Mattei v. Tuthill Corporation

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MIKE AND LINDA MATTEI, :

Plaintiffs : CIVIL ACTION NO. 3:19-2196

v. : (JUDGE MANNION)

THE TUTHILL CORPORATION :

d/b/a BLUE MOUNTAIN RESORT

:

Defendant :

MEMORANDUM

Presently before the court is Defendant’s motion for summary

judgment. (Docs. 38–40). Plaintiffs filed a brief in opposition, (Doc. 41), and

Defendant filed a reply brief, (Doc. 42). Plaintiffs Mr. and Mrs. Mattei bring

this suit against Defendant for injuries sustained by Mr. Mattei while skiing

one day in 2018 at Defendant’s Blue Mountain Resort in Pennsylvania. This

case raises questions regarding the inherent risks of downhill skiing, the

enforceability of releases on lift tickets, and the legal sufficiency of the facts

alleged by Plaintiffs of Defendant’s gross negligence and recklessness. As

explained below, there are genuine disputes of material fact relevant to each

question; therefore, the court will DENY Defendant’s motion.

I. FACTUAL BACKGROUND

With respect to this motion for summary judgment, the essential,

undisputed facts are relatively straightforward.1 Plaintiff Mike Mattei, his wife,

Plaintiff Linda Mattei, and three friends went skiing on January 3, 2018, at

Defendant’s Blue Mountain Resort in Pennsylvania. Mr. Mattei was an

experienced skier of 40 years who had skied several Pocono Mountains and

taught beginner skiing lessons. The parties dispute whether Mr. Mattei

purchased a lift ticket on the day of the incident, but he and his group

ultimately entered the resort and started skiing at 10:00 a.m. The group

completed four runs—mostly on expert category slopes—then hopped back

on the lift and headed to the top of the “Sidewinder” trail. That trail starts near

the top of the mountain and continues down to a crossover area where the

skier can veer left to transfer to the second half of the abutting “Lazy Mile”

trail or stay right to continue down the “Lower Sidewinder” trail. The parties

dispute the extent of the trail grooming in and around this crossover area on

the day of the incident; Defendant points to testimony that the grooming

around the crossover area guided skiers down toward Lower Sidewinder,

1 The factual background of this Memorandum is taken from the parties'

submissions to the extent they are consistent with the evidence in the record.

(Docs. 38–42).

while Plaintiffs point to testimony that the trail was groomed all the way

across the crossover area to Lazy Mile.

In any event, Mr. Mattei headed down the Sidewinder first in his group,

as was his custom. Once he approached the crossover area, Mr. Mattei

veered left toward Lazy Mile. What happened next comes from the

eyewitness testimony of two other Michaels who viewed Mike Mattei’s

misfortune—Michael Colon, an employee of Defendant, and Michael

Gavaghan, a guest who was snowboarding on the Lazy Mile trial—since,

because of his injuries, Mr. Mattei has no recollection of the events that day;

and before his fall he had skied far enough ahead of the other members in

his group that none of them saw the incident. Gavaghan was skiing down

Lazy Mile when he saw Mr. Mattei coming down “pretty quick” and “hugging”

the left side of the Sidewinder trail approaching the crossover area.

Gavaghan says Mr. Mattei then went over somewhat of a “ditch area” and

the front of his skis struck the up slope of the ditch causing him to faceplant

and slide approximately fifteen feet into Lazy Mile. Colon saw the incident as

he was riding in a chair lift above the Sidewinder-Lazy Mile crossover. He

similarly observed Mr. Mattei coming down the left side into the crossover

area, which Colon testified was off the groomed surface.

In short, the parties do not dispute that Mr. Mattei was coming down

Sidewinder, hugged the left side of the crossover area towards Lazy Mile,

and fell after going over a sudden change in elevation in the slope—call it a

“ditch” or a “drop-off” of approximately five feet. Mr. Mattei was ultimately life

flighted to Lehigh Valley Medical Center after the fall. He sustained several

serious injuries for which he brings this suit.

II. LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.

v. Catrett, 477 U.S. 317, 322–23 (1986); Turner v. Schering–Plough Corp.,

901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable

jury could find for the non-moving party and is material if it will affect the

outcome of the trial under governing substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen,

903 F.Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage, “the

judge's function is not himself to weigh the evidence and determine the truth

of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d

241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make

credibility determinations). The court must consider all evidence and

inferences drawn therefrom in the light most favorable to the non-moving

party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323–24. The moving

party can discharge the burden by showing that “on all the essential elements

of its case on which it bears the burden of proof at trial, no reasonable jury

could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d

Cir. 2003); see also Celotex, 477 U.S. at 325. If the moving party meets this

initial burden, the non-moving party “must do more than simply show that

there is some metaphysical doubt as to material facts,” but must show

sufficient evidence to support a jury verdict in its favor. Boyle v. County of

Allegheny, 139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-

moving party “fails to make a showing sufficient to establish the existence of

an element essential to [the non-movant's] case, and on which [the non-

movant] will bear the burden of proof at trial,” Rule 56 mandates the entry of

summary judgment because such a failure “necessarily renders all other

facts immaterial.” Celotex, 477 U.S. at 322–23; Jakimas v. Hoffman–La

Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

Finally, the court is sitting in diversity resolving a matter of state law in

this case; thus, “[i]nasmuch as Pennsylvania law governs this action[,] we

treat Pennsylvania Supreme Court opinions as binding precedent and

Pennsylvania Superior Court opinions as persuasive precedent.” State Farm

Fire & Cas. Co. v. Estate of Mehlman, 589 F.3d 105, 107 n.2 (3d Cir. 2009).

III. DISCUSSION

A. Inherent risks of downhill skiing

The first issue raised by Defendant’s motion for summary judgment is

whether the Pennsylvania Skier’s Responsibility Act (PSRA) bars Plaintiffs’

negligence claim. That act acknowledges “there are inherent risks in the

sport of downhill skiing,” 42 PA. CONS. STAT. §7102(c)(1), and, for that

reason, “preserves assumption of risk as a defense to negligence suits

stemming from downhill skiing injuries,” Smith v. Seven Springs Farm, Inc.,

716 F.2d 1002, 1007 (3d Cir. 1983). The Pennsylvania Supreme Court

explained the PSRA establishes a “no-duty” rule for skiing injuries, relieving

ski resorts of the “duty to protect skiers from risks that are common, frequent,

and expected, and thus inherent to the sport.” Chepkevich v. Hidden Valley

Resort, L.P., 2 A.3d 1174, 1186 (Pa. 2010) (citation omitted). Application of

the no-duty rule is determined by a two-step test: (1) the plaintiff was

“engaged in the sport of downhill skiing at the time of her injury”; and (2) the

risk of the injury at issue “is one of the ‘inherent risks’ of downhill skiing.”

Hughes v. Seven Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). When

both prongs are met, summary judgment is warranted in favor of the ski

resort “because, as a matter of law, [the plaintiff] cannot recover for her

injuries.” Id. It is undisputed that Mr. Mattei was downhill skiing at the time of

his injury, so we proceed to the second prong of the Hughes test. Regarding

that prong the Third Circuit has explained:

The PSRA “is unusual in its brevity and failure to give any

definition of an ‘inherent’ risk of skiing,” Chepkevich, 2 A.3d at

1188 n.15, so we turn to caselaw for guidance. The Pennsylvania

Supreme Court has identified collisions with other skiers, “snow

and ice, elevation, contour, speed and weather conditions,”

Hughes, 762 A.2d at 344, and falling from a ski lift, Chepkevich,

2 A.3d at 1188, as inherent risks. It has also instructed other

courts to adopt “a practical and logical interpretation of what risks

are inherent to the sport,” id. at 1187–88, and explained that

invocation of the PSRA does not require proof that the injured

skier assumed the “specific risk” that caused injury—only that the

injury arose from a “general risk” inherent to the sport, id. at 1188.

Vu v. Ski Liberty Operating Corp., 763 F. App'x 178, 180–81 (3d Cir. 2019).

To that list of inherent risks of downhill skiing we can add:

• “a failure by staff of a ski resort to (1) set netting in all spots

where it might prove necessary, and (2) fix a race course in a

way that minimizes the potential for the competitors to lose

control,” Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 269

(3d Cir. 2008);

• “soft, loose snow outside the chemically treated part of the

course,” id. (quotation marks omitted);

• “skiing off trail and suffering from the change of elevation

between the trail and surrounding terrain,” Vu v. Ski Liberty

Operating Corp., 295 F.Supp.3d 503, 510 (M.D. Pa. 2018),

aff’d Vu, 763 F. App'x at 181;

• “[a]ccidentally striking an object while skiing down a slope,”

Cole v. Camelback Mountain Ski Resort, No. 3:16-CV-1959,

2017 WL 4621786, at *4 (M.D. Pa. Oct. 16, 2017); and

• “encountering [four to six-inch] wheel ruts on a ski slope

created by an ATV operated by an employee of defendants,”

Kibler v. Blue Knob Recreation, Inc., 2018 PA Super 89, 184

A.3d 974, 980 (2018).

While none of the above risks that courts have held to be inherent to downhill

skiing are directly on point, they nonetheless inform the analysis in this case.

A review of those decisions reveals at least two material facts for which there

is a genuine dispute on this record, precluding summary judgment.

The first material fact for which there is a genuine dispute is whether

Mr. Mattei was skiing on or off trail when the incident occurred. There is

competent record evidence going both ways on this issue, which shows the

dispute is genuine. Defendant’s evidence—including Colon’s deposition

testimony, a trail map, and a photograph of the crossover area—supports

the propositions that the Sidewinder trail at the point of the crossover area is

groomed to direct skiers to the right leading down Lower Sidewinder, and,

by veering left toward Lazy Mile, Mr. Mattei was skiing off trail when he fell

and was injured. (Doc. 40, ¶¶17, 26). Plaintiffs’ evidence—including Robert

Heil’s deposition, an expert report, and photographs therein—supports the

proposition that Mr. Mattei was skiing on the groomed trail when the incident

occurred. (Doc. 41-7 at 3). Case law in Pennsylvania and in this circuit

demonstrates that the on-trail, off-trail distinction is material to the

determination of whether the risk was inherent to downhill skiing.2 For

example, in Vu, 295 F. Supp. 3d at 509, the plaintiff moved to avoid a collision

with a snowboarder and skied over the drop-off at the edge of the trail and

into a pile of rocks. In considering whether “skiing over the edge of the trail

and encountering a three to four-foot drop-off into a pile of rocks is an

inherent risk of downhill skiing,” id., the court distinguished “the drop-off at

the edge of the trail [from] a ditch or hole in the slope itself,” id. at 510, and

held that “the risk of skiing off trail and suffering from the change of elevation

between the trail and surrounding terrain is an inherent risk of downhill

2 Defendant’s phrasing of the “general risk” involved in this case also

displays the materiality of the on-trail, off-trail distinction: “[whether] the risk

of falling [is] an inherent risk of skiing off the groomed surface at a high rate

of speed into a merge while going airborne.” (Doc. 39 at 8) (emphasis

added).

skiing,” id. See also Bjorgung, 550 F.3d at 269 (finding skiing off trail during

a race into the woods and hitting a tree is an inherent risk of downhill skiing).

While a “three to four-foot drop-off” encountered off trail, id., may be an

inherent risk of downhill skiing, it cannot be said as a matter of law here that

a similar, several-foot drop-off on the trail is also an inherent risk.

The second material fact for which there is a genuine dispute here is

whether the five-foot ditch was perceptible to a skier. There is conflicting

evidence in the record regarding whether a skier could appreciate the risk of

skiing over the area with the five-foot ditch where Mr. Mattei was injured.3

The court words the issue of fact carefully to state “a skier” as opposed to

“Mr. Mattei” because, as Defendant correctly points out, according to the

Pennsylvania Supreme Court, Mr. Mattei’s subjective appreciation of the risk

posed by the ditch is not relevant to the objective inquiry required under the

PSRA. But Defendant goes beyond the controlling case law in arguing that

the perceptibility of the risk involved in this case is entirely irrelevant. Instead,

3 For example, Mr. Colon testified that the snow groomer, while

grooming Sidewinder, would create a line of chunky snow along the edge of

the groomed surfaced of the trail, which suggests the danger of skiing over

that area could have been appreciated by a skier. (Doc. 40, ¶27). On the

other hand, Plaintiffs’ witness Mr. Heil testified that the trail was groomed all

the way across to Lazy Mile where Mr. Mattei skied, and Plaintiffs point to

testimony from Mr. Gavaghan that suggests a skier could not have seen the

ditch from coming down the Sidewinder trail. (Doc. 41-7 at 5, 7).

the cases make plain that whether a certain danger is perceptible to skiers

generally is a relevant question when deciding whether that risk is inherent

to downhill skiing. For example, in Vu, in affirming the trial court decision that

the risk was inherent, the Third Circuit cited testimony from the plaintiff's

daughter that the edge of the trail could be discerned with no difficulty and

testimony from a witness that “he was able to ‘easily’ distinguish the skiable

terrain from off trail.” 763 F. App'x at 180. Similarly, in Kozlowski v. JFBB Ski

Areas, Inc., 427 F.Supp.3d 559, 566 (M.D. Pa. 2019), the court found the

disputed fact of whether the edge of the trail was easily discernable to a skier

precluded summary judgment.

Moreover, contrary to Defendant’s suggestion, Chepkevich does not

preclude this finding. As quoted above, Chepkevich cautioned courts that the

relevant inquiry under the PSRA asks whether the “general risk” faced by the

plaintiff is inherent to downhill skiing, not the “specific risk.” 2 A.3d at 1188.

So, in Chepkevich, the plaintiff was said to assume the inherent risk of falling

off a chairlift generally—the specific risk of the chairlift operator stopping the

chairlift at the plaintiff’s request the first time but not the second time was not

relevant. Id. Here, asking whether a hidden, on-trail, five-foot drop is an

inherent risk of downhill skiing is to inquire of the “general risk” involved in

Mr. Mattei’s injury, in accord with Chepkevich. In addition, while boarding a

chairlift is “simply how this aspect of the sport is done,” id. at 1187, the same

cannot be said of skiing over hidden ditches of several feet on the groomed

trail as the record here supports when viewed in the light most favorable to

the plaintiffs. Instead, there are genuine disputes of material facts precluding

summary judgment on the ground that the “no-duty” rule shields Defendant

from liability here.

In sum, reading the disputed facts in the light most favorable to

Plaintiffs, there is evidence that Mr. Mattei was on-trail, merging from

Sidewinder to Lazy Mile on an apparently groomed section of the trail, and

flew off a concealed drop of several feet. The question, then, under the PSRA

is whether falling from a hidden drop-off of several feet while on-trail is an

inherent risk of downhill skiing. Defendant has not met its burden to show

that it is; thus, summary judgment is not proper on this ground.

B. Exculpatory release

The second issue raised by Defendant’s motion for summary judgment

is whether Plaintiffs’ negligence claims are barred by an exculpatory release

provision contained on Blue Mountain Resort lift tickets. Under Pennsylvania

law, the validity of an exculpatory clause is governed by several principles:

(1) The release or contract must not contain any policy of the law; (2) it must

be an agreement between individuals relating to their private affairs; and (3)

each party to the agreement must be a free bargaining agent, not one drawn

into an adhesion contract with no recourse but to reject the entire transaction.

Zimmer v. Mitchell and Ness, 385 A.2d 437, 439 (Pa. Super. Ct. 1978).

Importantly, the burden of establishing immunity is upon the party invoking

protection under the exculpatory clause. Chepkevich, 2 A.3d at 1189 (citing

Dilks v. Flohr Chevrolet, 192 A.2d 682, 687 (Pa. 1963)).

Before delving deeper into the standards in Pennsylvania for

interpreting exculpatory clauses and discerning their validity and

enforceability, Defendant obviously must show in the first instance that there

was a valid contract between the parties containing the exculpatory clause.

To do so, Defendant avers that “[a]s a condition of going onto the ski lifts,

Plaintiff accepted and agreed to an exculpatory release contained on his lift

ticket[.]” (Doc. 40, ¶13). In support, Defendant cites Mr. Mattei’s deposition

testimony in which he admitted “to pass through the lift gates, [he] would

have had to have had a lift ticket,” and he would have had to pass through

the gates at Blue Mountain Resort to ski on the date of the incident; however,

Mr. Mattei does not recall receiving or reading a lift ticket on the date of the

incident. (Doc. 40 at 29–30, Mr. Mattei Deposition). Defendant also attaches

as an exhibit a copy of a lift ticket with an exculpatory clause, apparently

representing that it was the lift ticket Mr. Mattei received or identical to the

ticket he received on the day of the incident.

On this record, Defendant has not met its initial burden of production

as the moving party to show Plaintiffs’ negligence claims are barred by the

purported exculpatory release on the back of the lift ticket. See Bressman,

27 F.3d at 238 (moving party “must show that, on all the essential elements

of its case on which it bears the burden of proof at trial, no reasonable jury

could find for the non-moving party”) (internal citations omitted); Chepkevich,

2 A.3d at 1189 (burden of establishing immunity under exculpatory release

is on the party invoking its protection). Mr. Mattei’s acknowledgement in his

deposition that he presumably would have had to obtain a lift ticket to ski at

the resort that day is not enough to demand an inference that he did receive

a lift ticket, let alone the copy of a lift ticket attached as an exhibit to

Defendant’s motion. Moreover, even if the court were to draw an inference

that Plaintiff did receive and accept a lift ticket the day of the incident, the

cases cited by Defendant do not support summary judgment in its favor on

account of the exculpatory release.

The first case relied on by Defendant is Savarese v. Camelback Ski

Corp., 417 F.Supp.2d 663, 667 (M.D. Pa. 2005), in which the court held, “In

this case, the lift ticket purchased under these circumstances, viz the clear

language next to the window and the clear language on the lift ticket, places

the lift ticket on the level of being a valid exculpatory agreement[.]” Here,

there is no evidence of a notice of release on the ticket window at Blue

Mountain Resort comparable to the one purportedly adorning the lift ticket

Mr. Mattei received. The court in Saverese explained the window notice

“does provide Plaintiff with repetitive notice of the fact that skiing, ‘including

the use of the lifts, is a dangerous sport,’ and it repeats the condition that the

purchase of a lift ticket releases Defendant, even if negligent, and warns not

to purchase a lift ticket unless the purchaser agrees to the release and to be

bound by the language on the lift ticket.” Id. Without any evidence of a

repetitive notice of the release provision on the lift ticket Mr. Mattei

purportedly purchased, Defendant’s reliance Saverese is unavailing.

Defendant also relies on Seaton v. E. Windsor Speedway, Inc., 582

A.2d 1380, 1383 (Pa. Super. Ct. 1990), for the proposition that “a releasor

cannot avoid the effect of a release on the grounds that he did not read it or

know its contents.” (Doc. 39 at 13). Fair enough; but summary judgment was

proper in Seaton, in part, because the plaintiff admitted he received and

signed the release at issue. Here, there is a mere inference Mr. Mattei

received the release, and Defendant does not even allege Mr. Mattei signed

it. See Lin v. Spring Mountain Adventures, Inc., No. CIV.A. 10-333, 2010 WL

5257648, at *5 (E.D. Pa. Dec. 23, 2010) (release valid because plaintiff was

a voluntary signatory to a full-sized contract); Chepkevich, 2 A.3d at 1192

(release held valid when skier signed release from liability before chairlift

incident); Saverese, 417 F.Supp.2d at 665 (release held valid when skier

had also signed an equipment rental agreement that included a clear release

provision). Accordingly, Defendant has not demonstrated that summary

judgment in its favor on Plaintiffs’ negligence claims is appropriate by virtue

of the purported exculpatory release.

C. Gross Negligence and Recklessness

The last issue raised by Defendant’s motion for summary judgment is

whether Plaintiffs’ record evidence is sufficient to raise a genuine issue of

material fact as to their claims for gross negligence and recklessness.

According to Defendant, “the record in this case is devoid of any evidence of

negligence, let along gross negligence or reckless conduct, and Plaintiff’s

claims should be dismissed as a matter of law.” (Doc. 39 at 16). The court

again applies Pennsylvania law to these Pennsylvania state law claims.

Under Pennsylvania law, “there is a substantive difference between

‘ordinary negligence’ and ‘gross negligence,” and “[t]he general consensus

finds gross negligence constitutes conduct more egregious than ordinary

negligence but does not rise to the level of intentional indifference to the

consequences of one’s acts.” Kozlowski, 427 F.Supp.3d at 569 (citing Kibler,

184 A.3d at 984). “Gross negligence may be deemed to be a lack of slight

diligence or care compromising a conscious, voluntary act or omission in

‘reckless disregard’ of a legal duty and the consequences to another party.”

Id. Similarly, “recklessness requires a conscious action or inaction which

creates a substantial risk of harm to others.” Tayar v. Camelback Ski Corp.,

47 A.3d 1190, 1200 (Pa. 2012). “Gross negligence is generally a question

of fact for the jury to decide,” Cohen v. Kids Peace Nat. Centers, Inc., 256 F.

App'x 490, 492 (3d Cir. 2007); however, “a court may decide the issue as a

matter of law where the conduct in question falls short of gross negligence,

the case is entirely free from doubt, and no reasonable jury could find gross

negligence,” id. (citing Albright v. Abington Mem'l Hosp., 696 A.2d 1159,

1164–65 (1997)).

This case is not “entirely free from doubt.” Id. Rather, summary

judgment is inappropriate on this record because Plaintiffs have produced

evidence raising a genuine issue of material fact regarding Defendant’s

alleged conscious disregard of the risk of harm posed by the alleged five-

foot ditch on the ski trail. Plaintiffs’ expert identified in his report that it was

open and obvious that ski patrons at Blue Mountain Resort skied in the area

of the ditch based on multiple ski tracks shown in photos of the relevant area.

(Doc. 41, ¶26). Moreover, Blue Mountain Resort’s Risk Manager testified in

a deposition that he was okay with people skiing in the area with the ditch

where Mr. Mattei fell. (Doc. 41, ¶27). Moreover, it is undisputed that the resort

made no effort to mark or warn patrons about the risk of the ditch, such as

ribbons or signs that say “closed” and the like. Assuming the ditch was

concealed from the downhill skier’s vantage point—a fact of which the court

found above that Plaintiffs have raised a genuine dispute—a rational jury

could find Defendant acted with gross negligence or recklessness in

conscious disregard of the risk of harm. As such, the governing summary

judgment standards do not permit the court to take this dispute out of the

jury’s hands.

IV. CONCLUSION

In light of the foregoing genuine disputes of material fact, the court will

DENY Defendant’s motion for summary judgment. An appropriate order

follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: February 28, 2023

19-2196-01