Constructive Knowledge and a Tale of Two Ski Cases

Two ski cases were recently decided in Pennsylvania, Lin v. Ski Shawnee, Inc. by the Superior Court of Pennsylvania, and Birl v. Ski Shawnee, Inc. by the United States Third Circuit Court of Appeals. In Lin, after taking a few runs, Lin was unable to stop and collided with the ski lodge at the bottom of the Greenhouse Slope, striking a plate glass window and suffering significant injuries. Birl was riding a snowboard in a terrain park at the resort, lost control after riding a park feature, collided with a light pole on the side of the run, and suffered significant injuries.

In both cases, the lower courts granted the summary judgements filed by Ski Shawnee, Inc. based upon the Pennsylvania Skier Responsibility Act, 42 Pa. Cons. Stat. § 7102(c) (PSRA). Lin appealed the ruling to the Superior Court of Pennsylvania, and Birl appealed the ruling to the Third District Court of Appeals. Although the rulings by the lower courts are similar, the judgements by the appellant courts were strikingly different, based upon the constructive knowledge possessed by Ski Shawnee at the time of the incidents.

In both cases, the courts applied the two-part “Hughes Test” (Hughes, 762 A.2d at 344), which was described by the Third Circuit as follows, “We must determine if (1) the plaintiff was engaged in the sport of downhill skiing, and (2) the injury arose from an inherent risk to the sport of skiing.” The courts ruled that the first condition was satisfied in both cases, and the second condition of the Hughes Test is where the rulings got interesting.

In Lin, the expert opinion included that, “there were six separate incident reports from five years prior to Lin’s collision describing collisions with either the lodge and/or the wooden ski racks immediately in front of the wall.” Along with other evidence, this demonstrated to the court the Shawnee organization possessed knowledge that the dangerous condition existed, at a minimum, through their own incident reports. If Shawnee didn’t know about the condition they should have, and they were potentially reckless or grossly negligent by not using that knowledge to address the potentially dangerous condition. The Court of Appeals granted Lin’s appeal and the case was remanded to the lower court for a trial to determine if Shawnee was reckless or grossly negligent by ignoring the condition.

The Third Circuit denied the appeal by Birl and affirmed the lower court’s decision with the following finding, “Because the risk was inherent to the activity, the District Court did not err in concluding that the PSRA barred Appellants’ claim. See Hughes, 762 A.2d at 344–45.” In their decision the Third Circuit stated, “Inherent risks are common, frequent, and expected,” and “Snowboarding is a dangerous activity. Riding a snowboard in a terrain park to perform tricks and jumps increases the risk of that activity.”

So, why were the rulings so different?

The difference between the cases is skiers at Shawnee colliding with the ski racks in front of and the lodge itself is not a common, frequent, and expected event while skiing, and Birl losing control coming off a terrain park feature is a common, frequent, and expected event while snowboarding. Shawnee, as an organization, possessed the knowledge of six incidents of skiers colliding with the ski racks and the lodge in the five years’ before Lin’s accident, however, they did not use that knowledge to “construct” a safer configuration, such as the recommendations from Lin’s expert, “install catch fences between the trails and the lodge and wall padding or even bales of hay above the wooden ski racks and lodge windows to protect skiers from impact.”

For the Birl case, the knowledge possessed by Shawnee was that snowboarding in a terrain park is a dangerous activity, and when a snowboarder enters a terrain park, they are aware that the risks are common and frequent and they accept those risks. Therefore, given the knowledge the Shawnee organization possessed regarding the risks faced by snowboarders when they enter the terrain park, both the lower and appellate court agreed the risks were inherent to the sport of snowboarding per the PSRA.

In conclusion, the Pennsylvania Superior Court upheld Lin’s appeal because Shawnee had historical constructive knowledge of the foreseeably dangerous situation that was posed by the ski racks and the lodge at the bottom of the Greenhouse Slope, were potentially reckless or grossly negligent because they did nothing to mitigate the reasonably dangerous situation, and the summary judgement granted by the lower court failed the second condition of the Hughes Test. The Third Circuit Court denied Birl’s appeal since the summary judgment satisfied the second condition of the Hughes Test because, “the injury arose out of a risk inherent to the sport of skiing.”

These two cases illuminate the complexities and nuances associated with the largely unregulated area of snow sports. A Snow Sports Expert can guide attorneys through this complicated process by providing forensic analysis, identify constructive knowledge, and originate fact-based narrative driven reports that explain duty of care, breach, proximate cause, and cause-in-fact in plain easy to understand language. If you have any questions regarding a snow sports case, please contact me at Randy@SnowsportsExpert.com, or call my cell at (208) 972-4670.