The Pennsylvania Supreme Court has agreed to take up an appeal by a man who claims injuries he suffered while snow tubing were the result of negligence and recklessness on the part of the tube run operator.

A three-judge Superior Court panel ruled 2-1 last year to uphold a York County trial court's grant of summary judgment to defendants Snow Time and Ski Roundtop Operating Corp. In a June 25 order, the Supreme Court granted allocatur in the case.

Plaintiff Ray Bourgeois was seriously injured when his tube crossed paths with the rubber kitchen mats placed at the bottom of the tube run, according to the court's Aug. 14 opinion. He and his wife subsequently sued Snow Time and Ski Roundtop, alleging that they were reckless and grossly negligent in using rolled-up kitchen mats to help slow down riders at the bottom of the hill.

The plaintiffs submitted expert reports by Mark DiNola, an expert in the field of ski and snow tubing risk management, and Gordon Moskowitz, a mechanical and biomechanical engineering expert.

But Judge Alice Beck Dubow, writing for the majority, said neither report specifically established that the defendants breached a standard of care by placing rubber mats at the bottom of the tube run.

Dubow said DiNola's report discussed the standard of care set forth in the National Ski Areas Association's “Tubing and Operations Resource Guide,” which only addresses the length of a tubing run-out, not the use of mats to aid in deceleration. Moskowitz, meanwhile, did not set forth any standards of care for tube run operators, Dubow added.

“Therefore, we are constrained to agree with the trial court that appellants failed to articulate the appropriate standard of care for the use of deceleration mats,” said Dubow, joined by Judge Paula Francisco Ott. “Without such a standard of care, appellants, as a matter of law, cannot establish appellees' duty to appellants and that appellees knew or should have known about the standard of care.”

But Senior Judge Eugene B. Strassburger III filed a dissent, arguing that a reasonable jury could find that repurposing kitchen mats as deceleration devices constituted gross negligence and/or recklessness on the part of the defendants.

“One cannot seriously dispute that appellees owe their patrons, who are riding on a vinyl tube without a steering or stopping mechanism down a steep snow-covered hill on a course that appellees designed, a duty to ensure that the patrons are able to stop safely without serious injury at the bottom,” Strassburger said. ”One hardly needs an expert to establish that placing a stationary object, which is designed for an entirely different use, in the path of a fast-travelling snow tube rider in the hopes of slowing down the rider could instead, under certain foreseeable conditions, cause the rider to stop abruptly and eject the rider in a manner resulting in serious injury.”

Strassburger also argued that the trial court's opinion granting summary judgment to the defendants made no mention of the plaintiffs' expert reports.

“The majority simply ignores the trial court's failure to consider appellants' expert reports and undergoes its own analysis of the reports,” Strassburger said.

The plaintiffs had also argued that the trial court improperly considered testimony from the defendants' employees that they were not aware of the dangers of using kitchen mats as deceleration devices, in violation of the 1932 state Supreme Court ruling in Borough of Nanty-Glo v. American Surety Co. of New York. 

But Dubow said Nanty-Glo requires a trial court to first decide whether the plaintiffs established a prima facie case. In this case, the trial court found that the plaintiffs did not.

Dubow also rejected the plaintiffs' challenge to the trial court's dismissal of the negligence claim against Snow Time based on a release Bourgeois signed.

The plaintiffs had argued that the release only specifically named Ski Roundtop, not Snow Time. But Dubow said it is undisputed that Snow Time owns Ski Roundtop.

“Although the release does not specifically name appellee Snow Time Inc., the release still covers appellee Snow Time, Inc. because the release clearly and unambiguously covers the owner of Ski Roundtop Operating Corp.,” Dubow said.

In its June 25 order granting allocatur, the Supreme Court agreed to consider four issues on appeal:

“(1) Did the majority panel opinion conflict with existing law by failing to address the trial court's disregard of petitioners' expert reports when granting summary judgment?

(2) Did the majority panel opinion conflict with existing law requiring it to review petitioners' expert reports in the light most favorable to the non-moving party by, inter alia, (a) improperly requiring petitioners' experts to establish the legal duty that respondents breached, (b) dismissing their opinions as conclusory, and (c) overlooking numerous opinions throughout their reports which supported petitioners' prima facie case against respondents?

(3) Did the majority panel opinion conflict with existing law when it held that petitioners did not establish the duties respondents owed to petitioners, when the duty of a snow tubing facility to protect its patrons from unreasonable risks of harm has already been established by the Supreme Court in Tayar v. Camelback?

(4) Did the majority panel opinion conflict with existing law by requiring that a violation of industry standards be demonstrated for petitioners to sustain a recklessness or gross negligence cause of action against respondents?”

Counsel for Bourgeois, Michael Malvey of Galfand Berger in Philadelphia, could not be reached for comment. Counsel for the defendants, Anthony Hinkle of Cipriani & Werner in Blue Bell, also could not be reached.