Ski Binding Failure to Release under Indiana Law

Moore v. Sitzmark Corporation and Salomon North America, Inc., 555 N.E.2d 1305; 1990 Ind. App. LEXIS 769; CCH Prod. Liab. Rep. P12,523

Indiana, like most states’, product liability law is controlled by statute which severely limits the defenses available to a defendant. Here the retailer and manufacture were sued for injuries when a ski binding failed to release, both being in the chain of the sale of the product. The plaintiff had signed a “sales slip” which contained release language when she picked up the skis; however the sales slip (release) was only effective against one of the three claims of the plaintiff.

The defendants had filed a motion for summary judgment at the trial court which was granted on all counts. The plaintiff appealed and the appellate court reversed on two of the three product liability claims.

The plaintiff had purchased new skis and bindings from the retailer Sitzmark Corporation which included bindings manufactured by Salomon North America. On the plaintiff’s third run while skiing and her first fall on her new equipment she fell suffering a compound fracture.

The plaintiff sued claiming negligence and strict liability. The negligence claim included two sub-claims negligent design of the bindings and negligent adjustment of the bindings by the retailer. The defenses were “incurred risk” and the release contained in the sales slip. Indiana uses the term incurred risk instead of the term assumption of the risk.

Summary of the case

The language in the sales slip that constituted the release language, excerpted below, did not contain the magic word release. It only talked about assumption of the risk issues. The plaintiff did acknowledge understanding the language.

I have been instructed in the use of my equipment, I have read the manufacturer’s instruction pamphlet (new bindings only), I have made no misrepresentation in regard to my height, weight, age, or skiing ability . . . . I understand that there are inherent and other risks involved in the sport for which this equipment is to be used, snow skiing, that injuries are a common and ordinary occurrence of the sport and I freely assume those risks. I understand that the ski boot binding system will not release at all times or under all circumstances, nor is it possible to predict every situation in which it will release and is therefore no guarantee for my safety. I therefore release the ski shop and its owners, agents and employees from any and all liability for damage and from the selection, adjustment and use of this equipment, accepting myself the full responsibility for any and all such damage or injury which may result.

The court reversed the lower court and reinstated the plaintiff’s strict liability claim. Strict liability is set out by statute in Indiana, Ind. Code 33-1-1.5-1 et seq. The court stated the statute had a three part test for the manufacture and retailer to use as a defense in a strict liability claim.

First, a plaintiff’s knowledge of the defect.

Second, a plaintiff’s unreasonable use of the product despite knowledge of the defect.

Third, a plaintiff’s injuries caused by the product.

The court analyzed the arguments and decided that neither defendant could prove that the plaintiff new of any defect in the binding. This was different from the argument they could prove, through the release language that “Moore knew her bindings would not release under all circumstances.” Because neither defendant could win on step one the case was sent back.

The first negligence claim was a common law negligence claim. Common law meaning the law that evolved over time (and not based on statute), usually from the law carried over from Great Britain. The common law was developed in England during the 1500’s from the King’s decrees and the church’s equity decisions. As time progressed these laws became more streamline and eventually codified, or written down. The common law still exists in all states and is the basis for the law in every state (Louisiana being the sole exception). Only when a statute has been created will a section of the common law for that state disappear or cease to exist. Ninety-nine percent of all negligence claims are common law. A state may have a void in its common law, an area that has never been decided in the state before, however this is getting rare now days.

A common law product liability action in Indiana can be defeated by the defense of incurred or assumption of the risk. However assumption of the risk as a defense had been merged into comparative negligence in Indiana at this time.

The defendants argued that by signing the sales slip the plaintiff assumed the risk of the defect in the product. The court however found the sales slip was proof of assumption of the risk, but not of assumption of negligence the difference is the greater requirement of knowledge required by the statute. Because the first time she fell was also the time she was injured the plaintiff had no direct knowledge of the defect of the product. In this case defect would mean failure of the binding to release. As such, the defense failed because there was no proof of assumption of the risk of negligence. Because the binding has not failed to release prior to the injury, the plaintiff had no knowledge of the binding failing to release that she could assume. This claim was also sent back to the lower court.

The third and final claim was based on negligently “setting, adjusting or checking the bindings.” Here the sales slip with its release language was effective. The court stated “These alleged acts of negligence are exactly those for which Moore granted Sitzmark a release of liability when she read and signed the sales slip.” This final claim was dismissed by the appellate court.

This case is a little confusing because of two issues. Indiana law on product liability is different from many states and the release language in the sales slip was very poorly written. There is not much that can be done about Indiana’s product liability law and the limitation on the defenses available manufacture’s and retailers. However a well written release might have prevented one of the product liability claims.

So Now What?

The release is not clearly identified, other than in a sales slip in this opinion. However during this period, these releases were fairly uniform and used by shops across the US. These preprinted forms are written in a way as to not cause a problem with any state laws rather than to effectively stop a claim.

Having a release in this case that specifically used the word the negligence and identified the defendants as the shop, by name and all manufactures would be the first start. The court spent a lot of space finding a way to bring the manufacture into the defense provided by the release language when the language did not specifically mention the manufacture. The language of the release should incorporate the necessary defenses of the Indiana Strict Liability Act so that the defense in the act is available. The negligence claims should be identified both for negligent acts, negligent mounting and setting and negligent in the design, manufacture or construction of the product. The language should also include more specific assumption of the risk language so the purchaser or customer who is having repairs done understands the risks are not that the binding may not work, but that the risk is the binding will not work and that the user should ski knowing that and in a safe way.

A well written release, based on Indiana law may be difficult to do. However, a well written release will still be better than the one at issue here. Each claim that survives the motions and appeal increases the cost of litigating and the cost of a possible settlement. If the release had eliminated one more of the claims a lower settlement would be easier to achieve, maybe even a complete win at trial.

Plaintiff: Eldonna Moore

Defendant: Sitzmark Corporation and Salomon North America, Inc.,

Plaintiff Claims: negligence (product liability) and strict liability

Defendant Defenses: Assumption of the Risk (Incurred Risk) and Release

Holding: One claim dismissed based on the release and the two remaining claims sent back to the trial court.

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