Wreck-less Behavior


Tayar v. Camelback Ski Corporation (Pennsylvania)
(A snow tuber involved in a collision sued a ski resort for negligence and reckless conduct;  the trial court granted the defendant’s motion, dismissing the entire action based on the waiver and release signed by the plaintiff; the decision was overturned on appeal as to the reckless conduct allegations.)

The plaintiff was participating in snow tubing activities at the defendant’s ski resort.  On her fifth run of the day, she was struck by another participant coming down the run.  She was also narrowly missed by others.  Plaintiff filed a complaint against the ski resort, which filed a motion for summary judgment based upon a pre-printed release form that plaintiff had signed prior to participation.  The release applied to all liability that was “the result of negligence or any other improper conduct on the part of the snowtubing facility.”

The lower court granted the motion, ruling that the release protected the defendant from any liability associated with plaintiff’s injuries.  The lower court also held that the evidence did not suggest that the defendant’s employee acted recklessly or with gross negligence.  Plaintiff appealed the decision, but the decision was affirmed.  Plaintiff thereafter asked the Superior Court to rehear the matter en banc, and the request was granted.

The nine judge panel thereafter issued a 5-4 decision.  The Superior Court held that the release did not protect the employee named in the lawsuit because the release only referred to the ski area corporation.  The Superior Court also ruled that the release only protected the defendant ski area against negligence liability because “its language was no specific enough to release acts of greater culpability,” explaining that “the Release ‘had to explicitly state that the releasor was waiving claims based upon allegations of reckless and intentional conduct.'”  The defendant then petitioned the Supreme Court of Pennsylvania for review, and the petition was granted.

Upon review, the Supreme Court found that even though the release did not specifically refer to the “employees” of the defendant, the employee defendant involved in the incident was covered by the scope of the release because the defendant “could not act, negligently, improperly, or otherwise, other than through its agents and employees.”  Additionally, the Supreme Court concluded that “there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.”

NOTE: This decision includes a detailed and useful analysis in terms of both waiver and release public policy, and the range of conduct culpability running from negligent behavior on one of the scale to intentional conduct on the other end.  In light of the prevailing case law on a national basis, it seems pretty amazing that the Superior Court en banc actually specifically ruled that a release could provide protection against both reckless and intentional conduct so long as the language regarding those types of claims was included.  This case is also another cautionary tale about the potential dangers of attempting to draft waiver and release documents too broadly.  As part of its decision, the Pennsylvania Supreme Court remanded the proceedings and affirmed “on the alternative basis that, to the degree it released reckless conduct, the Release was against public policy.”  When a release flirts with a violation of public policy, it flirts with the possibility of alleviating even the legit protections against claims of negligence.

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