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While a skier assumes the risk of injuries innate to skiing, she does not assume the risk of a snowboarder’s alleged negligence that led to a collision between the two, a Carbon County, Pa., Common Pleas judge has ruled. And, while the exception of Pennsylvania’s Skier’s Responsibility Act does not exclusively apply to ski-area operators, claims against skiers or snowboarders whose alleged negligence caused the injuries of another skier or snowboarder can proceed. The case addresses an issue of first impression in Pennsylvania. “When skiers and snowboarders are both permitted to occupy the same ski slope simultaneously, the duty of care owed by a snowboarder to a skier is not to cause injury intentionally, or to act recklessly or negligently,” Judge Roger Nanovic wrote in Cruz v. Gloss. In January 1999, plaintiff Cynthia P. Cruz was downhill skiing on a beginner slope at Blue Mountain in Carbon County. The slope is used by skiers and snowboarders. Cruz was making wide turns down the trail. She was approximately one-third of the way from the righthand side of the slope when defendant David M. Gloss, who was snowboarding in a direct line down the righthand side of the trail, collided into Cruz. Cruz filed suit, claiming that she sustained permanent injuries to her right knee because of the collision with Gloss. In Cruz’s complaint, she alleged that when Gloss collided with her, he was in violation of the safety provisions of the Skiers’ Code of Responsibility. Gloss claimed that the Skier’s Responsibility Act, 42 Pa. C.S. Section 7102, provides a defense to Cruz’s claims. Cruz then contended that the act only applied to ski-area operators and, therefore, that Gloss could not use the act as a defense. Gloss countered that the act is not limited in that way and can be used to shield liability for a skier or snowboarder who negligently harms another. The trial court agreed with Gloss on this issue, ruling that the act is not limited to claims for skiing injuries or damages caused by the ski areas alone. The language of the act, the court said, is unambiguous, and skiers can use it as a defense in injury claims. “As written, the act is one of general application applying equally to ski-area operators as well as other parties potentially responsible for downhill skiing injuries and damages,” Nanovic wrote. The court said that while this interpretation acknowledges the doctrine of voluntary assumption of the risk to skiing, it raises the question of how the doctrine is to be applied in the case at bar. Finding that the issue has not yet been decided in a Pennsylvania court, the common pleas court turned to the state supreme court’s decision in Hughes v. Seven Springs Farm Inc. In Hughes, the plaintiff filed suit against the ski-area operator after another skier collided with her. The high court held that the risk of one skier colliding with another was a risk that was inherent to the sport and that skiers accept, and that the ski-area operator could not be responsible for the plaintiff’s injuries. However, the common pleas court differentiated the case at bar from Hughes because both Cruz and Gloss were skiers who owed each other the same duty of care. Cruz, the court determined, is entitled to argue that Gloss’ behavior was reckless or negligent and, therefore, caused her injury. “While the general risk of collision with another skier or snowboarder may well be a common, frequent and expected risk of downhill skiing, the risk is enhanced and not necessarily common, frequent and expected when caused by the negligence of another participant,” Nanovic wrote. “The risk of collision resulting from one skier’s negligence should not, as a matter of law, be deemed a normal and ordinary danger of skiing such that Gloss owed no duty of care to Cruz so long as his conduct was not reckless.” The court looked at other state courts’ decisions in cases where the plaintiffs and defendants were participants in contact sports when the plaintiffs’ injuries occurred. These cases, the Carbon County court found, adopted a “reckless or intentional” standard of care for the defendants, because such a standard of care is appropriate when applied to competitive contact sports, because bodily contact is an integral part of the game. However, the court determined that skiing is not a contact sport and, thus, bodily contact is not an expected risk assumed by participants. “In such circumstances aggressiveness towards another participant should not be encouraged or supported by public policy considerations and is not an expected or assumed risk to which participants ordinarily subject themselves,” Nanovic wrote. “The assumed risks include … those created by the nature of the activity itself.” The court determined that while there is an inherent danger in skiing, Cruz and Gloss were not in competition with each other at the time of the collision. “[This] does not automatically prohibit recovery against a negligent party when injury is sustained. … We hold only that as between co-participants engaged in a non-competitive, non-contact recreational activity, one participant does not assume the risk of the other’s negligence as a matter of law,” Nanovic wrote. The ruling, the court said, accurately reflects the expectations that skiers and snowboarders have while skiing.

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