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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


*
    Retired Senior Judge assigned to the Superior Court.
J-A23018-16



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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J-A23018-16


      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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J-A23018-16


      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.




____________________________________________


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




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