Birl et al v. Ski Shawnee, Inc.

Filing 63

MEMORANDUM OPINION (Order to follow as separate docket entry) re 46 MOTION for Summary Judgment filed by Ski Shawnee, Inc. Signed by Chief MJ Daryl F. Bloom on January 6, 2025. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KATHERINE BIRL, as parent and
:
natural guardian of G.B, a minor, and : Civ. No. 3:22-CV-1598
in her own right, et al.,
:
:
Plaintiffs,
:
:
v.
: (Chief Magistrate Judge Bloom)
:
SKI SHAWNEE, INC.,
:
:
Defendant.
:
MEMORANDUM OPINION
I.

Introduction
This case is before us on a motion for summary judgment filed by
the defendant, Ski Shawnee, Inc. (“Shawnee”). (Doc. 46). The action was
initiated by Katherine and Damian Birl on behalf of their minor child,
G.B. (Doc. 26). G.B. suffered severe injuries in a snowboarding accident
at Shawnee Mountain, a ski resort operated by Shawnee. (Id.). The Birls
contend the accident was a result of Shawnee’s negligence.

(Id.).

Shawnee has moved for summary judgment on the grounds that the
action is barred by the Skier’s Responsibility Act (“SRA”), codified at 43
Pa. Cons. Stat. Ann. § 7102(c). For the following reasons, we will grant
the motion.

II.

Background
On January 12, 2021, G.B., a minor child, crashed into a light pole
while snowboarding at Shawnee Mountain. (Doc. 26 ¶ 1). G.B. went to
Shawnee Mountain with his older brother, Collin Birl. (Id. ¶¶ 19-20).
They arrived around 10:00 a.m., with their own snowboards and gear,
and completed two or three runs without incident. (Id. ¶¶ 38, 39, 46).
They next rode down the “Lower Delaware” trail, which includes a terrain
park. (Id. ¶ 48). A terrain park is a type of ski run where items such as
jumps, kickers, bumps, and moguls are present on the trail so that riders
may use them to undertake stunts, tricks, and jumps. (Id. ¶¶ 43-44).
G.B. went over one of these jumps and crashed into a light pole located
amongst the trees along the side of the trail. (Id. ¶ 51). No barriers, nets,
or pads protected the pole, and no sign warned of its presence. (Id. ¶ 64).
G.B. has no memory of the events starting from the time he prepared to
take the second of two sequential jumps until he woke up post-collision.
(Doc. 51 ¶¶ 62, 63).
G.B.’s resulting injuries were myriad and significant, including,

inter alia, fractures to his spine and severe spinal cord injuries. (Doc. 26
¶¶ 59, 70). He underwent emergency surgery that same day at Lehigh

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Valley

Hospital-Cedar

Crest,

where

they

performed

a

spinal

laminectomy, bilateral spinal fusion, repair of four rib fractures,
evacuation of an epidural hematoma and decompression of his spinal
cord. (Id.). He remained in the hospital for nine days. (Id. ¶ 60). G.B.
next underwent intensive inpatient rehabilitation for three months. (Id.
¶ 61). Despite treatment, G.B. is paralyzed from the chest down, cannot
walk, and has no sensation in his lower extremities. (Id. ¶ 63).
G.B., by and through his parents, sued Shawnee, initially alleging
negligence and negligent infliction of emotional distress. (Doc. 1). After
Shawnee filed a motion to dismiss (doc. 19), the plaintiffs amended their
complaint, dropping the negligent infliction of emotional distress claim
and pursuing a single claim of negligence. (Doc. 26 ¶¶ 72-82). Shawnee
raised eight affirmative defenses in response, including that this claim is
barred by the SRA. (Doc. 29 at 14-15).
On September 12, 2024, Shawnee filed a motion for summary
judgment, arguing that the undisputed material facts entitle them to
judgment under the SRA. (Doc. 46). The motion is now fully briefed
(Docs. 47, 50, 51, 52, 55, 56) and ripe for resolution.
After consideration, we will grant the motion.

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III.

Discussion
A. Motion for Summary Judgment – Standard of Review
The defendant has filed a motion for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) provides
that a court shall grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The
materiality of the facts will depend on the substantive law. Anderson v.

Liberty Lobby, 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts
that might affect the outcome of the suit under governing law” will
preclude summary judgment. Id.

A dispute is only genuine if a

reasonable juror could find in favor of the nonmoving party. Id.
The moving party bears the initial burden to “demonstrate the
absence of a genuine issue of material fact,” relying on pleadings,
depositions, affidavits, and other evidence in the record. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). If the movant “successfully points to
evidence of all of the facts needed to decide the case on the law,” the
nonmovant can still defeat summary judgment by pointing to evidence in
the record which creates a genuine dispute of material fact and from

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which a jury could find in its favor. El v. Southeastern Pennsylvania

Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007). However, “[i]f
the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson, 477 U.S. at 249-50
(citations omitted). A court may not make credibility determinations or
weigh the evidence, but “must view the facts in the light most favorable
to the non-moving party.” Hugh v. Butler County Family YMCA, 418
F.3d 265, 267 (3d Cir. 2005).
B. The Defendant’s Motion for Summary Judgment will be Granted.
The parties submit, and we agree, that diversity jurisdiction applies
here. See 28 U.S.C. § 1332. When sitting in diversity, this court is
obligated to apply the law of the forum state.

Erie Railroad Co. v.

Tompkins, 304 U.S. 64, 78 (1938). It is uncontested by the parties that
Pennsylvania state law applies. While Pennsylvania typically applies
the doctrine of comparative negligence to tort claims, the Pennsylvania
legislature passed the SRA specifically and solely to retain the
“assumption of risk” defense with regards to lawsuits involving the sport
of downhill skiing. 42 Pa. Cons. Stat. Ann. § 7102(c). The SRA’s brief
text has no other effect except to exempt defendants in cases related to

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downhill skiing from other statutory text that prohibits the “assumption
of risk” defense in most non-skiing situations. Id.
In Hughes v. Seven Springs Farms, the Pennsylvania Supreme
Court developed a straightforward test for determining if the SRA
applies. The Hughes test applies the SRA where: (1) the plaintiff was
engaged in the sport of downhill skiing at the time, and (2) the injury
arose “out of a risk inherent to the sport of skiing.” Hughes v. Seven

Springs Farm, Inc., 762 A.2d 339, 344 (Pa. 2000). The Hughes court
explained that for a risk to be inherent, it must be “common, frequent,
and expected.” Id., at 345. In a later case, the court explained that the
key consideration is not if the plaintiff has assumed the specific risk
involved, but rather, if the damages arise out of a general risk inherent
to the sport. Chepkevich v. Hidden Valley Resort, 2 A.3d 1174, 1188 (Pa.
2010).
Courts applying Hughes often find the question of inherent risk to
be outcome determinative. Compare Savarese v. Camelback Ski Corp.,
417 F. Supp. 2d 663 (M.D. Pa 2005) (holding that falling during loading
onto an improperly folded ski lift seat was a risk inherent to skiing) with

Crews v. Seven Springs Mountain Resort, 874 A.2d 100 (Pa. Super. Ct.

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2005) (holding that the risk of colliding with a drunk underage
snowboarder was not a risk inherent to skiing). Where both elements of

Hughes are met, “summary judgment is appropriate because, as a matter
of law, the Defendant would have had no duty” to the plaintiffs. Barillari

v. Ski Shawnee, Inc., 986 F.Supp.2d 555, 560 (M.D. Pa. 2013).
As a threshold matter, the SRA has been held to apply to
snowboarding as well as skiing. See e.g., Ashmen v. Big Boulder

Corporation, 322 F.Supp.3d 593 (M.D. Pa. 2018) (applying the Hughes
test to a snowboarder).

The parties do not dispute that G.B. was

snowboarding at the time and that Hughes and the SRA apply here. (See

Generally Docs. 50, 51). Since the first element of Hughes is not at issue,
the sole question for our consideration is if the risk that was assumed
here is one that is inherent to the sport. The plaintiffs characterize the
risk as something like a risk that a terrain park’s design will position a
rider directly off trail. The defendant’s characterization is more general,
arguing that the risk is one of losing control and colliding with an off-trail
obstacle.
We reiterate that when applying Hughes, “courts have rejected
attempts by plaintiffs to define the injury producing risks in [a very]

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specific and narrow manner.” Cole v. Camelback Mountain Ski Resort,
2017 WL 4621786, at *4 (M.D. Pa. 2017). Yet courts assessing these
claims often reference the context of the specific skier to determine what
risks are inherent, a sensible approach given the SRA’s relationship to
the common law doctrine of assumption of the risk. See Bjorgung v.

Whitetail Resort, LP, 550 F.3d 263, 269 (3d Cir. 2008) (finding that the
fact that the plaintiff was engaged in high speed ski racing was relevant
to the determination of inherent risk, and ultimately holding that the
“cognizable risks inherent in ski racing are legion.”);

Burke v. Ski

America, Inc., 940 F.2d 95 (4th Cir. 1991) (held that colliding with ontrail rocks and trees was an inherent danger of skiing double black
diamond slopes); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d
Cir. 1983) (plaintiff skier’s choice to go down an expert trail he saw others
struggle with influenced what risks were inherent). Accordingly, while
it is clear under Hughes that we should not consider if the plaintiff
assumed any “specific risk,” it is equally clear that the risks that are
inherent depend, at least in part, on the context of the plaintiff’s skiing.
The relevant risks are not limited to those inherent to skiing generally,
but to the type of skiing that the plaintiff undertook.

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Bjorgung is instructive here. The plaintiff in that case made two
factual arguments similar to those made by the plaintiffs here: that a
lack of proper safety netting, and a course plotting which directed skiers
towards the edge of the trail, made the off-trail crash outside the inherent
risks of skiing. Bjorgung, 550 F.3d at 269. The Court found those risks
were “altogether inherent in the activity undertaken by plaintiff.” Id.
The Court emphasized that the activity was not merely downhill skiing,
but downhill ski racing, which influenced which risks could be deemed
inherent or not. Id. (“The cognizable risks inherent in ski racing are
legion.”) (emphasis added). Here, the parties agree that G.B. was
snowboarding in a terrain park, and that jumping and other snowboard
tricks are performed in such a park. (Doc. 26 ¶ 43; Doc. 29 ¶ 43). Thus,
the question before us is whether this crash was caused by risks inherent
to terrain park snowboarding.
The plaintiffs’ argument mimics Bjorgung in that it asks us to find
that the man-made conditions of the mountain were such that they
created risks not inherent to the snowboarding activities.

Were the

plaintiffs able to make a showing that G.B. remained in control after
performing the jump in question and that despite retention of control he

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had no chance to avoid the light pole, because the jump necessarily put
him on an unavoidable path to collision, we might be persuaded to
characterize the risk as plaintiffs have here. But, besides the fact that
this is arguably the type of specific and narrow risk that Hughes instructs
us not to consider, the undisputed facts of the case do not support such a
characterization. Rather, the undisputed material facts are that G.B.
lost control of his snowboard.
While the plaintiffs now assert that “G.B. was always in control” of
his snowboard (Doc. 50 at 19; Doc. 55 at 2), the plaintiffs’ own
allegations—that “. . . G.B lost control and violently crashed . . .” and that
“. . . G.B. was caused to lose control . . .”—contradict such an assertion.
(Doc. 26 ¶¶ 49, 51). See Parilla v. IAP Worldwide Serv., VI, Inc., 368 F.3d
269, 275 (3d Cir. 2004) (quoting Keller v. United States, 58 F.3d 1194,
1198 n.8 (7th Cir. 1995) (“Judicial admissions are formal concessions in
the pleadings . . . that are binding upon the party making them.”)). Even
if the plaintiffs were not bound by the admissions set forth their
complaint, it is clear G.B. does not remember the critical moments before
the crash, so it is impossible for the plaintiffs to establish he was “always
in control,” and accepting that he was, even for the purposes of summary

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judgment, is therefore not a reasonable inference for us to make.
Further, the plaintiffs’ other filings seem to belie the assertion that he
had control. (See Doc. 55 at 4 (“When G.B. went over the second jump . .
. he was not afforded an opportunity to regain his composure and balance
. . .”)). In sum, there is no genuine dispute that G.B. lost control.
Even accepting the plaintiffs’ version of events—that the course
“caused” G.B.’s loss of control, and ultimately, his collision with an offtrail obstacle—we conclude that this risk is inherent to the activity
undertaken by G.B.: snowboarding in a terrain park. Decisions within
this circuit comport with this finding. See e.g., Bjorgung, 550 F.3d at 265,
269 (finding that skiing off trail during a slalom race and striking a tree
was a risk inherent to skiing); Smith, 716 F.2d at 1004-05, 1009 (holding
that a skier who lost control on an icy slope and collided with an
unpadded pole assumed the risk); see also Cole, 2017 WL 4621786, at *4
(“Accidentally striking an object while skiing down a slope is
unquestionably a common, frequent, and expected risk in the sport of
downhill skiing. Indeed, if such a risk was not inherent in the sport, one
could hardly imagine what risks would be inherent.”).

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Snowboarding is a dangerous activity. Riding a snowboard in a
terrain park to perform tricks and jumps increases the risk of that
activity. Even accepting that the design of the park itself caused G.B. to
lose control, it does not follow that the risk of losing control was not
inherent to the activity. When one jumps their snowboard off terrain
park features, they may lose control, and the resulting fall or collision
can result in tragic, catastrophic injuries, as it did here. These are the
risks assumed by a terrain park snowboarder, and we find they are
inherent to that activity.
The undisputed material facts1 of the case lead us to the conclusion
that the SRA applies and absolves defendants of any duty owed to G.B.,
and with it any liability for these injuries. Accordingly, Shawnee is
entitled to judgment as a matter of law, and their motion for summary
judgment will be granted.

We note that the parties have disagreements about many facts in this
case, but because the SRA has only two elements, only facts relevant to
those elements are material to this motion. The parties’ subjective
opinions about how well designed or maintained the course was, if it was
up to certain national standards, or what G.B. did or did not ascertain
about the course as he rode it, etc., are immaterial to the SRA, and so to
this motion.

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IV.

Conclusion
For the foregoing reasons, the defendants’ motion for summary
judgment (Doc. 46) will be GRANTED.
An appropriate order follows.

s/ Daryl F. Bloom
Daryl F. Bloom
Chief United States Magistrate Judge
Dated: January 6, 2025

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