Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowingPosted: November 5, 2012
Release stops the lawsuit in this case; however, if written better there might not have been a lawsuit.
Tubing brings in a lot of money for minimal investment and space for an area with snow. On top of that tubing requires no skills and can be done even when you are
exhausted, and you can still have fun. Consequently, tubing hills are showing up everywhere, and at all ski areas.
In this case, the plaintiff’s tube appears to have become detached from the lift and she “catapulted” over an embankment causing her injuries. Normally, the term catapulted means some force was applied to launch the projectile, but when you don’t have a solid legal case, you sometimes pump up the facts.
Summary of the case
The tubing trip was put together by the Fraternal Order of the Eagles. The plaintiff signed a release for the Eagles and for Ski Shawnee. Both releases were reviewed by the courts. Under Pennsylvania law, a release is defined as “a contractual provision relieving a party from any liability resulting from a negligent or wrongful act.” After looking at the releases the court stated the four-part test in Pennsylvania to determine if a release was valid. The ways to invalidate a release under Pennsylvania law are almost identical to the ways releases are invalidated in other states.
(1) The contract must not violate any policy of the law;
(2) The contract must be between individuals and relate to their private affairs;
(3) Each party must be a free bargaining agent rather than one drawn into a contract of adhesion;
(4) The agreement must express the intent of the parties with the utmost particularity.
The court looked at the activity and the releases and found the releases valid. The parties were private parties; the contract was not one of adhesion; the language was conspicuous and expressed the intent of the parties, and snow tubing is a recreational activity.
The plaintiff’s claims were the tubing facility was designed negligently, and the lift was operated negligently. Neither of these issues was identified in the release. However, the court was able to find language in the release which the court found protected the defendants from these claims. The court first found the issues were part of snow tubing and consequently, were an inherent risk of the sport and the release mentioned the lift in it.
So Now What?
Tubing is going to continue to grow as a sport. This is a great decision in Pennsylvania to help a tubing operation write a release and a great decision in other states to argue what the risks of tubing are and as such which ones are inherent to the sport.
However, both releases did not point out the risks of the sport who allowed the plaintiff the slightly open door to start their suit. The better your release is written the greater the chance that an injured and unhappy plaintiff can find a way to test your release.
What do you think? Leave a comment.
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