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Going skiing this winter? Whatever you do, don’t read your lift ticket. Why, you ask? Trust me. You’ll be better off. Oh, and one other thing. If you’re skiing with the spouse and kids, don’t let them read the ticket and keep them away from the ticket office. Not reading your lift ticket may be one way of preserving your rights to sue the ski resort should anything happen. At least that was one of the reasons given by our Superior Court in Beck-Hummel v. Ski Shawnee Inc. The Beck-Hummel decision revisited the age-old question of how well an exculpatory clause protects a ski resort from personal injury claims. In this case, the Hummel family went to Ski Shawnee for a day of fun in the snow. The husband bought his wife and two kids a lift ticket from the ticket window. On the back of the lift ticket was an exculpatory clause. The exculpatory clause was in bold but the font was the same as the font of other information appearing on the ticket. At the top of the ticket, it read, “Please read.” There was no dispute that the wife did not read the ticket. While snow tubing, she broke her ankle and sued Ski Shawnee for negligence. Ski Shawnee moved for summary judgment, relying on the exculpatory clause on the lift ticket. The trial court agreed and dismissed the case. Plaintiff appealed. The Superior Court began its analysis by noting that releases are not favored in the law and to be enforceable, the release must not contravene any policy of the law; it must be a contract between individuals relating to their private affairs; each party must be a free bargaining agent, not simply one drawn into an adhesion contract; and the agreement must spell out the intent of the parties with the utmost particularity. Interestingly, the enforceability of the exculpatory clause was not at issue in this case. Rather, at issue was its enforceability where the plaintiff did not read the ticket. The court reviewed a number of cases where the skier actually signed off on the release and found them to be distinguishable. The court also distinguished a case where the ski resort had signage directing skiers attention to the exculpatory clause appearing on their lift ticket. The court turned its attention to Section 496B of the Restatement (Second) of Torts concerning expressed assumption of the risk. Specifically, comment d to this section states that in order for an expressed agreement assuming the risk to be effective, it must appear that the plaintiff has given his assent to the terms of the agreement. There must be evidence that the terms of the exculpatory clause was brought home to the plaintiff, that plaintiff understood them, and plaintiff accepted them. Here, the court found that since plaintiff did not read the ticket, since there was no sign directing her to read the ticket, since no employee at Ski Shawnee directed her attention to the ticket and since the Hummel family had never been to Ski Shawnee before, the court could not hold, as a matter of law, that the exculpatory clause was enforceable as to the injured plaintiff. Ski Shawnee argued that the exculpatory clause on the lift ticket was sufficiently conspicuous to put plaintiff on notice of the release. For guidance, the court looked to the Uniform Commercial Code on what constitutes a reasonable warranty disclosure. 13 Pa. C.S.A. Section 2319 provides that the factors to be considered in assessing the reasonableness of a disclaimer are the disclaimer’s placement in the document, the size of the disclaimer’s print, and whether the disclaimer was highlighted in some way. Noting that the font size was small and the same size as other printed information, the court could not conclude as a matter of law that the exculpatory clause was conspicuous. In sum, the Beck-Hummel case is one where issues that are typically resolved by the court were found to be jury questions. Whether or not reading your lift ticket becomes a viable way to avoid summary judgment in cases involving skiing accidents remains to be seen. ROBERT N. HUNN is a partner inthe Philadelphia and Haddonfield, N.J., lawfirm of Kolsby Gordon Robin Shore & Bezar.

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