The dissent in this case argues because the release was not presented to the plaintiff until he had traveled to the resort it should be void.

Case was moved from plaintiff’s town to the ski area home town based on the venue selection clause in equipment rental release. However the dissent would void venue selection clause because it was only presented to the plaintiff after the plaintiff traveled to the skis area. The dissenting judge had federal decisions that supported him.

Karlsberg v Hunter Mountain Ski Bowl, Inc., 131 A.D.3d 1121; 2015 N.Y. App. Div. LEXIS 6806; 2015 NY Slip Op 06890; 16 N.Y.S.3d 746

State: New York, Supreme Court of New York, Appellate Division, Second Department

Plaintiff: David Karlsberg

Defendant: Hunter Mountain Ski Bowl, Inc., doing business as Hunter Mountain

Plaintiff Claims: failed to provide him with proper instruction, causing him to sustain injuries while snowboarding at the defendant’s facility

Defendant Defenses: Release changes the venue

Holding: For the Defendant, venue changed

Year: 2015

This is a simple case. The plaintiff traveled to Hunter Mountain Ski Bowl, in upper New York. Upon arrival the plaintiff signed an equipment release. He rented a snowboard and took a snowboarding lesson. How he was injured was not in the decision.

The plaintiff filed suit in Suffolk County New York (Long Island). The equipment release the plaintiff signed had a jurisdiction clause that stated any lawsuits had to “be litigated exclusively in the Supreme Court of the State of New York, County of Greene, or in the United States District Court for the Northern District of New York.”

The trial court transferred the case and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The decision, a New York Appellate court decision was short. It simply said the trial court was correct. The decision reviewed the claims of the plaintiff for the reasons why the release should be voided.

Contrary to the plaintiff’s contentions, the “Equipment Rental Form and Release of Liability” was not an unenforceable contract of adhesion, and enforcement of the forum selection clause contained therein does not contravene public policy  Contrary to the plaintiff’s additional contention, the defendant’s motion was timely, inasmuch as it was made within a reasonable time after the commencement of the action

However, no reasons were given why the claims were denied.

The dissenting opinion was longer. The dissent basically argued “the better rule is one where forum selection clauses are not to be enforced if they are shown to consumers for the first time upon their arrival at a resort.”

The dissent then went through New York Law and case law from the federal courts in New York. The federal courts have upheld claims like the plaintiff’s that the release should be void because it was presented after the plaintiff had traveled and arrived at the destination.

However there was one prior case, almost identical to this one where the release was upheld even through claims of voiding the release because the plaintiff had traveled without knowing he or she would sign a jurisdiction and venue clause were denied. As such, the decisions from the state courts were controlling and basically “overruled” the federal court decisions because the decisions involved an interpretation of state law.

So Now What?

Avoid making the courts wonder about your relationship with the plaintiff and whether you attempted to hide information from the plaintiff or mislead the plaintiff. On your website and in your brochure tell prospective clients that they have to sign a release when they arrive.

Better, please the release online so they can review the release and see what they are signing. Releases are signed every day for all sorts of activities should it should be no shock that your clients will be signing one. Consequently don’t be afraid to be honest and tell them in advance.

If, upon arrival, a guest decides they don’t want to sign your release what are you going to do? The guest will have a valid claim for you to repay all of their money for the travel they incurred. Are you prepared to refund all of the money the guest spent with you and possibly repay what the guest spent to get to your destination?

Easier to post your release online and tell your clients in advance they have to sign it then to write a check when they find out and are upset about it.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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