J-A32028-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

RAY M. BOURGEOIS AND MARY ANN I.            :     IN THE SUPERIOR COURT OF
BOURGEOIS,                                  :           PENNSYLVANIA
                                            :
                   Appellants               :
                                            :
                      v.                    :
                                            :
SNOW TIME, INC. AND SKI ROUNDTOP            :
OPERATING CORPORATION,                      :     No. 1086 MDA 2017

                   Appellees

                 Appeal from the Order Entered June 19, 2017
                 in the Court of Common Pleas of York County
                  Civil Division at No(s): 2015-SU-001900-71

BEFORE:      OTT, DUBOW, and STRASSBURGER,* JJ.

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                            FILED AUGUST 14, 2018

      In this case, the learned Majority holds that the trial court correctly

concluded that Appellants could not establish a claim for recklessness or

gross negligence as a matter of law at the summary judgment stage.1


1
   Although Appellants also alleged ordinary negligence, the trial court
determined that the release on the back of the season pass purchased by
Appellants barred any ordinary negligence claims.             Trial Court Order
Granting Summary Judgment, 6/19/2017, at 4-13. Citing to Tayar v.
Camelback Ski Corp., Inc., 47 A.3d 1190 (Pa. 2012) (holding that pre-
injury releases of liability for reckless behavior are against public policy), the
trial court held that the release in this case did not bar Appellants’ claims for
recklessness. Trial Court Order Granting Summary Judgment, 6/19/2017, at
14. It declined to address whether Appellants could release Appellees from
liability for gross negligence, stating that even if they could not, the
Appellants did not meet their burden of establishing gross negligence. Id. at
22. See Tayar, 47 A.3d at 1199 n.7 (leaving for another day the question
(Footnote Continued Next Page)

*Retired Senior Judge assigned to the Superior Court.
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Because I believe a reasonable jury could find that the facts constitute gross

negligence and/or recklessness, I respectfully dissent.      See Albright v.

Abington Mem’l Hosp., 696 A.2d 1159, 1164 (Pa. 1997) (holding that a

court may only take issue of gross negligence away from 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”).

      This case stems from an incident that occurred while Appellant Ray

Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the

Resort), which is owned and operated by Appellees.       As described by the

trial court, Bourgeois

      went down the hill on his stomach, [head first] on his tube, and
      proceeded to reach the run-out area at the bottom of the hill.
      To aid snow tubers in slowing down and stopping at the bottom
      of the hill, [Appellees] utilized deceleration mats. On his final
      run, [Bourgeois’s] snow tube came into contact with a
      deceleration mat, causing his tube to come to an abrupt stop.
      [Bourgeois’s] body continued forward in motion after his tube
      stopped, causing him to land [head first] into the snow. The
      resulting collision caused a hyperextension of [Bourgeois’s]
      spinal cord in his neck that has left him quadriplegic with limited
      mobility from his neck down.




(Footnote Continued)   _______________________

of whether a release for gross negligence could withstand a public policy
challenge). The only challenge Appellants present regarding the release on
appeal relates to whether it applies to Appellee Snow Time, Inc. See
Appellants’ Brief at 5-7.



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J-A32023-17


Trial Court Order Granting Summary Judgment,2 6/19/2017, at 2-3.

      What the trial court refers to as “deceleration mats” are actually

rubber anti-fatigue mats commonly used as a walking surface in commercial

kitchens.   Spahr Deposition, 7/14/2016, at 25; Weeden Deposition,

7/20/2016, at 64-65; Whitcomb Deposition, 9/1/2016, at 95-96. The Resort

inherited some of the mats from another resort.        Whitcomb Deposition,

9/1/2016, at 96.   When the Resort needed additional mats, Matt Weeden,

the manager of the tubing park at the Resort, testified that he attempted to

match the mats in use and “asked [the Resort’s] food and beverage guy

where he got his and basically shopped around and compared the mats and

figured out exactly what they were and ordered them.” Weeden Deposition,

7/20/2016, at 65. The mats are not specifically designed for snow tubing.

Id. Appellees used the mats to assist the snow tube rider to slow down at

the bottom of the hill and to minimize collisions between a snow tube and

people walking around at the bottom of the hill.        Reichert Deposition,

7/13/2016, at 34-35; Whitcomb Deposition, 9/1/2016, at 81, 89.

      The vinyl snow tubes used by the Resort have a written warning

stating that the product is designed to be used on hills with no obstacles

with adequate room to stop.     Appellants’ Brief in Opposition to Motion for

Summary Judgment, 3/16/2017, at Exhibit E.        Appellees never conducted


2The trial court labeled this 24 page document an Order, but it is actually an
Order and Opinion.


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J-A32023-17


any studies as to the effect of a vinyl tube encountering a rubber mat.

Whitcomb Deposition, 9/1/2016, at 96. In 2004, Appellees added elevation

to the snow-tubing hill in order to create a more fun experience for their

customers. Whitcomb Deposition, 9/1/2016, at 53-54. When they did so,

they extended the runout “a little bit,” because making the hill higher

resulted in the riders traveling faster down the hill and a farther distance at

the bottom. Id. at 54-56.

        Two of the safeties3 testified that they are aware that the speed that

riders travel depends on various factors, including weather conditions, the

time of day, and the number of people going down a slope at a time. For

example, riders went faster when it was colder.            Spahr Deposition,

7/14/2016, at 34; Reichert Deposition, 7/13/2016, at 35-37. Nevertheless,

the Resort did not measure speed other than by observation. The safeties

and tubing supervisors determined when and how to use the mats

depending on their observations of how the lanes were running, the speed

riders were moving, and where the tubes were stopping, but there were no

formal policies or procedures about when and how to use the mats. Reichert

Deposition, 7/13/2016, at 35-38, 45; Whitcomb Deposition, 9/1/2016, at

98. The mats sometimes lay flat; sometimes they were folded. One of the

tubing safeties observed that folded mats usually slowed down the rider



3
    Safeties are employees who monitor the snow tube course.


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J-A32023-17


more than flat mats due to an increase in friction.       Reichert Deposition,

7/13/2016, at 36.

      Appellants obtained the opinions of two experts. The first, Mark A. Di

Nola, is an expert in ski and snow tubing risk management.        The second,

Gordon Moskowitz, Ph.D., is a an expert in mechanical and biomechanical

engineering.

      Di Nola opined that Bourgeois was severely injured as a direct result of

Appellees’ deliberate actions, which include the following:

      [1.] [Appellees’] conscious decision to employ an operationally
      reckless company policy mandating the deployment of
      deliberately placed folded anti-fatigue rubber mats at the bottom
      of the tubing hill as deceleration devices with explicit knowledge
      that the deliberately deployed folded anti-fatigue rubber mats
      were not designed or tested for use as deceleration devices[.]

      [2.] [Appellees’] conscious decision to attempt to transfer the
      increased risks to their guests rather than make the tubing
      experience safer for consumers by eliminating the increased risk
      as they did only after [Bourgeois’s] tragic incident, placing their
      corporate financial needs over the needs of their guests.

      [3.] [Appellees] consciously deployed snow tubes and provided
      them to their patrons in a manner that directly violated the
      manufacturer’s warning label by using the tubes on hill with
      deliberately placed obstacles that were set out in an attempt to
      offset the fact that the hill did not provide adequate room to
      stop.

      [4.] [Appellees’] conscious decisions described above increased
      the risk of serious bodily injury to riders over and above those
      inherent in the activity of snow tubing in the Commonwealth of
      Pennsylvania.

      [5.] [Appellees’] conscious decisions increased the risk of serious
      injury to riders over and above those inherent in the activity of


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J-A32023-17


     snow tubing in the Commonwealth of Pennsylvania and
     constitute an extreme departure from the ordinary standards of
     conduct for a ski area in the Commonwealth of Pennsylvania.

     [6.] [Appellees’] conscious decisions increased the risk of serious
     injury to riders over and above those inherent in the activity of
     snow tubing in the Commonwealth of Pennsylvania and are a
     proximate cause of [Bourgeois’s] injuries.

Di Nola Report, 3/15/2017, at 41-42.

     Moskowitz opined, inter alia, that

                                     ***

     2. The use of folded anti-fatigue mats as a deceleration device
     would expose tube riders to the likelihood of their tube
     encountering a sudden abrupt stop, particularly when the mats
     were folded with the ‘nubs’ exposed to the surface of the tube.

     3. The stopping effect of a tube encountering a folded anti-
     fatigue mat with nubs exposed should have been readily
     apparent to [Appellees] well before [Bourgeois’s] accident of
     February 17, 2013.

     4. Tube riders who travelled head [] first (on their stomachs) on
     ‘fast’ days would be subject to a greater risk of suffering injuries
     similar to those experienced by [] Bourgeois.

                                     ***

     6. Arranging the mats in a folded position enhances the risk of a
     sudden tube stop.

     7.   The variations in weather … would have resulted in
     [Bourgeois’s] tubing experience being significantly faster at or
     around 3:00 p.m. when his accident occurred than [on
     Bourgeois’s previous runs down the hill].

Moskowitz Report, 3/14/2017, at 20.        Moskowitz also opined that

Appellees



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J-A32023-17


      knew or should have known that tubers traveling at a high rate
      of speed would find their tube brought to an abrupt stop when it
      encountered a folded mat, with that risk increasing further when
      the mat was folded with the nubs exposed to the bottom of the
      tube. Analysis indicates that a tube and rider in the prone
      position with [Bourgeois’s] physical measurements, facing
      forward and traveling at approximately 15 mph would enter into
      a flipping motion upon contact with a folded mat due to the
      resulting friction and the fold. [B]ased upon the known weather
      conditions and [Bourgeois’s] weight, his speed at the point of
      encountering the folded mat was well in excess of this speed.

Id. at 16.

      After discovery closed, Appellees moved for summary judgment,

arguing, inter alia, that Appellants failed to support claims for reckless

conduct, because Appellants used the mats in a matter customary to the

industry without incident up until the incident.         Appellees’ Motion for

Summary Judgment, 2/14/2017, at ¶¶ 28-41; Appellees’ Memorandum of

Law in Support of Motion for Summary Judgment, 2/14/2017, at 17-20

(pagination supplied).    Appellees later argued that the record also did not

support a claim of gross negligence.      Appellees’ Reply Brief in Support of

Motion for Summary Judgment, 3/31/2017, at 24. Appellees contended that

Appellants’   expert,    Moskowitz,   attributed   Bourgeois’s   injuries   to   a

“confluence of … interlinked events” and thus, Appellees would have no way

of knowing or any reason to have known such events could have arisen to

cause harm.     Id.     Appellants opposed Appellees’ motion for summary

judgment by presenting the evidence referenced supra.




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J-A32023-17


      As the Majority recounts, the trial court stated the following regarding

its determination that Appellants failed to set forth evidence support their

claims of gross negligence and recklessness:

      [Appellants] have not produced sufficient evidence to show that
      an industry standard exists for placing the mats at the bottom of
      hills for snow tubers. … The absence of any standard on the
      record makes it difficult for the [c]ourt to find that [Appellees]
      knew that their conduct of using deceleration mats to stop snow
      tubers in the runout area would be placing [Bourgeois] at a
      higher unreasonable risk of harm than if [Appellees] had placed
      mats in a different manner, selected to purchase a different kind
      of mat, or used a different method for stopping the snow tubers.

Trial Court Order Granting Summary Judgment, 6/19/17, at 18-19.

      The trial court further found no evidence that Appellees “knew or had

reason to know that folding the mats created an unreasonable risk of

physical harm.”    Id. at 19.    See also id. at 22-23 (discussing gross

negligence).

      Noticeably absent from the trial court’s discussion is any mention of

Appellants’ expert reports. “At the summary judgment stage, a trial court is

required to take all facts of record, and all reasonable inferences therefrom,

in a light most favorable to the non-moving party.”     Greely v. W. Penn

Power Co., 156 A.3d 276, 282-84 (Pa. Super. 2017).           This includes all

expert reports. In fact, this Court has held that when a trial court’s opinion

does not reflect consideration of the non-moving party’s expert reports, this

is error as it signals a failure to consider all evidence of record in a light

most favorable to the non-moving party. Id.


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J-A32023-17


      The Majority simply ignores the trial court’s failure to consider

Appellants’ expert reports and undergoes its own analysis of the reports. It

concludes that neither expert set forth a relevant standard of care and thus,

the duty that Appellees failed to meet. Majority Memorandum at 8-10. The

Majority dismisses the Moskowitz report entirely as irrelevant, and rejects

the Di Nola report as conclusory. Id.

      However, in my view, both experts satisfactorily assisted Appellants in

establishing gross negligence and recklessness.        Woven throughout the

reports are detailed references to the way that Appellees grossly deviated

from the standard of care. One cannot seriously dispute that Appellees owe

their patrons, who are riding on a vinyl tube without a steering or stopping

mechanism down a steep snow-covered hill on a course that Appellees

designed, a duty to ensure that the patrons are able to stop safely without

serious injury at the bottom. One hardly needs an expert to establish that

placing a stationary object, which is designed for an entirely different use, in

the path of a fast-travelling snow tube rider in the hopes of slowing down

the rider could instead, under certain foreseeable conditions, cause the rider

to stop abruptly and eject the rider in a manner resulting in serious injury.

This is particularly the case when Appellees have not conducted or reviewed

studies to determine the effect of placing the mat in the rider’s path under

various conditions. Further, a jury could find that risk of serious injury was

substantially increased without a standardized method to measure riders’


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J-A32023-17


specific speeds, assess conditions, or arrange the mats. Moreover, not only

were the mats used by Appellees not designed for the purpose for which

Appellees used them, they used the snow tubes in a manner that was

contradicted expressly by the warning on the label – a label, by the way,

which was illegible on Appellant’s tube.

      The trial court states “[t]here is no evidence that [Appellants] were

made aware of the risks of folding the deceleration mats and no evidence

that any other incidents happened on the day Plaintiff suffered his injury[,]

which would have put [Appellants] on notice that the mats were a problem.

Trial Court Order Granting Summary Judgment, 6/19/2017, at 20 (emphasis

added).   However, Appellants need not prove that Appellees actually were

aware of the risks, just that Appellants had reason to know of facts which

would lead a reasonable person to realize that the person’s conduct creates

an unreasonable risk of physical harm to another and that such risk is

substantially greater than that which is necessary to make the person’s

conduct negligent. Tayar, 47 A.3d at 1200–01.4


4 Specifically, our Supreme Court has endorsed the following standard for
recklessness:

      [T]he 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, knowing or having reason to know of facts
(Footnote Continued Next Page)

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J-A32023-17




(Footnote Continued)   _______________________

             which would lead a reasonable [person] to
             realize, not only that [the person’s] 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 [the person’s]
             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, … the Commentary contrasts
      negligence and recklessness:

             Reckless misconduct differs from negligence in
             several important particulars. It 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
             [person]…. 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 the 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 indifference to consequences, an indifference whether
      or not wrong is done, and an indifference to the rights of
      others”).

Id. (emphasis added).


                                                 - 11 -
J-A32023-17


     In my view, Appellants have put forth enough evidence at this stage

for the jury to decide the issue.    I disagree with the sole focus of the

Majority and trial court on the use of the folded mats, when that is but one

piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the

facts Appellees knew or should have known, including the conditions

contributing to speeds as high as 30-35 miles per hour, the risk of serious

injuries when a fast-traveling snow tube abruptly collides with an obstacle,

the lack of sufficient run-out area, and the use of mats not designed for use

in snow tubing).5    Both experts explained the ways in which Appellees’

conduct deviated from the standard of care, based upon the facts

established through depositions of Appellees’ employees and officers. It is

clear to me that a jury could have determined that the series of conscious

decisions made by Appellees worked together to create an unreasonable risk

of physical harm to Bourgeois that was substantially greater than ordinary

negligence.   Therefore, I would reverse the trial court’s grant of summary

judgment and remand for trial.




5
  Suffice it to say that I also disagree with the Majority’s assertion that
Appellants abandoned their assertion that Appellees were reckless and
grossly negligent in failing to provide adequate stopping or deceleration
distance, Majority Memorandum at 8 n.4.         Appellants’ brief expressly
references the lack of an adequate run-off area as being problematic. See
Appellant’s Brief at 45-47.


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