Exculpatory Disclaimers Still A Downhill Battle In Pennsylvania, DD 03/07

Defense Digest

Exculpatory Disclaimers Still A Downhill Battle In Pennsylvania

The Pennsylvania Superior Court concluded in the case of Chepkevich v. Hidden Valley Resort, L.P., 2006 PA Super 325 (Pa. Super. 2006), as a matter of law, that the exculpatory release disclaimer by the defendant ski resort was unenforceable despite the clear language absolving the ski resort of liability for any negligence on the part of the resort or its employees.

This matter arose when the plaintiff skier attempted to board a chair lift with her six-year-old nephew. She asked the lift operator to slow the device, making it easier to board the lift. The operator informed her that the chair lift could not slow down and could only be stopped or remain in motion. She believed that the operator would stop the lift, allowing them to get in position for the oncoming chair lift, and then stop the lift a second time prior to sitting on the chair lift. The operator did not stop the lift a second time, resulting in a struggle for both the plaintiff and her nephew to remain on the chair lift. When the plaintiff realized that her nephew could not stay on the chair lift, they both fell, resulting in the suit filed by the plaintiff for her injuries.

These particular facts are important in the court's analysis since both the trial court and ski resort cited to the Supreme Court decision of Hughes v. Seven Springs, 563 Pa. 501; 762 A.2d 339 (2000). The Superior Court felt that the Hughes decision was not applicable under the particular facts of this matter since it did not involve a claim of negligent operation of a lift operator. In Hughes, the injured skier was struck from behind by another skier who was skiing towards the ski lift after completing a down hill run. The Supreme Court reviewed the Skier's Responsibility Act in relation to the assumption of the risk doctrine and held that the injured skier was engaged in the sport of downhill skiing at the time of the collision and the risk of colliding with another skier at the base of a ski slope is a common, frequent and expected risk inherent in downhill skiing. Hughes, 762 A.2d at 344-45.

The Superior Court found its recent decision in Beck-Hummel v. Ski Shawnee, Inc., 2006 Pa. Super. 159; 902 A.2d 1266 (2006), more applicable to the particular facts of the case. In Beck-Hummel, the court concluded, as a matter of law, the exculpatory release was unenforceable and that the trial court erred in granting summary judgment in favor of the defendant. Generally, releases are not favored in the law, and they must be construed strictly against the party asserting the language of the clause. In reviewing exculpatory clauses contained in an agreement, the court looked to two means of analysis in deciding whether to uphold exculpatory language. A release must meet the following standards: (1) it must contravene any policy of the law; (2) it must be a contract between individuals relating to their private affairs; (3) each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction; and (4) the agreement must spell out the intent of the parties with the utmost particularity. The second set of analyses requires consideration of whether a reasonable person should have noticed the warranty disclaimer, such as: (1) the disclaimer's placement in the document; (2) the size of the disclaimer's print; and (3) whether the disclaimer was highlighted and printed in all capital letters or in a type style or color different from the remainder of the document.

The court looked to the release signed by the plaintiff, which was printed in the same relatively small font as the remaining text and was located in the final sentence of the first paragraph.

In reviewing this exculpatory language, the court felt that the legal term "negligence" was not clearly defined or illustrated in a way to provide examples of conduct considered as "negligence." Thus, the release from liability arguably amounted to an adhesion contract providing no recourse to anyone who disagrees with it but to reject the entire transaction. Moreover, the particular facts of this matter involved the negligent conduct of the ski lift operator. Despite the plaintiff's failure to read the release from liability form, the court agreed with her that an agreement was reached between the lift operator and herself that superseded any other agreement that may have been created under the release from liability form. Thus, the court could not conclude as a matter of law that the disclaimer was enforceable since a question of fact remained to be considered by the fact-finder as to what the ski lift operator said to the plaintiff.

The Chepkevich decision highlights that courts of this commonwealth will analyze the exculpatory release language to determine whether a reasonable person should have noticed the disclaimer by noticing whether it was in a position of prominence, printed a different size from the rest of the document, in all capital letters, or in a type of style or color different from the rest of the document so that a reasonable person should notice the disclaimer. In order for the terms of the exculpatory release to be enforceable, it must not be against the law; it must be a contract between individuals where each party must be a free bargaining agent with free course other than rejecting the entire agreement; and the agreement must spell out the intent of the parties. Finally, the Chepkevich decision adds that it should define legal terms and provide examples of conduct in relation to those legal terms. Undoubtedly, courts of this commonwealth will apply both sets of analyses under the backdrop of construing the agreement strictly against the party asserting it on exculpatory release language.

* Leo is an associate in the Scranton, Pennsylvania, office. He can be reached at (570) 496-4620 or labohanski@mdwcg.com.