A New Jersey ski resort has lost another attempt to dismiss a lawsuit involving a skier who was seriously injured after colliding with safety fencing on the mountain more than five years ago.
On November 10, U.S. District Judge Brian R. Martinotti denied Mountain Creek Resort’s request to reconsider an earlier ruling that allowed the lawsuit to proceed. The judge also rejected the resort’s request for an immediate appeal and its alternative request to file another motion for summary judgment, leaving the case on track for trial.
The 16-page federal court opinion represents another legal setback for the Vernon, New Jersey, ski resort, which has argued that the state’s Ski Act protects it from liability for the skier’s injuries.
Skier Injured After Colliding With Safety Fence
The lawsuit stems from a February 21, 2021, accident involving Pierino Perciballi, who was skiing Mountain Creek’s intermediate Matchmaker trail with his teenage son. The trail runs alongside a beginner learning area separated from the intermediate terrain by blue mesh safety fencing.
According to court documents, Perciballi encountered a section of fencing that he believed was down, creating what appeared to be an opening between the two areas. He collided with the fencing, which became tangled around his legs and caused him to fall violently. The lawsuit states that his injuries required four days of hospitalization and left him with an ongoing disability.
Perciballi and his wife, Brigida, filed suit in February 2023, alleging negligent management and design of the ski area. They argue that the fencing was inadequately maintained, difficult to see and allowed to sag near an area where resort employees could have identified the potential danger.
Mountain Creek disputes those allegations. The resort maintains that the fencing was a necessary safety feature consistent with industry practices and that employees were trained to monitor the mountain and address hazards. It has also argued that New Jersey law limits resort liability for risks associated with skiing.
In a January 29, 2026, ruling, Martinotti determined that there were sufficient factual disputes about the condition of the fencing and whether Mountain Creek should have known about the potential hazard to allow the case to proceed.
Resort Cites Another New Jersey Ski Area’s Legal Victory
Mountain Creek’s latest attempt to dismiss the lawsuit relied heavily on a separate case involving Campgaw Mountain, another New Jersey ski area.
In April, the New Jersey Appellate Division ruled in favor of Campgaw Mountain in a snow tubing injury lawsuit. That decision established that the state’s Ski Act also applies to snow tubing and dismissed claims brought by a man injured after encountering a bunched-up deceleration mat.
Mountain Creek argued that the Campgaw decision represented a change in the controlling law and should result in the dismissal of Perciballi’s lawsuit. Martinotti disagreed, finding that the Campgaw ruling did not override existing New Jersey Supreme Court precedent and that the two cases involved important factual differences.
A central issue in the Mountain Creek case is whether resort employees should have reasonably known about the allegedly dangerous condition of the fencing. The court pointed to photographs taken approximately 90 minutes after the accident showing sagging fencing, along with conflicting testimony about when employees were expected to repair such conditions.
The judge determined that a jury could reasonably conclude the resort had constructive notice of the potential hazard, even without evidence that employees actually knew the fencing had fallen before the accident.
Judge Rejects Another Attempt to Avoid Trial
Mountain Creek also asked the federal court to certify its earlier ruling for an immediate appeal, which could have allowed the resort to challenge the decision before proceeding to trial.
Martinotti rejected that request, noting that discovery had concluded, pretrial motions had been addressed and the case was approaching trial. He determined that an immediate appeal would be unlikely to speed up the resolution of the lawsuit.
The judge characterized the resort’s latest effort as “nothing more than a third bite at the apple” in its attempts to dismiss the claims.
The November 10 ruling does not establish that Mountain Creek was negligent or responsible for Perciballi’s injuries. It means the case contains disputed factual issues that cannot be resolved through the resort’s requests for dismissal and may instead have to be decided at trial.
The lawsuit also includes a loss-of-consortium claim filed by Perciballi’s wife, which remains active alongside his negligence claims. No final determination of liability has been made.
