Thursday 30th

Releases of Liability are Better Than You May Think

In the past few years, the Pennsylvania Supreme Court in two reported cases has made it absolutely clear that releases of liability in a recreational setting are valid and enforceable for claims of negligence. The first case was Chepkevich v. Hidden Valley 607 Pa. 1, 2a.3d 1174 (2010) in which Hidden Valley was represented by C&W attorneys Gerald Cipriani and Jamie Lenzi. Mrs. Chepkevich was a season pass holder at the Hidden Valley Ski Area, having signed a Season Pass Agreement which included release of liability language. She was skiing with her young nephew, and as they were preparing to board a chairlift, she asked the lift attendant to stop the lift to make it easier for her nephew to board the lift. The lift was not stopped, Mrs. Chepkevich was injured, and she sued Hidden Valley.

Based on the release of liability language, Hidden Valley obtained summary judgment in the Somerset County trial court. Mrs. Chepkevich appealed, and a panel of the Pennsylvania Superior Court reversed the judgement, holding that for various reasons, the Season Pass Agreement was an unenforceable contract of adhesion. Hidden Valley’s Petition for Allowance of Appeal was accepted by the Pennsylvania Supreme Court. In an opinion authored by Chief Justice Castile, dated June 21, 2010, the Supreme Court reversed in no uncertain terms. It held that the release of liability language in the Season Pass Agreement was effective and barred all of Mrs. Chepkevich’s claims. These claims included a general claim of negligent operation of the chairlift and a claim that Hidden Valley, through the actions of the lift attendant, had contractually agreed to stop the chairlift.

While the Chepkevich case was on appeal, Hugh Emory, then of the firm Ryan, Emory & Ryan, and now Of Counsel in Cipriani & Werner’s Philadelphia office, was handling the case of Tayar v. Camelback. Mrs. Tayar and her children snow tubed at the Camelback Ski Area. Mrs. Tayar signed a “Snow Tubing Acknowledgement of Risk and Agreement Not To Sue.” She was injured after getting out of a family tube at the bottom of the tubing run when a second family tube knocked her over. The second tube had been sent down by a tubing attendant who had started working that same day and who did not wait until the bottom of the run was clear before allowing the next tube to go down the hill. This was in clear violation of Camelback’s own procedures, and, in fact, Camelback conceded that its attendant, and Camelback itself, were both negligent.

In addition to alleging that Camelback was negligent, Mrs. Tayar asserted that the top attendant (who was individually named as a defendant in addition to Camelback) acted recklessly.

After discovery, Camelback filed for summary judgment based on the snow tubing release. Summary judgment was granted by the Monroe County trial court, which held that the release was clearly effective for the claim of negligence and that there was no factual basis to support the claim of recklessness. Mrs. Tayar filed an appeal to the Pennsylvania Superior Court. After the trial court was initially upheld by a three-judge panel of the Superior Court, the Superior Court, sitting en banc reversed and held that the language of the release was not clear enough to cover claims of recklessness. The Superior Court also held that the release of “Camelback Ski Corp.” was not sufficient to be a release of the individual attendant.

Camelback filed a Petition for Allowance of Appeal, which was granted by the Pennsylvania Supreme Court while it had under consideration the Chepkevich case.

In accepting the appeal, the Pennsylvania Supreme Court stated that one of the issues it planned to consider was whether or not it is against public policy to have a release for reckless conduct. The Superior Court did not address the public policy issue, but instead held that the language of the release did not clearly include a release for reckless conduct. It was somewhat unusual for the Supreme Court to address an issue which was not directly addressed by the court below.

On June 18, 2012, the Pennsylvania Supreme Court issued its ruling in the Tayar case. It unequivocally held that it is against public policy to have a release of reckless conduct. This did not come as any surprise, and is consistent with almost all state supreme courts which have addressed the issue. It did not really address the issue of whether the release was effective for claims of negligence, because both the trial court and the Superior Court held that it was, and its own opinion on Chepkevich had rejected the “contract of adhesion” argument. Of most importance for Camelback, the Supreme Court reversed the Superior Court on the issue of whether the release of “Camelback Ski Corp.” was the release of its employee, who was individually named. The Supreme Court held that as a corporation which acts through its employees, the release of the corporation out of necessity released claims against the individual employees. The case was thus sent back to the Monroe County trial court for a trial on the issue of whether or not the tubing attendant was simply negligent (which would be covered by the release) or whether he acted recklessly (which would not be covered by the release). The case was settled just prior to the scheduled trial.

The Pennsylvania Supreme Court left for another day the issue of whether a properly worded release would be effective for claims of gross negligence. However, the language of the majority opinion arguably supports the position that gross negligence, as being a type of negligence, would be covered, whereas recklessness, which is more akin to intentional conduct, is not covered.

What It Means to You

Releases of liability in a recreational setting are effective. They have been used successfully for years by ski areas, roller and ice skating rinks, equestrian facilities, and similar providers of recreational activity. Courts which have addressed the issue of whether or not a release is effective for the claim of a minor have held that it is not. However, a properly-worded release should include acknowledgement of risk language, to put both the minor and the parents on notice of the risk. We recommend that the release of liability language read as follows:

“I release and agree not to sue ABC Corp., its owners, operators, officers, agents and employees (hereinafter “ABC”), even if I contend that my accident was the result of negligence, gross negligence, or any other conduct for which it is not against public policy to obtain a release.

            In addition, we recommend that the release include forum selection language, which requires that any claims be brought in the Court of Common Pleas of the county where the activity is located or in the federal court district where the activity is located. As an example, the Camelback snow tubing release had the following language:

“I agree that any and all claims will be litigated exclusively in the Court of Common Pleas of Monroe County, or the United States District Court for the Middle District of Pennsylvania.”

            Language such as this has been effectively asserted to have cases transferred out of Philadelphia County to the county or federal court where the activity took place.