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Less than two weeks after the state Supreme Court granted allocatur in a case where a woman, despite signing a liability release, was allowed to bring claims against a ski resort for injuries she suffered when falling from a ski lift, the Superior Court has denied another appellant that same success. In Wang v. Whitetail Mountain Resort, a split three-judge panel found that a snow tuber who signed a liability release couldn’t bring suit against the resort for alleged negligence of an employee who instructed the plaintiff to exit the snow tube in a direction that brought her in the path of oncoming snow tubers. The court distinguished Wang from Chepkevich v. Hidden Valley Resort, the case the Supreme Court agreed to hear. In Chepkevich, a separate Superior Court panel ruled that 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. While the broad statements in the liability release form in Chepkevich worked in the appellant’s favor, it hurt Jen Wang. In his opinion for the majority in Wang, Judge Patrick R. Tamilia said the trial court correctly interpreted the broad language of the release signed by Wang to exonerate Whitetail Mountain Resort from any negligence suit. “Looking to the unambiguous language of an agreement, in this case [Wang's] particularized expression of the intent to assume the risks related to snow tubing, is all that must be done to determine what is contemplated by a party when entering into a release or any other contractual agreement,” Tamilia said. In Chepkevich, the Superior Court panel led by Judge Correale F. Stevens took issue with the fact that there was no definition of negligence within the release. He said that prior case law generally does not favor releases. In Wang, Tamilia said releases are enforceable as long as four requirements are met. The requirement that was important to Wang’s case, he said, was whether the release spells out the intent of the parties with particularity. In order for the release to be enforceable on the particularity point, Wang had to have understood the terms, he said. That is one of the main differences between Wang and Chepkevich, Tamilia said: The place and size of the release differentiated the two cases. In Wang, the release was prominently displayed in a separately titled section in the middle of a single-page document. It was also highlighted and in all-capital letters, according to the opinion. The liability release in Chepkevich was in the same-size font as the rest of the form and was located in the last line of the form, according to Stevens’ opinion. “The release in these circumstances is, unlike the release in Chepkevich, enforceable as it operates as a particularized expression of appellant’s intention to assume the risk of activities ‘related to’ snow tubing at Whitetail Mountain,” Tamilia said of Wang’s release form. In Chepkevich, Stevens had primarily ruled that an issue of fact remained in terms of whether Lori Chepkevich’s oral agreement with a lift operator to stop the lift before she and her nephew boarded superseded the liability release form. The lack of a definition of negligence was a secondary ruling within the opinion. Michael Daley of Ryan Emory & Ryan in Paoli, Pa., represented Whitetail Mountain along with partner Hugh M. Emory. Daley said not only did he think Chepkevich was wrongly decided, but he thought Wang was distinguishable from the case. While there was an issue of a second agreement in Chepkevich between the skier and an employee, there was no such agreement in Wang – only the original liability release form, he said. Daley said the Supreme Court was pretty specific in its granting of allocatur, which may suggest there is a feeling among some of the justices that Chepkevich was wrongly decided. He said the decision went against the grain of liability release cases for the last 25 years. When the Supreme Court granted allocatur in Chepkevich, it pointed to four issues it would look to on appeal. The court said it would look at whether the lower court erred in ruling that negligence must be defined and whether an example of negligence must be illustrated within the liability release form. The justices will also hear arguments about whether the Superior Court’s ruling in Chepkevich is in conflict with the lower court’s 2006 ruling in Nissley v. Candytown Motorcycle Club in terms of the validity and enforceability of an exculpatory agreement. Judge Jack A. Panella was on the majority with Tamilia in Wang. Judge John L. Musmanno dissented without an opinion. Heidi DeBernardo Norton of DeBernardo Antoniono McCabe Davis & DeDiana in Greensburg, Pa., represented Wang. She was unavailable for comment by the time of publication. (Copies of the seven-page opinion in Wang v. Whitetail Mountain Resort , PICS No. 07-1404, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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