J-A23018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CRYSTAL L. BALKOVEC IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

HIDDEN VALLEY FOUR SEASONS 

RESORT

Appellee No. 1816 WDA 2015

Appeal from the Order Dated October 13, 2015

In the Court of Common Pleas of Somerset County

Civil Division at No: 471 CIVIL 2015

BEFORE: LAZARUS, STABILE, and STRASSBURGER,*JJ. 

MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2017

Appellant Crystal L. Balkovec (“Balkovec”) appeals from the October 

13, 2015 order of the Court of Common Pleas of Somerset County (“trial 

court”), which sustained the preliminary objections of Appellee Hidden Valley 

Four Seasons Resort (“Four Seasons”) and dismissed Balkovec’s complaint. 

Upon review, we reverse and remand for further proceedings.

On August 5, 2015, Balkovec filed a complaint in negligence against 

Four Seasons, alleging that she visited a ski resort owned by Four Seasons 

on January 9, 2014. Balkovec further alleged that prior to that day, she 

“had never previously snow skied.” Balkovec’s Complaint, 8/5/15, at ¶ 19. 

Balkovec alleged that, upon completing six consecutive runs down the bunny 

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* Retired Senior Judge assigned to the Superior Court.
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slope, she successfully negotiated twice the next most difficult ski slope that 

Four Seasons had classified as “easy” and/or “for beginners.” Id. at ¶ 20. 

Thereafter, Balkovec alleged that she attempted to tackle the next difficult 

slope, called the “Lower Continental,” that Four Seasons also had classified 

as “easy” and/or “for beginners.” Id. at ¶¶ 21-22. While on the Lower 

Continental attempting her first run, Balkovec alleged that she suffered an 

accident at approximately 12:45 p.m. Id. at ¶ 23. Specifically, Balkovec 

alleged that while skiing down the Lower Continental, which was lined with 

trees on the left-hand side, “she observed a large opening between the trees 

she was passing and the next set of trees further down the slope.” Id. at 

¶ 24. Balkovec alleged that, drawing upon her experience with the first two 

slopes that she had successfully completed, “it appeared to her that she was 

required to ski to her left through the opening between the trees in order to 

remain on that third ski slope.” Id. at ¶ 25. She thus alleged that she 

was left to use her best judgment and essentially guess as to 

which way she should go, because [Four Seasons] had not 

erected any signage, fencing, barricades or warnings or 

otherwise made it clear as to which way the ski course was 

intended to go or that would have instructed skiers of all skill 

levels, but in particular novices and first-time skiers like 

[Balkovec], to not turn left . . ., but rather to continue straight 

down the slope.

Id. at ¶ 26. According to Balkovec’s complaint, 

[a]lmost immediately after [she] successfully negotiated the 

left[-]hand turn between the two sets of trees, she encountered 

a large, open ditch underneath the ski lift. . . . As soon as [her] 

skis hit the . . . ditch, she went airborne approximately 10 – 15 

feet down the slope and landed on her right hip and chest with 

her left leg twisted and pinned underneath her.
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Id. at ¶¶ 27-28. Balkovec sustained extensive injuries because of her fall. 

Id. at ¶¶ 29-37. 

Based on the foregoing allegations, Balkovec claimed that Four 

Seasons was negligent, inter alia, in failing to:

Make certain that [] skiers who[m] [Four Seasons] allowed to ski 

at its ski resort possessed all of the necessary knowledge, 

training and experience; post signs that would have warned 

skiers, including [Balkovec], that some of its ski courses were 

considered to be too dangerous for novices and first-timer 

skiers; restrict access to ski slopes that [Four Seasons] 

considered to be too dangerous for novices and first-time skiers; 

mark properly the course on which [Balkovec] was skiing [at] 

the time of her accident; [and] erect signage, fencing, barricades 

or warnings that would have indicated to [Balkovec] and other 

skiers that they should not turn left through the large opening in 

the two sets of trees that lined the left side of the slope[.]

Id. at ¶ 42.

On September 2, 2015, Four Seasons filed preliminary objections in 

the nature of a demurrer, claiming that Balkovec was barred under the 

Pennsylvania Skier’s Responsibility Act (the “Act”), 42 Pa.C.S.A. § 7102(c), 

because she had assumed the risk of downhill skiing. Four Seasons argued 

that Balkovec’s veering off course through a gap in trees was a risk inherent 

in the sport of downhill skiing. On October 5, 2015, the trial court held a 

hearing on Four Season’s preliminary objections to Balkovec’s complaint. On 

October 13, 2015, the trial court issued an order sustaining Four Seasons’ 

preliminary objections and dismissing Balkovec’s negligence suit. In a 

memorandum accompanying the order, the trial court concluded that Four 

Seasons did not owe Balkovec any duty and that Balkovec had assumed the 
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risk of downhill skiing that eventually resulted in her being injured. 

Specifically, the trial court reasoned:

In the instant case we understand that [Balkovec], a 

novice skier, on her first run down an unfamiliar slope, chose to 

proceed through an opening between trees on the left side of the 

slope, which decision caused her to encounter terrain which was

unsuitable for skiing. Regardless of experience or familiarity 

with a slope, an inherent risk of skiing is to encounter conditions 

unfavorable to skiing when because of obstructions (trees) 

blocking a clear view to the terrain ahead, one proceeds without

being able to stop upon realizing the danger ahead. It is 

axiomatic that even a beginning skier anticipates the ski 

conditions and terrain ahead as an element of the sport of 

skiing, and when the skier is “guessing” as to what lies ahead he 

is no longer anticipating based on what he can clearly see ahead.

Here, [Balkovec] could apparently not “see ahead” through 

the trees because she obviously left the trail without knowing 

where she was going and could not stop in time to avoid that 

which was obviously there. An inherent risk of downhill skiing is 

that one will be injured while blindly pursuing a course down the 

slope without seeing a suitable slope ahead. Indeed, beginning 

skiers often stop part of the way down a slope because they DO 

see ahead and anticipate their ability to stop or stay in control 

based on their ability.

. . . [U]nder the facts as pled, [Four Seasons] was under 

no duty to [Balkovec] because the risk of being injured from 

blindly pursuing a downhill course into unknown terrain was a 

risk inherent in the sport of downhill skiing.

Trial Court Memorandum, 10/13/15, at 4 (emphasis in original).

Balkovec timely appealed to this Court. Following her filing of a 

Pa.R.A.P. 1925(b) statement of errors complained of appeal, the trial court 

issued a Pa.R.A.P. 1925(a) opinion, wherein it adopted its October 13, 2015 

memorandum. 

On appeal, Balkovec raises three issues for our review, reproduced 

verbatim here:

[I.] Did the [t]rial [c]ourt commit an error of law and/or a clear 

abuse of discretion by considering matters outside the scope of 
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the pleadings and assuming facts which did not appear anywhere 

in [Balkovec’s c]omplaint in sustaining [Four Season’s] 

[p]reliminary [o]bjections?

[II.] Did the [t]rial [c]ourt commit an error or law and/or a clear 

abuse of discretion by failing to afford [Balkovec] an opportunity 

to amend her [c]omplaint and engage in discovery?

[III.] Did the [t]rial [c]ourt commit an error or law and/or a clear 

abuse of discretion by failing to consider case law cited by 

[Balkovec] in her [b]rief in [o]pposition to [Four Season’s] 

[p]reliminary [o]bjections which established that the 

aforementioned issues constitute questions of fact that a jury 

must decide?

Balkovec’s Brief at 9. 

We review a trial court’s order sustaining preliminary objections for an 

error of law and apply the same standard as the trial court. Richmond v. 

McHale, 35 A.3d 779, 783 (Pa. Super. 2012) (quotation omitted). 

A preliminary objection in the nature of a demurrer is 

properly [sustained] where the contested pleading is legally 

insufficient. Preliminary objections in the nature of a demurrer 

require the court to resolve the issues solely on the basis of the 

pleadings; no testimony or other evidence outside of the 

complaint may be considered to dispose of the legal issues 

presented by the demurrer. All material facts set forth in the 

pleading and all inferences reasonably deducible therefrom must 

be admitted as true.

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine the 

averments in the complaint, together with the documents and 

exhibits attached thereto, in order to evaluate the sufficiency of 

the facts averred. The impetus of our inquiry is to determine the 

legal sufficiency of the complaint and whether the pleading 

would permit recovery if ultimately proven. This Court will 

reverse the trial court’s decision regarding preliminary objections 

only where there has been an error of law or abuse of discretion. 

When sustaining the trial court’s ruling will result in the denial of 

claim or a dismissal of suit, preliminary objections will be 

sustained only where the case is free and clear of doubt.

Thus, the question presented by the demurrer is whether, 

on the facts averred, the law says with certainty that no 

recovery is possible. Where a doubt exists as to whether a 

demurrer should be sustained, this doubt should be resolved in 

favor of overruling it.
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Hill v. Slippery Rock Univ., 138 A.3d 673, 676–77 (Pa. Super. 2016). 

We first address Balkovec’s third issue, because we deem it to be 

dispositive of the appeal. Balkovec argues that the trial court erred in 

sustaining Four Seasons’ preliminary objections because, based on the 

complaint, it is unclear whether the gap in the trees was an inherent risk of 

downhill skiing or a design defect. We agree. 

The Act 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 

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.

(2) The doctrine of voluntary assumption of risk as it applies to 

downhill skiing injuries and damages is not modified by 

subsections (a) and (a.1).

42 Pa.C.S.A. § 7102(c).1 As the foregoing indicates, the Act explicitly 

preserved the common law assumption of risk defense as applied to injuries 

suffered while engaged in downhill skiing. Chepkevich, 2 A.3d at 1185. 

Our Supreme Court in Chepkevich explained:

Because the Act did not create a new or special defense for the 

exclusive use of ski resorts, but instead kept in place 

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1 The doctrine of assumption of risk largely has been superseded by the 

doctrine of comparative negligence as set forth in 42 Pa.C.S.A. § 7102(a)-

(b). The General Assembly, however, in Section 7102(c), specifically has 

retained the doctrine of assumption of risk with respect to the sport of 

downhill skiing. Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 

1176 n.3 (Pa. 2010). 
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longstanding principles of common law, a review of those 

principles is instructive. The assumption of the risk defense, as 

applied to sports and places of amusement, has also been 

described as a “no-duty” rule, i.e., as the principle that an owner 

or operator of a place of amusement has no duty to protect the 

user from any hazards inherent in the activity. See

RESTATEMENT (SECOND) OF TORTS, § 496A, CMTT c, 2 (where 

plaintiff has entered voluntarily into some relation with 

defendant which he knows to involve the risk, he is regarded as 

tacitly or impliedly agreeing to relieve defendant of 

responsibility, and to take his own chances); Hughes [v. 

Seven Springs Farm, Inc.], 762 A.2d [339, ] 343–44 [(Pa. 

2000)] (citing Jones v. Three Rivers Mgmt. Corp., 394 A.2d 

546 ([Pa.] 1978)). Our decision in Hughes made clear that this 

“no-duty” rule applies to the operators of ski resorts, so that ski 

resorts have no duty to protect skiers from risks that are 

“common, frequent, and expected,” and thus “inherent” to the 

sport of downhill skiing. Where there is no duty, there can be no 

negligence, and thus when inherent risks are involved, 

negligence principles are irrelevant—the Comparative Negligence 

Act is inapplicable—and there can be no recovery based on 

allegations of negligence. See, e.g., Althaus ex rel. Althaus 

v. Cohen, 756 A.2d 1166 ([Pa.] 2000) (primary element in any 

negligence cause of action is that defendant owes a duty of care 

to plaintiff).

Chepkevich, 2 A.3d at 1186.

In Hughes, our Supreme Court set forth a two-part test to determine 

whether a skier assumed the risk of a particular injury. A court first must 

determine whether a person “was engaged in the sport of downhill skiing at 

the time of her injury,” and second whether the injury occurred as a result of 

a risk inherent in the sport of skiing. Hughes, 762 A.2d at 344. As stated, 

to determine whether a risk is inherent to the sport of downhill skiing, a 

court must assess whether it is “common, frequent[,] and expected.” Id.; 

see Jones, 394 A.2d at 551 (noting where the risk is “common, frequent[,] 

and expected” in the sport of downhill skiing, no duty is owed). 

Additionally, the Court in Hughes observed:
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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. 

Id. (emphasis added). Thus, the Hughes Court declined to interpret the 

Act, “as well as the sport of downhill skiing, in an extremely narrow, 

hypertechnical and unrealistic manner.” Id. Indeed, the Chepkevich Court 

cautioned that “[i]t would frustrate the purpose of the Act were [the Court] 

to hold that it mandates a broad reading of the ‘sport of skiing,’ but 

simultaneously requires a narrow definition of what risks are ‘inherent’ to 

that sport.” Chepkevich, 2 A.3d at 1188. 

Instantly, based upon our review of Balkovec’s complaint, we are 

unable to agree with the trial court’s disposition of Four Seasons’ preliminary 

objections to Balkovec’s complaint. As we recounted above, Balkovec 

alleged that she encountered a large gap between the trees while on the 

Lower Continental. She seemingly was confused as to the direction of the 

slope. Balkovec alleged that “it appeared to her that she was required to ski 

to her left through the opening between the trees in order to remain on” the 

slope. Balkovec’s Complaint, 8/5/15, at ¶ 25. She veered left based on her 

best judgment arrived at in the absence of any signage, fencing, barricades 

or warnings by Four Seasons alerting skiers, especially first-time skiers like 

her, to proceed straight down the slope. Id. at ¶ 26. 
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Balkovec’s complaint, on its face, raises sufficient issues of fact that 

preclude dismissal of her action at this juncture. Specifically, it is unclear 

from the complaint whether Balkovec alleges that the gap between the trees 

was a risk inherent to the sport of downhill skiing or possibly a defect in the 

design of the slope not inherent in the sport.2 In other words, it is unclear 

whether a risk inherent in the sport of downhill skiing caused her accident 

and the resulting injuries. Accordingly, we are constrained to conclude that 

the trial court erred in sustaining Four Seasons’ preliminary objections to 

Balkovec’s complaint.3, 4 

Order reversed. Case remanded. Jurisdiction relinquished. 

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2 Although Balkovec does not use the term “design defect,” a complete 

reading of her complaint strongly indicates that she challenged the design of 

the slope with respect to lack of signage, fencing, barricades or warnings. 

3 We express no opinion as to the merits of Balkovec’s action. Our decision 

today holds only that it cannot be determined with any certainty on 

preliminary objections that Balkovec’s cause of action is barred by the 

assumption of risk doctrine as applied to downhill skiing. 

4 Because we dispose of the case based on Balkovec’s third issue, we need 

not discuss her remaining issues. We, however, note that the trial court’s 

findings that (1) a “beginning skier anticipates the ski conditions and 

terrain,” (2) Balkovec “obviously left the trail without knowing where she 

was going,” and (3) “beginning skiers often stop part of the way down a 

slope because they DO see ahead” are outside the averments in the 

complaint and therefore not properly for consideration on preliminary 

objections in the nature of a demurrer. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2017