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Developing Law Regarding Liability Release Forms in Pennsylvania

By: Lisa Cauley, Esquire

On June, 21, 2010, the Supreme Court addressed an issue important to Pennsylvania business owners and operators of recreational programs and facilities: the validity liability waiver and release forms. In Chepkevich v. Hidden Valley Resort, L.P., 2010 Pa. LEXIS 1311 (2010), reversing the decision of the Superior Court, the Pennsylvania Supreme Court found the release form signed by the plaintiff, a patron of the defendant ski resort, was valid and that the patron had effectively waived her right to sue the resort. The Court found that the terms of the release explicitly encompassed the type of risk the plaintiff engaged in by the plaintiff when she was injured on the chair lift, and also encompassed the alleged negligence of the chair lift operator.

The plaintiffs, a skier and her spouse, sued the resort for injuries sustained by the skier when she fell from a chair lift. The plaintiffs alleged that the ski lift operator had agreed to stop the lift so that the skier’s nephew could board more easily, but failed to do so, causing the skier to fall. As part of her prior procurement of a season pass for the resort, the plaintiff skier had signed a “Release From Liability” which stated:

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 risk of skiing and snowboarding 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.

After the trial court granted summary judgment on the basis of the release form, the plaintiffs appealed, arguing that the alleged negligence of a lift operator is not a risk inherent to the sport of skiing and was therefore not covered by the Release. The Superior Court found that since the legal term negligence was not defined or illustrated with examples, the release “arguably” amounted to an adhesion contract.

On appeal, the Supreme Court found the Superior Court’s analysis of the release to be conclusory and that the lower court had failed to engage in a review of the traditional factors relevant to the validity of such forms. Ultimately, the Supreme Court found that the Superior Court’s finding that the release was “arguably” an adhesion contract because it did not provide examples of negligence was in appropriate and in contravention to Pennsylvania law addressing such forms. The Supreme Court rejected the suggestion that the release was an adhesion contract, noting that voluntary participation in inherently dangerous sporting activities did not lend itself easily to such a conclusion. The Court further noted that the release was a full-page document with the words “RELEASE FROM LIABILITY” in large font at the top, and that the form required a signature. The Court found that the release met the standards set forth in prior case law. Finally, the Court rejected the Superior Court’s suggestion that the release had to contain “examples” of negligence to be valid. The skier’s use of the lifts fell within the range of activities and risks described in the release, and the release specifically encompassed the negligence of resort employees.

The Chepkevich decision is a significant development for Pennsylvania businesses and their insurers, as it demonstrates that a carefully worded release can effectively shield recreational facilities from liability, even where the alleged negligence of the facility or its employees is at issue.