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A skier who was injured in a collision with a drunken underage snowboarder is allowed to bring a lawsuit against the ski area operator, the Superior Court of Pennsylvania has ruled in a case of first impression, despite the protections provided resorts under the Skier’s Responsibility Act and a disclaimer on the lift ticket. A split three-judge panel in Crews v. Seven Springs Mountain Resort (Pa. Super. April 18, 2005) reversed the Somerset County Common Pleas Court’s decision to grant judgment on the pleadings in favor of the operators of the Seven Springs Mountain Resort ski area. The risk of encountering a patron who is skiing or snowboarding under the influence of alcohol is not inherent to the sporting opportunity offered by the ski area, Judge Seamus P. McCaffery concluded. According to the majority opinion, the plaintiff in the case, Thomas H. Crews, was a business invitee at the Seven Springs resort. An experienced skier, Crews was using a trail marked for skiing. He was allegedly struck from behind by a snowboarder, identified in the case caption and the opinion only as “John Doe I.” Crews said he smelled the odor of an alcoholic beverage on the breath of “John Doe I,” and said in his complaint that other witnesses also noticed the odor. He also said that he believed “John Doe I” was part of a group on a high school-sponsored trip. In his lawsuit against the owners and operators of the Seven Springs resort, Crews said they had a duty to prevent alcohol consumption on the part of the high school students and should have known of the dangers posed by the conduct of underage ski area users who use alcohol. The operators of the ski area denied all of Crews’ charges, and added that the skier had assumed the risk of any collisions on the trails, and that there was an exculpatory release printed on the lift ticket. The Skier’s Responsibility Act, an amendment to the state’s comparative negligence statute, holds that “there are inherent risks in the sport of downhill skiing” and that the comparative negligence statute does not modify the doctrine of voluntary assumption of risk as it applies to downhill skiing. In Hughes v. Seven Springs Farm, 762 A.2d 339 (Pa. 2000), the state Supreme Court said that ski area operators may not be sued when a plaintiff is injured as a result of engaging in the sport of downhill skiing and confronting an inherent risk of the sport. However, the act in no way lessens the duty of ski areas to protect their patrons from foreseeably dangerous conditions not inherent to the sport. Crews’ complaint, the majority said, presented the latter rather than the former case.”[T]he collision was not merely with another skier, which would have thus made the collision a ‘common risk of downhill skiing;’ the collision was with an underage drinker on a snowboard,” McCaffery wrote. “[W]e believe that a collision with an underage drinker on a snowboard cannot be considered an inherent risk of downhill skiing.” An inherent risk, McCaffery ruled, “is one that cannot be removed without altering the fundamental nature of skiing.” In so holding, McCaffery said the majority was persuaded by decisions made by appeals courts in New Jersey and California. The Appellate Division of the New Jersey Superior Court in Reisman v. Great American Recreation Inc., 628 A.2d 801 (N.J. Super. App. Div. 1993), said the risk of a “drunken and dangerous skier” was not inherent in the sport, and that a statute providing immunity from suit when a risk is “impractical or impossible to eliminate” did not apply to disallow the plaintiff’s claim. The California 4th District Court of Appeals said in Freeman v. Hale, 36 Cal.Rptr.2d 418 (Cal.App.4th 1994), that consumption of alcohol is not within the range of activity ordinarily involved in skiing, and concluded therefore that if alcohol consumption is the proximate cause of a plaintiff’s injury, the common law assumption of risk doctrine does not prevent the lawsuit. Joining McCaffery in the majority was Judge John L. Musmanno. In a dissenting statement, Judge Maureen Lally-Green said that Crews’ alleged injury was a result of the collision with the snowboarder. “I observe that, by voluntarily proceeding to encounter a known or obvious danger of collision with another skier, a person is deemed to have agreed to accept the risk and to undertake to look out for himself,” she wrote. Lally-Green also said that, in the complaint, Crews did not plead sufficient facts to identify the snowboarder he collided with as being an underage consumer of alcoholic beverages. “Thus, we are left with the fact that a collision occurred between two skiers (or a skier and a snowboarder) on a ski slope,” Lally-Green said. Such an encounter, she concluded, is inherent in the sport of skiing.

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