J-A12042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WAYNE E. MANKOWSKI, AND HIS WIFE, IN THE SUPERIOR COURT OF
TRACIE MANKOWSKI PENNSYLVANIA
Appellants
v.
SEVEN SPRINGS MOUNTAIN RESORT,
INC.
Appellee No. 1653 WDA 2016
Appeal from the Order September 29, 2016
In the Court of Common Pleas of Somerset County
Civil Division at No(s): 62 Civil 2016
BEFORE: OLSON, SOLANO and RANSOM, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 7, 2017
Wayne E. and Tracie Mankowski (“Appellants”) appeal from the order
entered on September 29, 2016. We affirm.
As the trial court disposed of this case on preliminary objections, the
following factual background is taken from Appellants’ complaint. On
February 28, 2015, Mr. Mankowski and his son were boarding a chairlift at
Seven Springs Mountain Resort, Inc. (“Seven Springs”). The son was having
difficulty boarding the chairlift. When Mr. Mankowski attempted to help his
son, his son fell to the ground and Mr. Mankowski fell from the chairlift. Mr.
Mankowski landed on a bolt on the base of the chairlift tower. Mr.
Mankowski suffered injuries as a result of this fall.
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The procedural history of this case is as follows. On February 4, 2016,
Appellants instituted the instant action by filing a complaint against Seven
Springs. On March 10, 2016, Seven Springs filed preliminary objections in
the nature of a demurrer. On September 29, 2016, the trial court sustained
the preliminary objections and dismissed Appellants’ complaint. This timely
appeal followed.1
Appellants present three issues for our review:
1. Whether the [t]rial [c]ourt erred in failing to adhere to the
applicable standard for determining preliminary objections when
it disregarded the well-pled facts of [Appellants’ c]omplaint
which support claims of negligence and recklessness due to
[Seven Springs’] actions and/or omissions in failing to protect
patrons from a dangerous condition, which is not inherent in the
sport of skiing and which was the direct and proximate cause of
the injuries suffered by [Mr. Mankowski]?
2. Whether the [t]rial [c]ourt erred in applying the “no duty” rule of
the Skiers’ Responsibility Act[(“the Act”), 42 Pa.C.S.A.
§ 7102(c)], which bars recovery for injuries that arise from risks
inherent in the sport of skiing, to a case where [Appellants pled]
injuries which did not occur due to an inherent risk of the sport
but instead[] due to a foreseeably dangerous condition, an
unprotected chairlift tower and bolt on the tower?
3. Whether the [t]rial [c]ourt erred . . . when it ruled on
preliminary objections that no duty was owed by [Seven
Springs] to protect a patron from a foreseeably dangerous
condition not inherent in the sport of skiing?
Appellants’ Brief at 4.
1
On October 31, 2016, the trial court ordered Appellants to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On November 17, 2016, Appellants filed their concise
statement. On December 20, 2016, the trial court issued its Rule 1925(a)
opinion. Appellants’ lone substantive issue was included in their concise
statement.
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Although phrased as three separate issues, Appellants’ only
substantive argument is that the trial court erred in finding that their suit
was barred by the Act. “Our standard of review of an order of the trial court
[sustaining] preliminary objections is to determine whether the trial court
committed an error of law. When considering the appropriateness of a ruling
on preliminary objections, the appellate court must apply the same standard
as the trial court.” Freundlich & Littman, LLC v. Feierstein, 157 A.3d
526, 530 (Pa. Super. 2017) (internal alteration and citation omitted).
“Preliminary objections in the nature of a demurrer test the legal sufficiency
of the complaint. When considering preliminary objections, all material facts
set forth in the challenged pleadings are admitted as true, as well as all
inferences reasonably deducible therefrom.” P.J.A. v. H.C.N., 156 A.3d
284, 287 (Pa. Super. 2017) (per curiam) (citation omitted). “Preliminary
objections which seek the dismissal of a cause of action should be sustained
only in cases in which it is clear and free from doubt that the pleader will be
unable to prove facts legally sufficient to establish the right to relief.”
Martin v. Holy Spirit Hosp., 154 A.3d 359, 362 (Pa. Super. 2017) (citation
omitted). “If any doubt exists as to whether a demurrer should be
sustained, it should be resolved in favor of overruling the preliminary
objections.” Khawaja v. RE/MAX Cent., 151 A.3d 626, 630 (Pa. Super.
2016) (citation omitted).
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The trial court found that Appellants’ complaint was barred by the Act,
which provides that:
(1) The General Assembly finds that the sport of downhill skiing
is practiced by a large number of citizens of this Commonwealth
and also attracts to this Commonwealth large numbers of
nonresidents significantly contributing to the economy of this
Commonwealth. It is recognized that as in some other sports,
there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to
downhill skiing injuries and damages is not modified by
[Pennsylvania’s general comparative negligence rule].
42 Pa.C.S.A. § 7102(c).
As our Supreme Court explained:
[T]he Act explicitly preserved the common law assumption of
risk defense as applied to injuries suffered while engaged in
downhill skiing. Because the Act did not create a new or special
defense for the exclusive use of ski resorts, but instead kept in
place longstanding principles of common law, a review of those
principles is instructive. The assumption of the risk defense, as
applied to sports and places of amusement, has also been
described as a “no-duty” rule, i.e., as the principle that an owner
or operator of a place of amusement has no duty to protect the
user from any hazards inherent in the activity.
Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1185–1186 (Pa.
2010) (internal citations omitted). Therefore, in order for a suit to be barred
by the Act (1) the injury must have occurred while engaged in the sport of
downhill skiing and (2) the injury must have arisen out of a risk inherent in
the sport of downhill skiing. Hughes v. Seven Springs Farm, Inc., 762
A.2d 339, 344 (Pa. 2000); see Jones v. Three Rivers Mgmt. Corp., 394
A.2d 546, 551 (Pa. 1978) (internal quotation marks and citation omitted)
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(“[N]o-duty rules[] apply only to risks which are common, frequent[,] and
expected, and in no way affect the duty of theatres, amusement parks[,]
and sports facilities to protect patrons from foreseeably dangerous
conditions not inherent in the amusement activity.”).
Appellants concede that Mr. Mankowski was engaged in the sport of
downhill skiing. They contend, however, that their suit is not barred by the
Act because his injuries were not the result of a risk inherent with the sport
of downhill skiing. We disagree. Our Supreme Court’s decision in
Chepkevich controls this issue. In that case, our Supreme Court held “that
boarding and riding a [chairlift] are inherent to the sport of downhill skiing
and inherently dangerous activities, the most obvious danger of which—a
risk that is common, frequent[,] and expected—is undoubtedly falling from
the lift.” Chepkevich, 2 A.3d at 1187. In this case, Mr. Mankowski was
injured when he fell from a chairlift. As this risk is inherent in the sport of
downhill skiing, Appellants’ suit is barred by the Act.
Appellants attempt to distinguish Chepkevich by arguing that it did
not involve an individual falling from a chairlift and striking an unprotected
bolt on the chairlift tower. This argument fails because our Supreme Court’s
decision in Chepkevich was not based upon what the skier fell on, e.g., the
chairlift tower or snow. Instead, our Supreme Court’s holding in
Chepkevich was broad and encompasses the situation in the present case.
Our Supreme Court held that falls from chairlifts are risks inherent in the
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sport of downhill skiing. Thus, Chepkevich is not distinguishable from the
case at bar.
Appellants also cite Crews v. Seven Springs Mountain Resort, 874
A.2d 100 (Pa. Super. 2005), appeal denied, 890 A.2d 1059 (Pa. 2005), in
support of their argument that the risk in this case was not inherent in the
sport of downhill skiing. Specifically, they contend that Seven Springs could
have protected the bolt and eliminated the risk of injury. Our Supreme
Court in Chepkevich, however, rejected the interpretation of Crews
advanced by Appellants. Our Supreme Court stated:
[B]y defining an inherent risk only as one that “could be
removed without altering the fundamental nature of skiing,”
Crews encourages plaintiffs to plead cases to define the risks
that led to their injuries in a narrow, hypertechnical manner.
Crews invites the argument that an allegation of negligence by
a ski resort will always negate any defense of the assumption of
the risk, as the “risk of negligence” can always be removed
without altering the nature of skiing. Such an approach fails to
account for the “no-duty” rule and is contrary to the legislative
intent to preserve the assumption of risk defense for downhill
skiing. Neither the common law assumption of the risk doctrine,
nor our decision in Hughes, suggested such an interpretation of
inherent risks. Instead, those authorities direct that inherent
risks are those that are “common, frequent, or expected” when
one is engaged in a dangerous activity, and against which the
defendant owes no duty to protect.
Chepkevich, 2 A.3d at 1187 n.14 (emphasis in original). Thus, Crews was
limited to the specific facts of that case based upon public policy concerns.
See id. There are no such public policy concerns in the case sub judice.
Thus, Crews is not instructive when evaluating the issue presented in this
case.
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Finally, Appellants rely on Tayar v. Camelback Corp., 47 A.3d 1190
(Pa. 2012). Tayar, however, did not address the assumption of risk
doctrine. Instead, Tayar addressed whether a release relieving a party of
liability for reckless conduct violated this Commonwealth’s public policy.
See id. at 1190. In this case, there was no release which relieved Seven
Springs of liability for reckless conduct. Instead, this case involves a
straightforward application of the Act and a controlling decision of our
Supreme Court. Under Chepkevich, Appellants’ suit is barred by the Act.
Accordingly, we conclude that the trial court properly sustained Seven
Springs’ preliminary objections.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
2
Appellants also cite to an unpublished memorandum issued by this Court in
another unrelated case in January, 2017. Appellants’ Brief at 14-17. We
remind Appellants of the Superior Court’s Operating Procedure § 65.37.A.
which prohibits a party from relying upon or citing to unpublished
memorandum decisions of this Court. In light of this Operating Procedure,
we are constrained not to consider the unpublished memorandum decision
cited by Appellants in deciding this case.
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