IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

KATHERINE BIRL, as parent and : 

natural guardian of G.B, a minor, and : Civ. No. 3:22-CV-1598 

in her own right, et al., : 

 : 

 Plaintiffs, : 

 : 

v. : (Chief Magistrate Judge Bloom) 

 : 

SKI SHAWNEE, INC., : 

 : 

Defendant. : 

 

MEMORANDUM OPINION 

 

I. Introduction 

This case is before us on a motion for summary judgment filed by 

the defendant, Ski Shawnee, Inc. (“Shawnee”). (Doc. 46). The action was 

initiated by Katherine and Damian Birl on behalf of their minor child, 

G.B. (Doc. 26). G.B. suffered severe injuries in a snowboarding accident 

at Shawnee Mountain, a ski resort operated by Shawnee. (Id.). The Birls 

contend the accident was a result of Shawnee’s negligence. (Id.). 

Shawnee has moved for summary judgment on the grounds that the 

action is barred by the Skier’s Responsibility Act (“SRA”), codified at 43 

Pa. Cons. Stat. Ann. § 7102(c). For the following reasons, we will grant 

the motion. 

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II. Background 

On January 12, 2021, G.B., a minor child, crashed into a light pole 

while snowboarding at Shawnee Mountain. (Doc. 26 ¶ 1). G.B. went to 

Shawnee Mountain with his older brother, Collin Birl. (Id. ¶¶ 19-20). 

They arrived around 10:00 a.m., with their own snowboards and gear, 

and completed two or three runs without incident. (Id. ¶¶ 38, 39, 46). 

They next rode down the “Lower Delaware” trail, which includes a terrain 

park. (Id. ¶ 48). A terrain park is a type of ski run where items such as 

jumps, kickers, bumps, and moguls are present on the trail so that riders 

may use them to undertake stunts, tricks, and jumps. (Id. ¶¶ 43-44). 

G.B. went over one of these jumps and crashed into a light pole located 

amongst the trees along the side of the trail. (Id. ¶ 51). No barriers, nets, 

or pads protected the pole, and no sign warned of its presence. (Id. ¶ 64). 

G.B. has no memory of the events starting from the time he prepared to 

take the second of two sequential jumps until he woke up post-collision. 

(Doc. 51 ¶¶ 62, 63). 

G.B.’s resulting injuries were myriad and significant, including, 

inter alia, fractures to his spine and severe spinal cord injuries. (Doc. 26

¶¶ 59, 70). He underwent emergency surgery that same day at Lehigh 

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Valley Hospital-Cedar Crest, where they performed a spinal 

laminectomy, bilateral spinal fusion, repair of four rib fractures, 

evacuation of an epidural hematoma and decompression of his spinal 

cord. (Id.). He remained in the hospital for nine days. (Id. ¶ 60). G.B. 

next underwent intensive inpatient rehabilitation for three months. (Id. 

¶ 61). Despite treatment, G.B. is paralyzed from the chest down, cannot 

walk, and has no sensation in his lower extremities. (Id. ¶ 63). 

G.B., by and through his parents, sued Shawnee, initially alleging 

negligence and negligent infliction of emotional distress. (Doc. 1). After 

Shawnee filed a motion to dismiss (doc. 19), the plaintiffs amended their 

complaint, dropping the negligent infliction of emotional distress claim 

and pursuing a single claim of negligence. (Doc. 26 ¶¶ 72-82). Shawnee 

raised eight affirmative defenses in response, including that this claim is 

barred by the SRA. (Doc. 29 at 14-15). 

On September 12, 2024, Shawnee filed a motion for summary 

judgment, arguing that the undisputed material facts entitle them to 

judgment under the SRA. (Doc. 46). The motion is now fully briefed 

(Docs. 47, 50, 51, 52, 55, 56) and ripe for resolution. 

After consideration, we will grant the motion. 

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III. Discussion 

 

A. Motion for Summary Judgment – Standard of Review 

The defendant has filed a motion for summary judgment pursuant 

to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) provides 

that a court shall grant summary judgment “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. 56(a). The 

materiality of the facts will depend on the substantive law. Anderson v. 

Liberty Lobby, 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts 

that might affect the outcome of the suit under governing law” will 

preclude summary judgment. Id. A dispute is only genuine if a 

reasonable juror could find in favor of the nonmoving party. Id. 

The moving party bears the initial burden to “demonstrate the 

absence of a genuine issue of material fact,” relying on pleadings, 

depositions, affidavits, and other evidence in the record. Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). If the movant “successfully points to 

evidence of all of the facts needed to decide the case on the law,” the 

nonmovant can still defeat summary judgment by pointing to evidence in 

the record which creates a genuine dispute of material fact and from 

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which a jury could find in its favor. El v. Southeastern Pennsylvania 

Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007). However, “[i]f 

the evidence is merely colorable, or is not significantly probative, 

summary judgment may be granted.” Anderson, 477 U.S. at 249-50 

(citations omitted). A court may not make credibility determinations or 

weigh the evidence, but “must view the facts in the light most favorable 

to the non-moving party.” Hugh v. Butler County Family YMCA, 418 

F.3d 265, 267 (3d Cir. 2005). 

B. The Defendant’s Motion for Summary Judgment will be Granted. 

The parties submit, and we agree, that diversity jurisdiction applies 

here. See 28 U.S.C. § 1332. When sitting in diversity, this court is 

obligated to apply the law of the forum state. Erie Railroad Co. v. 

Tompkins, 304 U.S. 64, 78 (1938). It is uncontested by the parties that 

Pennsylvania state law applies. While Pennsylvania typically applies 

the doctrine of comparative negligence to tort claims, the Pennsylvania 

legislature passed the SRA specifically and solely to retain the 

“assumption of risk” defense with regards to lawsuits involving the sport 

of downhill skiing. 42 Pa. Cons. Stat. Ann. § 7102(c). The SRA’s brief 

text has no other effect except to exempt defendants in cases related to 

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downhill skiing from other statutory text that prohibits the “assumption 

of risk” defense in most non-skiing situations. Id. 

In Hughes v. Seven Springs Farms, the Pennsylvania Supreme 

Court developed a straightforward test for determining if the SRA 

applies. The Hughes test applies the SRA where: (1) the plaintiff was 

engaged in the sport of downhill skiing at the time, and (2) the injury 

arose “out of a risk inherent to the sport of skiing.” Hughes v. Seven 

Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). The Hughes court 

explained that for a risk to be inherent, it must be “common, frequent, 

and expected.” Id., at 345. In a later case, the court explained that the 

key consideration is not if the plaintiff has assumed the specific risk 

involved, but rather, if the damages arise out of a general risk inherent 

to the sport. Chepkevich v. Hidden Valley Resort, 2 A.3d 1174, 1188 (Pa. 

2010). 

Courts applying Hughes often find the question of inherent risk to 

be outcome determinative. Compare Savarese v. Camelback Ski Corp., 

417 F. Supp. 2d 663 (M.D. Pa 2005) (holding that falling during loading 

onto an improperly folded ski lift seat was a risk inherent to skiing) with 

Crews v. Seven Springs Mountain Resort, 874 A.2d 100 (Pa. Super. Ct. 

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2005) (holding that the risk of colliding with a drunk underage 

snowboarder was not a risk inherent to skiing). Where both elements of 

Hughes are met, “summary judgment is appropriate because, as a matter 

of law, the Defendant would have had no duty” to the plaintiffs. Barillari 

v. Ski Shawnee, Inc., 986 F.Supp.2d 555, 560 (M.D. Pa. 2013). 

As a threshold matter, the SRA has been held to apply to 

snowboarding as well as skiing. See e.g., Ashmen v. Big Boulder 

Corporation, 322 F.Supp.3d 593 (M.D. Pa. 2018) (applying the Hughes

test to a snowboarder). The parties do not dispute that G.B. was 

snowboarding at the time and that Hughes and the SRA apply here. (See 

Generally Docs. 50, 51). Since the first element of Hughes is not at issue, 

the sole question for our consideration is if the risk that was assumed 

here is one that is inherent to the sport. The plaintiffs characterize the 

risk as something like a risk that a terrain park’s design will position a 

rider directly off trail. The defendant’s characterization is more general, 

arguing that the risk is one of losing control and colliding with an off-trail 

obstacle. 

We reiterate that when applying Hughes, “courts have rejected 

attempts by plaintiffs to define the injury producing risks in [a very] 

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specific and narrow manner.” Cole v. Camelback Mountain Ski Resort, 

2017 WL 4621786, at *4 (M.D. Pa. 2017). Yet courts assessing these 

claims often reference the context of the specific skier to determine what 

risks are inherent, a sensible approach given the SRA’s relationship to 

the common law doctrine of assumption of the risk. See Bjorgung v. 

Whitetail Resort, LP, 550 F.3d 263, 269 (3d Cir. 2008) (finding that the 

fact that the plaintiff was engaged in high speed ski racing was relevant 

to the determination of inherent risk, and ultimately holding that the 

“cognizable risks inherent in ski racing are legion.”); Burke v. Ski 

America, Inc., 940 F.2d 95 (4th Cir. 1991) (held that colliding with ontrail rocks and trees was an inherent danger of skiing double black 

diamond slopes); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d 

Cir. 1983) (plaintiff skier’s choice to go down an expert trail he saw others 

struggle with influenced what risks were inherent). Accordingly, while 

it is clear under Hughes that we should not consider if the plaintiff 

assumed any “specific risk,” it is equally clear that the risks that are 

inherent depend, at least in part, on the context of the plaintiff’s skiing. 

The relevant risks are not limited to those inherent to skiing generally, 

but to the type of skiing that the plaintiff undertook. 

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Bjorgung is instructive here. The plaintiff in that case made two 

factual arguments similar to those made by the plaintiffs here: that a 

lack of proper safety netting, and a course plotting which directed skiers 

towards the edge of the trail, made the off-trail crash outside the inherent 

risks of skiing. Bjorgung, 550 F.3d at 269. The Court found those risks 

were “altogether inherent in the activity undertaken by plaintiff.” Id. 

The Court emphasized that the activity was not merely downhill skiing, 

but downhill ski racing, which influenced which risks could be deemed 

inherent or not. Id. (“The cognizable risks inherent in ski racing are 

legion.”) (emphasis added). Here, the parties agree that G.B. was 

snowboarding in a terrain park, and that jumping and other snowboard 

tricks are performed in such a park. (Doc. 26 ¶ 43; Doc. 29 ¶ 43). Thus, 

the question before us is whether this crash was caused by risks inherent 

to terrain park snowboarding. 

The plaintiffs’ argument mimics Bjorgung in that it asks us to find 

that the man-made conditions of the mountain were such that they 

created risks not inherent to the snowboarding activities. Were the 

plaintiffs able to make a showing that G.B. remained in control after 

performing the jump in question and that despite retention of control he 

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had no chance to avoid the light pole, because the jump necessarily put 

him on an unavoidable path to collision, we might be persuaded to 

characterize the risk as plaintiffs have here. But, besides the fact that 

this is arguably the type of specific and narrow risk that Hughes instructs 

us not to consider, the undisputed facts of the case do not support such a 

characterization. Rather, the undisputed material facts are that G.B. 

lost control of his snowboard. 

While the plaintiffs now assert that “G.B. was always in control” of 

his snowboard (Doc. 50 at 19; Doc. 55 at 2), the plaintiffs’ own 

allegations—that “. . . G.B lost control and violently crashed . . .” and that 

“. . . G.B. was caused to lose control . . .”—contradict such an assertion. 

(Doc. 26 ¶¶ 49, 51). See Parilla v. IAP Worldwide Serv., VI, Inc., 368 F.3d 

269, 275 (3d Cir. 2004) (quoting Keller v. United States, 58 F.3d 1194, 

1198 n.8 (7th Cir. 1995) (“Judicial admissions are formal concessions in 

the pleadings . . . that are binding upon the party making them.”)). Even 

if the plaintiffs were not bound by the admissions set forth their 

complaint, it is clear G.B. does not remember the critical moments before 

the crash, so it is impossible for the plaintiffs to establish he was “always 

in control,” and accepting that he was, even for the purposes of summary 

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judgment, is therefore not a reasonable inference for us to make. 

Further, the plaintiffs’ other filings seem to belie the assertion that he 

had control. (See Doc. 55 at 4 (“When G.B. went over the second jump . . 

. he was not afforded an opportunity to regain his composure and balance 

. . .”)). In sum, there is no genuine dispute that G.B. lost control. 

Even accepting the plaintiffs’ version of events—that the course 

“caused” G.B.’s loss of control, and ultimately, his collision with an offtrail obstacle—we conclude that this risk is inherent to the activity 

undertaken by G.B.: snowboarding in a terrain park. Decisions within 

this circuit comport with this finding. See e.g., Bjorgung, 550 F.3d at 265, 

269 (finding that skiing off trail during a slalom race and striking a tree 

was a risk inherent to skiing); Smith, 716 F.2d at 1004-05, 1009 (holding 

that a skier who lost control on an icy slope and collided with an 

unpadded pole assumed the risk); see also Cole, 2017 WL 4621786, at *4 

(“Accidentally striking an object while skiing down a slope is 

unquestionably a common, frequent, and expected risk in the sport of 

downhill skiing. Indeed, if such a risk was not inherent in the sport, one 

could hardly imagine what risks would be inherent.”). 

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Snowboarding is a dangerous activity. Riding a snowboard in a 

terrain park to perform tricks and jumps increases the risk of that 

activity. Even accepting that the design of the park itself caused G.B. to 

lose control, it does not follow that the risk of losing control was not 

inherent to the activity. When one jumps their snowboard off terrain 

park features, they may lose control, and the resulting fall or collision 

can result in tragic, catastrophic injuries, as it did here. These are the 

risks assumed by a terrain park snowboarder, and we find they are 

inherent to that activity. 

The undisputed material facts1 of the case lead us to the conclusion 

that the SRA applies and absolves defendants of any duty owed to G.B., 

and with it any liability for these injuries. Accordingly, Shawnee is 

entitled to judgment as a matter of law, and their motion for summary 

judgment will be granted. 

1 We note that the parties have disagreements about many facts in this 

case, but because the SRA has only two elements, only facts relevant to 

those elements are material to this motion. The parties’ subjective 

opinions about how well designed or maintained the course was, if it was 

up to certain national standards, or what G.B. did or did not ascertain 

about the course as he rode it, etc., are immaterial to the SRA, and so to 

this motion. 

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IV. Conclusion 

 For the foregoing reasons, the defendants’ motion for summary 

judgment (Doc. 46) will be GRANTED. 

 An appropriate order follows. 

 s/ Daryl F. Bloom 

Daryl F. Bloom 

Chief United States Magistrate Judge 

Dated: January 6, 2025 

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