The injured party had signed an agreement acknowledging the dangers of snow tubing, including a release of any injuries she suffered as "the result of negligence or any other improper conduct on the part of the snow tubing facility." This kind of release is commonly used by amusement parks, ski resorts, dive operations, water parks and other facilities. There had been efforts to challenge such releases before, but Pennsylvania courts generally found them to be an effective bar to claims for negligence and threw the cases out.
Ms. Axelrod believed this case was different, because the employee had not been merely negligent; he had been reckless. She scoured decisions from across the country and in Pennsylvania as far back as 1854 and came away convinced a court in Pennsylvania could be persuaded that our courts cannot, in good conscience, enforce such releases in the face of reckless conduct. Doing so would strip people of their right to even the most basic level of protection and this, she believed, would violate public policy.
It was a legal battle which was to last over six years. The trial court dismissed the plaintiff’s claim. The Beasley Firm appealed, and Ms. Axelrod persuaded the Pennsylvania Superior Court that the release should not extend to allegations of recklessness - defined by Pennsylvania law as "conscious action or inaction which creates a substantial risk of harm to others." She argued that the courts should not, as a matter of public policy, enforce releases which let businesses get away with not providing even the most basic and minimum levels of safety to people on their premises. The Superior Court agreed, and sent the case back down for trial, but before that could happen, the Pennsylvania Supreme Court accepted the ski lodge's further appeal.
Ms. Axelrod, drawing upon the decisions she had uncovered in dozens of other states and court opinions in Pennsylvania going back to 1854, argued that pre-injury exculpatory releases which attempt to shield businesses from liability for reckless conduct are not enforceable. The Beasley Firm argued that public policy prevents enforcement of a release from liability for future reckless or intentional misconduct.
On July 18, 2012, the Pennsylvania Supreme Court released its opinion, agreeing with the plaintiff that a pre-incident release of reckless conduct is never enforceable in Pennsylvania. The Court held that she had shown "a virtual unanimity of opinion," and that the releases were void as against public policy.
The decision will have an immediate and broad impact across Pennsylvania, granting consumers new protections, and forcing businesses to take precautions to protect their customers.
We applaud the Pennsylvania Supreme Court for making the right decision, and we hope and believe that the public will be made safer by this decision that ensures businesses will always be held accountable for reckless conduct.