, rocks, debris (above and below the surface),

bare spots, lift towers, poles, snowmaking equipment

(including pipes, hydrants, and component parts),

fences and the absence of fences and other natural

and manmade objects, visible or hidden, as well as

collisions with equipment, obstacles or other skiers.

. . . All the risks of skiing and boarding present the

risk of serious or fatal injury. By accepting this

Season Pass I agree to accept all these risks and agree

not to sue Hidden Valley Resort or their employees if

injured while using their facilities regardless of any

negligence on their part.
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As we have stated, downhill skiing . . . is a voluntary

and hazardous activity, and that fact is acknowledged

in the Act as discussed above. Moreover, an

exculpatory agreement conditioning the use of a

commercial facility for such activities has not been

construed as a typical contract of adhesion. The

signer is under no compulsion, economic or otherwise,

to participate, much less to sign the exculpatory

agreement, because it does not relate to essential

services, but merely governs a voluntary recreational

activity. The signer is a free agent who can simply

walk away without signing the release and

participating in the activity, and thus the contract

signed under such circumstances is not

unconscionable. Moreover, the absence of a definition

or illustration of negligence does not render this

Release an invalid contract of adhesion; that factor

simply does not relate to the concerns implicated by

adhesion contracts.

Chepkevich, 2 A.3d at 1191 (internal citations omitted). Facial Validity

Similar to the Chepkevich court, we must first look to the facial validity

of the release. In Chepkevich, our supreme court found that the release

signed by the plaintiff did not “contravene any policy of the law. Indeed, the

clear policy of this Commonwealth, as articulated by the Act, is to encourage

the sport [of downhill skiing] and place the risks of skiing squarely on the

skier.” Id., citing 42 Pa.C.S.A. § 7102(c)(2). The court also stated that,

“Pennsylvania courts have upheld similar releases respecting skiing and other

inherently dangerous sporting activities.” Id. (collecting cases). Finally, our

Chepkevich, 2 A.3d at 1176.
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supreme court held that the release the plaintiff signed was a contract

between Hidden Valley and the plaintiff, “relating to their private affairs,

specifically [the plaintiff’s] voluntary use of the resort’s facilities.” Id.

Our discussion in the instant appeal is comparable to the analysis

employed by the Chepkevich court. Here, the release signed by appellant

does not contravene any policy of the law. Similar to the release used by

defendant Hidden Valley in Chepkevich, the release before us relates to the

private affairs of appellant and defendants--namely, appellant’s voluntary use

of defendants’ facilities. Accordingly, we find that the release signed by

appellant is facially valid.

Enforceability

Similar to the Chepkevich court, we must now look to the release’s

enforceability. “[T]he Topp Copy/Employers Liability standard requires us

to construe the release strictly against [defendants] to determine whether it

spells out the intention of the parties with particularity and shows to the intent

to release [defendants] from liability by express stipulation, recognizing that

is [defendants’] burden to establish immunity.” Id., citing Topp Copy, 626

A.2d at 99.

In the instant appeal, appellants aver that the release was ambiguous,

lacked conspicuity, and “was without print of a size and boldness that draws

the attention of an ordinary person.” (Appellant’s brief at 33.) Appellants
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further aver that there is no evidence that appellant read the release before

signing it. (Id.) We shall address each of these claims individually.

Appellants first aver that the language of the release was ambiguous.

Specifically, appellants allege that the release failed to “clearly and

unequivocally intend for the defendant[s] to be relieved from liability, using

language understandable to an ordinary and knowledgeable person so

participants know what they have contracted away.” (Id. at 39.) Appellants

then allege that the release failed include any reference to the risk

encountered by appellant. (Id. at 43.) Appellants specifically argue that “the

risk [appellant] encountered, i.e., deep and wide frozen trenches in the middle

of a beginner’s slope, are not stated because it is nonsensical to contend such

a serious hazard is inherent to the sport.” (Id.) This argument misses the

mark. To the contrary, as noted supra, one of the inherent risks explicitly

referenced in the release is the presence of ruts on the ski slope.

Merriam-Webster defines “rut” as “a track worn by a wheel or by habitual

passage.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 2 Jan.

2018. Roget’s Thesaurus identifies “trench” as a synonym of “rut.”

Thesaurus.com. Roget’s 21st Century Thesaurus, Third Edition, n.d. Web.

2 Jan. 2018. We therefore find that defendants’ release was not ambiguous,

and that it explicitly referenced the risk encountered by appellant.

We now turn to appellants’ claim that the release lacked conspicuity and

“was without print of a size and boldness that draws the attention of an
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ordinary person.” (Appellants’ brief at 33.) As noted above, the release

appellant signed contained information regarding his season ski pass.

Following the ski pass information, in a paragraph labeled “PLEASE READ THE

FOLLOWING BEFORE SIGNING!![,]” defendants’ release contained the

exculpatory language before us for review. (Id. at 34.)

The Pennsylvania Uniform Commercial Code8 defines “conspicuous” as

“so written, displayed, or presented that a reasonable person against which it

is to operate ought to have noticed it.” 13 Pa.C.S.A. § 1201(b)(10). The Code

specifically states that a conspicuous term includes the following:

(i) A heading in capitals equal to or greater in size

than the surrounding text, or in contrasting

type, font or color to the surrounding text of the

same or lesser size.

(ii) Language in the body of a record or display in

larger type than the surrounding text, in

contrasting type, font or color to the

surrounding text of the same size, or set off

from surrounding text of the same size by

symbols or other marks that call attention

to the language. Id. at § 1201(b)(10)(i-ii) (emphasis added). Here, the release issued by defendants and signed by appellant meets

the definition of conspicuous as set forth by the Pennsylvania Uniform

8 As in prior cases, we note that the Uniform Commercial Code is applicable

to the sale of goods, while this case pertains to the sale of services;

“nevertheless, we find the UCC’s warrant disclaimer provision in Article 2, and

its interpreting caselaw, provides guidance in the instant case.” Beck-Hummel v. Ski Shawnee, Inc., 902 A.2d 1266, 1274 n.12 (Pa.Super.

2006).
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Commercial Code. The exculpatory language of the release is preceded by a

heading that is written in all capital letters in a size of text equal to the

exculpatory language of the release. The heading also contains two

exclamation points that call attention to the language of the heading, pursuant

to the Code. Accordingly, we find that appellants’ argument that the release

lacked conspicuity and “was without print of a size and boldness that draws

the attention of an ordinary person” is without merit, as defendants’ release

is conspicuous under the Pennsylvania Uniform Commercial Code.

Finally, we address appellants’ averment that that there is no evidence

that appellant read the release before signing it. Our cases provide that

“failure to read an agreement before signing it does not render the agreement

either invalid or unenforceable.” Toro v. Fitness International LLC, 150

A.3d 968, 975 (Pa.Super. 2016), citing Hinkal v. Pardoe, 133 A.3d 738, 743

(Pa.Super. 2016), appeal denied, 141 A.3d 481 (Pa. 2016). See also

Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169, 1174

(E.D. Pa. 1990) (“The law in Pennsylvania is clear. One who is about to sign

a contract has a duty to read that contract first”). In the instant appeal,

appellant was not excused of his duty to read the Release before signing it.

Therefore, appellant’s argument that there is no evidence that he read the

release before signing is without merit.
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Gross Negligence and Reckless Conduct

Finally, appellant avers that the release does not protect defendants

from liability for acts of gross negligence and/or reckless conduct. Our

supreme court has held that exculpatory releases of reckless behavior are

contrary to public policy, “as such releases would jeopardize the health,

safety, and welfare of the people by removing any incentive for parties to

adhere to minimal standards of safe conduct.” Tayar v. Camelback Ski

Corp., Inc., 47 A.3d 1190, 1203 (Pa. 2012), citing Hall v. Amica Mut. Ins.

Co., 648 A.2d 755, 760 (Pa. 1994). Therefore, our inquiry centers on whether

the conduct alleged by appellants—operating an ATV on a ski slope and

creating wheel ruts on the slope—constituted gross negligence and/or reckless

conduct.

This court has observed the following pertaining to gross negligence:

In Ratti v. Wheeling Pittsburgh Steel Corp., 758

A.2d 695 (Pa.Super. 2000), appeal denied, 785 A.2d

90 (Pa. 2001), we indicated that when courts have

considered the concept of “gross negligence” in

various civil contexts, they have concluded uniformly

that there is a substantive difference between

“ordinary negligence” and “gross negligence.” Id. at

703. “The general consensus finds [that] gross

negligence constitutes conduct more egregious than

ordinary negligence but does not rise to the level of

intentional indifference to the consequences of one’s

acts.” Id. at 704 (relying in part on bailment cases

and in part on the definition of “gross negligence” as

applied to the [Mental Health Procedures Act9]).

Gross negligence may be deemed to be a lack of slight

diligence or care compromising a conscious, voluntary

9 50 P.S. §§ 7101-7503.
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act or omission in “reckless disregard” of a legal duty

and the consequences to another party. Id. at 704- 705 (citing Black’s Law Dictionary 1057 (7th ed.

1999)).

In re Scheidmantel, 868 A.2d 464, 485-486 (Pa.Super. 2005).

While it is generally true that the issue of whether a

given set of facts satisfies the definition of gross

negligence is a question of fact to be determined by a

jury, a court may take the issue from a jury, and

decide the issue as a matter of law, if the conduct in

question falls short of gross negligence, the case is

entirely free from doubt, and no reasonable jury could

find gross negligence.

Downey v. Crozer-Chester Medical Center, 817 A.2d 517, 525-526

(Pa.Super. 2003) (en banc), quoting Albright v. Abington Memorial

Hospital, 696 A.2d 1159, 1164-1165 (Pa. 1997).

The Tayar court provided the following comparison of recklessness with

ordinary negligence:

Recklessness is distinguishable from negligence on

the basis that recklessness requires conscious action

or inaction which creates a substantial risk of harm to

others, whereas negligence suggests unconscious

inadvertence. In Fitsko v. Gaughenbaugh, 69 A.2d

76 (Pa. 1949), [our supreme court] cited with

approval the Restatement ([First]) of Torts[

10]

definition of “reckless disregard” and its explanation

of the distinction between ordinary negligence and

recklessness. Specifically, the Restatement (Second)

of Torts defines “reckless disregard” as follows:

The actor’s conduct is in reckless

disregard of the safety of another if he

does an act or intentionally fails to do an

act which it is his duty to the other to do,

10 The Restatement (Second) of Torts was published in 1965.
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knowing or having reason to know of facts

which would lead a reasonable man to

realize, not only that his conduct creates

an unreasonable risk of physical harm to

another, but also that such risk is

substantially greater than that which is

necessary to make his conduct negligent.

Restatement (Second) of Torts § 500 (1965). The

Commentary to this Section emphasizes that

“[recklessness] must not only be unreasonable, but it

must involve a risk of harm to others substantially in

excess of that necessary to make the conduct

negligent.” Id., cmt. a. Further, as relied on in

Fitsko, the Commentary contrasts negligence and

recklessness:

Reckless misconduct differs from

negligence in several important

particulars. If differs from that form of

negligence which consists in mere

inadvertence, incompetence,

unskillfulness, or a failure to take

precautions to enable the actor

adequately to cope with a possible or

probable future emergency, in that

reckless misconduct requires a conscious

choice of a course of action, either with

knowledge of the serious danger to others

involved in it or with knowledge of facts

which would disclose this danger to any

reasonable man. . . . The difference

between reckless misconduct and conduct

involving only such a quantum of risk as

is necessary to make it negligent is a

difference in the degree of risk, but this

difference of degree is so marked as to

amount substantially to a difference in

kind.

Id., cmt. g; see also AMJUR Negligence § 274

(“Recklessness is more than ordinary negligence and

more than want of ordinary care; it is an extreme

departure from ordinary care, a wanton or heedless
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indifference to consequences, and indifference

whether or not wrong is done, and an indifference to

the rights of others”). Our criminal laws similarly

distinguish recklessness and negligence on the basis

of the consciousness of the action or inaction. See

18 Pa.C.S.A. § 302(b)(3), (4) (providing that a person

acts recklessly when he “consciously disregards a

substantial and unjustifiable risk,” while a person acts

negligently when he “should be aware of a substantial

and unjustifiable risk”).

This conceptualization of recklessness as requiring

conscious action or inaction not only distinguishes

recklessness from ordinary negligence, but aligns it

more closely with intentional conduct.

Tayar, 47 A.3d at 1200-1201.

Here, we find as a matter of law, that the record does not reflect gross

negligence or reckless conduct on the part of defendants. Specifically, we

agree with the trial court’s following conclusion:

[Appellants] aver that Defendants’ snow-making crew

created the “trenches” by operating an

all-terrain-vehicle across part of the ski-slope, rather

than entirely along the sides of the

slopes.[Footnote 7] While apparently against normal

maintenance policy and procedures and arguably

negligent, we do not believe these actions amount to

gross negligence or recklessness. Defendants’

employees were engaged in the normal and expected

process of maintaining the ski slopes and did so in a

careless fashion, producing a condition that—although

possibly dangerous—was not inherently unexpected

upon a ski slope. We view such conduct to be a matter

of “. . . mere inadvertence, incompetence,

unskillfulness, or a failure to take precautions” rather

than recklessness.

[Footnote 7] Defendants seemingly

concede the cause of the “trenches” and

Defendants’ employees conceded that
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such actions were improper in normal

slope maintenance process.

Trial court opinion, 5/24/17 at 8-9.

Accordingly, we find that defendants did not engage in grossly negligent

or reckless conduct, and that the Release provided by defendants and signed

by appellant is enforceable.

Order affirmed.

Bowes, J. joins this Opinion.

Stabile, J. concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/19/2018