The Pennsylvania Superior Court has rejected an appeal by a man injured at a ski resort in the Allegheny Mountains, ruling in a case of first impression that wheel ruts on a ski slope are an inherent risk associated with the activity of downhill skiing.

A three-judge panel consisting of Judges Mary Jane Bowes, Victor Stabile and Kate Ford Elliott affirmed the Bedford County Court of Common Pleas' decision to toss plaintiffs Patrick and Kathryn Kibler's case against Blue Knob ski resort.

Patrick Kibler, who fractured his tibia when he skied over ATV wheel ruts on the slope, argued that the resort was negligent in not remedying the tracks. Kibler also claimed that the release Blue Knob requires skiers to sign acknowledging the voluntary assumption of risk isn't eye-catching enough.

In the court's opinion, Ford Elliott wrote that because no Pennsylvania case was on point with regard to the risk assumption and the presence of wheel ruts on a slope, the court would adopt the reasoning of the New York Supreme Court, Appellate Division's ruling in Schorpp v. Oak Mountain.

“Given that our cases do not directly address an injury incurred while engaged in downhill skiing caused by wheel ruts in the terrain on the slope, we find the New York statute and case law to be the most instructive in the instant appeal,” Ford Elliott said.

“Moreover, the language of the release signed by appellant … is nearly identical to the language of the New York statute,” she added. “We agree with the holding of the appellate division of the New York Supreme Court, and find that wheel ruts in the terrain are an inherent risk to the sport of downhill skiing. Accordingly, we hold that appellants cannot recover damages as a matter of law, and that the trial court properly granted defendants' motion for summary judgment.”

The court also found the release Kibler signed was conspicuous.

“The exculpatory language of the release is preceded by a heading that is written in all capital letters in a size of text equal to the exculpatory language of the release,” Ford Elliott said. “The heading also contains two exclamation points that call attention to the language of the heading. …  Accordingly, we find that appellants' argument that the release lacked conspicuity and 'was without print of a size and boldness that draws the attention of an ordinary person' is without merit, as defendants' release is conspicuous under the Pennsylvania Uniform Commercial Code.”

Lastly, the court considered whether the state of the slope constituted gross negligence on the part of Blue Knob. The court agreed with the reasoning of the trial court, which said that while the presence of tracks in the snow may have been “arguably negligent” it did not rise to the level of gross negligence or recklessness.

The trial court noted, “Defendants' employees were engaged in the normal and expected process of maintaining the ski slopes and did so in a careless fashion, producing a condition that—although possibly dangerous—was not inherently unexpected upon a ski slope.”

The Kiblers' attorney, Altoona-based Douglas Stoehr, did not return a call seeking comment.

Anthony Hinkle of Cipriani & Werner, who represents Blue Knob, declined to comment.