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Pennsylvania Law Weekly A signed liability release form between a skier and a ski resort does not necessarily supersede an oral agreement between a ski lift operator and a skier to stop a lift before she boarded, according to the state Superior Court. The court reversed a Somerset County judge’s grant of summary judgment to the ski resort and ruled that a question of fact remains as to whether there was a breach of an oral agreement and whether it could void the signed release from liability form. In Chepkevich v. Hidden Valley Resort, PICS Case No. 06-1599 (Pa. Super. Nov. 13, 2006) Stevens, J. (12 pages), the three-judge panel led by Judge Correale F. Stevens also questioned the validity of the release. Stevens said it was “significant” that the term “negligence” in the form was not defined. The form said that by accepting a season pass, the skier agrees not to sue the resort or its employees if injured, “regardless of any negligence” on the part of the resort, according to the opinion. The release also includes the use of ski lifts as part of the accepted risks of skiing, Stevens said. Because there was no definition of “negligence,” Stevens said the release form “arguably amounts to an adhesion contract” in which the skier had no choice but to sign or reject the entire transaction. Lori Chepkevich and her husband, Jeff, argued that even if she voluntarily entered into the contractual agreement of the release, the agreement made with the lift operator to stop the chair trumped the release. “[E]ven though Lori admittedly did not read the release-from-liability form, there is an assertion that an agreement was reached between Lori and the lift operator which superseded any that might have been created under the release from liability form,” Stevens said. “Therefore, we cannot conclude as a matter of law that the disclaimer is enforceable, as this question of fact remains as to what the ski lift operator said to appellant.” In Chepkevich, Chepkevich and her 6-year-old nephew Nicholas were skiing at Hidden Valley Resort in December 2001 when they went to go on the chairlift back to their condominium. Chepkevich was concerned that Nicholas would have a difficult time getting on the lift because of his small size and lack of skiing experience, according to the documents. She asked the lift operator to slow the lift and the operator agreed to stop it. He stopped the lift on the side of the pulley opposite from where Chepkevich and Nicholas were and told her that he would bring the chair around closer to them and stop it so they could get on, Stevens said. When the lift arrived on their side, the operator did not stop or slow it, but attempted to place Nicholas on the seat. The operator could only get Nicholas on the edge of the seat and the child began to slip. Chepkevich tried to pull him onto the chair and yelled to the operator to stop the lift, but he did not, according to the opinion. The lift continued for a time as Nicholas continued to slip and eventually he and Chepkevich fell off the lift to the ground. The resulting lawsuit was for injuries suffered by Chepkevich and a loss of consortium claim from her husband. In the suit, Chepkevich alleged that there was an agreement made between the lift operator and herself that the operator would stop the lift twice, not once, according to the opinion. The trial court ruled that under the Skiers Responsibility Act and the assumption of risk doctrine, there was a question of fact remaining as to whether the operator’s actions were negligent. The court added, however, that by signing the release form, Chepkevich agreed to accept all risks of skiing regardless of negligence, Stevens said. The trial court ruled that Chepkevich could not bring a negligence suit against Hidden Valley because the release included wording about riding a chair lift, according to the opinion. Templeton Smith Jr. of Thomson Rhodes & Cowie in Pittsburgh represented Lori and Jeff Chepkevich and was unavailable for comment at the time of publication. Gerard J. Cipriani of Cipriani & Werner in Pittsburgh represented Hidden Valley Resort. He was traveling and could not return a call for comment by the time of publication. n

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