                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 18-1769
                                     _____________

                                QUAN VU; MAY SIEW,
                                                 Appellants

                                             v.

    SKI LIBERTY OPERATING CORP., doing business as LIBERTY MOUNTAIN
                      RESORT; SNOW TIME, INC.
                            ____________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                (D.C. No. 1:16-cv-02170)
                         District Judge: Hon. John E. Jones, III

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  January 22, 2019

    Before: CHAGARES and BIBAS, Circuit Judges, and SÁNCHEZ, Chief District
                                 Judge+.

                                (Filed: February 12, 2019)

                                      ____________

                                        OPINION
                                      ____________




       +
         The Honorable Juan Sánchez, Chief United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       
         This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
CHAGARES, Circuit Judge.

       Appellants Quan Vu and his spouse, May Siew (collectively, “the plaintiffs”),

brought this action against the defendants, Ski Liberty Operating Corporation, d/b/a

Liberty Mountain Resort and Snow Time, Inc., for damages relating to injuries Vu

suffered while skiing at Liberty Mountain Resort. The defendants successfully moved

for summary judgment, and the plaintiffs now appeal. Because we conclude that the

plaintiffs’ cause of action is barred by the Pennsylvania Skier’s Responsibility Act, 42

Pa. Cons. Stat. § 7102(c) (“PSRA”), we will affirm.

                                               I.

       We write principally for the parties and therefore recite only those facts necessary

to our decision. On the evening of January 23, 2015, Vu was skiing down a trail at the

Liberty Mountain Resort in Pennsylvania. At some point, Vu encountered a

snowboarder, who “either cut [him] off or got awfully close” to him. Appendix (“App.”)

314. To avoid colliding with the snowboarder, Vu “had a knee-jerk reaction to veer,”

which led him toward the edge of the trail. Id. Vu skied over the edge, left the slope, and

landed among a pile of rocks. He suffered multiple serious injuries, which he alleges

were caused by his skiing over an unmarked, “artificial three to four-foot cliff at the

slope’s edge” that was created by “the Defendants’ snowmaking and snow grooming

practices.” Vu Br. 4.

       Vu’s daughter, who was skiing with him, testified that she did not see Vu ski off

of the slope, but she did find him laying off of the trail. She stated that to get to her

father, she had to exercise caution due to the height difference between the artificial snow

                                               2
and the natural terrain. She also testified that she had no “difficulty that evening

discerning the edge of the trail.” App. 74–75.

       Dawson Disotelle was also present on the slope and witnessed the incident. He

testified that he was snowboarding behind Vu and Vu’s daughter, and he saw that Vu’s

“skis went to the left and his body went with [them] and he just went straight off the run.”

App. 124–25. Thereafter, Disotelle attempted to render assistance to Vu, which required

Disotelle to “hop[] down” to where Vu was laying. App. 143. According to Disotelle,

the elevation change from the slope to where Vu landed was “[t]hree or four feet maybe,”

and “it wasn’t a challenge to get down there.” Id. Like Vu’s daughter, Disotelle testified

that he was able to “easily” distinguish the skiable trail from off trail. App. 129.

       The plaintiffs filed a two-count complaint in October 2016. The first count

alleged that the defendants were negligent for, among other things, failing to keep the

slope free from unsafe conditions, warn Vu of the dangerous condition, and erect a fence

or boundary marker to prevent skiers “from skiing over the edge and into the large rocks

below.” App. 902–03. In the second count, Siew alleged loss of consortium.

       The defendants moved for summary judgment, arguing in part that the plaintiffs’

action was barred because “skiing off trail and colliding into rocks . . . is an inherent risk”

of downhill skiing. App. 784. The District Court agreed and granted the motion. The

plaintiffs now appeal.

                                              II.

       The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332, and we

have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the grant of

                                              3
summary judgment, Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 268 (3d Cir. 2008),

and must ascertain whether the movant has “show[n] 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). A dispute is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party,” and a fact is material if it “might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). In conducting this analysis, we “view the facts in the light most

favorable to the non-moving party.” Bjorgung, 550 F.3d at 268.

                                              III.

       In this action based on diversity jurisdiction, we apply Pennsylvania law. See

Chamberlain v. Giampapa, 210 F.3d 154, 158 (3d Cir. 2000). The statute upon which

this case turns is the PSRA, which acknowledges that “there are inherent risks in the sport

of downhill skiing,” 42 Pa. Cons. Stat. § 7102(c)(1), and, for that reason, “preserves

assumption of risk as a defense to negligence suits stemming from downhill skiing

injuries,” Smith v. Seven Springs Farm, Inc., 716 F.2d 1002, 1007 (3d Cir. 1983).

       The PSRA establishes a “no-duty” rule for skiing injuries, relieving ski resorts of

the “duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus

‘inherent’ to the sport.” Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1186

(Pa. 2010). The no-duty rule applies in this context when: (1) the plaintiff was “engaged

in the sport of downhill skiing at the time of her injury”; and (2) the risk of the injury at

issue “is one of the ‘inherent risks’ of downhill skiing.” Hughes v. Seven Springs Farm,

Inc., 762 A.2d 339, 344 (Pa. 2000). When both prongs are met, summary judgment is

                                               4
warranted in favor of the ski resort “because, as a matter of law, [the plaintiff] cannot

recover for her injuries.” Id.

       The PSRA “is unusual in its brevity and failure to give any definition of an

‘inherent’ risk of skiing,” Chepkevich, 2 A.3d at 1188 n.15, so we turn to caselaw for

guidance. The Pennsylvania Supreme Court has identified collisions with other skiers,

“snow and ice, elevation, contour, speed and weather conditions,” Hughes, 762 A.2d at

344, and falling from a ski lift, Chepkevich, 2 A.3d at 1188, as inherent risks. It has also

instructed other courts to adopt “a practical and logical interpretation of what risks are

inherent to the sport,” id. at 1187–88, and explained that invocation of the PSRA does not

require proof that the injured skier assumed the “specific risk” that caused injury — only

that the injury arose from a “general risk” inherent to the sport, id. at 1188.

       Applying this guidance, we conclude that the plaintiffs’ action is barred by the

PSRA. The plaintiffs do not dispute that the first prong — “engaged in the sport of

downhill skiing,” Hughes, 762 A.2d at 344 — is met. Only the “inherent risk” prong is at

issue on appeal, and it is also satisfied.

       The risk identified by the plaintiffs as causing Vu’s injuries is skiing off of a trail

edge that was three to four feet above the natural terrain, which we conclude is inherent

to the sport of downhill skiing.1 Cf. Smith-Wille v. Ski Shawnee, Inc., 35 Pa. D. & C.

5th 473, 475, 484 (Pa. Ct. Com. Pl. 2014) (holding, where a skier was injured after losing



       1
        To the extent that the plaintiffs allege that Vu’s injuries resulted from his attempt
to avoid a collision with a snowboarder, we conclude that that risk is also inherent to
downhill skiing. See Hughes, 762 A.2d at 345.
                                               5
control on an icy slope and crashing into a fence running along the edge of a ski trail, that

“[t]he edge of the ski slope . . . [is an] inherent risk[] of skiing,” as is “[s]triking a

protective fence designating and protecting skiers from the edge of the trail”). Not only

does this risk appear to fall under the umbrella of elevation or contour (or both), which

have been identified by Pennsylvania courts as inherent risks, Hughes, 762 A.2d at 344,

but also other courts have recognized the more general risk of skiing off a trail as inherent

to downhill skiing, see Nutbrown v. Mount Cranmore, Inc., 671 A.2d 548, 553 (N.H.

1996) (holding that when “the chief cause of [the plaintiff’s] injuries” was the

“quintessential risk . . . that a skier might lose control and ski off the trail,” he “may not

recover against a ski area operator for resulting injuries”); cf. Bjorgung, 550 F.3d at 265,

269 (holding that the PSRA barred a competitive skier’s cause of action where he was

injured after he skied into the woods off of a trail because the failure to set safety netting

or “fix a race course in a way that minimizes the potential for the competitors to lose

control” were inherent risks of ski racing).

       Given “the clear legislative intent to preserve the assumption of the risk doctrine

in this particular area, as well as the broad wording of the Act itself,” the District Court

correctly concluded that skiing over a slope edge and leaving the trail is an inherent risk

of downhill skiing from which the defendants had no duty to protect Vu. Chepkevich, 2

A.3d at 1187. That is particularly true because Vu — who had been skiing for more than

twenty years as of January 2015 and could ski black diamond, or the “most difficult,”

slopes, App. 908, 1025 — acknowledges “that downhill skiing is a dangerous, risk sport”

and “that if he skied off trail, he could encounter trees[ and] rocks,” App. 909, 911, 1025,

                                                 6
1027, and because Vu’s daughter and Disotelle both testified that they had no trouble

discerning the slope edge, and on trail from off trail, on January 23, 2015.

       The plaintiffs unsuccessfully make four related arguments, which we briefly

address. To begin, they make much of the fact that the elevation difference between the

slope edge and the natural terrain “was not a naturally occurring condition” but rather the

result of the defendants’ grooming or making artificial snow. Vu Br. 5. This distinction

is of no import for two reasons. First, the PSRA is concerned with the general, not the

specific, risk that allegedly caused injury. Chepkevich, 2 A.3d at 1188. The general risk

at issue is skiing over a slope edge (natural or not) and encountering off-trail conditions.

Second, the PSRA bars recovery not only for injuries due to naturally occurring

conditions, but also for injuries due to any “common, frequent, and expected” risk. Id. at

1186. Indeed, it has been invoked to preclude actions relating to PVC piping on a fence,

Smith-Wille, 35 Pa. D. & C. 5th at 484, snowmaking equipment, Glasser v. Seven

Springs Mountain Resort, 6 Pa. D. & C. 5th 25, 29 (Pa. Ct. Com. Pl. 2008), aff’d, 986

A.2d 1290 (Pa. Super. Ct. 2009), a ski lift, Chepkevich, 2 A.3d at 1188, and “wheel ruts

on a ski slope created by an ATV,” Kibler v. Blue Knob Recreation, Inc., 184 A.3d 974,

980–81 (Pa. Super. Ct. 2018). Although none of those causes of injury are naturally

occurring conditions, they were all found to be inherent risks of downhill skiing.

       Second, the plaintiffs contend that the “unguarded existence” of this slope made of

artificial snow “is a deviation from the standard of care in the skiing industry,” apparently

attempting to invoke the exception to the no-duty rule explained in Jones v. Three Rivers

Management Corp., 394 A.2d 546 (Pa. 1978). Vu Br. 14. Pursuant to Jones, although

                                              7
sports facilities and amusement parks have no duty to protect against inherent risks, a

plaintiff may recover from one such establishment for injury caused by an inherent risk if

she “introduces adequate evidence that the amusement facility . . . deviated in some

relevant respect from established custom.” Jones, 394 A.2d at 550–51. The plaintiffs

have not provided support for this assertion beyond their expert’s report,2 which does not

clearly identify any industry standard from which the defendants are supposed to have

deviated, but instead merely asserts that they violated generally accepted practices within

the industry.3

       Third, the plaintiffs seem to assert that the District Court improperly resolved a

disputed issue of material fact in the defendants’ favor because reasonable jurors could

disagree whether a slope edge with a three to four-foot elevation difference is an inherent

risk. We reject this argument because the record citation provided does not support the

plaintiffs’ contention, and the cases upon which the plaintiffs rely are inapposite, one

involving the application of Vermont law and the other (predating Hughes and

Chepkevich) applying a no-duty standard different from the standard espoused in those

two cases.




       2
        The defendants argue that the expert report is unsworn and therefore may not be
considered on a motion for summary judgment. Given our conclusion, we need not
address this contention.
      3
        The plaintiffs also point to evidence of “other skiers being injured at [Liberty
Mountain Resort] in the exact same manner” on other slopes during previous seasons.
Vu Br. 11–12. Such evidence does not identify any industry custom or Liberty Mountain
Resort’s deviation from it.
                                             8
       Fourth, the plaintiffs also contend that the legislative intent behind the PSRA

could not have been to encourage “the creation of artificial, Defendant-made ‘cliffs’

along . . . trail edges.” Vu Br. 6. For all of the reasons already discussed, we reject this

argument as well.

       In sum, we conclude that the plaintiffs’ injuries were caused by risks inherent to

downhill skiing, satisfying the second prong of the Hughes test. Because it is undisputed

that Vu was “engaged in the sport of downhill skiing at the time of [his] injur[ies],” the

first prong is also met, such that summary judgment in favor of the defendants was

properly granted. Hughes, 762 A.2d at 344.

                                             IV.

       For the aforementioned reasons, we will affirm the judgment of the District Court.




                                              9
