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First of a kind! A release written so badly the assumption of risk language stopped the release from working for one defendant and did not cover the minors because the release did not name them.

How many times do I have to repeat this, hire an attorney to write your release? Hire an attorney that understands your activity and your guests. These releases (yes two of them) are truly ridiculous. The release attempted to cover skiing, snowboarding, “sliding,” (whatever that is) and the tubing hill. On top of that the skier responsibility code or “your responsibility code” was included in the release for tubing. Two different releases were signed for the same activity. Finally the language in the release was just plain wrong and the court pointed it out.

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

Plaintiff: James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor

Defendant:  Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr,

Plaintiff Claims: negligence

Defendant Defenses: release, assumption of risk, no duty owed

Holding: For the defendant snowtubers who hit the plaintiff’s and for the plaintiff’s against the ski area because the release failed.

 

The case is about facts that probably occur every day on a tubing hill. One group of three tubers, plaintiffs, veered into another lane in the run out. As the second group of tubers, defendant tubers, came down they hit the plaintiffs. The parents of the injured tubers filed suit against the ski area owner of the tubing hill Perfect North Slope, and the defendant tubers that hit the kids.

As luck would have it or actually extremely poor management of the legal issues and documents of the defendants; plaintiff’s signed one release to go tubing, and the defendant tubers signed a different release. The director of Snowsport’s Operations stated:

…testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms.

Both groups of defendants filed motions for summary judgment leading to this decision.

Summary of the case

The court first looked at the claims against the defendant tubers. The plaintiff’s brought the defendant tubers into the case arguing the tubers assumed a duty of care to the plaintiff’s by signing the release. The plaintiff’s quote language in the release and specifically in the “Your Responsibility Code” in the release which they argued created liability on the part of the defendant tubers.

The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.”

Your responsibility control was based on skiers and boarders on ski slopes. It is based on the simple premise that skier and boarders can turn and stop, that you can ski and board under control. In tubing, the only control, you have is to hold on or not. “Your Responsibility Code” has no bearing on tubing and in this case gave the plaintiffs away to drag in other guests of the ski area.

Under Indiana law a contract that creates a duty can create negligence. That means you sign an agreement that says you will act or not act in a certain way. You breach that duty which causes injury to the other party to the contract, under Indiana law you could be liable. The contract created the standard of care you breached.

Generally, only the parties to the contract can create the duty which can create liability. Third parties, those not identified in the contract or signors to the contract are not part or have benefits or duties from the contract. It is difficult to bring third parties into a contract unless the contract is made to benefit the third party or contemplates the third party in the contract.

Here the court agreed with the defendant tubers that the contract they signed with the defendant ski area did not create a duty of care owed to the plaintiffs. However, that conclusion was based on a very thorough and intense review of the “release” the defendant tuber’s signed. There were several sentences in the agreement that caused the court’s concern.

The signor of the agreement which contained the skier responsibility code agreed to abide by the code. The release also stated, “…as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” The plaintiff argued that those statements created an affirmative duty of care on the part of one group of tubers to another.

The ski area testified that the skier responsibility code had nothing to do with tubing. In fact, much of the deposition testimony incorporated into the decision concerning the intent of the ski area with the release was about the defendant tubers. The judge concluded: “It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other patrons, while other snow tubers did not.” The third party defendants were dismissed from the case.

Defendant Ski Areas arguments

The same confusion that led to the release from the suit of the defendant tubers worked against the ski area. There is an axiom in the law that states a contract will be construed against the person who drafted it. This means if there is a section of the contract that could be interpreted either for or against the drafter; it will be interpreted against the drafter. This applies to all releases because releases are presented to the guests on a take it or leave it basis. As the drafter, the court figures they had the best chance to write the release correctly and thus wrote the release to help the other party if the release is confusing.

Badly written releases are legally termed ambiguous. Here the court held the release was ambiguous.

“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence, and its construction is a matter for the fact-finder. An ambiguity exists where a provision is susceptible to more than one interpretation, and reasonable persons would differ as to its meaning.

A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.

Ambiguous contracts or releases cannot be upheld.

In reading the release signed by the plaintiff the court looked at whether it was intended to apply to the minor children. The first part of the release was written to prevent suits by the “signor.” In this case, the signor was the parents of the injured minors.

Only in the second part of the release, the medical authorization was there a mention to other parties, children or minors.

Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.”

Reading the contract as a whole, the court found the only part of the release that applied to the children was the medical authorization. The release part of the release only applied to the person who signed it.

The ski area was not released from the lawsuit.

So Now What?

When you have a new release, you shred, recycle, and throw out the old release. You don’t keep them around to save money or paper. The amount of paper you save is just a small percentage of what the parties will go through in a trial.

Make sure that your release does not create duties of care or promises that create liability for you or for third parties. You cannot disclaim liability for future injuries and promise not to injure a guest in the same document.

Don’t put anything in your release that could confuse or compromise the release. Here the skier responsibility code had no application to tubing and could have created liability for third parties. Why waste the space to complicate your document.

Never write, or use, a release that is confusing. Here the interpretation of several confusing sections led to the decision that could have gone either direction to some extent. Your release must be clear and distinctly understandable showing that the parties intend the document will prevent future litigation for any injuries.

The court never considered if the release covered minors. Here was a perfect opportunity for the court to hold that releases stopped suits by minors. However, the release was written so badly the court never even got to that issue.

How hard is it to include a simple phrase into a release so that other tubers are not drawn into a lawsuit? Do you think the defendant tubers are going to go tubing for a while, or for that matter, any other sport with other people they do not know? Instead of marketing and keeping people safe, the release at issue here probably helped keep people from the sport.

This contract was written to cover everything and effectively covered nothing. It just does not work to write releases to cover the world if your operation is that big. Your release must be written for the law of the state where you are operating or based and must be written to cover the activities your client’s are engaged in. Here the release was written to cover everything, written badly and ended up covering nothing.

The release in this case was a disaster. The new release was equally bad. Both were written badly and included language that made them ineffective at best and increased liability to a greater extent. It is difficult to write a release where the language voids it because you describe the risks improperly, however, this release did.

Other Tubing Cases

Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing            http://rec-law.us/So8QS8

Bad release and prepped plaintiff defeat motion for summary judgment filed by ski areahttp://rec-law.us/12mE4O1

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

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