Pennsylvania case reviews the requirements for a valid release in ski accident claim.

Cahill v. Ski Liberty Operating Corp., 2006 Pa. Dist. & Cnty. Dec. LEXIS 444; 81 Pa. D. & C.4th 344

Release barred claims for injuries from falling on icy slopes

The plaintiff was a season pass holder at the defendant’s resort and an expert skier. While skiing one day he fell on an icy spot created when a snowmaking hydrant malfunctioned and spread water around the area which froze.

Ski Liberty requires season pass holders to sign a release. To get a season pass, skiers first sign up on-line. The online sign up required the plaintiff to click through an acknowledgement of the terms of the season pass which included the release.

A skier then had to sign a written release at the time the season pass was picked up or at the resort. The court specifically set forth the following issues it found important in determining the validity of the release. The release stated the parties intended to be legally bound. That information was conspicuous location above the signature line.

The plaintiff sued because “Ski Liberty was negligent for failing to maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.” The plaintiff’s injuries were to his face, back, ribs and left hand. The plaintiff’s wife sued for loss of consortium.

What I found interesting was the plaintiff claimed that he did not know there was ice on the slope. I’ve skied through the east and a lot in Pennsylvania. The slopes are all ice, finding snow is the rare occasion.

Summary of the case

The decision starts with the court quoting the Pennsylvania Supreme Court requirements for a valid release.

The contract must not contravene any policy of the law. It must be a contract between individuals relating to their private affairs. Each party must be a free bargaining agent, not simply one drawn into an adhesion contract, with no recourse but to reject the entire transaction…[T]o be enforceable, several additional standards must be met. First, we must construe the agreement strictly and against the party asserting it. Finally, the agreement must spell out the intent of the parties with the utmost particularity.

The court then found the requirements were met by the release at issue. The plaintiff was not forced to enter the contract but did so voluntarily. There was no evidence of coercion or inducement. The activity, skiing, is recreational and not essential to the plaintiff’s personal or economic well-being. The release does not contravene public policy because the issues were private in nature and did not affect the rights of the public.

The court then reviewed the Pennsylvania ski statute and found the statute pointed out that skiing had risks. The court also found the statute suggested it was the policy of the state of Pennsylvania to enforce the doctrine of assumption of risk who engages in skiing.

The language of the release spelled out with particularity the intent of the parties. The captions clearly advise the signor of the content and purpose of the release and worked as a notice of the risk as well as a release of liability. The release then in bold letters released the defendant of any liability.

The application of the releases to use of Ski Liberty facilities is not only spelled out specifically in the document but is reinforced by other references to the releases throughout the body of the document.

The court then looked at the plaintiff’s argument that a hazardous condition created by the defendant and known by the defendant is not an inherent risk to the sport of skiing. If the risk was not inherent, then the plaintiff argued the release was void and assumption of risk did not apply.

The court did not agree and dismissed the plaintiff’s argument with a great statement.

His [plaintiff’s] experience undoubtedly has taught him that the sport of skiing is not conducted in the pristine and controlled atmosphere of a laboratory but rather occurs in the often hostile and fickle atmosphere of a south central Pennsylvania winter. Those familiar with skiing, such as Cahill, are aware that nature’s snow is regularly supplemented with a man-made variety utilizing water and a complex system of sprayers, hydrants, and pipes. Human experience also teaches us that water equipment frequently leaves puddles which, in freezing temperatures, will rapidly turn to ice. The risks caused by this variety of ever-changing factors are not only inherent in downhill skiing but, perhaps, are the very nature of the sport.

So Now What?

The decision outlines quite plainly. What is needed to write a release in Pennsylvania. More importantly it points out several points that courts look for to determine if the defendant as acting in a way as to not hide the release and to make sure the defendant truly understood what they were signing.

Those items include:

·        Conspicuous notice of the legal purpose of the document

·        Plenty of time to review the release before signing

·        Captions that point out the legal ramifications rather than hiding them

·        Important language in the release in bold print

·        A release written in plain English that is understandable by the signor

·        A section that explains the possible risks of the activity

·        References in the document to outside sources to assist the signor in understanding the document

Courts hate to uphold releases where there is nothing but the pure letter of the contract to rely upon. If the release clearly informed the signor of the risks and the signor had to have known they were signing a release, then the court can easily decide for the defendant.

Plaintiffs: Timothy Joseph Cahill and Anne Leslie Cahill

Defendants: Ski Liberty Operating Corp. t/d/b/a Ski Liberty and t/d/b/a Liberty Mountain Resort and Snow Time, Inc.,

Plaintiff Claims: Ski Liberty was negligent for failing to properly maintain the ski slopes in a safe manner and/or failing to adequately warn concerning the icy area.

Defendant Defenses: Release and Assumption of the Risk

Holding: Release was valid and barred the claims of the plaintiffs

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