J. A30039/17

                             2018 PA Super 89

PATRICK KIBLER AND KATHRYN       :            IN THE SUPERIOR COURT OF
KIBLER, HUSBAND AND WIFE,        :                  PENNSYLVANIA
                                 :
                    Appellants   :
                                 :
                v.               :
                                 :
BLUE KNOB RECREATION, INC.,      :
A PENNSYLVANIA CORPORATION,      :
T/D/B/A BLUE KNOB ALL SEASONS    :                 No. 903 WDA 2017
RESORT, AND BLUE KNOB RESORT,    :
INC., A PENNSYLVANIA CORPORATION :


                     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

1For clarity, we will refer to Mr. Kibler as “appellant” throughout this
memorandum.
J. A30039/17

          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




                                       -3-
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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?




                                    -4-
J. A30039/17

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.


                                      -5-
J. A30039/17

          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


                                  -6-
J. A30039/17

                  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.




                                     -7-
J. A30039/17

                  (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.


                                     -8-
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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.




                                       -9-
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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.


                                      - 10 -
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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.


                                     - 12 -
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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 8½ 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.


                                     - 13 -
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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.


                                     - 14 -
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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 Act 9]).
             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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J. A30039/17

                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




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