The Pennsylvania Supreme Court handed down a decision on 18 July 2012 that reverses a Superior Court decision, in part, related to the Camelback Mountain Resort in the Pocono Mountains. Certain aspects of that decision may increase ski patroller exposure to liability at Pennsylvania resorts.

Background
Camelback Ski Corporation and one of its employees were sued by Barbara Lichtman Tayer in January 2005 after she was injured in December 2003 at one of the mountain’s tubing parks. Camelback is in Tannersville, Pennsylvania and offers a range of winter sport activities, including skiing and snow tubing. Before allowing guests to participate in tubing it has them sign a liability release.

Tayar had a number of incident-free rides down, but on the fifth attempt, upon reaching the receiving area, Tayar exited her snow tube and was struck by another tuber coming down the slope in the “family” area of Camelback. That tubing section employed a timed release, and it was the contention of Tayar that the release operator was grossly negligent because he released the other rider at a point that allowed that person to arrive at the bottom before she exited the area.

Camelback employees tried to assist Tayar, and remove her from the dangerous spot she was in, when another snow tuber narrowly missed her. Several Camelback employees called to the operator and were able to get him (the co-defendant) to stop sending guests down at that point. Tayar suffered multiple fractures of her right leg in the incident and had to undergo surgery requiring two metal plates and 14 screws to stabilize her ankle.

Lower Court Findings
The Court of Common Pleas of Monroe County Pennsylvania granted Camelback’s request for summary judgment in March 2006, agreeing with its assertion that the release barred the plaintiff from filing a case asserting negligence, and that protection extended to the mountain’s staff. The court did conclude that the employee acted negligently, but not that he acted recklessly or with gross negligence.

Superior Court Decisions
Tayar appealed that decision to the Superior Court. She received an initial denial of the appeal by two of three judges on a three-judge panel. Counsel for Tayar then requested the matter be heard by the full panel on the Superior Court. That request was granted.

The “en-banc” Superior Court panel reversed the lower court finding in a 5-4 decision in 2008. The majority found that the release only applied to Camelback and did not extend to the employee because the release did not exculpate him with the “greatest particularity”, since it did not specifically mention employees. The court also found that it only released Camelback from ordinary negligence, and not gross negligence. For it to bar a suit for recklessness and intentional conduct it would need to release those acts in explicit terms. The Superior Court also found that there was a serious question of whether the employee’s actions constituted gross negligence. The case was remanded to the lower court for additional proceedings on those issues. Camelback appealed that Superior Court decision to the Pennsylvania Supreme Court.

Supreme Court Decision
The Supreme Court has now ruled that a ski resort liability release can not cover recklessness of staff because doing so would violate public policy. They found that doing so would jeopardize the health, safety and welfare of people by removing any incentive for parties to adhere to minimal standards of safe conduct. This is consistent with state law in most other jurisdictions, and is against the Superior Court’s finding that acts of gross negligence would have been barred if they had been waived by the release.

The Supreme Court also overturned a Superior Court finding that reversed a Monroe County ruling on appeal, where the appeal decision erroneously found that an employee was not covered by a resort liability release unless s/he was explicitly named as a party. The Supreme Court affirmed the original Court of Common Pleas decision by finding that resort staff members are covered by the company’s liability release for ordinary negligence, and that staff members cannot be sued personally for negligence otherwise covered under a corporation’s liability release.

Pennsylvania’s highest court, however, agreed with the Superior Court finding that gross negligence had not been properly ruled-out by the Court of Common Pleas. The case was remanded to the Monroe County court for further proceedings on that specific issue under the new precedent that has been set by the Supreme Court related to gross negligence. If it is determined that the Camelback employee managing the guest tubing releases (that is, the employee that physically sends the guest down the hill, not the one that sells the ticket with the liability release printed on the back) was reckless or grossly negligent in his acts, and that it was not found to be “ordinary” negligence, the Camelback release will not shield the resort form liability, and may not shield the employee from personal liability for his acts.

Patroller Issues
There are two troubling elements of this Supreme Court decision for ski patrollers.

The ruling adopts an interpretation of what constitutes an employee that may not shield patrollers from liability, even in cases of ordinary negligence. More than 90% of NSP Ski Patrollers are unpaid volunteers, which raises the question of the employer/employee status in the ski patroller/resort relationship. The largest organization of ski patrollers, the NSP, has a joint statement of understanding (JSU) with the National Ski Areas Association, last updated in October 2011, stipulating that ski patrollers are within the direct operational control of ski resorts.

The problem is that agreement also specifically states that no portion of that JSU should be interpreted that NSP members are employees of resorts. Instead, they are acting as “agents”. So the JSU has language that proves almost every condition of an employee/employer relationship found in most taxation guidelines establishing control of an employee, rather than a contractor or “agent”, but it argues against the employee/employer relationship for patrollers by design. Ski patrollers in Pennsylvania (and likely other jurisdictions as well) need to assess whether their volunteer service as patrollers is within the scope of their mountain’s coverage for corporate liability protection and insurance coverage. And unless the mountain release specifically includes volunteer members of the “Ski Patrol”, a jury may find that you are not covered under that liability waiver.

This decision also may leave patrollers and other mountain staff exposed to personal liability for acts found to be reckless or grossly negligent. This is consistent with what is common in most US states, but is inconsistent with previous interpretations of Pennsylvania law. In this case, even the Superior Court ruled that suits for gross negligence could have been barred if a resort release specifically waived liability for it.

Pennsylvania Supreme Court Decision:
Tayar_v_Camelback_PA_Supreme_Case

Pennsylvania Superior Court Decision (overturned in-part):
Tayer_v_Camelback_PA_Superior_Case