Judge rules in favor of punitives against skier

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Between carving around turns and watching out for trees, skiers who collide with others might also need to start worrying about lawsuits.

Northampton County Court of Common Pleas Judge Stephen G. Baratta overruled preliminary objections seeking to deny a plaintiff's claim for punitive damages against a skier. The defendant had allegedly been "skiing abnormally fast, out-of-control, recklessly and became airborne" before allegedly slamming into the plaintiff at a popular Poconos ski resort.

"These allegations suggest that the defendant knew, or should have known, of facts that create an abnormally high degree of risk of physical harm to others," Judge Baratta said. "As these alleged facts demonstrate a high degree of culpability for recklessness, they are sufficient to create a question of fact as to punitive damages under Pennsylvania law."

According to Judge Baratta's opinion, plaintiff Mark Doyle was skiing at Blue Mountain Ski Area on a slope called "Challenge" in an highly congested area known as "Falls." Mr. Doyle was skiing with his son and was assisting him when defendant Andreas Emmerick Dianna, who was allegedly unable to stop or slow down, collided with Mr. Doyle, causing serious and debilitating injuries, Judge Baratta said.

Mr. Doyle filed suit, alleging Mr. Dianna was reckless in his skiing and seeking compensatory and punitive damages. Mr. Dianna filed preliminary objections asking the court to remove the references to recklessness and to axe the claim for punitive damages.

But Judge Baratta ruled that the complaint supported the recklessness claim and noted that, under the state Superior Court's 2009 ruling in Archibald v. Kemble, recklessness is defined under Pennsylvania law as "a condition of the mind that may be averred generally."

The court, Judge Baratta said, should also look to the defendant's state of mind when determining whether punitive damages could be imposed.

Citing the Superior Court's 1990 decision in Hess v. Hess, he noted that the allegedly egregious behavior "must show the actor's evil motive or reckless indifference to the rights of others."

But Judge Baratta also noted the court's assessment of the high degree of risk associated with skiing. He cited the state Supreme Court's 1999 decision in Hughes v. Seven Springs Farm, which held that the risk of running into another skier is "common, frequent and expected" in downhill skiing. In that case, the court had held that a skier who had been injured as she moved toward a ski lift at the bottom of a hill had assumed the risk of injury, Judge Baratta said.

On the other hand, Mr. Dianna likewise knew he was skiing in an area that "is generally highly congested ... with other skiers," and could have taken greater care.

"The plaintiffs have averred facts in their complaint that, if true, are sufficient to justify the imposition of punitive damages," the judge wrote.

Defense counsel Leticia J. Santiago of Blue Bell and attorney James L. Pfeiffer of Pfeiffer and Bruno in Easton did not respond to a call for comment.

Max Mitchell: mmitchell@alm.com or 215-557-2354. Read more stories like this at www.legalintelligencer.com.

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