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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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