The Pennsylvania Supreme Court addressed the enforceability of waivers for acts involving recklessness in the case, Tayar v. Camelback Ski, 616 Pa. 385 (Pa. 2012). It ruled that there is a dominant public policy against enforcing waivers that protect those who engage in reckless behavior from liability. However, before the Pennsylvania Supremes arrived at their decision, Tayer was originally unsuccessful at the trial level. The following details what happened on appeal.

After the trial court’s decision was affirmed by a three-judge panel of the Superior Court, Tayer requested that the Superior Court rehear the case en banc (before all the court’s judges rather than a panel). Upon rehearing, the en banc Superior Court reversed the trial court in a 5–4 decision. Tayar v. Camelback Ski Corp., Inc., 957 A.2d 281 (Pa.Super.2008). The majority also determined that the Release encompassed only negligent conduct because its language was not specific enough to release acts of greater culpability: the Release “had to explicitly state that the releasor was waiving claims based upon allegations of recklessness and intentional conduct” for such conduct to be validly released.

Camelback petitioned the Supreme Court for review, which was granted to address three issues: (1) whether employees are encompassed by a release which only mentions the employer; (2) whether public policy permits releases of reckless behavior; and (3) if so, the language necessary to achieve such a release.

In deciding whether the release encompassed reckless conduct, the Court first considered the broader question of whether a pre-injury release relieving a party of liability for reckless conduct is against public policy. Camelback argued that such releases are enforceable and not in violation of public policy. It further contended that no case law suggests it is against public policy to permit a release of reckless conduct in a private, voluntary, recreational setting.

Tayer argued that both federal courts and courts from other states have determined that exculpatory clauses do not insulate defendants from grossly negligent or reckless behavior, because to permit such releases would remove any incentive for defendants to adhere to even a minimal standard of care.

Tayer cited Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734 (2005), where the Connecticut Supreme Court refused to enforce a release that would have relieved a snow tubing facility of recklessness because “recreational operators would lack the incentive to exercise even slight care, with the public bearing the costs of the resulting injuries.” She further cited § 195(1) of the Restatement (Second) of Contracts, which states that releases for intentional or reckless conduct are unenforceable as a matter of public policy.

In Tayer, the Supreme Court stated that “[R]ecklessness is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggests unconscious inadvertence.”

A reckless actor knows or has reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The Court stated: [T]his conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence but aligns it more closely with intentional conduct. As a result, we are inclined to apply the same prohibition on releasing reckless conduct as we do for intentional conduct.”

At the time that the Pennsylvania Supreme Court decided Tayer, 28 other states had addressed whether enforcing releases for reckless behavior is against public policy. Of these 28 states, only two allowed recklessness to be released.

The Court made the following statement before concluding the opinion:

“…were we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except where the actor specifically intended harm to occur.” 

And in conclusion, the Court stated:

We, therefore, conclude that, even in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.