Missouri decision about ski rental form and a release that does not conform to MO law spell a mess for the ski resort

Lewis v. Snow Creek, Inc., 6 S.W.3d 388; 1999 Mo. App. LEXIS 421

A judge that works hard to find problems does not help.

This case is an appeal of two separate ski area injuries that were combined on appeal. The facts in each case, as set forth by the appellate court are identical. The plaintiffs were both represented by the same attorney.

The plaintiffs went to Snow Creek to ski. They rented ski equipment at Snow Creek. While standing in line to get their ski equipment, they were handed the rental form which contained release language.

Both women claimed they felt pressure to move along and did not have enough time to read and “fully comprehend” the rental form. Both went skiing at the resort and fell on ice suffering injuries and sued the ski area. The claims were:

I.                  Defendant owed a duty to plaintiff as a business invitee, and breached that duty by failure to warn of the icy condition where the fall occurred;

II.               Defendant negligently adjusted and maintained the bindings on Plaintiff’s skis because they failed to release when the plaintiffs fell, injuring the plaintiff’s leg;

III.           Defendant created a dangerous condition by making artificial snow; and

IV.            IV. Defendant was grossly negligent in failing to warn plaintiff of the dangerous condition on its premises.

The defense used assumption of the risk as its defense. It could not use release, because it has failed to plead release as an affirmative defense. An affirmative defense is one of two dozen or so releases that must be pled, or they are waived. Here the defense firm forgot or did not know to plead the affirmative defense of release, thus it could not be used to stop the lawsuit.

Summary of the court’s analysis

The court first looked at the legal issues of a land owner. In most states, a ski area statute, takes the land owner duties off the table. Missouri had no skier statute so that a land owner, ski area, owes someone on its land a duty based on how the person on the land is defined. Missouri like most states defines people on land of another as:

·        Trespasser

·        Invitee

·        Business Invitee

Here, the injured skiers were either “invitees” or “business invitees.”

An invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” As business invitees, the Appellants were entitled to reasonable and ordinary care by Respondent to make its premises safe. A possessor of land is liable to an invitee only if the possessor:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

The issue then becomes whether the ice on the ski area was open and obvious. The plaintiff claimed the ice was covered by a layer of snow. The defendant argued that the plaintiffs had skied the run several times in the past and therefore, had to have known about the ice. Because there was a difference in the facts, the judge could not make the decision for the ski area and had to send the case back to the trial court for trial.

The next legal issue was whether the plaintiffs assumed the risk. The court defined the four types of assumption of the risk a plaintiff can encounter under Missouri’s law.

·        Express

·        Implied

·        Primary

·        Implied Secondary

Express assumption of risk occurs when the plaintiff expressly agrees in advance that the defendant owes him no duty. Recovery is completely barred since there is no duty in the first place.

The release identified the risk as snow. Because the plaintiffs claimed they fell on ice, the release did not bar the claim because the plaintiff did not assume the risk of ice.

Then the judge went out to argue that the release was ineffective anyway, even though later in the opinion the judge in one paragraph denies the defense of release.

Under Missouri’s law a release must be written with “clear, unambiguous, unmistakable, and conspicuous language…”

The language of the exculpatory clause must effectively notify a party that he or she is releasing the other party from claims arising from the other party’s own negligence. General language will not suffice. “The words ‘negligence’ or ‘fault’ or their equivalents must be used conspicuously so that a clear and unmistakable waiver and shifting of risk occurs.” Whether a contract is ambiguous is a question of law to be decided by the court. “An ambiguity arises when there is duplicity, indistinctness, or uncertainty in the meaning of the words used in the contract.

The court found, even though the release used the term negligence, it was not enough.

In 49 other states 99.999% of the time, use of the word negligence would have been satisfactory!

In this case, the court found the term negligence to be too broad and to include intentional torts and gross negligence. Both types of claims are barred under Missouri’s law. “[T]here is no question that one may never exonerate oneself from future liability for intentional torts or for gross negligence, or for activities involving the public interest.”

The court held the word negligence in this release was too broad and covered claims that could not be released.

The exculpatory clause uses general language, to wit, “any claim based on . . . other legal theory.” This language includes intentional torts, gross negligence or any other cause of action not expressly listed. “A contract that purports to relieve a party from any and all claims but does not actually do so is duplicitous, indistinct and uncertain.”

The court also found the form was not effective as a release because the heading was Snow Creek Ski Area Rental Form. That did not notify the signers of the form that they were signing a release. The title was in large type and could not be construed to be a document attempting to relieve the ski area of liability.

The release clause language was in 5 point type at the bottom of the form. The court found “A provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon.” “The language and format of the exculpatory clause leaves doubt that a reasonable person agreeing to the clause actually would understand what future claims he or she is waiving.”

The court then went back to the assumption of the risk discussion.

Implied assumption of risk includes two sub-categories, implied primary and implied secondary. Implied primary assumption of risk involves the question of whether the defendant had a duty to protect the plaintiff from the risk of harm. It applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.

Implied primary assumption of the risk is a complete bar to recovery under Missouri’s law.

…implied secondary assumption of the risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly proceeds to encounter a known risk imposed by the defendant’s breach of duty. In implied secondary assumption of the risk cases, the question is whether the plaintiff’s action is reasonable or unreasonable. If the plaintiff’s action is reasonable, he is not barred from recovery. If the plaintiff’s conduct in encountering a known risk is unreasonable, it is to be considered by the jury as one element of fault. This case involves implied primary assumption of the risk.

The discussion came down to whether or not falling on ice while skiing was an inherent risk of skiing. With no statute for guidance, the court could not answer the question and sent this issue back to the lower court for a jury to decide. “…there is a genuine dispute regarding whether encountering the ice in this case is an inherent risk of skiing.”

The third claim was the release. As stated above, because the release was not pled as an affirmative defense, the court with one paragraph eliminated the defense.

The fourth claim was that artificial snow created a dangerous condition. A land owner does not have to protect invitees against conditions that are open and obvious. Artificial snow is obvious.

So Now What?

The appellate court in this case worked hard to justify throwing the win in the lower court out. It worked so hard it was somewhat scary, but educational on Missouri’s law.

1.      Give your guests the opportunity to read and review your release. Post the release on line so they can review it when they are checking out your business or site. Give it to them on a clip board, first page up, so they can read it. Let them know they have all the time in the world to read it and ask questions.

2.    Releases must list the risks of the activity. The perfect example of that is this case. If the release fails for any reason, then the release can be used to prove the guest assumption of the risk. Here the release language was so limited that the document could not be used to assume the risk of the accident.

3.    No release should have any type on it of less than 10 points or the smallest type allowed by the court in pleadings. PERIOD! That means 5, 6 or 8 point type is too small and can’t be used in a release.

4.    If you have a release, make sure you hand it to your insurance company and your attorney. When you send notice of your claim to your insurance company send copies of all important documents, including a copy of the release. Hand an identical packet to the adjuster if one is assigned to the case. Get one to your attorney and make sure they understand what it says. (Crazy I know but do it.)

5.     If you do not have a statute that defines the risks of your activity, you cannot use a release written by someone for a state that does. You must list the risks of your activity, sport or program. You must list the major risks and the minor ones. You must list the risks that you encounter all the time and those you rarely encounter.

And even when you are prepared you can have a judge, who does not understand the sport and does not want you to win.

Plaintiff: Lesa Moffatt and Carrie Lewis

Defendant: Snow Creek, Inc.

Plaintiff Claims: Landowner duty, failure to warn, negligent adjustment of ski bindings, gross negligence

Defendant Defenses: Assumption of the Risk

Holding: for the plaintiff, sent back for trial on 3 of the 4 arguments.

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By Recreation Law          Rec-law@recreation-law.com   James H. Moss                  Jim Moss

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