COLE et al v. CAMELBACK MOUNTAIN SKI RESORT et al
Filing
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MEMORANDUM OPINION - For the reasons outlined above, this Court will grant Defendant Camelback Mountain Ski Resort's Motion to Dismiss Plaintiffs' claim for violation of the New Jersey Consumer Fraud Act, (Doc. 20). A separate Order follows.Signed by Honorable Robert D. Mariani on 6/28/17. (jfg)
THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GYL COLE, et al.,
Plaintiffs,
V.
3:16·CV·1959
(JUDGE MARIANI)
CAMELBACK MOUNTAIN SKI
RESORT, et aI.,
Defendants.
MEMORANDUM OPINION
This matter presents the following question to the Court: Does a plaintiff state a
cause of action for violation of the New Jersey Consumer Fraud Act when he or she alleges
that a Pennsylvania ski resort advertised its business in New Jersey but failed to include
any information in its advertisements regarding the protections from tort liability the business
enjoyed under Pennsylvania law? For the reasons that follow, the Court finds that such a
claim is not cognizable under the New Jersey Consumer Fraud Act.
I. INTRODUCTION AND PROCEDURAL HISTORY
The above captioned matter was first removed from the Superior Court of New
Jersey, (Doc. 1), and then transferred by the District Court for the District of New Jersey to
this Court, (Docs. 10). Plaintiffs, Gyl and Ronald Cole, represented by counsel, bring a two
count Complaint against Camelback Mountain Ski Resort ("Camelback"), and two John Doe
maintenance companies, (Doc. 1-1), concerning injuries that Gyl Cole sustained while skiing
at Defendant Camelback's skiing facility. Plaintiffs, both residents of New Jersey, allege
that Defendants are liable both for negligence (Count I), and for violation of the New Jersey
Consumer Fraud Act, N.J. STAT. ANN. § 56:8-2, (Count II). Defendant Camelback now
moves to dismiss Count II of Plaintiffs' Complaint. (Doc. 20).
II. FACTUAL ALLEGATIONS
Plaintiffs' Complaint alleges the following facts:
Plaintiffs, Gyl and Ronald Cole, are husband and wife and reside in Waretown, New
Jersey. (Doc. 1-1). Camelback is a snow skiing resort facility located in Pennsylvania. (Id.
at ~ 14). According to Plaintiffs' Complaint, Camelback advertises its business heavily in
New Jersey through a variety of forms of media. (ld.). Camelback's advertisements,
however, contain no information that, under Pennsylvania law, skiing facilities enjoy
"immunity" from liability for the injuries patrons sustain while skiing. (ld.). On March 15,
2014, presumably after viewing one of Camelback's advertisements, Gyl and Ronald Cole
went skiing at Camelback's skiing facility. (Id. at ~~ 1, 3-4). While skiing on one of the black
diamond slopes, Gyl Cole slammed into a six inch metal pipe and sustained severe injuries.
(/d. at ~ 3).
III. STANDARD OF REVIEW
A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it
does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). "A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v.lqba/, 556 U.S. 662, 678,129 S. Ct. 1937,1949,173 L. Ed. 2d 868 (2009).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of a cause of
action's elements will not do." Twombly, 550 U.S. at 555 (internal citations and alterations
omitted). In other words, "[ijactual allegations must be enough to raise a right to relief
above the speculative leveL" Id. A court "take[s] as true all the factual allegations in the
Complaint and the reasonable inferences that can be drawn from those facts, but ...
disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories,
707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal require [a court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the
elements a plaintiff must plead to state a claim. Second, the court should
identify allegations that, because they are no more than conclusions, are not
entitled to the assumption of truth. Finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.
Connelly V. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).
"[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not show[n]-that the
pleader is entitled to relief." Iqbal, 556 U.S. at 679, 129 S. Ct. at 1950 (internal citations and
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quotation marks omitted). This "plausibility" determination will be a "context-speci'fic task
that requires the reviewing court to draw on its judicial experience and common sense." Id.
IV. ANALYSIS
Count II of Plaintiffs' Complaint alleges a violation of the New Jersey Consumer
Fraud Act ("NJCFA"). (Doc. 1-1 at ~~ 13-22). The NJCFA was enacted to address "sharp
practices and dealings in the marketing of merchandise 1 and real estate whereby the
consumer could be victimized by being lured into a purchase through fraudulent, deceptive
or other similar kind of selling or advertising practices." Daaleman v. Elizabethtown Gas
Co., 390 A.2d 566, 569 (N.J. 1978). "The Act creates a private cause of action, but only for
victims of consumer fraud who have suffered an ascertainable loss." Weinberg v. Sprint
Corp., 801 A.2d 281,291 (N.J. 2002).
"A consumer who can prove (1) an unlawful practice, (2) an ascertainable loss, and
(3) a causal relationship between the unlawful conduct and the ascertainable loss, is entitled
to legal and/or equitable relief, treble damages, and reasonable attorneys' fees." Gonzalez
v. Wilshire Credit Corp., 25 A.3d 1103, 1115 (N.J. 2011) (quotation marks omitted).
Unlawful practices include
[t]he act, use or employment by any person of any unconscionable
commercial practice, deception, fraud, false pretense, false promise,
misrepresentation, or the knowing, concealment, suppression, or omission of
any material fact with intent that others rely upon such concealment,
1 Under the NJCFA, the term "merchandise" is broadly defined to "include any objects, wares, goods, commodities,
services or anything offered, directly or indirectly to the public for sale." N.J. STAT. ANN. § 56:8-1
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suppression or omission, in connection with the sale or advertisement of any
merchandise or real estate ...
N.J. STAT. ANN. § 56:8-2. The New Jersey Supreme Court has speci'fied that "[u]nlawful
practices fall into three general categories: affirmative acts, knowing omissions, and
regulation violations." Cox v. Sears Roebuck &Co., 647 A.2d 454, 462 (N.J. 1994).
In the case at hand, Plaintiffs assert that the unlawful practice that Defendant
Camelback allegedly engaged in was a failure to inform, i.e., an omission. (Doc. 1-1 at ~
14; Doc. 29 at 4). Under the NJCFA, an omission is actionable "where the defendant (1)
knowingly concealed (2) a material fact (3) with the intention that the consumer rely upon
the concealment." Arcand v. Brother Infl Corp., 673 F. Supp. 2d 282,297 (D.N.J. 2009).
"Implicit in the showing of an omission is the underlying duty on the part of the defendant to
disclose what he concealed to induce the purchase." Id.
Plaintiffs' Complaint alleges that Defendant Camelback failed to include any
information in its advertisements with respect to the protections from tort liability it enjoyed
under Pennsylvania law. Specifically, Plaintiffs' Complaint alleges the following:
Camelback knew that their [sic] advertising heavily in New Jersey induced
New Jersey residents to attend Camelbacks [sic] site in Pennsylvania.
Camelback knew that it had immunity granted to it through the legislation
passed by the Pennsylvania Legislature but at no time did Camelback ever
tell New Jersey residences [sic] that if they utilize the services of Camelback
that they would be subject to the immunity clause granted to Camelback.
Knowing full well that they [sic] had this immunity, Camelback elected not to
notify any of the invitees to their [sic] site about the immunity.
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(Doc. 1-1 at ~ 14).2 Defendant Camelback argues that this is insufficient to state a claim
under NJCFA. (Doc. 22 at 7). Plaintiffs respond that they have adequately pleaded that
"Camelback knew and should have advised the skiing public [through its advertisements]
... that if they utilize the services of Camelback that they would be subject to the immunity
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clause granted to Camelback by the Pennsylvania Legislature." (Doc. 29 at 4).
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The inaptly described "immunity clause" Plaintiffs refer to is no doubt the
Pennsylvania Skier's Responsibility Act, 42 Pa. C.S. § 71 02(c). The Act states:
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(c) Downhill skiing.-(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 [42 Pa. C.S. §
7102(a)-(a.1)]
42 Pa. C.S. § 7102. The Pennsylvania Supreme Court has made clear that "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." Chepkevich v. Hidden Valley Resort, L.P., 2
A.3d 1174,1186 (Pa. 2010). The common law in which the Act preserves, the doctrine of
2 Additionally, and somewhat confusingly, the Complaint also alleges that "Camelback
misrepresented to the New Jersey residents at large through its media blitz that the New Jersey residences
[sic] can use Camelback facilities for snow skiing." (Doc. 1-1 at ~ 17). This singular statement is in stark
contrast with the rest of the Complaint which alleges that Plaintiffs, both residents of New Jersey, did in fact
engage in snow skiing at Camelback.
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voluntary assumption of risk, "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." Id. In Pennsylvania, "this 'no-duty' rule applies to
the operators of ski resorts, so that ski resorts have no duty to protect skiers from risks that
are 'common, 'frequent, and expected,' and thus 'inherent' to the sport of downhill skiing."
Id.
Thus, the Court arrives at the question of whether Plaintiffs' state a claim under the
NJCFA when they allege that Defendant Camelback advertised its Pennsylvania skiing
facility to New Jersey residents but failed to include a disclaimer with respect to the
Pennsylvania Skier's Responsibility Act or the common law doctrine of voluntary
assumption of risk. As this is a question of New Jersey state law, this Court must turn to the
decisions of that state's courts for an answer. U.S. Underwriters Ins. Co. v. Uberty Mut. Ins.
Co., 80 F.3d 90, 93 (3d Cir. 1996). The parties have not directed the Court to any New
Jersey case-and the Court's own research did not uncover any-that squarely addresses
this issue. Nor have New Jersey courts apparently addressed the analogous issue of
whether, under the NJCFA, advertisers are ever obliged to educate the public on the law
applicable to their product absent other specific authority requiring such disclosures.
Accordingly, it falls to this Court to predict how the highest tribunal in New Jersey would rule
on the matter. Id. For the following reasons, this Court predicts that the New Jersey
Supreme Court would find that such a claim is not cognizable under the NJCFA.
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First, this is simply not the type of omission contemplated by the NJCFA. The Court
is cognizant of the fact the NJCFA "is intended to be applied broadly in order to accomplish
its remedial purpose, namely, to root out consumer fraud, and therefore to be liberally
construed in favor of the consumer." Gonzalez, 25 A.3d at 1115 (internal citations and
quotation marks omitted). Additionally, the Court is aware that "[t]he statutory and
regulatory scheme is ... designed to promote the disclosure of relevant information to
enable the consumer to make intelligent decisions in the selection of products and
services." Oiv. of Consumer Affairs v. Gen. Elec. Co., 582 A.2d 831, 833 (N.J. Super. Ct.
App. Div. 1990). Nevertheless, the NJCFA has limits. To qualify as an unlawful practice
under the NJCFA, "[t]he practice must be misleading and outside the norm of a reasonable
business practice." Hughes v. TO Bank, N.A., 856 F. Supp. 2d 673, 680 (D.N.J. 2012); see
also Miller v. Bank of Am. Home Loan Servicing, L.P., 110 A.3d 137, 144 (N.J. Super. Ct.
App. Div. 2015). Indeed, the "advertisement must have 'the capacity to mislead the average
consumer'" in order for it to be actionable. Adamson v. Ortho-McNeil Pharm., Inc., 463 F.
Supp. 2d 496,501 (D.N.J. 2006) (quoting Union Ink Co., Inc. v. AT&T Corp., 801 A.2d 361,
379 (N.J. Super. Ct. App. Div. 2002)). Finally, the omission must concern a material fact.
Arcand, 673 F. Supp. 2d at 297. The alleged omission in this case, however, is not one of
fact, is not misleading, and does not fall outside the norm of reasonable business practices.
Plaintiffs' allege that Defendant Camelback failed to provide information in its
advertisements concerning the Pennsylvania Skier's Responsibility Act and the common
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law doctrine of voluntary assumption of risk. Initially, as omissions of law, these allegations
fall outside of the statutory language of the NJCFA. Additionally, the type or nature of legal
defenses to liability which a business may assert in the event of a lawsuit is not information
normally included in an advertisement, as both parties have equal access to that
information. Consequently, Defendant Camelback's alleged failure to include such
information does not imply its nonexistence and is therefore not misleading nor outside of
the norm of a reasonable business practice. As such, omissions of this type are not
actionable under the NJCFA.
Second, a finding that Plaintiffs' claim was cognizable under the NJCFA would run
counter to a well-known legal maxim: "[a]1I citizens are presumptively charged with
knowledge of the law." Atkins v. Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 86 L. Ed. 2d
81 (1985); see also Gilmore v. Taylor, 508 U.S. 333, 360, 113 S. Ct. 2112, 124 L. Ed. 2d
306 (1993) ("[A] citizen ... is presumed to know the law ...."); Anela v. City of Wildwood,
790 F.2d 1063, 1067 (3d Cir. 1986) ("Private citizens are presumed to know the law ....");
State V. Moran, 997 A.2d 210,216 (N.J. 2010) ("Every person is presumed to know the
law."); Maeker V. Ross, 99 A.3d 795, 802 (N.J. 2014) ("[E]veryone is presumed to know the
law ...."); Widmer V. Mahwah Twp., 376 A.2d 567, 569 (N.J. Super. Ct. App. Div. 1977)
("[T]he principle is well established that every person is conclusively presumed to know the
law, statutory and otherwise."); cf. Commonwealth V. McBryde, 909 A.2d 835,838 (Pa.
Super. Ct. 2006) ("[E]veryone is presumed to know the law; an out-of-state driver is not
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absolved from following the laws of this Commonwealth or any other state in which he or
she chooses to drive."). Thus, as a matter of law, Defendant Camelback's advertisement
did not have the capacity to mislead because the law presumes that Plaintiffs-and
everyone else for that matter-already knew the information Defendant Camelback
allegedly omitted. Stated otherwise, the law should not obligate Defendant Camelback to
inform its prospective customers of what they already know. 3
Finally, if this Court were to come to the opposite conclusion, businesses would have
almost unending liability. For example, a Pennsylvania retailor may be liable under the
NJCFA if it advertised its clothing outlet to New Jersey residents but failed to include a
disclaimer stating that a customer injured at the store by an employee's negligence may
have his or her recovery reduced if the shopper was also negligent. See 42 Pa. C.S. §
7102(a) ("[A]ny damages sustained by the plaintiff shall be diminished in proportion to the
amount of negligence attributed to the plaintiff."). Or a marketer of a curling iron may be
liable under the NJCFA for failing to disclose to consumers that, even if they are injured due
to a design flaw in the product, the users may not be able to recover for their injuries if
"there was no reasonable alternative design" for the curling iron at the time of
manufacturing. See Cavanaugh v. Skit Corp., 751 A.2d 518, 520 (N.J. 2000) (quotation
marks omitted); see also N.J. STAT. ANN. § 2A:58C-3a(1). Indeed, the number of relevant
3 The Court, however, may have come to a different conclusion had Plaintiffs alleged that
Defendant Camelback made an affirmative misrepresentation of the law in its advertisements.
Nevertheless, such a situation is not presently before this Court.
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legal concept that a business "omitted" from its advertisement would only be limited by the
creativity and imagination of the lawyers involved.
V. CONCLUSION
For the reasons outlined above, this Court will grant Defendant Camelback Mountain
Ski Resort's Motion to Dismiss Plaintiffs' claim for violation of the New Jersey Consumer
Fraud Act, (Doc. 20). A separate Order follows.
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