Rothstein v. Snowbird Corporation, 2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219
Posted: November 9, 2014 Filed under: Legal Case, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Utah | Tags: Fluffy Bunny Run, Indemnify Agreements, indemnity agreements, Provo, Retaining Wall, Salt Lake City, Season Pass, Seven Summits Club, skiing, Snowbird, Snowbird Corporation, UT, Utah Leave a commentRothstein v. Snowbird Corporation, 2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219
William Rothstein, Plaintiff and Appellant, v. Snowbird Corporation, a Utah corporation, Defendant and Appellee.
No. 20060158
SUPREME COURT OF UTAH
2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219
December 18, 2007, Filed
February 6, 2008, Released for Publication
PRIOR HISTORY: [***1]
Third District, Salt Lake. The Honorable Anthony B. Quinn. No. 040925852.
COUNSEL: Jesse C. Trentadue, Salt Lake City, for plaintiff.
Gordon Strachan, Kevin J. Simon, Park City, for defendant.
JUDGES: NEHRING, Justice. Chief Justice Durham and Justice Parrish concur in Justice Nehring’s opinion. Justice Durrant concurs in Associate Chief Justice Wilkins’s dissenting opinion.
OPINION BY: NEHRING
OPINION
[**560] NEHRING, Justice:
[*P1] William Rothstein, an expert skier, sustained injuries when he collided with a retaining wall while skiing at Snowbird Ski Resort. He sued Snowbird, claiming the resort’s [**561] negligence caused his injuries. The district court granted Snowbird’s motion for summary judgment and dismissed Mr. Rothstein’s ordinary negligence claim. The district court agreed with Snowbird that Mr. Rothstein had surrendered his right to recover damages for Snowbird’s ordinary negligence when he became a party to two agreements releasing Snowbird from liability for its acts of negligence. In this appeal, Mr. Rothstein challenges the enforceability of the releases and the district court’s summary judgment based on them. We hold that the releases are contrary to the public policy of this state and are, therefore, unenforceable. Accordingly, [***2] we vacate the district court’s grant of summary judgment in favor of Snowbird.
BACKGROUND
[*P2] [HN1] When we review a district court’s grant of summary judgment, as in this case, we review the facts and their reasonable inferences in a manner most favorable to the nonmoving party. See, e.g., Progressive Cas. Ins. Co. v. Ewart, 2007 UT 52, P 2, 167 P.3d 1011. We present the facts surrounding Mr. Rothstein’s injury in this light.
[*P3] As he was descending Snowbird’s Fluffy Bunny run, Mr. Rothstein collided with a retaining wall constructed of stacked railroad ties and embedded partially in the mountain. The collision left Mr. Rothstein with broken ribs, an injured kidney, a bruised heart, a damaged liver, and a collapsed lung. At the time of the accident, a light layer of snow camouflaged the retaining wall from Mr. Rothstein’s view. As photographs and the alleged admission of a resort official suggest, the retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there remained a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance [***3] to the Fluffy Bunny run. Mr. Rothstein filed suit against Snowbird for its ordinary and gross negligence. 1 Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.
1 Mr. Rothstein’s initial complaint alleged only ordinary negligence. The district court permitted him to amend his complaint to incorporate a gross negligence claim after it had granted Snowbird’s motion for summary judgment on Mr. Rothstein’s ordinary negligence cause of action.
[*P4] At the time he was injured, Mr. Rothstein held a season pass to Snowbird and a Seven Summits Club membership which entitled him to bypass lift lines for faster access to the slopes. In order to obtain these benefits, Mr. Rothstein signed two release and indemnify agreements. The first agreement provided:
I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing . . . or resulting from the [***4] fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird . . . from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees
(emphasis in original). The second agreement stated:
In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any [**562] other cause including the negligence of Snowbird, its employees and agents
(emphasis in original).
[*P5] Citing the agreements, the district court granted summary judgment in favor of Snowbird on Mr. Rothstein’s ordinary negligence claim. (Mr. Rothstein later voluntarily moved to dismiss [***5] his gross negligence claim without prejudice.) The issue before us is whether the district court correctly granted Snowbird summary judgment on Mr. Rothstein’s ordinary negligence claim on the basis of the existence of the release and indemnify agreements.
DISCUSSION
[*P6] [HN2] Preinjury releases from liability for one’s negligence pit two bedrock legal concepts against one another: the right to order one’s relationship with another by contract and the obligation to answer in damages when one injures another by breaching a duty of care. E.g., Berry v. Greater Park City Co., 2007 UT 87, P 12, 171 P.3d 442. We have joined the majority of jurisdictions in permitting people to surrender their rights to recover in tort for the negligence of others. Id. P 15. We have made it clear throughout our preinjury release jurisprudence, however, that contract cannot claim victory over tort in every instance. We have indicated that releases that are not sufficiently clear and unambiguous cannot be enforced. Hawkins v. Peart, 2001 UT 94, P 9 n.3, 37 P.3d 1062. We have also indicated that we would refuse to enforce releases that offend public policy. Id. P 9. We do not explore the clarity with which Snowbird communicated [***6] to Mr. Rothstein its intention to release itself of liability for its negligence because we conclude that the releases offend the public policy of this state as articulated by the Legislature.
[*P7] We first insisted that preinjury releases be compatible with public policy a century ago when we affirmed Christine Pugmire’s jury verdict awarding her damages for injuries she sustained when a locomotive ran into the railroad car in which she lived and worked as a cook. 2 Pugmire v. Or. Short Line R.R. Co., 33 Utah 27, 92 P. 762, 763, 767 (Utah 1907). Mrs. Pugmire had signed a release absolving the railroad from liability for any injuries she might sustain. We affirmed the trial court’s refusal to instruct the jury that Mrs. Pugmire could be bound by the release, noting that such master-servant agreements “are held to be void . . . [because] they are against public policy.” Id. at 765.
2 Mrs. Pugmire worked in the railroad car with her husband. The defendant railroad attempted to escape liability by claiming that only Mr. Pugmire was its employee. (Of course, this case predated the enactment of Utah’s Workers’ Compensation Act by a decade.) In testimony that stands out as an artifact of a bygone era of gender [***7] roles, a railroad witness sabotaged this defense when he told the jury that Mr. Pugmire’s duties included cooking for the train crew. As it happened, Mr. Pugmire could not cook, but “it was taken for granted that [Mrs. Pugmire] could cook and would assist in the work; and that was why the wife was permitted to go.” Pugmire v. Or. Short Line R.R. Co., 33 Utah 27, 92 P. 762, 764 (Utah 1907) (internal quotation marks omitted).
[*P8] By the time it was adopted within the Restatement of Torts in 1965, the principle that the interests of public policy could supplant the interests of contract had acquired universal acceptance. See, e.g., Bisso v. Inland Waterways Corp., 349 U.S. 85, 90, 75 S. Ct. 629, 99 L. Ed. 911 (1955); Am. S.S. Co. v. Great Lakes Towing Co., 333 F.2d 426, 428-29 (7th Cir. 1964); Mohawk Drilling Co. v. McCullough Tool Co., 271 F.2d 627, 633 (10th Cir. 1959); Gilpin v. Abraham, 218 F. Supp. 414, 415 (E.D. Pa. 1963). Section 496B of the Restatement (Second) of Torts states, [HN3] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” 3 Restatement (Second) of Torts § 496B [***8] (1965).
3 This section of the Restatement is titled “Express Assumption of the Risk.” Courts are wise to exercise caution whenever they encounter the term assumption of the risk. To many, it is a concept that had been wholly discredited with the arrival of comparative negligence. We spoke to the perils of falling prey to this overgeneralization in Fordham v. Oldroyd, 2007 UT 74, PP 9-14, 171 P.3d 411. Express assumption of the risk of the type addressed in section 496B is another species of the doctrine that coexists with comparative negligence. In Jacobsen Construction Co. v. Structo-Lite Engineering, Inc., we noted,
An express assumption of risk involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another. We not only follow suit by refraining to include this form of assumption of risk in our discussion, but furthermore fail to see a necessity for including this form within assumption of risk terminology.
619 P.2d 306, 310 (Utah 1980).
[**563] [*P9] Our recent encounters with preinjury releases have uniformly reaffirmed the public policy exception to the general rule that preinjury releases are enforceable. [***9] See, e.g., Hawkins, 2001 UT 94, P 1, 37 P.3d 1062 (holding invalid as contrary to public policy a waiver of liability and an indemnity provision that an equestrian group required individuals to sign before riding horses).
[*P10] Despite our willingness to invoke public policy as the justification for refusing to enforce certain preinjury releases, we are mindful of the caution with which we must proceed when contemplating this analytic approach. Ascertaining when a preinjury release sufficiently offends public policy to warrant stripping the release of its enforceability can be difficult. As the example of preinjury releases for negligence amply illustrates, the quest to identify good public policy in a particular instance often requires a court to account for two or more conflicting policies, each laudable, but none of whose claims on the good can be fully honored. Extracting public policy from statutes can be no less challenging. Moreover, in most instances, our proper role when confronted with a statute should be restricted to interpreting its meaning and application as revealed through its text. To pluck a principle of public policy from the text of a statute and to ground a decision of this court [***10] on that principle is to invite judicial mischief. Like its cousin legislative history, public policy is a protean substance that is too often easily shaped to satisfy the preferences of a judge rather than the will of the people or the intentions of the Legislature. We aptly noted the risks of relying on public policy rationales when we stated that [HN4] “‘the theory of public policy embodies a doctrine of vague and variable quality, and, unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as a basis for judicial determinations, if at all, only with the utmost circumspection.'” Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1043 (Utah 1989) (quoting Patton v. United States, 281 U.S. 276, 306, 50 S. Ct. 253, 74 L. Ed. 854 (1930)). When, however, the Legislature clearly articulates public policy, and the implications of that public policy are unmistakable, we have the duty to honor those expressions of policy in our rulings. Such is the case here.
[*P11] Seldom does a statute address directly the public policy relevant to the precise legal issue confronting a court. Here, no statute or other legislative pronouncement of public policy answers squarely the question of whether [***11] a preinjury release of a ski resort operator’s negligence executed by a recreational skier is enforceable. Few legislative expressions of public policy speak more clearly to an issue, however, than the public policy rationale for Utah’s Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007), speaks to preinjury releases for negligence.
[*P12] Our confidence in defining the public policy that the Act was created to serve is enhanced by the fortuitous fact that the Utah Legislature introduced the substantive text of the Act with a statement of public policy. Section 78-27-51 states:
[HN5] The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and [***12] the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, [**564] no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.
[*P13] [HN6] Read in its most restrictive sense, section 78-27-51 simply announces that it is the public policy of Utah to bar skiers from recovering from ski area operators for injuries resulting from the inherent risks of skiing, as enumerated in the Act. So limited, this pronouncement explains nothing that one could not deduce from the text of the Act itself which by its terms codifies this policy. Of equal or greater significance are legislative findings and expressions of public policy that bear on why it is important to identify the inherent risks of skiing and insulate ski area operators from liability for injury caused by them.
[*P14] According to the Legislature, it was necessary to immunize ski area operators from liability for injuries caused by inherent risks because they were otherwise being denied insurance coverage or finding coverage too expensive to purchase. See id. The Legislature found that the ski industry [***13] insurance crisis imperiling the economic viability of ski area operators was more than an inconvenient product of market forces. It had become a matter of public policy concern meriting the intervention of public policy because, in the words of the Legislature, “the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state.” Id. Thus, the ski industry’s prominent role in Utah’s economy justified, in the view of the Legislature, governmental intervention to ameliorate the untoward effects of the free market.
[*P15] The central purpose of the Act, then, was to permit ski area operators to purchase insurance at affordable rates. The insulation of ski area operators from liability for injuries caused by inherent risks of skiing was a means to that end. There is no evidence that, in the absence of a perceived insurance crisis, the Legislature would have interceded on behalf of ski area operators merely to clarify the scope of duties owed skiers who used the ski facilities. [HN7] The Act is most clearly not, as Snowbird contends, intended to protect ski area operators by limiting their liability [***14] exposure generally. It is rather a statute that is intended to clarify those inherent risks of skiing to which liability will not attach so that ski resort operators may obtain insurance coverage to protect them from those risks that are not inherent to skiing.
[*P16] By expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Act into being, the Legislature authoritatively put to rest the question of whether ski area operators are at liberty to use preinjury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not. The premise underlying legislative action to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks [***15] by purchasing insurance. By extracting a preinjury release from Mr. Rothstein for liability due to their negligent acts, Snowbird breached this public policy bargain.
[*P17] There is little to recommend Snowbird’s rejoinder to this interpretation of the public policy provision of the Act. Snowbird contends that the purpose of the Act is to immunize ski area operators from liability generally. Since releases of liability also serve this end, Snowbird argues such releases are wholly compatible with the Act. This reasoning fails to account for the Legislature’s inescapable public policy focus on insurance and ignores the reality that the Act’s core purpose is not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned by their negligence.
[*P18] The cases cited by Snowbird from other states that statutorily insulate the providers [**565] of recreational activities from liability for inherent risks and permit preinjury releases lose their persuasive appeal on close examination. Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296 (D. Wyo. 1999); Clanton v. United Skates, 686 N.E.2d 896 (Ind. Ct. App. 1997). [***16] Neither Wyoming’s Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to -123 (1995), nor the relevant Indiana statute, Ind. Code § 14-22-10-2 (1995), that inform these cases contain public policy sections or discuss the issue of insurance. Although both statutes contemplate the lack of liability associated with a variety of recreational activities, neither contains the kind of resounding public policy pronouncement present in Utah’s Act.
[*P19] Likewise unavailing is Snowbird’s assertion that the freedom to enter into a preinjury release must be preserved in the absence of express legislative disapproval. Were we to adopt this reasoning, we would call into question the legitimacy of the entire body of our preinjury release jurisprudence inasmuch as we have never declared a preinjury release unenforceable with the aid of an express statutory mandate to do so. Nor would we be likely to encounter such an occasion. In the face of an express legislative prohibition of a preinjury release, a public policy analysis would hardly be necessary. Moreover, the Act’s expression of public policy does not lend itself to the need for an additional statement concerning the status of preinjury releases. The [***17] legislative goal expressed in the Act of easing the task of ski area operators to insure themselves against noninherent risks creates the presumption that ski area operators will confront those risks through insurance and not by extracting contractual releases from skiers. In this setting, the burden shifts to ski area operators to persuade the Legislature to expressly preserve their rights to obtain and enforce preinjury releases.
CONCLUSION
[*P20] Consistent with our duty to honor the Legislature’s unambiguous expressions of public policy, we hold that the release and indemnify agreements Mr. Rothstein signed per Snowbird’s request are contrary to the public policy of this state and are, therefore, unenforceable. We vacate the district court’s grant of summary judgment and remand for proceedings consistent with this opinion.
[*P21] Chief Justice Durham and Justice Parrish concur in Justice Nehring’s opinion.
DISSENT BY: WILKINS
DISSENT
WILKINS, Associate Chief Justice, dissenting:
[*P22] I conclude that the preinjury releases at issue in this appeal are not, in and of themselves, contrary to the public policy of this state. Accordingly, I respectfully dissent from the majority opinion.
[*P23] I agree with the majority that the central [***18] purpose of Utah’s Inherent Risks of Skiing Act is to facilitate affordable insurance rates for ski area operators because of their direct impact on and contribution to the Utah economy. See Utah Code Ann. § 78-27-51 (2002 & Supp. 2007). I also agree that, in drafting the public policy statement that precedes the substantive text of the Act, the Legislature clearly intended to clarify the law and proscribe lawsuits against ski area operators for those risks that are inherent in skiing. My conformity with the majority opinion, however, ends thee.
[*P24] Grounding their reasoning in the “legislative findings and expressions of public policy [in the Act],” supra P 13, the majority ultimately concludes that the Legislature has “authoritatively put to rest the question of whether ski area operators [may] use preinjury releases to significantly pare back or . . . eliminate their need to purchase . . . liability insurance . . . . They [may] not.” Supra P 16. In other words, the majority reasons that because encouraging affordable insurance rates is the primary objective of the Act, once ski area operators obtain that insurance they may do no more to protect themselves. Consequently, my colleagues [***19] conclude, it violates this express public policy for ski area operators to attempt to limit their liability by seeking preinjury releases from patrons. Extracting such releases, according to the majority, “breache[s the] public policy bargain” made by the Act. Supra P 16. I disagree.
[**566] [*P25] When deciding questions of statutory interpretation, we customarily look first to the plain language of a statute. It is also usual that we take note of words and phrases the Legislature did not include. See Biddle v. Washington Terrace City, 1999 UT 110, P 14, 993 P.2d 875 (“[O]missions in statutory language should be taken note of and given effect.” (citation and internal quotation marks omitted)). Similarly, we have previously expressed the view that “[this] court has no power to rewrite a statute to make it conform to an intention not expressed.” Mountain States Tel. & Tel. Co. v. Pub. Serv. Comm’n, 107 Utah 502, 155 P.2d 184, 185 (Utah 1945) (emphasis added).
[*P26] In my view, the majority’s interpretation improperly expands the plain language of the Act and infuses it with “intention not expressed” by the Legislature. Id. Section 78-27-51 simply proscribes lawsuits against ski area operators for those risks that are [***20] inherent to skiing. See Utah Code Ann. § 78-27-51. Nowhere does the text suggest that ski area operators may not contractually further limit their liability for risks that are not inherent to skiing. In fact, the text is silent about whether an individual may or may not sue a ski area operator on some other basis. Accordingly, this court should resist the temptation to add language or meaning to the Act where no hint of it exists in the text.
[*P27] When the Legislature clearly identifies a public policy objective, we have a duty to honor it. We also have a duty, however, not to stray beyond the plain language of a statute, as I believe the majority has done here. I conclude that preinjury releases do not automatically violate the public policy of this state and that releases must be examined on an individual basis to determine whether they are enforceable under the applicable law. Where, as here, neither preinjury release executed by the plaintiff was a requirement to using the ski area but instead granted additional benefits and privileges to the skier, both parties should be free to enter into the agreement, or not, and expect it to be enforced by our courts as agreed. Accordingly, I would [***21] affirm the district court’s grant of summary judgment in favor of Snowbird.
[*P28] Justice Durrant concurs in Associate Chief Justice Wilkins’s dissenting opinion.
Berry v. Greater Park City Company, 2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192
Posted: November 9, 2014 Filed under: Legal Case, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Utah | Tags: Bone fracture, Park City, Park City Mountain Resort, Release, ski area, Ski binding, skiing, Summary judgment, United States Ski Team, UT, Utah Leave a commentBerry v. Greater Park City Company, 2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192
James Gordon Berry V, Plaintiff and Appellant, v. Greater Park City Company dba Park City Mountain Resort, a Utah corporation; CRE Management, Inc., dba Milosport; and International Ski Federation, Defendants and Appellee.
No. 20051057
SUPREME COURT OF UTAH
2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192
October 30, 2007, Filed
December 6, 2007, Released for Publication
PRIOR HISTORY: [***1]
Third District, Salt Lake. The Honorable J. Dennis Frederick. No. 030904411.
COUNSEL: Harold G. Christensen, Richard A. Van Wagoner, Julianne Blanch, Ryan B. Bell, Salt Lake City, for appellant.
Gordon Strachan, Kevin J. Simon, Park City, for appellee.
JUDGES: NEHRING, Justice. Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Parrish concur in Justice Nehring’s opinion.
OPINION BY: NEHRING
OPINION
[**444] NEHRING, Justice:
[*P1] James Gordon “V.J.” Berry was seriously injured while competing in a ski race. He sued the parties connected with the event, including Park City Mountain Resort (PCMR), the site where the race was held. The district court granted PCMR’s motions for summary judgment and dismissed Mr. Berry’s claims for ordinary negligence, gross negligence, and common law strict liability. We affirm in part and hold that Mr. Berry’s preinjury release of PCMR is enforceable and that the district court properly determined that Mr. Berry’s strict liability claim fails as a matter of law. We further hold that the district court improperly awarded PCMR summary judgment on Mr. Berry’s gross negligence claim and therefore reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
[*P2] In February [***2] 2001, Mr. Berry, an expert skier then twenty-six years of age, entered a skiercross race promoted as the King of the Wasatch, which was constructed on one of PCMR’s ski runs. In the skiercross race format, four racers simultaneously descend a course that features difficult turns and tabletop jumps. The racers compete against each other as they ski down the mountain to complete the course first. A series of elimination heats determines the race winner. On Mr. Berry’s fourth trip over the course, he attempted to negotiate the course’s first tabletop jump. Upon landing from the jump, Mr. Berry fell and fractured his neck, an injury that resulted in permanent paralysis.
[*P3] Before being allowed to participate in the contest, competitors like Mr. Berry were required to sign a Release of Liability and Indemnity Agreement. Although Mr. Berry did not read the agreement, he signed it twelve days before the race. The agreement purported to release PCMR from claims arising from its negligence, stating:
In consideration for being permitted to participate in the Event, I agree to release from any legal liability, agree not to sue and further agree to defend, indemnify and hold harmless Park City Mountain [***3] Resort . . . the race organizers, sponsors and all of their officers, agents and employees for injury or death resulting from participation in the Event, regardless of the cause, including the negligence of the above referenced parties and their employees or agents.
[*P4] PCMR introduced several measures aimed at enhancing the safety of contest participants like Mr. Berry. Blue paint marked the take-off point of the tabletop jumps. The course was built with speed gates and berms uphill of the jump in order to slow and control the speed of racers on their approach. Safety barriers enclosed the racecourse and closed it to noncompetitors. Racers were required to wear helmets and familiarize themselves with the course by inspecting its features while twice “slipping” its length. Competitors were also permitted to take practice runs of the course on the day of the race.
[*P5] Naturally occurring conditions compromised these measures on the day of the race. The light was “flat,” which hindered depth perception and made it difficult for participants to make out aspects of the course. The snow-covered surface of the course was packed particularly hard.
[*P6] Mr. Berry offered expert opinion that pointed to [***4] significant design flaws in the tabletop jump that was the site of his fall. For example, the left side of the jump, from which Mr. Berry was forced to ascend due to his competitors’ positioning in the heat, was built in a manner to launch skiers at a dangerously steep angle, causing them to be propelled beyond the landing area. Expert opinion also faulted the landing area as being too small and not steep enough to accommodate safe landings.
[*P7] Relevant to our purposes, Mr. Berry brought suit against PCMR and alleged claims of ordinary negligence, gross negligence, and common law strict liability. The district court granted PCMR’s motions to summarily dismiss each of Mr. Berry’s claims. The district court concluded that Mr. Berry was bound by the “clear and unequivocal” language of the agreement and could not therefore pursue a claim against [**445] PCMR based on the resort’s alleged negligence. The district court held that Mr. Berry’s strict liability claim was invalid because the King of the Wasatch race was not as a matter of law an abnormally dangerous activity. Finally, the district court concluded that as a matter of law Mr. Berry failed to present evidence sufficient to place in dispute [***5] the issue of whether PCMR had designed and built the skiercross course with “utter indifference to the consequences that may result” or gross negligence. This appeal followed.
STANDARD OF REVIEW
[*P8] [HN1] Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). [HN2] Because a grant of summary judgment by definition involves conclusions of law, we afford no deference to the district court’s decision and review it for correctness. See Peterson v. Sunrider Corp., 2002 UT 43, P 13, 48 P.3d 918.
ANALYSIS
I. MR. BERRY’S AGREEMENT TO RELEASE PCMR FROM LIABILITY FOR ITS NEGLIGENT ACTS IS ENFORCEABLE
[*P9] [HN3] Preinjury exculpatory releases turn against one another the freedom of persons to regulate their affairs by contract and the social bargain at the heart of tort law that persons who fail to exercise reasonable care should be accountable in damages to those injured by negligent acts. We have not previously had occasion to consider whether the sponsor of a competitive ski race may shield itself from negligence by obtaining prospective exculpatory agreements from participants. This appeal is not, however, [***6] our introduction to preinjury releases.
[*P10] In our most recent encounter, we held that a preinjury release could not foreclose claims of negligence brought by the parent of a minor child who was injured during a guided equestrian trail ride. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062. Mr. Berry interprets Hawkins as a case containing sufficient kinetic energy to move it beyond its facts to guide the outcome of this appeal. According to Mr. Berry, Hawkins signaled that we had found common cause with a “growing consensus” of jurisdictions that rejected as contrary to public policy preinjury releases generally and those releasing ski areas particularly. To support his interpretation, Mr. Berry drew on our statement in Hawkins that
[a]n exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party.
Id. P 13.
[*P11] We made observations [***7] critical of preinjury releases in the context of the point that sound reasons exist for the law to treat preinjury releases with greater suspicion than postinjury releases. Regardless of the context in which they appear, we readily acknowledge that the shortcomings of exculpatory clauses cited in Hawkins provide ample cause to approach preinjury releases with caution. Indeed, the reasoning used by courts to reject as contrary to public policy preinjury releases is persuasive. See Hiett v. Lake Barcroft Cmty. Ass’n, 244 Va. 191, 418 S.E.2d 894, 8 Va. Law Rep. 3381 (Va. 1992); see also Jaffe v. Pallotta TeamWorks, 362 U.S. App. D.C. 398, 374 F.3d 1223, 1226 (D.C. Cir. 2004); Coughlin v. T.M.H. Int’l Attractions Inc., 895 F. Supp. 159 (W.D. Ky. 1995); Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 799 (Vt. 1995); cf. N.Y. Gen. Oblig. §§ 5-321 to -326 (2007). In the Commonwealth of Virginia, for example, public policy forbids exculpatory agreements because “‘to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails.'” Hiett, 418 S.E.2d at 896 (quoting Johnson’s Adm’x v. Richmond & Danville R.R. Co., 11 S.E. 829, 829, 86 Va. 975 (Va. 1890)). [***8] This approach is certainly defensible both as a statement of legal and social philosophy–the right to con [**446] tract is always subordinate to the obligation to stand accountable for one’s negligent acts–and on an operational level inasmuch as such a clear statement eliminates any ambiguity over whether a court would later deem a particular preinjury release enforceable. Our recognition of the undesirable features of preinjury releases and of the merits of arguments that we should brand all preinjury releases unenforceable falls short of convincing us that freedom to contract should always yield to the right to recover damages on the basis of another’s fault. See, e.g., Jones v. Dressel, 623 P.2d 370 (Colo. 1981); Porubiansky v. Emory Univ., 156 Ga. App. 602, 275 S.E.2d 163, 167-68 (Ga. Ct. App. 1980); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 758 P.2d 968 (Wash. 1988); Kyriazis v. Univ. of W. Va., 192 W. Va. 60, 450 S.E.2d 649 (W. Va. 1994).
[*P12] Our analysis in Hawkins disclosed both our conviction that [HN4] a person should retain the power to contract away the right to recover damages for the negligence of another and our understanding that the authority to exercise the right was subject [***9] to many conditions and limitations. 1 We began that analysis by acknowledging, uncritically, the “general principle of common law” that [HN5] “‘those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty.'” Hawkins, 2001 UT 94, P 9, 37 P.3d 1062 (quoting 6A Arthur Linton Corbin, Corbin on Contracts § 1472 (1962)). After canvassing the legal landscape for perspective on how courts have received and interpreted the Corbin principle, we noted that most of the cases from jurisdictions that were not among the minority rejecting all preinjury releases focused their analytical energy on ascertaining how to know who is and who is not “engaged in public service.” Id. P 9. Because it was not necessary to do so, we did not delve into this question in Hawkins and instead limited ourselves to the observation that most jurisdictions that permit prospective releases draw the line at attempts to limit liability for activities in which there is a strong public interest. These cases did not, however, aid us in making progress toward a proper outcome because Hawkins concerned the unique circumstance of the release of a [***10] minor’s prospective claim for negligence and did not implicate the public service exception. Our analysis in Hawkins relied, then, on a public policy exception to the Corbin principle “specifically relating to releases of a minor’s claims.” Id. P 10.
1 For example, parents in many jurisdictions lack the authority to release a minor’s claims against a negligent party. E.g., Hawkins, 2001 UT 94, P 10, 37 P.3d 1062. When Hawkins was decided, Utah was such a jurisdiction; the state afforded parents no “general unilateral right to compromise or release a child’s existing causes of action without court approval or appointment to that effect.” Id. P 11. Although Hawkins involved a mother’s preinjury release of her minor daughter’s claims, we reasoned that it would be inconsistent for the court to allow parents to do preinjury what they were prohibited from doing postinjury. Id.
[*P13] The lesson of Hawkins is that all of the analytical approaches we discussed were exceptions to the general principle that preinjury releases are enforceable. The viability of the principle itself was never challenged. We assumed its controlling force then and make explicit our adoption of the principle now.
[*P14] Had we intended our observations [***11] concerning the deleterious effects of preinjury releases to be our final expression of views on the proper place of such releases in our law, little reason would have existed for us to have refrained from using Hawkins to declare categorically that such releases offend public policy and are unenforceable. The proper inference to draw from Hawkins is that this general rule is well embedded in our common law despite its flaws. Our position on this matter can coexist with our endorsement of the prevailing view that [HN6] the law disfavors preinjury exculpatory agreements. See Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 739 (Conn. 2005).
[*P15] Having determined that our public policy does not foreclose the opportunity of parties to bargain for the waiver of tort claims based on ordinary negligence, we confront the issues we stopped short of resolving in Hawkins: selecting and applying a standard [**447] relating to the public interest exception to the general rule recognizing the enforceability of preinjury releases. 2 2001 UT 94, P 10, 37 P.3d 1062. This is an inquiry that directs our attention to the nature of the activity seeking to be shielded from liability for its negligence and away from Hawkins’ focus on the [***12] status of the person from whom the release is sought. 3 In Hawkins, we stated that many states had come to rely on the guidelines for evaluating the applicability of the public interest exception to preinjury releases set out in Tunkl v. Regents of The University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963). The Tunkl guidelines have retained their vitality over the years since Utah, through Hawkins, became one of many jurisdictions to permit preinjury releases. See, e.g., Omni Corp. v. Sonitrol Corp., 476 F. Supp. 2d 125, 128 (D. Conn. 2007); Am. Structural Composites, Inc. v. Int’l Conference of Bldg. Officials, 325 F. Supp. 2d 1148, 1151 (D. Nev. 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Brown v. Soh, 280 Conn. 494, 909 A.2d 43, 48-51 (Conn. 2006); Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 141 P.3d 427, 437-39 (Haw. 2006); Berlangieri v. Running Elk Corp., 2003 NMSC 24, 134 N.M. 341, 76 P.3d 1098, 1109-10 (N.M. 2003). [HN7] The Tunkl standard, which identifies the traits of an activity in which an exculpatory provision may be invalid, is as follows:
“[1] [The transaction] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing [***13] a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.”
Hawkins, 2001 UT 94, P 9 n.3, 37 P.3d 1062 (quoting Tunkl, 383 P.2d at 445-46).
2 [HN8] The law’s wariness of preinjury releases is reflected in the requirement that to be enforceable, such agreements must be communicated in a clear [***14] and unequivocal manner. See Paralift, Inc. v. Superior Court, 23 Cal. App. 4th 748, 29 Cal. Rptr. 2d 177, 180 (Ct. App. 1993); Cain v. Banka, 932 So. 2d 575, 578 (Fla. Dist. Ct. App. 2006); Hawkins, 2001 UT 94, P 5, 37 P.3d 1062. Mr. Berry has not claimed that PCMR’s release failed to meet this standard. We therefore limit our discussion of the public interest exception to the general rule that exculpatory agreements are enforceable.
3 Of course, the status of the person giving a preinjury release is an omnipresent consideration insofar as status relates to the relative bargaining power of the parties to the release.
[*P16] [HN9] Consideration of these traits is a flexible endeavor; the activity at issue need exhibit only a sufficient number of Tunkl characteristics such that one may be convinced of the activity’s affinity to the public interest. When a preinjury release is contrary to the public interest, it is invalid. Applying this approach, we test the King of the Wasatch race against each of the six Tunkl guidelines.
[*P17] First, while as an academic matter it may be debatable whether the sport of skiing is of a type generally thought to be suitable for public regulation, in Utah there can be no debate. [HN10] In Utah, skiing is regulated [***15] by the Inherent Risk of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007). Although the parties assume that the Act applies to skiercross events like the King of the Wasatch race, it is less clear that the applicability of the Act to skiercross racing would qualify the competition as suitable for public regulation. The Act was animated by a legislative finding that “the sport of skiing is practiced by a large number of residents of [**448] Utah and attracts a large number of nonresidents.” Id. § 78-27-51. The same cannot be said for skiercross racing. This form of competition has simply not generated sufficient public interest either through its popularity or because of hazards associated with it to generate a call for intervention of state regulatory authority. Skiercross racing is but one of an almost countless number of competitive sporting events occurring at any particular time in Utah. Among these, Utah law regulates only competitive boxing and equestrian events. See id. §§ 63C-11-301 to -318; id. §§ 63C-11-320 to -325; id. §§ 78-27b-101 to -102 (Supp. 2007).
[*P18] Thus, [HN11] while the reach of the Act may extend to ski-related activities that fall outside the public policy considerations [***16] underlying the adoption of the Act, those activities, like skiercross racing, are nevertheless subject to a separate analysis for the purpose of evaluating the enforceability of preinjury releases. Put another way, while the services provided by a business operating a recreational ski area and the services provided by a business sponsoring a competitive ski race may be covered by the provisions of the Act, the differences between recreational and competitive skiing are substantial enough to warrant the application of a separate analysis concerning their suitability for public regulation. In our view, skiercross racing is not generally thought suitable for public regulation.
[*P19] Second, for all the benefits that the King of the Wasatch race may have bestowed on its competitors, sponsors, and spectators, the race sponsors were in no way performing a service of great importance to the public, nor was race participation a matter of practical necessity for anyone.
[*P20] Third, the record suggests that PCMR made race participation available to anyone who sought to enter. Based on the description of the King of the Wasatch race in the record, a clear inference exists that competitors came from a limited [***17] group of expert, competitive skiers.
[*P21] The fourth Tunkl guideline diminishes the likelihood that we might find a preinjury release enforceable considering that the essential nature of the activity or service results in endowing the party seeking exculpation with a decisive advantage of bargaining strength. We have little doubt that Mr. Berry possessed no bargaining strength whatsoever. If he wanted to compete in the King of the Wasatch race, he was required to sign the preprinted release form. In this setting, however, PCMR’s decisive advantage in bargaining strength was of little consequence since the race was a nonessential activity.
[*P22] Fifth, PCMR’s superior bargaining power, its use of a contract of adhesion, and its failure to provide Mr. Berry an option to purchase protection against PCMR’s negligence is similarly of little consequence because of the nonessential nature of the race.
[*P23] The final Tunkl factor, that Mr. Berry was placed under PCMR’s control as a result of signing the release and made subject to the risk of PCMR’s carelessness, is of questionable application. PCMR appears to have been capable of exercising a negligible degree of control over the manner in which Mr. Berry [***18] traversed the racecourse or whether he elected to complete the course at all after inspecting its features.
[*P24] After considering the facts of Mr. Berry’s case with the Tunkl guidelines in mind, we are convinced that the release Mr. Berry executed in favor of PCMR is enforceable.
II. THE DISTRICT COURT ERRED WHEN IT AWARDED PCMR SUMMARY JUDGMENT ON MR. BERRY’S GROSS NEGLIGENCE CLAIM
[*P25] PCMR does not claim that its release insulates it from liability for gross negligence. It argues instead that the precautions the sponsors of the King of the Wasatch race took, designed to minimize the risk of injury to participants without unduly compromising the competitive challenges, without which the contest would have little allure, were sufficient to overcome Mr. Berry’s gross negligence claim as a matter of law. Without guidance anywhere in the record as to the applicable standard of care, we cannot conclude that PCMR was not grossly negligent as a matter of law.
[**449] [*P26] We must initially return to the topic of the standard of review because its proper form and application largely determine the outcome of Mr. Berry’s challenge to the district court’s summary dismissal of his gross negligence claim. [HN12] In securing [***19] recovery, the task confronting a plaintiff who claims injury due to a defendant’s gross negligence is markedly greater than that of a plaintiff who traces his injury to ordinary negligence. Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence. We have characterized gross negligence as “‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.'” Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985) (quoting Robinson Ins. & Real Estate, Inc. v. Sw. Bell Tel. Co., 366 F. Supp. 307, 311 (W.D. Ark. 1973)).
[*P27] [HN13] When reviewing appeals from grants of summary judgment in cases of ordinary negligence, we have consistently followed the principle that “summary judgment is generally inappropriate to resolve negligence claims and should be employed ‘only in the most clear-cut case.'” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994) (quoting Ingram v. Salt Lake City, 733 P.2d 126, 126 (Utah 1987) (per curiam)). Moreover, summary judgment is “‘inappropriate unless the applicable standard [***20] of care is fixed by law, and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.'” White, 879 P.2d at 1374 (quoting Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 1989) (internal quotation marks omitted)).
[*P28] Were we evaluating this case as one of ordinary negligence, we would have little difficulty discerning the presence of genuine issues of material fact sufficient to overcome a motion for summary judgment. Mr. Berry presented testimony of an experienced ski racer, coach, and jumper who witnessed Mr. Berry’s accident and faulted the jump’s design. A second expert in ski racecourse design and safety was likewise critical of the configuration of the accident site.
[*P29] According to PCMR, this testimony is insufficient to overcome summary dismissal of Mr. Berry’s gross negligence claim because evidence that would be adequate to take an ordinary negligence case to a jury cannot withstand uncontroverted evidence that PCMR exercised enough care to avoid a finding of gross negligence. PCMR urges that its production of evidence indicating that it used “even slight care” or displayed something more than “complete and absolute [***21] indifference” to the consequences that might have resulted from an improper design or construction of the tabletop jump and landing area is sufficient to remove Mr. Berry’s gross negligence claim from the jury. We disagree.
[*P30] The parties have not directed us to, nor have we been able to discover, a location in the record where the appropriate standard of care applicable to the design and construction of skiercross courses appears. We have held that [HN14] where a standard of care is not “fixed by law,” the determination of the appropriate standard is a factual issue to be resolved by the finder of fact. Wycalis, 780 P.2d at 825. Identification of the proper standard of care is a necessary precondition to assessing the degree to which conduct deviates, if at all, from the standard of care–the core test in any claim of gross negligence. Absent the presence of an identified, applicable standard of care to ground the analysis, we hold that the district court improperly granted PCMR summary judgment and dismissed Mr. Berry’s gross negligence claim.
III. THE DISTRICT COURT’S SUMMARY DISMISSAL OF MR. BERRY’S STRICT LIABILITY CLAIM WAS PROPER
[*P31] Mr. Berry contends that the district court erred when it [***22] summarily dismissed his claim that PCMR was strictly liable for damages for his injuries because skiercross racing is an abnormally dangerous activity as defined by the factors set out in section 520 of the Restatement (Second) of Torts. In aid of his argument, Mr. Berry points to numerous [**450] articles in popular ski publications, describing in dramatic terms the injuries sustained, seemingly as a matter of routine, by racers in skiercross competitions. These aspects of the record may indeed advance Mr. Berry’s cause regarding the degree of peril that skiercross races pose. To us, they establish convincingly alternative grounds upon which to affirm the district court’s rejection of Mr. Berry’s strict liability claim. See, e.g., State v. Robison, 2006 UT 65, P 19, 147 P.3d 448 (allowing affirmance of the judgment appealed from based “‘on any legal ground or theory apparent on the record'” (quoting Bailey v. Bayles, 2002 UT 58, P 10, 52 P.3d 1158)).
[*P32] [HN15] Assuming the skiercross racing is an abnormally dangerous activity, Mr. Berry’s role as a participant excludes him from eligibility to recover under a theory of strict liability. See, e.g., Pullen v. West, 278 Kan. 183, 92 P.3d 584 (Kan. 2004) (holding that [***23] an individual who lit fireworks while a guest at an Independence Day party was a participant in an abnormally dangerous activity and therefore barred from recovery on a strict liability theory). As a general principle, the Restatement’s protections extend to those individuals who are injured as the result of an activity that carries “the existence of a high degree of risk of some harm to the person, land or chattels of others.” Restatement (Second) of Torts § 520 (1977). Like the Pullen court and others, we agree that the scope of section 520 excludes participants, like Mr. Berry, who engage in the very activity for which they seek to recover damages based on strict liability. See, e.g., Whitlock v. Duke Univ., 637 F. Supp. 1463, 1475 (M.D.N.C. 1986); Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326, 341 (Ariz. Ct. App. 1978); Trull v. Carolina-Virginia Well Co., 264 N.C. 687, 142 S.E.2d 622, 622-26 (N.C. 1965). This conclusion is not undermined by the principles upon which Mr. Berry rests his claim to strict liability recovery.
[*P33] Section 520 generally states that [HN16] a court should consider the following factors in determining whether an activity is abnormally dangerous:
(a) existence of a high degree of risk of some harm [***24] to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.
Mr. Berry argues the eligibility of skiercross racing under several of these. Although we fully recognize that all of these factors may aid a court in evaluating whether an activity is abnormally dangerous, we view the first factor as qualitatively different than the rest and therefore worthy of separate consideration. See, e.g., Restatement (Second) of Torts § 520 cmt. f (“Any one of them is not necessarily sufficient of itself . . . for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily.”). Unlike its five colleagues, the first factor targets the very nature of the strict liability protection–who is eligible. Section 520 exposes landowners who conduct abnormally dangerous activities on their land–harboring [***25] dangerous animals has of particular concern to the drafters of the Restatement–to strict liability for injury suffered by those who come onto the land under color of privilege, but not for injury suffered by those who participated in the abnormally dangerous activity. We accordingly affirm the district court’s dismissal of Mr. Berry’s strict liability claim.
CONCLUSION
[*P34] Because our public policy does not foreclose Mr. Berry from waiving PCMR’s liability, we hold that Mr. Berry’s preinjury release is enforceable. We further hold that Mr. Berry’s strict liability claim fails as a matter of law considering his participation in the skiercross race. Finally, we hold that the district court erred in awarding summary judgment on Mr. Berry’s gross negligence claim without reference to the applicable [**451] standard of care. We therefore reverse and remand to the district court for proceedings consistent with this opinion.
[*P35] Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Parrish concur in Justice Nehring’s opinion.
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Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
Posted: November 7, 2014 Filed under: Assumption of the Risk, Legal Case, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: Appeal, assumption of the risk, Doctrine of Voluntary Assumption of Risk, Inc., Indemnity, No Duty Rule, Pennsylvania, Pennsylvania Skier's Responsibility Act, Restatement (Second) of Torts, ski area, Ski Shawnee, skiing Leave a commentTo Read an Analysis of this decision see: The harder a court works to justify its decision the more suspect the reasoning. In this case, a ski area is liable for injuries to a spectator no matter what risks she knew and assumed.
Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
Colleen Barillari and William Barillari, Plaintiffs, v. Ski Shawnee, Inc., Defendant.
Civ. No. 3:12-CV-00034
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
November 12, 2013, Decided
November 12, 2013, Filed
PRIOR HISTORY: Barillari v. Ski Shawnee, Inc., 2012 U.S. Dist. LEXIS 4998 (M.D. Pa., Jan. 17, 2012)
CORE TERMS: skiing, sport, downhill, skier, spectator, no-duty, summary judgment, ski, hit, ball, SKIER’S RESPONSIBILITY ACT DOES, risk doctrine, foul ball, amusement, matter of law, inherent risks, slope, baseball game, baseball, genuine, snow, ski lift, collision, mountain, ski resorts, risks inherent, nonmoving party, frequent, sporting, player
COUNSEL: [**1] For Colleen Barillari, William Barillari, h/w, Plaintiffs: Edward Shensky, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA.
JUDGES: Matthew W. Brann, United States District Judge.
OPINION BY: Matthew W. Brann
OPINION
[*557] MEMORANDUM
Before the Court is Ski Shawnee, Inc.’s (“Defendant”) motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari (“Plaintiffs”). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant’s alleged negligence. See Pls.’ Compl. 9-13, Jan. 6, 2012, ECF No. 1.
The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs’ claims are barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.’s Br. Supp. Mot. Summ. J. 5-9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.’s Br.]. The Court hereby denies the Defendant’s motion for summary judgment on both theories for the reasons that follow.
I. BACKGROUND
This case arises from [**2] an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.’s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.’s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.’s SOF ¶¶ 3-4; Pls.’ Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.’ SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.’s SOF ¶¶ 6-13.
The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.’s SOF ¶¶ 12-13; Pls.’ SOF ¶¶ 10-11. There was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” Def.’s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.’ SOF ¶ 19.
Mrs. Barillari was generally aware of the risks of collision between skiers. [*558] Def.’s SOF ¶ 7. At the time, however, she was not worried about skiers colliding with her because she believed [**3] that she was close enough to the dividing tape and there were other spectators in the area. Def.’s SOF ¶¶ 15-17; Pls.’ SOF ¶¶ 15-17. Unfortunately for Mrs. Barillari, a skier did collide with her and caused an injury to her left leg. Pls.’ SOF, at 2. The Court considers the legal arguments in light of these facts.
II. DISCUSSION
A. LEGAL STANDARDS
1. Summary Judgment
Summary judgment is appropriate when the court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When the court considers the evidence on summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.
The party moving for summary judgment bears the burden of establishing the nonexistence of a “genuine issue” of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (internal quotations and [**4] citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party’s claim, or demonstrating the other party’s evidence is insufficient to establish an essential element of its claim. Id. at 231.
Once the moving party satisfies this initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Moreover, “[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (internal [**5] quotations and citation omitted).
In deciding the merits of a party’s motion for summary judgment, the court’s role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Consequently, summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 54(a).
2. Pennsylvania Law Must Be Applied In This Case
This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New [*559] Jersey, the Defendant is a Pennsylvania corporation with a principal place of business in Pennsylvania, and the amount in controversy is alleged to be over $75,000–consequently, diversity jurisdiction is proper. See 28 U.S.C. § 1332; Pls.’ Compl., ¶¶ 1, 2, 46.
As this is a diversity action and Pennsylvania was the situs of the injury, this Court “must apply Pennsylvania law to the facts of [**6] this case.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).
B. THE PENNSYLVANIA SKIER’S RESPONSIBILITY ACT DOES NOT APPLY TO THIS CASE
The Defendant asserts that the Plaintiffs’ claims are barred by the assumption of the risk doctrine. Def.’s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See 42 Pa. C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier’s Responsibility Act, reads:
(c) Downhill skiing.–
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1). 1
1 As a general rule, subsections (a) and (a.1) [**7] supplant the assumption of the risk doctrine with a system of comparative fault in most negligence cases. Nevertheless, assumption of the risk was expressly preserved for injuries arising from downhill skiing, as noted. See 42 Pa. C.S.A. § 7102; Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341 (2000).
The Restatement (Second) of Torts, § 496A, summarizes the essence of the assumption of the risk doctrine: “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” As the Supreme Court of Pennsylvania elucidated, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2).
Applying those principles to the Skier’s Responsibility Act, that same court “made clear that this ‘no-duty’ rule applies to the operators of ski resorts, so that [**8] ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343-44 (2000)). Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.
[*560] The Supreme Court of Pennsylvania established a two-part analysis to determine whether a plaintiff was subject to the assumption of the risk doctrine adopted in the Skier’s Responsibility Act. See Huges v. Seven Springs Farm, Inc. 762 A.2d at 343-44. “First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . . .” Id. at 344. If both of these prerequisites are met, then summary judgment is appropriate because, as a matter of law, [**9] the Defendant would have had no duty to Mrs. Barillari. See id.
First, the Court considers whether Mrs. Barillari was “engaged in the sport of downhill skiing at the time of her injury.” Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:
the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.
Hughes, 762 A.2d at 344.
In that case, the court held that a plaintiff who was skiing towards the chair lift through an area at the base of the mountain where several trails converged when she was struck from behind by another skier could not recover because the assumption of risk doctrine applied. Hughes, 762 A.2d at 340, 345. Although the plaintiff “was not in the process of skiing downhill, but rather was propelling herself towards the ski lift at the base of the mountain,” the [**10] court found this action was within the scope of engaging “in the sport of downhill skiing.” Id. at 344-45. The court noted that to decide otherwise would “interpret the Act, as well as the sport of downhill skiing, in an extremely narrow, hypertechnical and unrealistic manner.” Id. at 344.
In Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (2010), the Supreme Court of Pennsylvania held that a skier’s negligence action based on her fall from a ski lift was barred by the doctrine of assumption of the risk because she was engaged in the sport of downhill skiing and the fall was an inherent risk of that sport. Chepkevich, 2 A.3d at 1194-95. The court noted that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Id. at 1187-88.
A number of other courts have addressed the scope of the Skier’s Responsibility Act as well. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008) (finding that a skier’s claim based on the lack of safety netting, improper course plotting, or [**11] soft loose snow was barred because those were risks inherent in skiing); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir. 1991) (interpreting Pennsylvania law to find ski resort had no duty of care to injured skier because a “double black diamond” slope with rocks and trees was an obvious inherent danger of skiing); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983) (Aldisert, J.) (finding that a skier’s claim was barred by assumption of the risk when he chose to ski a steep, icy expert slope with unpadded poles for snowmaking equipment); Lin v. Spring Mountain Adventures, Inc., CIV. [*561] A. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010) (holding that the Act barred a skier’s claim because colliding with snow making equipment was an inherent risk); Savarese v. Camelback Ski Corp., 417 F. Supp. 2d 663, (M.D. Pa. 2005) (Caputo, J.) (holding that a skier was barred from recovery where the injury occurred when he attempted to board the ski lift when the bottom of the chair was not folded down for seating); Bell v. Dean, 2010 PA Super 151, 5 A.3d 266 (Pa. Super. Ct. 2010) (finding that a skier assumed the risk of collision with a snowboarder such that the snowboarder could not be found negligent); [**12] Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. Ct. 2005) (holding that the risk of colliding with a drunk underage snowboarder was not a risk inherent in the sport of downhill skiing).
The case before the Court, however, is distinguishable from all of these cases–Mrs. Barillari was not “engaged in the sport of downhill skiing” at the time of her collision, as required by the statute. 2 Hughes, 762 A.2d at 344. Although someone wearing skis and standing in the area of Mrs. Barillari and the other spectators on a momentary pause in their run may well have been “engaged in the sport,” that is an entirely different matter from someone who is purely a spectator. See id. Even though a collision with a skier is a prominent injury considered to be inherent in the sport of skiing as contemplated by the statute and the courts, the fact remains that Mrs. Barillari was merely a spectator not engaged in the sport. See id.
2 The Court recognizes that “engaged” may be defined as “greatly interested,” which could suggest that spectators are “engaged in the sport of downhill skiing.” Merriam-Webster’s New International Dictionary (3d ed. 2013). As is apparent from the context of the [**13] relevant Supreme Court of Pennsylvania decisions, however, this is not the manner in which the court used the term “engaged.” See, e.g., Hughes, 762 A.2d at 344. Rather, the context surrounding the court’s usage of the term indicates a meaning closer to “occupied” or “employed” when using the phrase “engaged in the sport of downhill skiing.” See id.; Merriam-Webster’s New International Dictionary (3d ed. 2013).
If this Court were to include Mrs. Barillari as a person subject to the Skier’s Responsibility Act, it would necessarily extend the confines of Pennsylvania’s law beyond the scope of its current applicability. That is not this Court’s place, and the Court declines to do so. Instead, the Court must apply the law as Pennsylvania’s own Supreme Court has instructed. See, e.g., Hughes, 762 A.2d at 344-45. Consequently, the Court finds that the assumption of the risk doctrine, as articulated in the statue and interpreted by courts, does not apply to bar Mrs. Barillari’s claim, because she was not “engaged in the sport of downhill skiing” at the time of her accident. See Hughes, 762 A.2d at 344-45.
C. TRADITIONAL ASSUMPTION OF THE RISK DOES NOT BAR THE PLAINTIFFS’ CLAIMS
The Defendant [**14] asserts that, in the alternative, the traditional common law defense of assumption of the risk should bar the claim. Def.’s Br., at 6. Although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing. See, e.g., Zinn v. Gichner Systems Grp., 880 F. Supp. 311 (M.D. Pa. 1995) (Caldwell, J.) (holding assumption of the risk barred plaintiff’s claim when he continued to work after landowner refused to cover opening in which he was injured); Howell v. Clyde, [*562] 533 Pa. 151, 620 A.2d 1107 (1993) (finding that the plaintiff guest who helped secure gunpowder for a firework cannon and participate in lighting it assumed the risk of his injury); see also Rutter v. Ne. Beaver Cnty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1212 (1981) (Nix, C.J., dissenting) (“[T]his doctrine constitutes a necessary and viable component of tort law.”).
Borrowing Justice Antonin Scalia’s memorable phrase concerning a similarly limited but resurgent doctrine in another area of law, assumption of the [**15] risk survives “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.
There are four different theoretical species of assumption of the risk–two of which are at issue in this case. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c. One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3.
A second related corollary of the assumption of risk doctrine 3 is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3 [**16] . As both of these manifestations of that intractable doctrine are at issue here, the Court addresses them in turn, first analyzing voluntary assumption of the risk. 4
3 See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 531 (1988) (discussing the discrete conceptual differences between voluntary assumption of the risk as an affirmative defense to a breached duty and the “no-duty” theory with its inherent absence of a duty).
4 The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c, 1, 4.
1. Voluntary Assumption of the Risk Does Not Bar Plaintiff’s Claim in this Case
As Judge A. Richard Caputo articulated when considering a case involving voluntary assumption of the risk: “[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite [**17] the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed.” Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5 (M.D. Pa. Feb. 27, 2012) (Caputo, J.). This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (1996). Moreover, “[t]he mere fact one engages in activity that has some inherent [*563] danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 573 (Pa. Super. Ct. 2000).
The dispositive analytical point in the case before this Court is determining what constitutes a plaintiff’s conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at * 6 (citing Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693 (1990)). Rather, the plaintiff must be [**18] aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Id.
For example, in Bolyard v. Wallenpaupack Law Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6 (M.D. Pa. Feb. 27, 2012), Judge Caputo held, inter alia, that assumption of the risk did not apply to a plaintiff who went snow-tubing on an old ski slope, hit a rut, and crashed into a tree. Judge Caputo recognized that, while the plaintiff “was generally aware that snow tubing on a tree-lined trail was dangerous, there [was] no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *6. This was a material distinction, such that the elements of voluntary assumption of the risk remained unsatisfied–therefore, as a matter of law, the plaintiff did not assume the risk. Id.
Similarly, in Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693, 696 (1990), the court held that assumption of the risk did not apply when a plumbing contractor sustained injuries and died because a trench in which he was laying pipe collapsed. The court noted that the plaintiff was aware of the general [**19] risk of ditch collapses and that the particular job would be delicate. Handschuh, 574 A.2d at 694. Nevertheless, that awareness of the general risks was not sufficient “to compel a finding of a waiver of an individual’s right to complain about a breach of duty of care to the risk taker.” Id. at 696 (original punctuation altered).
In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696; Pls.’ SOF ¶ 5. It is undisputed that Mrs. Barillari was aware of the general risks and dangers inherent in the sport of skiing. She was aware collisions between skiers occurred and she “was worried about [her] children with that.” Def.’s SOF, Oral Dep. Mrs. Barillari 23, Dec. 03, 2012, ECF No. 18, Exh. 5. There is not, however, anything in the record that indicates Mrs. Barillari was specifically aware of the danger that later befell her.
Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [**20] [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.” Id. at 63-64. Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case. See id.
2. The “No-Duty” Rule Does Not Apply
The “no-duty” theory, a corollary species of assumption of the risk discussed [*564] previously in the context of the Skier’s Responsibility Act, applies at common law when: “the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Hughes, 762 A.2d at 341 (citing Restatement (Second) of Torts, §496A, cmt. c, 2). “Again the legal result is that the defendant is relieved of his duty to the plaintiff.” Id.
The no-duty rule applies most prominently in the context of a spectator [**21] at a sporting event, such as a fan hit by a foul ball at a baseball game. See, e.g., Schentzel v. Philadelphia Nat’l League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953). As the Restatement observes, “a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without precautions to protect him from being hit by the ball.” Restatement (Second) of Torts, §496A, cmt. c, 2.
“In Pennsylvania, the law imposes ‘no duty’ to protect spectators from risks that are common, frequent, and expected [in the sport].” Petrongola v. Comcast-Spectacor, L.P., 2001 PA Super 338, 789 A.2d 204, 210 (2001). “However, a facility may be held liable if the design of the facility deviates from the established custom in some relevant way.” Id. “The central question, then, is whether [a plaintiff’s] case is governed by the ‘no-duty’ rule applicable to common, frequent and expected risks of [the sport] or by the ordinary rules applicable to all other risks which may be present [at a sporting facility].” Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 551 (1978).
For example, in Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 186-92, 96 A.2d 181 (1953), [**22] the no-duty rule barred the claim of a plaintiff hit by a foul ball in the stands at a baseball game. The court noted that, even though there was scant evidence the plaintiff knew about the prevalence of foul balls, the defendant owed her no duty because foul balls are an inherent risk of attending a baseball game. Schentzel,173 Pa. Super. at 186-92.
In Loughran v. The Phillies, 2005 PA Super 396, 888 A.2d 872, 876-77 (Pa. Super. Ct. 2005), a majority of the court held that the no-duty rule barred a spectator’s claim for injuries suffered in the stands at a baseball game. There, the center-fielder threw the ball into the stands after catching it for the final out of the inning–as is customarily done to provide souvenirs for fans–when the unsuspecting plaintiff was hit and injured by the ball. Loughran, 888 A.2d at 874. Although this was not the typical foul ball hit into the stands, the majority considered this custom to be inherent in the sport. Id. at 877. They noted that the plaintiff failed to establish the defendants “deviated from the common and expected practices of the game of baseball.” 5 Id.
5 Judge John T. Bender dissented from this majority opinion, writing:
since the act of tossing a ball to fans [**23] as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not “assume the risk” of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the “no duty” rule to this practice. Rather, if a baseball player wants to go beyond the confines of the game . . . he should be charged with the obligation of doing it in a reasonably safe and prudent manner.
Loughran, 888 A.2d at 882.
By contrast, in Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546, 548, 552-553 (1978), the court held that the no-duty rule did not apply because the patron was hit by a ball while using an interior walkway to the concessions [*565] area, rather than while seated in the stands. The court noted that “in a ‘place of amusement’ not every risk is reasonably expected.” Jones, 394 A.2d at 551. That particular injury was due to a failure in the ballpark’s design such that the no-duty rule should not apply. Id. at 551-52.
The Jones court also drew a distinction between risks that are merely inherent in the activity, and those risks that are not only inherent but also necessary to the activity. See id.; [**24] see also Loughran, 888 A.2d at 880 (Bender, J., dissenting) (“A careful reading of Jones, reveals that the no-duty rule applies not just when one’s injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity.”). For example, while foul balls in the stands are an inherent and necessary part of any baseball game, a bat flying into the stands is an inherent risk of baseball but not a necessary component of the game. Jones, 394 A.2d at 551; see also Schentzel, 96 A.2d at 182 (“There is a million foul balls, maybe three or four or five an inning, goes into the stand [sic].”).
The court further illuminated this distinction with analogies, writing that: “[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand.” Id. at 550-51. As Judge John T. Bender poignantly extrapolated in his Loughran dissent:
if movie houses are made to lighten the theatres so that no one trips, the movie-going experience would be greatly diminished if not destroyed. If amusement parks are made to design roller coasters so as to eliminate all jerkiness and smooth out all changes [**25] in direction they would no longer be capable of being classified as “thrill rides” and the word “amusement” might be deleted from the term “amusement parks.” But if baseball players and their employers, are charged with exercising reasonable care in the practice of providing souvenir balls to patrons, the “Fall Classic” will remain a classic sporting contest and all those regular season and playoff games preceding it would still be played in a manner consistent with Abner Doubleday’s original intent.
Loughran, 888 A.2d at 881.
According to the principles discussed in Jones and Loughran, the no-duty rule can be said to apply when, to avoid injury, a “place of amusement” must alter conditions at the facility in such a way that would change the very essence of the activity for which it is made. See Loughran, 888 A.2d at 881; Jones, 394 A.2d at 550-52. This does not affect the duty of sports facilities and places of amusement to protect patrons against foreseeable risks not inherent and necessary such that they are “common, frequent, and expected” in the very essence of that central activity. Jones, 394 A.2d at 551
Applying these principles to the case before the Court, the no-duty rule cannot [**26] protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. See Def.’s Br., at 8-10. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport. See Jones, 394 A.2d at 551-52.
A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands. See Schentzel, 96 A.2d at 182. The Court is not aware of a similar majority that assumes they will see [*566] a number of skiers crash violently into spectators on a day trip to the mountain.
Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. See Loughran, 888 A.2d at 881. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.
Therefore, [**27] the issues in this case do not present an instance where the “no-duty” rule applies. Rather, the existence of any negligence by either or both parties should be submitted to a jury.
III. CONCLUSION
For the foregoing reasons, Ski Shawnee Inc.’s motion for summary judgment is denied.
An appropriate Order follows.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
ORDER
AND NOW, this 12th day of November, 2013, it is hereby ORDERED, in accordance with a Memorandum of this same date, that the Defendant, Ski Shawnee, Inc.’s motion for summary judgment is hereby DENIED.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
American Avalanche Association AVPRO course February 25 – March 4 Summit County Colorado
Posted: November 6, 2014 Filed under: Avalanche | Tags: American Avalanche Association, AVPRO, Summit County Leave a commentThe American Avalanche Association is pleased to announce this year’s AVPRO course location and dates. This season AVPRO will be returning to Summit County, Colorado, February 25 – March 4, 2015. Summit County holds a rich history within the avalanche industry. Students will learn from several of the top avalanche professionals in the region in one of the most interesting snow climates in the nation. Details can be found at www.americanavalancheassociation.org/edu_courses.php.
Who should attend AVPRO? AVPRO is intended for all disciplines of avalanche professionals with a solid background in avalanche fundamentals, companion rescue, and basic snow assessment. The course will continue to build on this foundation of snow science with an emphasis on high level of companion and organized avalanche rescue, accurate and advanced snow stability assessment, and avalanche control programs and procedures. Other common questions and answers can be found at http://americanavalancheassociation.org/pdf/AVPro_FAQs.pdf or by contacting the AVPRO coordinator, Dallas Glass.
Join us this season for what will be an exciting time of learning and networking as avalanche professionals.
Dallas Glass
AVPRO Coordinator – Education Committee
American Avalanche Association
205-994-4778
Rutherfordv. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201
Posted: November 6, 2014 Filed under: Jurisdiction and Venue (Forum Selection), Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Utah | Tags: Bone fracture, Canyons, Competitor, Minor, Release, Ski binding, skiing, United States Ski Team, US Ski and Snowboard Association, USSA, UT, Utah, Utah Ski Act Leave a commentRutherfordv. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201
Philip Rutherford and Wendy Rutherford, on Behalf of Their Minor Child, Levi Rutherford, Plaintiffs and Appellees, v. Talisker Canyons Finance Co., LLC and ASC UTAH, LLC, Defendants and Appellants.
No. 20120990-CA
COURT OF APPEALS OF UTAH
2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201
August 14, 2014, Filed
NOTICE:
THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTER.
PRIOR HISTORY: [**1] Third District Court, Silver Summit Department. The Honorable Todd M. Shaughnessy. No. 100500564.
COUNSEL: Eric P. Lee, M. Alex Natt, Elizabeth Butler, and Timothy C. Houpt, Attorneys, for Appellants.
David A. Cutt, Attorney, for Appellees.
JUDGES: JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE GREGORY K. ORME and SENIOR JUDGEPAMELA T. GREENWOOD concurred.1 DAVIS, Judge.
1 The Honorable Pamela T. Greenwood, Senior Judge, sat by special assignment as authorized by law. See generally Utah Code Jud. Admin. R. 11-201(6).
OPINION BY: JAMES Z. DAVIS
OPINION
DAVIS, Judge:
[*P1] Talisker Canyons Finance Co., LLC and ASC Utah, LLC (collectively, the Ski Resort) bring this interlocutory appeal challenging the trial court’s denial of their motion for summary judgment and the trial court’s grant of partial summary judgment in favor of Philip and Wendy Rutherford, on behalf of their minor child, Levi Rutherford (collectively, the Rutherfords). We affirm in part, vacate in part, and remand for further proceedings in accordance with this decision.
BACKGROUND
[*P2] In 2010, ten-year-old Levi Rutherford was a member of the Summit Ski Team, a ski racing club that is affiliated with the United States Ski and Snowboard Association (the USSA). The Ski [**2] Team trained primarily at the Canyons, a ski resort near Park City, Utah, with the resort’s permission and subject to the resort’s requirement that the Ski Team carry liability insurance. The Ski Team’s liability insurance was provided through its affiliation with USSA. All Summit Ski Team participants were required to become USSA members, and USSA membership required applicants to execute a release indemnifying USSA from any injury the individual may suffer in connection with his participation in USSA-associated activities, regardless of USSA’s negligence. Because of Levi’s age, his father, Philip Rutherford, executed the release on Levi’s behalf. In that agreement, the term “USSA” is defined as including, inter alia, local ski clubs and ski and snowboard facility operators.
[*P3] On January 15, 2010, Levi and his seven-year-old brother were at the Canyons to attend a Ski Team race-training session. The brothers rode a chairlift that carried them along the length of the “Retreat” ski run where the Ski Team was setting up for practice. Snowmaking machines along the Retreat run were actively making snow at this time. After exiting the chairlift, Levi and his brother skied down Retreat.2 Levi [**3] skied down the slope maintaining a racing stance and without making any turns. Near the bottom of the run, Levi fell when he collided with a mound of man-made snow that was of a different and wetter consistency than other snow on the run. Levi sustained injuries as a result of his fall.
2 It is unclear whether the Ski Team coaches instructed Levi and his brother to take a warm-up run down Retreat or whether the brothers did so of their own accord. See infra note 7.
[*P4] The Rutherfords filed a complaint against the Ski Resort and the Ski Team, seeking damages for Levi’s injuries, which they claim were caused by the defendants’ negligence. As against the Ski Resort specifically, the Rutherfords alleged that the machine that produced the snow mound was not functioning properly, that the Ski Resort could have warned patrons of the hazard by marking the mound or closing the trail, and that the Ski Resort did not adequately monitor the snowmaking taking place on the Retreat run that day.
[*P5] The parties filed several motions for summary judgment. The Ski Team submitted motions for summary judgment on the basis that Utah’s Inherent Risks of Skiing Act (the Act) precluded the Rutherfords’ claims against [**4] it because Levi was indisputably injured when he crashed into a mound of machine-made snow, an inherent risk of skiing for which ski-area operators are exempted from liability under the Act. See generally Utah Code Ann. §§ 78B-4-401 to -404 (LexisNexis 2012) (Inherent Risks of Skiing Act); id. § 78B-4-402(1)(b) (machine-made snow exemption). The Ski Team also contended that it had no duty to protect Levi from a risk inherent to skiing and that it otherwise did not owe him a general duty of care as alleged by the Rutherfords. The Ski Resort joined in the Ski Team’s motions, specifically arguing that the Act exempts the Ski Resort, as a ski-area operator, from any duty to protect Levi from the inherent risk of skiing posed by the mound of machine-made snow. The Ski Resort did not argue that any of the Act’s exemptions other than the machine-made snow exemption applied in this case. The Rutherfords moved for partial summary judgment, arguing that the Act did not bar their claims against the Ski Resort.
[*P6] The trial court rejected the Ski Team’s argument that it is entitled to protection under the Act but granted the Ski Team’s motion for summary judgment on the negligence issue, dismissing with prejudice the Rutherfords’ negligence [**5] claim against it. The trial court concluded that “the Ski Team did not owe Levi a general duty of reasonable care to protect him from harm as alleged by [the Rutherfords]” and that even assuming that it did, “given the undisputed facts in this case, no reasonable jury could find that the Ski Team breached such a duty.”3 The trial court denied the Ski Resorts’ joinder in the Ski Team’s motion for summary judgment based on the Act, ruling that the applicability of the Act and the machine-made snow exemption to the Ski Resort depended on the resolution of disputed facts, namely, whether the snowmaking equipment along Retreat was functioning properly. The trial court granted the Rutherfords’ motion for partial summary judgment based on their argument that the Act did not bar their claims against the Ski Resort.
3 The Ski Team is not a party to this interlocutory appeal.
[*P7] The Ski Resort also filed a motion for summary judgment on the basis that the USSA release that Mr. Rutherford signed on behalf of his son barred Levi’s claims. The court denied the motion based on its determinations (1) that the waiver’s Colorado choice-of- law provision “is unenforceable and . . . Utah law applies to the [**6] USSA release”; (2) that the release is unenforceable under Utah law based on the Utah Supreme Court’s decision in Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062; and (3) that even if the release was enforceable under Utah or Colorado law, Levi was not racing at the time of his injury or otherwise engaged in the activities covered by the release because the Ski Team’s practice had not yet begun. The Ski Resort petitioned for interlocutory review, which was granted by our supreme court and assigned to this court.
ISSUES AND STANDARD OF REVIEW
[*P8] The Ski Resort contends that the trial court erroneously granted the Rutherfords’ motion for partial summary judgment after finding that Levi was not engaged in race training at the time of his injury and that an exemption in the Act regarding competitive skiing did not bar the Rutherfords’ claims. See Utah Code Ann. § 78B-4-402(1)(g) (competitive-skiing exemption). The Ski Resort also asserts that the trial court’s interpretation of the Act’s machine-made snow exemption was incorrect and that, as a matter of law, summary judgment should be entered for the Ski Resort based on either the machine-made snow exemption or the competitive-skiing exemption. Last, the Ski Resort argues that the trial court erred in determining that [**7] the Colorado choice-of-law provision in the USSA release was not enforceable, that the release was not enforceable under Utah law, and that the release was nevertheless inapplicable here, where Levi was engaged in an activity not covered by the release when he was injured.
[*P9] [HN1] Summary judgment is appropriate “only when all the facts entitling the moving party to a judgment are clearly established or admitted” and the “undisputed facts provided by the moving party . . . preclude[], as a matter of law, the awarding of any relief to the losing party.” Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 24, 70 P.3d 904 (alteration in original) (citations and internal quotation marks omitted); see also Utah R. Civ. P. 56(c). “We also note that summary judgment is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994) (citation and internal quotation marks omitted). “An appellate court reviews a trial court’s legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).
ANALYSIS
I. The Distinction Between Competitive Skiing and Recreational [**8] Skiing
[*P10] [HN2] The Act exempts ski resorts from liability for injuries sustained by individuals engaged in “competitive” skiing, including injuries sustained as a result of an individual’s “participation in, or practicing or training for, competitions or special events.” See Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012).4 Here, a determination that Levi was injured while engaged in competitive, as opposed to recreational, skiing under the Act could be case-determinative.5
4 Except where otherwise noted, we cite the most recent version of the Utah Code for the convenience of the reader.
5 The applicability of the USSA release could also turn on whether Levi was injured while engaged in one of the activities specifically enumerated in the release; if he was not, then the release cannot apply, rendering irrelevant the question of the release’s enforceability under Utah or Colorado law. The release defines the covered activities as “skiing and snowboarding in their various forms, as well as preparation for, participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics” “in which USSA is involved in any way.” Because USSA employs different [**9] terminology to describe the competitive skiing activities covered by the release, a determination that Levi was not injured while competitively skiing under the terms of the Act would not necessarily foreclose a finding that he was engaged in an activity covered by the release. However, because we determine that the release is unenforceable for other reasons, see infra ¶ 30, we need not address whether Levi was injured while engaging in an activity covered by the release.
[*P11] In their complaint, the Rutherfords allege that Levi was injured during Ski Team practice, stating, “[T]he Summit Ski Team instructed Levi to ski down the Retreat run. . . . As Levi was skiing down Retreat, he crashed into [a mound of snow] and sustained serious injuries . . . .” Similarly, in the Rutherfords’ motions for partial summary judgment as to the enforceability of the Act and the USSA release, they state, “Levi was injured while participating in racing practice as a member of [the Ski Team].”6 Further, the Rutherfords’ expert witness, whose statement was submitted with the Rutherfords’ summary judgment filings, based his expert report and evaluation on the premise that Levi was engaged in race training and practice. [**10] In its response to the Rutherfords’ motions, the Ski Resort agreed that it was an undisputed fact that “Levi was injured while participating in racing practice as a member of the [Ski Team].”7
6 On appeal, the Rutherfords assert that they “never alleged that Levi was injured while ski racing” but only that he “was injured in connection with Ski Team practice,” and that it was through discovery that they learned that Levi was injured before practice started. To the extent this sentiment is contradictory to the allegations contained in the Rutherfords’ complaint, we note that [HN3] “[a]n admission of fact in a pleading is a judicial admission and is normally conclusive on the party making it.” See Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984); see also Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1197 n.6, 185 L. Ed. 2d 308 (2013) (holding that a party was bound by an admission in its answer); Belnap v. Fox, 69 Utah 15, 251 P. 1073, 1074 (Utah 1926) (overturning a finding entered by the trial court because the finding was “against and in conflict with the admission in the answer of the principal defendant”). But see Baldwin, 676 P.2d at 415 (recognizing “that an admission may be waived where the parties treat the admitted fact as an issue”).
7 The Ski Team, although not a party to this appeal, disputed in part the Rutherfords’ assertion that Levi was injured during practice, stating, “[A]lthough Levi was injured [**11] during a practice in which the [Ski Team] had intended to conduct race training, he was injured while free skiing and not while running gates.” The Ski Team’s summary judgment filings imply that there is a factual dispute as to whether a “warm-up” run can constitute part of the Ski Team’s race training. See supra note 2.
[*P12] The trial court, however, likened Levi to a recreational skier, rather than a competitive skier, and determined that Levi’s accident occurred while he was “skiing on an open run that any member of the public could ski on” and that his accident indisputably did not occur during a ski race, while skiing through gates, or while otherwise “negotiating for training purposes something that had been specifically designated as a race course.” The trial court made this ruling in the context of rejecting the Ski Resort’s argument that the USSA release is enforceable under Utah law. Thus, while the specific details in the trial court’s ruling are not entirely in conflict with the parties’ undisputed statement of fact that Levi was injured during race training, the court’s comparison of Levi to a recreational skier amounts to a rejection of the parties’ undisputed statement of [**12] fact. This ruling also implies a distinction between injuries sustained during a competition and injuries sustained during training for competition that is not made in the Act’s provision that “participation in, or practicing or training for, competitions” are all inherent risks of skiing. See Utah Code Ann. § 78B-4-402(1)(g). We conclude that the trial court improperly made a finding in the summary judgment context and that its finding is contrary to what appear to be undisputed facts. We vacate this ruling and direct the trial court to reconsider the parties’ arguments in light of the undisputed statements of fact as set forth in the Rutherfords’ and the Ski Resort’s pleadings and motion filings.8 See Staker v. Ainsworth, 785 P.2d 417, 419 (Utah 1990) ( [HN4] “Where a triable issue of material fact exists, the cause will be remanded for determination of that issue.”). We likewise leave for the trial court’s determination the question of whether Levi’s engagement in race training at the time of his injury is truly undisputed by the parties.
8 Although we often provide guidance for the trial court on remand by addressing “[i]ssues that are fully briefed on appeal and are likely to be presented on remand,” State v. James, 819 P.2d 781, 795 (Utah 1991), we do not address whether the competitive-skiing exemption precludes the Rutherfords’ [**13] claims against the Ski Resort based on the parties’ agreement that Levi was injured while engaged in race training. That argument was not presented below, nor was it sufficiently briefed on appeal. See McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶ 19, 307 P.3d 650 (determining that [HN5] “it is better to leave” a legal issue that was not addressed by the parties in briefing “for the district court to address in the first instance based on appropriate briefing by the parties” than to “endeavor to provide the district court with guidance”); cf. Medley v. Medley, 2004 UT App 179, ¶ 11 n.6, 93 P.3d 847 (declining to provide the trial court with guidance on a legal issue likely to arise on remand where the court of appeals had “no consensus on whether [it] should offer guidance . . . and, if so, what any such guidance should be”).
II. The Machine-Made Snow Exemption
[*P13] The Ski Resort next argues that the trial court erroneously denied its motion for summary judgment based on the machine-made snow exemption under the Act, particularly where the machine that produced the snow mound that Levi skied into “was indisputably making snow.” (Emphasis omitted.) [HN6] The Act identifies as an inherent risk of skiing “snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, [**14] slush, cut-up snow, or machine-made snow.” Utah Code Ann. § 78B-4-402(1)(b); see also id. § 78B-4-402(1)(d) (immunizing ski-area operators from injuries caused by “variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations”).
[*P14] The Ski Resort contends that the Rutherfords’ “allegations fall squarely into” the machine-made snow exemption given the Rutherfords’ own assertion that Levi was injured when he came into contact with a patch of wet, machine-made snow. As a result, the Ski Resort argues, the trial court “erred in ruling that a mere allegation of malfunctioning snowmaking equipment was sufficient to force a jury trial.”9
9 Because we ultimately reject the Ski Resort’s interpretation of the Act, we do not address the Rutherfords’ argument that the Ski Resort’s interpretation renders the Act unconstitutional.
[*P15] The trial court ruled,
Solely for purposes of this Motion, the existence of ongoing snowmaking is an inherent risk of skiing and a type of danger that skiers wish to confront. Among other things, plaintiff claims that the snowmaking equipment in this particular case was not functioning properly. That claim creates a question of fact as to whether skiers wish to confront [**15] this type of risk and whether that risk could be eliminated through the exercise of reasonable care.
The trial court’s ruling recognizes the principles explained in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991). In that case, our supreme court expressly rejected Snowbird Ski Resort’s argument that recovery from the resort for “any injury occasioned by one or more of the dangers listed in [the Act] is barred by the statute because, as a matter of law, such an accident is caused by an inherent risk of skiing.” Id. at 1044–45. Instead, the court held that [HN7] the Act “does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers” but protects ski-area operators “from suits to recover for injuries caused by one or more of the dangers listed [in the Act] only to the extent those dangers, under the facts of each case, are integral aspects of the sport of skiing.” Id. at 1044 (emphasis added). The court interpreted the Act as providing a non-exclusive list of dangers that must be analyzed on a case-by-case basis to determine whether a given danger is “inherent” in the sport. Id. at 1044–45 (alteration in original) (quoting Utah Code Ann. § 78-27-52(1) (current version at id. § 78B-4-402(1) (LexisNexis 2012))).
[*P16] The court explained, [HN8] “The term ‘inherent risk of skiing,’ using [**16] the ordinary and accepted meaning of the term ‘inherent,’ refers to those risks that are essential characteristics of skiing–risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks.” Id. at 1047. The court divided these risks into two categories, the first of which represents “those risks, such as steep grades, powder, and mogul runs, which skiers wish to confront as an essential characteristic of skiing.” Id. Under the Act, “a ski area operator is under no duty to make all of its runs as safe as possible by eliminating the type of dangers that skiers wish to confront as an integral part of skiing.” Id.
[*P17] [HN9] “The second category of risks consists of those hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort,” such as weather and snow conditions that may “suddenly change and, without warning, create new hazards where no hazard previously existed.” Id. For this category of risks, “[t]he only duty ski area operators have . . . is the requirement set out in [the Act] that they warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront [**17] when participating in the sport of skiing.” Id. However, this does not exonerate a ski-area operator from any “duty to use ordinary care to protect its patrons”; “if an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside of [the Act].” Id. The Clover court then applied its interpretation of the Act to the facts before it, stating that because “the existence of a blind jump with a landing area located at a point where skiers enter the run is not an essential characteristic of an intermediate run,” the plaintiff could “recover if she [could] prove that [the ski resort] could have prevented the accident through the use of ordinary care.” Id. at 1048; see also White v. Deseelhorst, 879 P.2d 1371, 1374–75 (Utah 1994) (reaffirming the approach taken by the court in Clover and concluding that summary judgment was precluded by the question of fact as to whether “an unmarked cat track on the blind side of a ridge” was a risk that the ski resort “could have alleviated . . . through the exercise of ordinary care”).
[*P18] In light of how narrowly the Clover court’s ruling suggests the inherent risk determination [**18] ought to be framed, we agree with the trial court here that summary judgment in favor of the Ski Resort is not appropriate on this claim. The trial court recognized that under the facts of this case, “the existence of ongoing snowmaking is an inherent risk of skiing and a type of danger that skiers wish to confront” but that the Rutherfords’ allegations that the equipment “was not functioning properly,” “[a]mong other things,” created questions of fact as to “whether skiers wish to confront [the] type of risk” created by malfunctioning snowmaking equipment and “whether that risk could be eliminated through the exercise of reasonable care.” Cf. Moradian v. Deer Valley Resort Co., No. 2:10-CV-00615-DN, 2012 U.S. Dist. LEXIS 116075, 2012 WL 3544820, at *4 (D. Utah Aug. 16, 2012) (affirming summary judgment in favor of a ski resort based on a provision in Utah’s Inherent Risks of Skiing Act that immunizes ski-area operators from injuries sustained by a patron’s collision with other patrons because “[t]his type of collision cannot be completely prevented even with the exercise of reasonable care, and is an inherent risk in the sport of skiing,” and rejecting the plaintiff’s speculation that the individual that collided with him was a Deer Valley employee as insufficient “to create [**19] a genuine issue of material fact necessary to defeat summary judgment”). Accordingly, we affirm the trial court’s ruling that questions of fact regarding the applicability of the machine-made snow exemption preclude summary judgment on this issue, and we likewise reject the Ski Resort’s argument that the inclusion of machine-made snow as an inherent risk of skiing in the Act is, by itself, sufficient to immunize the resort from liability in this case.10 See White, 879 P.2d at 1374 ( [HN10] “Courts cannot determine that a risk is inherent in skiing simply by asking whether it happens to be one of those listed in [the Act].”).
10 It is notable, as the Ski Resort points out in its opening brief, that the language of the Act has broadened since the issuance of Clover. See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1044 (Utah 1991). At the time Clover was decided, the Act listed “snow or ice conditions” as inherent risks. Id. [HN11] In the current version of the Act, those same risks are described as “snow or ice conditions, as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow.” See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at Utah Code Ann. § 78B-4-402(1)(b) (LexisNexis 2012)). The Ski Resort contends that this expansion [**20] supports the “practical” necessity of interpreting “the Act broadly when allegations regarding the consistency of snow are in issue” because “the consistency of the snow cannot be objectively tested, measured, retained, analyzed, photographed, or reliably documented.” That this element may be hard to prove, however, is not a persuasive reason to otherwise repudiate our supreme court’s precedent rebuffing the notion that the presence of a risk on the list in the Act is necessarily the end of the inquiry. See White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994); Clover, 808 P.2d at 1044. We likewise reject the Ski Resort’s argument that the post-Clover amendment to the statute adding the competitive-skiing exemption conflicts with the Clover analysis in a manner that “would render the statutory language nonsensical.”
III. Enforceability of the USSA Release
[*P19] To the extent our analysis of the issues raised under the Act may not be dispositive of this case on remand, we next address the parties’ arguments related to the USSA release. See State v. James, 819 P.2d 781, 795 (Utah 1991) ( [HN12] “Issues that are fully briefed on appeal and are likely to be presented on remand should be addressed by [the appellate] court.”). The Ski Resort challenges the trial court’s determination that the Colorado choice-of-law provision [**21] in the USSA release was not enforceable in this case and the court’s subsequent application of Utah law. The Ski Resort contends that the USSA release is enforceable under both Utah and Colorado law and that as a result, the release immunizes it from the Rutherfords’ claims.11 We address each argument in turn.
11 Because of the manner in which we resolve the issues under this heading, we decline to address what impact, if any, the fact that the Ski Resort is not a signatory to the USSA release may have on the applicability of the release to the Ski Resort.
A. The Colorado Choice-of-Law Provision
[*P20] The Ski Resort contends that the trial court erred in ruling that the Colorado choice-of-law provision in the USSA release was not enforceable based on the court’s determination that “Utah is the only state that has an interest in the outcome of the case.” The Ski Resort explains that USSA’s operation as a national organization justifies the need for the choice-of-law provision. It also explains that the USSA designated Colorado law because the USSA holds “more major events in Colorado than any other state” and “more USSA athletes compete in Colorado than any other state,” thereby giving Colorado [**22] “a particular interest in the outcome of this case.” [HN13] We review the trial court’s choice-of-law analysis for correctness. See One Beacon Am. Ins. Co. v. Huntsman Polymers Corp., 2012 UT App 100, ¶ 24, 276 P.3d 1156.
[*P21] [HN14] “Since Utah is the forum state, Utah’s choice of law rules determine the outcome of” whether Utah law or Colorado law applies. See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 14, 54 P.3d 1054. To determine whether the choice of Colorado law will govern our substantive interpretation of the USSA release, we must determine first whether “‘two or more states have an interest in the determination of the particular issue'” in this case and, if so, we then analyze whether Colorado has a “‘substantial relationship to the parties or the transaction'” or there is a “‘reasonable basis for the parties[‘] choice.'” Prows v. Pinpoint Retail Sys., Inc., 868 P.2d 809, 811 (Utah 1993) (quoting Restatement (Second) of Conflict of Laws § 187(2)(a) & cmt. d (Supp. 1988)).
[*P22] In Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Utah 1993), a Canadian company that conducted business throughout the United States sought to enforce a New York choice-of-law provision contained in a contract it entered into with a Utah-based business. Id. at 810–11. The Utah Supreme Court recognized that although “New York has no substantial relationship to the parties or the transaction, there is a reasonable basis for [the Canadian company’s] choosing New York law to govern the [contract]”–“to limit the number of forums in which it may be required to bring [**23] or defend an action.” Id. at 811 (internal quotation marks omitted). Nonetheless, the court concluded that “[t]he existence of that ‘reasonable basis,’ . . . [was] without effect” because “New York [had] no interest in the determination of [the] case.” Id. The court identified various “relevant contacts” that Utah had with the case and concluded that Utah was “the only state with an interest in the action.” Id. (internal quotation marks omitted). Specifically, the court noted that a “Utah plaintiff brought this suit against a Utah defendant and a Canadian defendant,” that the contract “was to be performed in Utah,” that the contract “was signed in Utah, and [that] the alleged breach and tortious conduct occurred [in Utah].” Id. In other words, without any similar relevant contacts, New York had no interest in the case for the choice-of-law provision to be enforceable. Id.
[*P23] Besides analyzing what contacts a state may have with the case, Prows does not provide much guidance for our analysis of whether Colorado has an interest in this case. Indeed, Prows appears to use the terms “interest in,” “substantial relationship,” and “relevant contacts” interchangeably. Accordingly, we look to the Restatement [**24] for guidance. See American Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186, 190 (Utah 1996) (noting that [HN15] Utah courts should apply the test “explained in Restatement of Conflict section 188” to resolve “a conflict of laws question in a contract dispute”). The Restatement lists several factors a court might consider in analyzing the significance of a state’s relationship to the parties and transaction at issue, including, “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws § 188(2) (1971).
[*P24] Here, any interest the state of Colorado may have in this case arises out of the possibility that Levi could have competed in Colorado at some point during the relevant ski season as a USSA member because USSA holds most of its competitions in Colorado and that is where most USSA athletes compete. According to the Ski Resort, “at the time they entered the contract, the parties did not know and could not have known the full geographic scope of where the [USSA] contract was to be performed.” All of these factors, however, relate to the reasonableness of USSA’s choice of Colorado law, not Colorado’s interest [**25] in or substantial relationship with the parties in this case or the transaction at issue. As dictated by Prows, USSA’s interest in having one state’s laws apply to its contracts with its members located throughout the country, and the logic behind its choice of Colorado law specifically, does not vest in the state of Colorado a “substantial relationship” or “interest in” the parties or the transaction before us. See Prows, 868 P.2d at 811. And, as in Prows, the state of Utah clearly has an interest in the determination of this case; the Rutherfords entered into the USSA release while domiciled in Utah, they remained domiciled in Utah at the time of Levi’s injury, Levi’s injury occurred in Utah, USSA is a Utah entity, and the Ski Resort’s principal place of business is in Utah. See id. Accordingly, the choice-of-law provision does not control in this case and we rely on Utah law to determine the enforceability of the release.
B. Enforceability of the USSA Release under Utah Law
[*P25] The Ski Resort argues that even if the Colorado law provision does not apply here, the USSA release is enforceable under Utah law. The trial court determined that the release was unenforceable under Utah law based on case law describing [**26] a general policy in Utah rejecting pre-injury releases signed by parents on behalf of minors and, alternatively, based on its determination that Levi was a recreational skier and pre-injury releases executed by recreational skiers are not valid under the Act. We agree with the trial court that the release, as it may apply to the Ski Resort, is unenforceable under Utah law, but we reach this conclusion based on somewhat different reasoning. See Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 ( [HN16] “[A]n appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record.” (emphasis, citation, and internal quotation marks omitted)).
1. Enforceability of the USSA Release Based on Levi’s Status as a Minor
[*P26] The trial court ruled that Utah law rejects pre-injury releases signed by a parent on behalf of a minor, rendering the USSA release invalid in Utah. The trial court interpreted Utah case law as “prevent[ing] enforcement of the USSA release,” relying specifically on one Utah Supreme Court case in which the court rejected as against public policy a pre-injury release signed by a parent on behalf of a minor as a prerequisite to the minor’s participation in a recreational horseback ride. See Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶¶ 2, 13-14, 37 P.3d 1062, superseded [**27] by statute, Utah Code Ann. § 78B-4-203(2)(b) (LexisNexis 2012), as recognized in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 21 n.43, 301 P.3d 984.
[*P27] In Hawkins, a minor was injured when she was thrown off of a horse during a guided trail ride. Id. ¶ 3. She filed suit against the company that provided the horses and trail guides based on various claims of negligence. Id. The guide company argued that a release signed by the minor’s mother prior to the horseback ride precluded her suit. Id. In addressing the parties’ arguments, the supreme court recognized that releases for liability are, in general, permitted in most jurisdictions “for prospective negligence, except where there is a strong public interest in the services provided.” Id. ¶ 9. The court recognized various standards and criteria employed in other jurisdictions to aid in “determining public policy limitations on releases” but declined to specifically adopt any one standard. Id. ¶¶ 9-10. Instead, the Hawkins court held that “[i]n the absence of controlling statutes or case law,” “general statements of policy found in statutes detailing the rights of minors and the responsibilities of guardians” demonstrate a public policy in Utah disfavoring “contracts releasing individuals or entities from liability for future injuries to [**28] minors.” Id. ¶¶ 7, 11-13. The court was also persuaded by the “clear majority of courts treating the issue” that “have held that a parent may not release a minor’s prospective claim for negligence.” Id. ¶ 10 (collecting cases). Most notably, the court adopted the holding expressed by the Washington Supreme Court that “‘[s]ince a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has authority to release a child’s cause of action prior to an injury.'” Id. ¶¶ 10, 13 (alteration in original) (quoting Scott ex rel. Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992)). The Hawkins court affirmed the trial court’s ruling that because “the general rule permitting release of liability did not apply where a parent signs the contract on behalf of a minor,” the release signed by Hawkins’s mother on her behalf was unenforceable. Id. ¶¶ 6, 13.
[*P28] Since the Utah Supreme Court’s decision in Hawkins, the statute applicable in that case–the Limitations on Liability for Equine and Livestock Activities Act (the Equine Act)–has been amended to specifically “permit[] a parent to sign a release on behalf of a minor.” See Penunuri, 2013 UT 22, ¶ 21 n.43, 301 P.3d 984; see also Utah Code Ann. §§ 78B-4-201 to -203 (LexisNexis 2012) (Equine Act); id. § 78B-4-203(2)(b) (permitting a parent to sign a release). [**29] [HN17] Our supreme court recently recognized that Hawkins remains a valid example of how to determine whether a contract offends public policy when the public policy is not clearly discernible in the applicable statutes or case law. See Penunuri, 2013 UT 22, ¶ 28, 301 P.3d 984 & n.43. The court also explained that a public policy statement arrived at in the manner undertaken in Hawkins does not take precedence over express policy language in a controlling statute. See id. (indicating that, to the extent Hawkins conflicts with the amended Equine Act, the Equine Act controls and the conclusion in Hawkins is overruled).
[*P29] Here, the Act includes a clear “legislative expression[] of public policy” regarding the specific industry and activities at issue; thus, we need not undertake a Hawkins-like public policy analysis. See Rothstein v. Snowbird Corp., 2007 UT 96, ¶¶ 11, 19, 175 P.3d 560. The public policy statement in the Act provides,
[HN18] The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers [**30] have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.
Utah Code Ann. § 78B-4-401 (LexisNexis 2012). [HN19] Our supreme court has interpreted this public policy statement as prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers. Rothstein, 2007 UT 96, ¶¶ 16-17, 175 P.3d 560. And the court has outright rejected the notion that releases of liability serve the purpose of the Act–to immunize ski-area operators from liability generally–stating,
This reasoning fails to account for the Legislature’s inescapable public policy focus on insurance and ignores the reality that the Act’s core purpose is not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned [**31] by their negligence.
Id. ¶ 17.
[*P30] In other words, [HN20] the Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier that signed the release or whether the release was signed by a parent on behalf of a child. The Act does not differentiate among the “large number” of residents and nonresidents engaged in the sport of skiing that “significantly contribut[e] to the economy of this state” based on the participant’s age. Accordingly, we reject the trial court’s determination that the USSA release is unenforceable because it was signed by a parent on behalf of a minor; rather, the release is unenforceable based on the Act’s policy statement.
2. Enforceability of the USSA Release Based on Levi’s Status as a Competitive or Recreational Skier
[*P31] The trial court also determined that the USSA release was unenforceable in this case based on its determination that Levi was injured while engaging in recreational skiing, rather than competitive skiing. Utah courts have interpreted the Act’s policy statement as prohibiting pre-injury releases signed by recreational skiers, see Rothstein, 2007 UT 96, ¶¶ 3, 16, 175 P.3d 560, while permitting pre-injury releases signed by competitive skiers, see Berry v. Greater Park City Corp., 2007 UT 87, ¶¶ 18, 24, 171 P.3d 442. Here, the trial court [**32] rejected the release’s enforceability by likening Levi to the recreational skier in Rothstein.
[*P32] As previously discussed, our supreme court in Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560, explained that [HN21] the Act was enacted in recognition that the ski industry, which plays a “prominent role in Utah’s economy,” was in the midst of an “insurance crisis.” Id. ¶ 14. To achieve the Act’s goal of ensuring that ski-area operators had access to “insurance at affordable rates,” the Act prohibited “skiers from recovering from ski area operators for injuries resulting from the inherent risks of skiing.” Id. ¶¶ 13, 15. The court explained that the Act was designed to strike a “bargain” with ski-area operators by freeing them “from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.” Id. ¶ 16. Accordingly, the Rothstein court concluded that “[b]y extracting a preinjury release from Mr. Rothstein for liability due to [the ski resort’s] negligent acts, [the resort] breached [the Act’s] public policy bargain.” Id.
[*P33] However, not long before Rothstein, our supreme court in Berry v. Greater Park City Corp., 2007 UT 87, 171 P.3d 442, deemed a pre-injury release enforceable based on the type of skiing involved in that case. [**33] Id. ¶¶ 18, 24. The pre-injury release in that case was signed in favor of a ski resort by an adult prior to, and as prerequisite for, his participation in a skiercross race. Id. ¶¶ 2-3. The Berry court recognized that the vitality of Utah’s ski industry is a matter of public interest, as evidenced by the enactment of the Act, and “that most jurisdictions that permit [pre-injury] releases draw the line [of enforceability of those releases] at attempts to limit liability for activities in which there is a strong public interest.” Id. ¶¶ 12, 17. The court then applied a six-part test to determine whether skiercross racing is an activity “in which there is strong public interest.” Id. ¶¶ 12, 15 (citing Tunkl v. Regents of the Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963) (in bank)). The Berry court determined that “skiercross racing” “has simply not generated sufficient public interest either through its popularity or because of hazards associated with it to generate a call for intervention of state regulatory authority” and that it is therefore “subject to a separate analysis for the purpose of evaluating the enforceability of preinjury releases,” even though “the services provided by a business operating a recreational ski area and the services provided [**34] by a business sponsoring a competitive ski race may be covered by the provisions of the Act.” Id. ¶¶ 17-18. Accordingly, the supreme court held “that the release Mr. Berry executed in favor of [the ski resort was] enforceable.” Id. ¶ 24.
[*P34] Here, the Ski Resort asserted, and the trial court agreed, “that the critical distinction between Berry and Rothstein is that the plaintiff in Berry signed a release as a condition of participating in a competitive skiercross racing event, while the plaintiff in Rothstein was simply a recreational skier who signed a release when he purchased a ski pass.” Based on that distinction and the seemingly undisputed fact as between the Ski Resort and the Rutherfords that Levi was injured during race training, the Ski Resort argued that the USSA release was enforceable under Utah law because this case “more closely resembles Berry than Rothstein.”
[*P35] However, [HN22] the Act was amended in 2006 to expand the definition of “the sport of skiing to include participation in, or practicing or training for, competitions or special events.”12 See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012)). This amendment indicates the legislature’s intent [**35] that competitive skiing, including practicing and training for competitions, should be treated the same way as recreational skiing.13 Cf. Collins v. Schweitzer, Inc., 21 F.3d 1491, 1493-94 (9th Cir. 1994) (holding that Idaho’s similar act precludes claims brought by competitive skiers against ski resorts, particularly in light of the fact that the statute “does not distinguish between injuries suffered during racing and injuries suffered during other types of skiing”); Brush v. Jiminy Peak Mountain Resort, Inc., 626 F. Supp. 2d 139, 148–49 (D. Mass. 2009) (determining that a USSA waiver was valid under Colorado law and also concluding that a Massachusetts statute requiring ski-area operators to operate their ski areas “in a reasonably safe manner” does not impose on ski-area operators a “greater duty to racing skiers than to other, perhaps less experienced, recreational skiers” because [c]ompetitive skiers . . . have the same responsibility to avoid collisions with objects off the trail as other skiers”); Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 901 (D. Colo. 1998) (explaining that Colorado law defines “[c]ompetitor” as “a skier actually engaged in competition or in practice therefor with the permission of the ski area operator on any slope or trail or portion thereof designated by the ski area operator for the purpose of competition” (citation and internal quotation marks omitted)); Lackner v. North, 135 Cal. App. 4th 1188, 37 Cal. Rptr. 3d 863, 869, 875 (Cal. Ct. App. 2006) (holding that a ski resort has no [**36] duty to eliminate or protect a recreational skier from a collision with a participant in a snowboarding race and that the resort had no duty to supervise the race participants as they warmed up on a designated training run prior to a competition). In conjunction with Rothstein, the amendment supports the conclusion that pre-injury releases extracted by ski-area operators from competitive skiers are also contrary to public policy.
12 Although both Rothstein and Berry were decided in 2007, long after the May 1, 2006 effective date of the amendment to the Act, neither case acknowledges the amended text; the only reference to the amendment was in the Berry court’s inclusion of the 2007 supplement as part of its general citation to where the Act was codified. See Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171 P.3d 442.
13 During the Senate floor debates on the 2006 amendment to the Act, Senator Lyle Hillyard, the sponsor of the bill amending the Act, explained that the “dramatic change[s] of our skiing” industry since the Act’s initial passage required that the Act be updated to “also include[] the sports of recreational, competitive, or professional skiing so that we cover not just the sport, but also the competitive and professional part.” Recording of Utah [**37] Senate Floor Debates, 56th Leg., Gen. Sess. (Feb. 13, 2006) (statements of Sen. Lyle Hillyard). This and other proposed changes were intended “to make [the Act] more compatible with what the ski industry is now doing.” Id. (Feb. 14, 2006). Senator Hillyard also noted that “there is no intention in [the proposed 2006 amendment] to exempt the negligence of the ski resort,” clarifying, “We are just talking about the inherent risks when people go skiing. . . . It’s just bringing the statute . . . up to date and clarify[ing its] policy and so that’s what we’ve done is taken those words and given better definitions and more specificity.” Id. (Feb. 13, 2006).
[*P36] To the extent our interpretation of the Act and its 2006 amendment may seem to be in conflict with the holding in Berry, we note that the plaintiff in that case was injured in February 2001, long before the Act contained the competitive-skiing exemption. Accordingly, [HN23] because the Act does not contain a specific provision permitting the retroactive application of the 2006 amendment, we presume the Berry court abided by “[t]he well-established general rule . . . that statutes not expressly retroactive should only be applied prospectively.” In re J.P., 648 P.2d 1364, 1369 n.4 (Utah 1982) [**38] ; see also Utah Code Ann. § 68-3-3 (LexisNexis 2011) (“A provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.”). Therefore, we construe Berry as applying an older version of the Act and interpreting the Act as it existed prior to the insertion of the competitive-skiing exemption at issue in this case. As it applies to the Ski Resort, we determine that the USSA release is unenforceable because it is contrary to the holding in Rothstein, to the purpose of the Act’s 2006 amendment, and to the public policy statement in the Act, all of which reject pre-injury releases executed by competitive and recreational skiers of all ages in favor of ski-area operators.
CONCLUSION
[*P37] The trial court’s determination that Levi was not engaged in race training at the time of his injury, especially in the face of the fact, apparently undisputed by the parties, that he was injured during racing practice, was improper in the context of the Ski Resort’s motions for summary judgment. The trial court correctly denied the Ski Resort’s joinder in the Ski Team’s motion for summary judgment based on the Act and correctly granted the Rutherfords’ related partial motion for summary judgment, based on the court’s determination that there were disputed issues of material fact regarding the applicability of the machine-made snow exemption. We affirm the trial court’s denial of the Ski Resort’s motion for summary judgment based on the USSA release and the court’s determination that the Colorado choice-of-law provision in the USSA release is inapplicable here. We agree with the trial court that the release, as it pertains to the [**39] Ski Resort, is unenforceable under Utah law, but base this conclusion on different grounds than the trial court. We remand this case for further proceedings consistent with this decision.
When there is no proof that the problem created by the defendant caused the injury, there is no proximate causation, therefore no negligence
Posted: November 3, 2014 Filed under: Illinois, Skiing / Snow Boarding | Tags: Binding Release Setting, DIN, Inc., Ski, Ski binding, skiing, tibial plateau fracture, Viking Ski Shop Leave a commentSkier whose bindings did not release and possibly were set to high, could not prove that if his bindings did release he would not have suffered his injury.
Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684
State: Illinois
Plaintiff: Matthew Mack
Defendant: Viking Ski Shop, Inc. & Salomon North America, Inc.
Plaintiff Claims: defendant failed to make a reasonable inspection before selling the ski equipment to plaintiff, defendant failed to properly adjust the ski equipment, specifically the bindings, to plaintiff’s height, weight, and ski type.
Defendant Defenses: No proximate causation
Holding: for the defendants
Year: 2014
Remember there are four steps (in most states) to prove negligence.
· Duty
· Breach of the Duty
· Injury
· Proximate causation
Each of these points must be proven to hold a defendant negligent.
In this case, the plaintiff purchased skis, boots and bindings in Illinois before going skiing in Colorado. While skiing he fell suffering a knee injury, a tibial plateau fracture. The plaintiff’s bindings did not release during the fall. The plaintiff returned to Illinois and sued the shop that mounted his bindings and the binding manufacturer.
The plaintiff argued that the ski shop that mounted his bindings mounted them for a Type III skier, and he was a Type II skier. The ski industry has developed a skier identification program to determine a skier’s ability level. (See http://www.dinsetting.com/ for information on the different skier levels.) The better the skier the higher the skier identification on a scale of 1 to 3. A better skier has a higher DIN setting or the harder, more pressure needed, to release the ski boot from the binding.
The plaintiff hired an expert who testified that in his opinion, the binding DIN was too high. The defendant hired two experts who stated that if the DIN setting were too high, it still would not have mattered. The pressure needed to release the boot at either DIN setting, Skier Type II or Type III was greater than the pressure that would cause his injury.
The trial court agreed and dismissed the case based on motions of the defendant, and the plaintiff appealed.
Analysis: making sense of the law based on these facts.
The appellate court reiterated the requirements to win a negligence case. Illinois has adopted a three-step approach to proving negligence, basically combining steps 3 and 4 into one step.
In order to recover damages based upon a defendant’s alleged negligence, a plaintiff must prove that (1) the defendant owed the plaintiff a duty; (2) that the defendant breached the duty; and (3) that the breach was the proximate cause of the plaintiff’s injuries.
The court then looked at the requirements to prove proximate cause. Proximate cause has a fact component and a legal component. The factual component is determined by a “but for” test. “Cause, in fact, is established if the occurrence would not have happened “but for” the conduct of the defendant.”
Legal cause is based on foreseeability.
Legal cause, by contrast, is largely a question of foreseeability, and the relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct. Furthermore, proximate cause must be established to a reasonable certainty and may not be based upon mere speculation, guess, surmise or conjecture.
Foreseeability is a difficult legal definition to the non-legal definition can suffice to understand the issues. Could the defendant have thought about the chances of something happening and was that more than mere speculation. Was it something that more than mere speculation could have brought to the speculation of the defendant.
Here the facts still fell below foreseeable. Even if the defendant was negligent and set the bindings incorrectly, the injury would have still occurred. Consequently, the cause, bindings set incorrectly, was not proximate to the injury.
In addition, even if we take Leffe’s testimony as true that defendants incorrectly set plaintiff’s bindings too high for his skier preference, plaintiff still fails to provide substantial evidence that if his bindings were at a lower setting his injury would not have occurred.
The appellate court upheld the trial court’s dismissal of the case.
So Now What?
This case was one because the defense team understood the factual and legal issues of the case and based on facts alone, proved the defendant was not liable. Having an attorney willing to take the time to understand and investigate all of the issues and an insurance company willing to pay for that time will allow the defendant in an outdoor recreation case to win 99% of the time.
Here the defense team kept asking questions until they fully understood the issues. The pressure needed to create a tibial plateau fracture was less than the binding release setting.
Hire a good attorney and take the time to educate your attorney in the facts of your case. Take them down the river, up the mountain or around the mountain on a mountain bike, so they understand all aspects of your business, what the plaintiff experienced and the particulars of your case.
Spend the money to equipment your attorney with a complete set of the equipment at issue in the case. Make sure they understand a forward stroke, a munter hitch and an ascender, or any other equipment at issue in the case. Have them play with the equipment, putting on the harness, releasing a boot from a binding or attaching a PFD until they understand all facets of the equipment.
Then your lawyer can investigate the case to use the best defense available for you.
What do you think? Leave a comment.
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7th Annual CAIC Benefit Bash Breckenridge Riverwalk Center: You Ski, You Should Be There!
Posted: November 1, 2014 Filed under: Avalanche | Tags: avalanche, backcountry, Breckenridge, CAIC, Colorado Avalance Information Center, skiing, snowboarding Leave a commentYOU ARE INVITED!
7th Annual CAIC Benefit Bash
Presented By: Backcountry Access, Voile, Weston Snowboards, Vail Resorts Epic Promise, Arc’teryx, Black Diamond, and Freeride Systems
Saturday, November 8, 2014
5 p.m. – 10 p.m.
Breckenridge Riverwalk Center
150 West Adams Ave
Breckenridge, CO 80424
Tickets: https://itkt.choicecrm.net/templates/WALK/
More info: http://avalanche.state.co.us/about-us/events/7th-annual-caic-benefit-bash/
The Friends of the CAIC are proud to host the Seventh Annual CAIC Benefit Bash, a benefit for the Colorado Avalanche Information Center (CAIC), on Friday, Nov. 8, 2014 at the Riverwalk Center in Breckenridge. Mountain enthusiasts are invited to rally together and support CAIC in their continued efforts of avalanche forecasting and education throughout Colorado. This winter kick-off staple features live music from Shakedown Street, an array of tasty food from local restaurants and incredible beer from Colorado’s own, New Belgium Brewery. Don’t miss out on the Benefit Bash’s massive silent auction, live auction and thousands of dollars worth of door prizes and giveaways.
Also, don’t forget to book your hotel rooms. Beaver Run Resort is offering discounted rates for our attendees. Rooms can be booked by calling Beaver Run group reservations at 1-800-525-2253 and mentioning the CAIC Benefit Bash.
We are looking forward to another great event!
Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684
Posted: November 1, 2014 Filed under: Illinois, Legal Case, Skiing / Snow Boarding | Tags: DIN, Illinois, Pressure, Release Pressure, Skier Identification, skiing, Steamboat Springs, tibial plateau fracture, Type II, Type III Leave a commentMack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684
Matthew Mack, Plaintiff-Appellant, v. Viking Ski Shop, Inc., an Illinois Corporation, Defendant-Appellee (Salomon North America, Inc., a Delaware Corporation, Defendant).
No. 1-13-0768
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
2014 IL App (1st) 130768; 2014 Ill. App. LEXIS 684
September 24, 2014, Opinion Filed
PRIOR HISTORY: [**1] Appeal from the Circuit Court of Cook County. No. 06 L 11817. The Honorable Lynn M. Egan, Judge Presiding.
Mack v. Viking Ski Shop, Inc., 2014 IL App (1st) 130768-U, 2014 Ill. App. Unpub. LEXIS 1812 (2014)
JUDGES: JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Epstein concurred in the judgment and opinion.
OPINION BY: LAVIN
OPINION
[*P1] This interlocutory appeal arises from the trial court’s order granting summary judgment in a negligence action to defendant Viking Ski Shop, Inc. On appeal, plaintiff Matthew Mack contends that the trial court erroneously granted defendant’s motion for summary judgment as to plaintiff’s negligence claim because a genuine issue of material fact existed regarding the element of proximate cause. Specifically, plaintiff contends that defendant set plaintiff’s ski bindings too high for his ability level, and as a result, his bindings failed to release, causing his knee injury. We affirm.
[*P2] BACKGROUND
[*P3] This case arises from injuries sustained in a ski accident in Steamboat Springs, Colorado. Plaintiff fell approximately halfway down an intermediate ski run and sustained a severe knee fracture of his left tibial plateau. Plaintiff purchased the skis and ski bindings used at the time of injury from defendant. Plaintiff commenced this action [**2] in November 2006, alleging negligence against defendant and third-party Salomon North America (Salomon). Plaintiff alleged, in pertinent part, that defendant failed to make a reasonable inspection before selling the ski equipment to plaintiff. In addition, defendant failed to properly adjust the ski equipment, specifically the bindings, to plaintiff’s height, weight, and ski type. Generally, in the ski industry, skiers are classified as type I (beginner), type II (intermediate), or type III (advanced).
[*P4] Several depositions were taken during discovery. Plaintiff testified that in November, 2004, he purchased new skis, boots, and bindings from defendant based on his size and ability. He told defendant’s sales representative that he was an intermediate to advanced skier. On March 10, 2010, plaintiff traveled to Steamboat Springs, Colorado, where he had skied numerous times. On the day of the incident, he had one or two beers at lunch, and then resumed skiing. Approximately halfway down the Vagabond ski run, plaintiff was initiating a left turn when his right ski crossed over his left ski, causing him to fall on his back. He did not recall if any ski released from the binding. Believing [**3] his leg was broken, he radioed his ski companion Jody to call the ski patrol. Glenn Jones, a ski patroller, splinted plaintiff’s injured leg and used a toboggan to transport him off the mountain. The ski patrol immediately transferred plaintiff to the Yampa Valley Medical Center, where Henry F. Fabian, M.D., an orthopedic surgeon, operated on plaintiff. He remained hospitalized for 12 days and then resumed postoperative care in Chicago. Since the incident, plaintiff has endured five or six hospitalizations, due to infection, as well as extensive physical therapy.
[*P5] Peter R. Leffe, plaintiff’s mechanical engineering expert, testified that in his opinion, plaintiff was a type II or intermediate skier. Leffe also inspected plaintiff’s ski equipment using the standard industry Salomon manual and found that plaintiff’s bindings were set too high for a type II skier. Thus, Leffe concluded that defendant’s fitting of plaintiff’s ski equipment fell below the standard of care for a ski shop. Leffe noted that he had no intention to testify about the causal relationship between the subject injury and the binding functions because he did not hold himself out to be a biomechanical engineer.
[*P6] Defendant [**4] also submitted an affidavit of its engineering expert Jasper Shealy, who inspected and tested plaintiff’s ski equipment. He attested that over the course of his career he studied and conducted research on the relation between ski binding function and knee injuries. Based on defendant’s records, plaintiff selected a type III skier preference and his bindings were adjusted accordingly. Plaintiff, however, contends that he selected a type II skier preference. Despite this discrepancy, Shealy concluded that a lower ski type setting would not have prevented plaintiff’s injury because plaintiff’s bindings were not designed to protect against tibial plateau fractures. He stated with a reasonable degree of engineering certainty that the valgus/varus bending forces that cause tibial plateau fractures were not sufficient to cause a binding to release at any setting. Therefore, a lower setting of plaintiff’s bindings would not have prevented his knee injury.
[*P7] In April 2010, defendant filed a motion for summary judgment arguing that plaintiff failed to establish that his ski bindings’ setting was the proximate cause of his knee injury. In plaintiff’s response, he attached an affidavit by Leffe [**5] addressing the issue of causation, even though plaintiff failed to make this disclosure in Leffe’s Ill. S. Ct. R. 213(f) interrogatories or discovery deposition. After further briefing, the trial court granted defendant’s motion, finding that plaintiff’s claims were conclusory and speculative.
[*P8] Following this ruling, two more discovery depositions were taken. Jones, a part-time ski patroller for 23 years in Steamboat Springs, Colorado, testified that when he arrived on the scene, he physically released plaintiff’s left ski binding from his injured leg. Jones then aligned the injured leg and splinted it before placing plaintiff on a toboggan. The incident report indicated that plaintiff was an advanced skier, who caught his left ski tip in a slush pile.
[*P9] In addition, Dr. Fabian testified that beyond being an orthopedic surgeon, he held a biomechanical engineering degree and was a team doctor for the United States ski team. Plaintiff sustained a severe knee injury, specifically a grade six comminuted fracture of the tibial plateau. Dr. Fabian recalled the injury being one of the worst fractures he had ever seen. He noted that generally ski bindings did not prevent knee injuries, because from an engineering [**6] standpoint, the forces that were at the knee would not do anything to release the toe or heel of the binding until a certain force was reached. Although based on plaintiff’s fracture pattern, the supposed speed, and location on the mountain, “it would be very likely that bindings set too high were consistent with [plaintiff’s] injury.”
[*P10] Thus, in October 2010, plaintiff filed a motion to reconsider the court’s summary judgment ruling, and in February 2011, the trial court granted the motion. The court concluded, that based upon the new deposition testimony of Jones and Dr. Fabian, there was a genuine issue of material fact as to whether the left ski binding did or did not release and, therefore, whether the alleged negligence on the part of defendant was the proximate cause of plaintiff’s injury.
[*P11] In March 2011, defendant filed a motion to bar plaintiff’s expert Leffe from testifying at trial on issues of causation. The court granted the motion, noting that plaintiff failed to disclose this line of testimony in his Rule 213 disclosures. In addition, during Leffe’s discovery deposition, he testified that he did not intend to be an expert in the causal relationship between plaintiff’s injury and [**7] the binding function. Therefore, the court concluded Leffe’s new opinions would be prejudicial to defendant and were barred pursuant to Ill. S. Ct. R. 213. See Rule 213(g) (eff. Jan. 1, 2007).
[*P12] In January 2012, defendant then filed a renewed motion for summary judgment including a motion in limine to bar Leffe’s testimony at trial on issues of causation. Defendant also attached a subsequent evidence deposition of Dr. Fabian, who testified that plaintiff’s injury “could be and also could not be” consistent with a ski binding that did not release. Dr. Fabian noted that if plaintiff’s binding was set too high and did not release “it could contribute” to the fracture, but he also observed that this type of fracture could be obtained with an “optimally functioning binding.” Thus, Dr. Fabian could not say with any degree of medical certainty whether plaintiff’s injuries were caused or not caused by the ski bindings. Further, he testified that he was not an expert on issues of causation with respect to knee injuries and ski bindings.
[*P13] In October 2012, the trial court granted defendant’s motion for summary judgment, concluding that “the record before us [was] devoid of any affirmative and positive evidence that would create [**8] a question of fact regarding proximate cause.” The court also observed that in regards to Leffe’s barred testimony, plaintiff’s response brief failed to provide any substantive argument in support of a generic request to “vacate all previous orders regarding evidentiary matters.” Accordingly, it constituted waiver of this contention. Plaintiff now appeals.
T [*P14] ANALYSIS
[*P15] Plaintiff contends that the trial court erroneously granted defendant’s motion for summary judgment with regard to plaintiff’s negligence claim because a genuine issue of material fact existed regarding the element of proximate cause. [HN1] Summary judgment is proper where the pleadings, admissions, depositions and affidavits demonstrate there is no genuine issue as to any material fact so that the movant is entitled to judgment as a matter of law. Ioerger v. Halverson Construction Co., Inc., 232 Ill. 2d 196, 201, 902 N.E.2d 645, 327 Ill. Dec. 524 (2008); 735 ILCS 5/2-1005 (West 2010). In determining whether a genuine issue of material fact exists, the court must consider such items strictly against the movant and liberally in favor of its opponent. Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 320 Ill. Dec. 784 (2008). We review the trial court’s order granting summary judgment de novo. Weather-Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389, 909 N.E.2d 830, 330 Ill. Dec. 808 (2009).
[*P16] [HN2] In order to recover damages based upon a defendant’s alleged negligence, a plaintiff must prove that (1) the defendant owed the [**9] plaintiff a duty; (2) that the defendant breached the duty; and (3) that the breach was the proximate cause of the plaintiff’s injuries. Perfetti v. Marion County, 2013 IL App (5th) 110489, ¶ 16, 985 N.E.2d 327, 368 Ill. Dec. 754.
[*P17] Plaintiff first contends that the trial court erred by barring Leffe’s testimony on proximate cause. Initially, we note that plaintiff fails to cite to any relevant authority or develop his argument on this matter in violation of Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013). See First National Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 208, 872 N.E.2d 447, 313 Ill. Dec. 464 (2007). [HN3] This court is entitled to clearly defined issues, cohesive legal arguments and citations to relevant authority. Country Mutual Insurance Co. v. Styck’s Body Shop, Inc., 396 Ill. App. 3d 241, 254-55, 918 N.E.2d 1195, 335 Ill. Dec. 382 (2009). Accordingly, plaintiff has forfeited his contention on appeal. See TruServ Corp. v. Ernst & Young, LLP, 376 Ill. App. 3d 218, 227, 876 N.E.2d 77, 315 Ill. Dec. 77 (2007).
[*P18] Setting forfeiture aside, the purpose of discovery rules, governing the timely disclosure of expert witnesses, “is to avoid surprise and to discourage strategic gamesmanship” amongst the parties (internal quotation marks omitted). Steele v. Provena Hospitals, 2013 IL App (3d) 110374, ¶ 92, 996 N.E.2d 711, 374 Ill. Dec. 1016. As a result, Rule 213(g) states as follows:
[HN4] “The information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the testimony that can be given by a witness on direct examination at trial. Information disclosed in a discovery deposition need not be later specifically identified in a Rule 213(f) answer, but, upon objection at trial, the burden is on the proponent of the witness to [**10] prove the information was provided in a Rule 213(f) answer or in the discovery deposition. Except upon a showing of good cause, information in an evidence deposition not previously disclosed in a Rule 213(f) interrogatory answer or in a discovery deposition shall not be admissible upon objection at trial.” Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2007).
[HN5] Pursuant to the rule, the decision of whether to admit or exclude evidence, including whether to allow an expert to present certain opinions, rests solely within the discretion of the trial court and will not be disturbed absent a demonstrated abuse of discretion. Cetera v. DiFilippo, 404 Ill. App. 3d 20, 36-37, 934 N.E.2d 506, 343 Ill. Dec. 182 (2010). Such an abuse of discretion occurs only if no reasonable person would take the view adopted by the trial court. Foley v. Fletcher, 361 Ill. App. 3d 39, 46, 836 N.E.2d 667, 296 Ill. Dec. 916 (2005).
[*P19] Here, plaintiff did not disclose Leffe’s intention to testify regarding proximate cause in his Rule 213(f) interrogatory. In addition, in Leffe’s discovery deposition, he testified that he had no intention to testify about the causal relationship between the subject injury and the binding functions because he did not hold himself out to be a biomechanical engineer. Moreover, plaintiff provided no explanation or showing of good cause below or on appeal for his failure to disclose Leffe’s opinions on causation. In granting [**11] the motion, the trial court specifically noted its concern of unfair prejudice to defendant because defense counsel was unable to question Leffe regarding his “opinions” on the matter, “qualification to offer such opinions,” or “the factual, scientific, or technical basis for his opinions.” Therefore, we cannot say that the trial court abused its discretion in this matter.
[*P20] We now turn to whether a genuine issue of material fact exists regarding the element of proximate cause. [HN6] In order to establish proximate cause, a plaintiff must establish both “cause in fact” and “legal cause.” Rivera v. Garcia, 401 Ill. App. 3d 602, 610, 927 N.E.2d 1235, 340 Ill. Dec. 224 (2010). Cause in fact is established if the occurrence would not have happened “but for” the conduct of the defendant. Bourgonje v. Machev, 362 Ill. App. 3d 984, 1007, 841 N.E.2d 96, 298 Ill. Dec. 953 (2005). Legal cause, by contrast, is largely a question of foreseeability, and the relevant inquiry is whether the injury is of a type that a reasonable person would see as a likely result of his or her conduct. Feliciano v. Geneva Terrace Estates Homeowners Ass’n, 2014 IL App (1st) 130269, ¶ 37, 14 N.E.3d 540. Furthermore, proximate cause must be established to a reasonable certainty and may not be based upon mere speculation, guess, surmise or conjecture. Bourgonje, 362 Ill. App. 3d at 1007. Because this case hinges on cause in fact, we need not consider legal cause. See Salinas v. Werton, 161 Ill. App. 3d 510, 515, 515 N.E.2d 142, 113 Ill. Dec. 333 (1987).
[*P21] In the case sub judice, the inference plaintiff seeks to establish [**12] is that defendant’s failure to properly set his ski bindings to plaintiff’s weight, height, and intermediate ability level prevented his ski bindings from properly releasing which directly caused his knee injury. This inference, while facially appealing, finds no support in the record. Dr. Fabian’s testimony as a whole fails to definitively establish, to any degree of medical certainty, a causal link between plaintiff’s bindings’ failure to release and his knee injury. In fact, Dr. Fabian testified that he was not an expert on the issues of causation with respect to injuries relating to ski bindings, and at best, the failure of plaintiff’s bindings to release “could be and also could not be” the proximate cause of plaintiff’s injury. Accordingly, Dr. Fabian’s testimony is speculative and not enough to withstand dismissal on summary judgment. See Johnson v. Ingalls Memorial Hospital, 402 Ill. App. 3d 830, 843, 931 N.E.2d 835, 341 Ill. Dec. 938 (2010) (an expert’s opinion was only as valid as the basis for the opinion and conclusory opinions based on sheer, unsubstantiated speculation were not enough to survive the summary judgment stage); Wiedenbeck v. Searle, 385 Ill. App. 3d 289, 299, 895 N.E.2d 1067, 324 Ill. Dec. 352 (2008) (at the summary judgment stage, the plaintiff must present affirmative evidence that the defendant’s negligence was a proximate cause of the plaintiff’s [**13] injuries, and the mere possibility of a causal connection was not sufficient to sustain the burden of proof).
[*P22] In addition, even if we take Leffe’s testimony as true that defendant incorrectly set plaintiff’s bindings too high for his skier preference, plaintiff still fails to provide substantial evidence that if his bindings were at a lower setting his injury would not have occurred. Plaintiff and ski patroller Jones did not testify regarding the element of proximate cause, and Dr. Fabian’s testimony was demonstrably equivocal. See Salinas, 161 Ill. App. 3d at 515 (although a plaintiff may rely on reasonable inferences that may be drawn from the facts considered on a motion for summary judgment, the circumstances must justify an inference of probability as distinguished from mere possibility). Furthermore, plaintiff has presented no additional evidence to rebut defense expert Shealy, who concluded, with a reasonable degree of engineering certainty, that a lower binding setting would not have prevented plaintiff’s knee injury because plaintiff’s bindings were not designed to protect against tibial plateau fractures. Consequently, plaintiff fails to establish that but for defendant’s negligence in setting his ski bindings [**14] too high, plaintiff’s injury would not have occurred. See Abrams v. City of Chicago, 211 Ill. 2d 251, 258, 811 N.E.2d 670, 285 Ill. Dec. 183 (2004) (a defendant’s conduct was only a material element and substantial factor in bringing about the injury if, absent that conduct, the injury would not have occurred).
[*P23] Moreover, plaintiff’s reliance on cases addressing the admissibility of expert testimony is misplaced, as defendant does not dispute that Dr. Fabian’s expert opinion regarding causation would be admissible at trial. See Torres v. Midwest Development Co., 383 Ill. App. 3d 20, 889 N.E.2d 654, 321 Ill. Dec. 389 (2008); Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 702 N.E.2d 303, 234 Ill. Dec. 137 (1998); Geers v. Brichta, 248 Ill. App. 3d 398, 618 N.E.2d 531, 187 Ill. Dec. 940 (1993); Mesick v. Johnson, 141 Ill. App. 3d 195, 490 N.E.2d 20, 95 Ill. Dec. 547 (1986). Here, no reasonable inferences can be drawn to establish that but for defendant’s negligence the incident would not have occurred. See McCraw v. Cegielski, 287 Ill. App. 3d 871, 873, 680 N.E.2d 394, 223 Ill. Dec. 661 (1996). Because the record presents no genuine issue of material fact, defendant was entitled to summary judgment as a matter of law.
[*P24] CONCLUSION
[*P25] Based on the foregoing, we affirm the judgment of the circuit court of Cook County.
[*P26] Affirmed.
Law firm is going after GoPro for two different ways a video camera can allegedly lead to a fatality: the camera does not kill you, using the camera kills you????
Posted: October 29, 2014 Filed under: Avalanche | Tags: avalanche, Avalanche Beacon, Camera, GoPro, helmet, Video Camera 8 CommentsNot the only ways. Better the issue is the failure to warn that doing stupid things to try and become famous might kill you?
A press release went out from a large northwestern law firm looking for people who had been injured or died wearing GoPro Cameras. The first cause of accidents targeted were accidents due to GoPro’s interfering with Avalanche Beacons. See Electronic gadgets, including video cameras interfere with Avalanche Beacons. The second was head injuries from mounting GoPro Camera’s on a helmet.
Both arguments have major flaws. The first claim that GoPro’s interfere with Avalanche Beacons is true. However, any electronic device interferes with an avalanche beacon. If your cell phone is close to your beacon and rings during a search for you, you may not be found. However, cell phones will cause less interference because a phone is shielded. Cameras, video cameras and other electronic devices have less shielding so they create more interference. Put a video camera on your chest, an MP3 Player in your pocket and a walkie-talkie on your chest and you’ll never be found.
In researching the article Electronic gadgets, including video cameras interfere with Avalanche Beacons I did not find any electronic device that stated it may interfere with a beacon. Some electronic devices said they may cause interference but it is not specific. Most state that the device meets some FCC shielding requirements.
The second major issue is allegedly helmet mounts affect the helmet’s ability to protect your head. The helmet mount issue started with a news report that the GoPro cameras mount caused the helmet being worn by Formula 1 racer Michael Schumacher led to his injuries in a skiing accident. See Michael Schumacher’s Ski Accident Brain Injury Said to Be Caused by his GoPro Helmet Cam. The mount was a stick on mount. If stick on mounts affects helmets, goggle holders, stickers and dozens of other things we attach to helmets may be subject to litigation. Supposedly, the French investigation into this did not lead to any problems.
Some helmet mounts use drilled holes into your helmet to mount cameras. GoPro has none of those on its website. (Drill a hole in your helmet?)
The article indicates the law firm does not really understand what is going on. One report suggests that the cameras may interfere not only with the transmission of the rescue signal, but also with the ability of searcher equipment to locate an avalanche victim.” Isn’t that one and the same no transmission no finds you. Besides what is the “searcher equipment?”
I think a better lawsuit might be the brain damage any video camera does to the wearer. Put on a video camera and you seem to do stupid things. Just go to YouTube.com and you’ll find hundreds of videos proving this legal theory.
See Law Firm Begins Soliciting GoPro Customers
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First Colorado Avalanche Information Center Forecast for the 2014-15 Season. Become a member and support this group
Posted: October 9, 2014 Filed under: Avalanche, Skiing / Snow Boarding | Tags: avalanche, Colorado, National Weather Service, October, Snow, Weather forecasting, x Leave a comment
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13th Annual Colorado Snow and Avalanche Workshop: If you are in the ski industry in the West you need to be here!
Posted: October 2, 2014 Filed under: Avalanche | Tags: Alaska, avalanche, Breckenridge, CAIC, Colorado, Colorado Avalanche Information Center, CSAW, Friends Leave a comment13th Annual Colorado Snow and Avalanche Workshop (CSAW)
English: I took this picture on May 2006, on my way to Mount Everest base camp. Ilan Adler. (Photo credit: Wikipedia)
8 a.m. – 5 p.m.
Breckenridge Riverwalk Center
150 West Adams Ave
Breckenridge, CO 80424
Tickets: http://tinyurl.com/csawtickets2014
Join the CAIC and Friends of CAIC in Breckenridge, Colorado for this year’s Colorado Snow and Avalanche Workshop.
We have invited speakers from around Colorado and as far as Montana, Canada, and Alaska. It’s going to be a great event and we would love to see you there. You can see the full schedule here: http://tinyurl.com/csaw2014.
Register before October 13th and save on the registration fee.
A powder snow avalanche (Photo credit: Wikipedia)
Also, don’t forget to book your hotel rooms. Beaver Run Resort is offering discounted rates for our attendees. Rooms can be booked by calling Beaver Run group reservations at 1-800-525-2253 and mentioning CAIC.
We are looking forward to another great CSAW!
Lots of Changes in Ski Resort Ownership this past month
Posted: September 30, 2014 Filed under: Skiing / Snow Boarding | Tags: x, y, z Leave a comment
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It’s early, but never too late to Help the Colorado Avalanche Information Center
Posted: August 28, 2014 Filed under: Avalanche, Skiing / Snow Boarding Leave a commentCAIC Benefit Bash, November 8 5-10pm at the Breckenridge Riverwalk Center
Join the Friends of the CAIC for the premier fundraising party of the season! There will be a huge silent auction to help you gear up. Great food and beverages will help fuel your adventures. Test your early-season conditioning by dancing to the band. This event will sell out, so get your tickets when they become available on the CAIC website.
First Frost, November 7 6:30-11:30pm at the Denver Press Club
First Frost is Denver’s premier winter kick-off event. Hosted at the historic Denver press club, First Frost is a celebration of the Colorado winter experience. Featuring winter images from the best photographers in the state, this formal evening benefits the educational, forecasting and informational programs of the Colorado avalanche information center as well as the preservation of the Press Club’s historic building and facilities.
Colorado Snow Avalanche Workshop
The 13th annual Colorado Snow Avalanche Workshop (CSAW) will take place on Friday, October 17. We are moving to a new, spacious venue at the Breckenridge Riverwalk Center. We are inviting speakers from around Colorado and North America. This is a one-day professional development seminar for people working in avalanche safety to learn and discuss new ideas, techniques and technologies with their colleagues. The meeting is intended for ski patrollers, avalanche forecasters, road maintenance personnel, ski guides, avalanche education instructors, undergraduate and graduate students, and applied researchers, but the meeting is open to anyone.
Registration begins September 1, and will be $25 in advance and $40 at the door. Special lodging rates in and around Breckenridge will be available.
We will update the CSAW web page with the speaker list, registration links, and lodging rates by September 1. Check the page for the latest details: http://avalanche.state.co.us/about-us/events/13th-annual-colorado-snow-avalanche-workshop/
Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18
Posted: May 5, 2014 Filed under: Oregon, Ski Area, Skiing / Snow Boarding | Tags: Age of Majority, Air Chamber, Boarder, Boarding, Disaffirm, Inc., Mt. Bachelor, Mt. Bachelor Ski and Summer Resort, Myles A. Bagley, Oregon, Release, ski area, Ski Resort, Snowboarder, snowboarding, Terrain park 2 CommentsThis decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014
The term is disaffirm, the minor must disaffirm the release or contract after reaching age 18 or the release or contract is valid.
Date of the Decision: September 5, 2013
Plaintiff: Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs
Defendant: Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort
Plaintiff Claims: (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable.
Defendant Defenses: Release
Holding: for the defendant. The minor took advantage of the benefits of the contract (release) and did not disaffirm the contract upon reaching the age of majority (18).
This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is in effect when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.
To determine the age of majority or the age a minor becomes an adult in each state see The age that minors become adults.
The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days and his pass was scanned 119 times.
Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.
The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.
Summary of the case
The appellate court reviewed the facts and pointed several of the facts out repeatedly.
He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor.
After reaching age 18 the plaintiff used the release 119 times over 26 days during a four month period. Once you affirm a contract, by using it and not disaffirming it, you cannot later disaffirm the contract. A contract is affirmed if the contract is not disaffirmed which requires an act on the part of the plaintiff. Meaning if the minor does not make an affirmative act to disaffirm the release then the release stands.
In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, “[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”).
In this case the only disaffirmance occurred two years later when the plaintiff started his lawsuit.
The plaintiff then argued that because he had no knowledge of the power to disaffirm this release he should not be held to his failure to disaffirm. However the court shot this down with the standard statement. “However, we have previously stated that “[i]gnorance of the law is not a basis for not enforcing a contract.“”
The court then reviewed the requirements for a valid release under Oregon law. “[W]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.”
The public policy argument was also shot down in a very common sense manner.
“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service.
The release was also found to not be unconscionable.
[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness
The court followed up the public policy quote with “…albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive.”
A recreational activity is not subject to public policy arguments because the signer can:
“…simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”
“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”
Because it was the plaintiff’s choice to board at the defendants ski area the release did not violate public policy.
When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away.
The one misstatement in my opinion which the court also pointed out was language that exempted the release for intentional acts. “THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.” The capitalized print made this statement in the release even standout. The court, found this to be curious and probably was thinking the same way I did, why give the plaintiff’s a way out of the release.
The Oregon Court of Appeals upheld the release as a defense to the claims of the plaintiff.
So Now What?
When a guest enters their date of birth in the information form indicating they are under the age of majority, this always creates a problems because minor’s cannot sign releases. However, if the minor can read the release, even the release is voided by the minor, it can still be used to prove assumption of the risk by the minor.
If the minor is turning the age of majority during the term of the release you can have the minor reaffirm the release or sign a new release after his birthday.
The court repeatedly pointed out how many times the plaintiff had used the release, how many releases at this resort and other resorts the plaintiff had signed before and the experience of the plaintiff. Keep track of this information because it will be valuable in any case showing that the release was an accepted contract for the plaintiff.
Never write in your release the ways the plaintiff can sue you. Here the statement in the release that it was not effective for intentional misconduct is the same as telling the plaintiff to write their complaint to couch the injury as an intentional act on the part of the defendant.
On the good side, the ski area had the minor sign the release, even though the release at the time was of no value. A release signed by a minor might have value later as in this case or might be able to prove assumption of the risk.
The Oregon Supreme Court has just accepted this case for review of this decision. So please learn from this article but do not rely upon it yet. (http://rec-law.us/1jaw8g2)
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By Recreation Law Rec-law@recreation-law.com James H. Moss #Authorrank
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Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
Posted: May 5, 2014 Filed under: Legal Case, Oregon, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Age of Majority, Air Chamber, Boarder, Boarding, Disaffirm, Inc., Mount Bachelor, Mt. Bachelor, Mt. Bachelor Ski and Summer Resort, Myles A. Bagley, Oregon, Release, ski area, Ski Resort, Snowboard, Snowboarder, snowboarding, Terrain park Leave a commentThis decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014
Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs, v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, Defendant-Respondent, and JOHN DOES 1-10, Defendants.
A148231
COURT OF APPEALS OF OREGON
258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
September 6, 2012, Argued and Submitted
September 5, 2013, Filed
COUNSEL: Kathryn H. Clarke argued the cause for appellant. On the opening brief were Bryan W. Gruetter and Joseph S. Walsh. With her on the reply brief was Lisa T. Hunt.
Andrew C. Balyeat argued the cause for respondent. With him on the brief was Balyeat & Eager, LLP.
JUDGES: Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
OPINION BY: SERCOMBE
OPINION
[**694] [*392] SERCOMBE, J.
Plaintiff Bagley, after suffering serious injuries while snowboarding over a “jump” in defendant Mt. Bachelor, Inc.’s (Mt. Bachelor) “terrain park,” brought this action alleging negligence in the design, construction, maintenance, or inspection of that jump. 1 The trial court granted Mt. Bachelor’s motion for summary judgment, which was based on the affirmative defense of release, and denied Bagley’s cross-motion for partial summary judgment pertaining to that same issue. Bagley appeals, asserting that the trial court erred in (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary [***2] to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable. For the reasons that follow, we agree with the trial court and, accordingly, affirm.
1 For ease of reading, notwithstanding additional named parties (Bagley’s parents and “John Does 1-10”), we refer throughout this opinion to plaintiff “Bagley” and defendant “Mt. Bachelor.”
[HN1] In reviewing a grant of summary judgment, we view the facts, along with all reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party–here, Bagley on Mt. Bachelor’s motion and Mt. Bachelor on Bagley’s cross-motion. ORCP 47 C; Vaughn v. First Transit, Inc., 346 Ore. 128, 132, 206 P3d 181 (2009). On September 29, 2005, just under two weeks before his 18th birthday, Bagley purchased a “season pass” from Mt. Bachelor. Bagley was a skilled and experienced snowboarder, having purchased season passes from Mt. Bachelor for each of the preceding three years and having classified his skill level as of early 2006, immediately prior to the injury, as “advanced expert.” Upon purchasing the season pass, he executed [**695] a release agreement as required by Mt. Bachelor. That [***3] agreement read, in pertinent part:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, [*393] INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“* * * * *
“THE UNDERSIGNED(S) HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS ON BOTH SIDES OF THIS DOCUMENT. THIS INCLUDES, BUT IS NOT LIMITED TO, THE DUTIES OF SKIERS, SNOWBOARDERS, OR SNOWRIDERS. THE UNDERSIGNED(S) UNDERSTAND THAT THIS DOCUMENT IS AN AGREEMENT OF RELEASE AND INDEMNITY WHICH WILL PREVENT THE UNDERSIGNED(S) OR THE UNDERSIGNEDS’ ESTATE FROM RECOVERING DAMAGES FROM MT. BACHELOR, INC. IN THE EVENT OF DEATH OR INJURY TO PERSON OR PROPERTY. THE UNDERSIGNED(S), NEVERTHELESS, [***4] ENTER INTO THIS AGREEMENT FREELY AND VOLUNTARILY AND AGREE IT IS BINDING ON THE UNDERSIGNED(S) AND THE UNDERSIGNEDS’ HEIRS AND LEGAL REPRESENTATIVES.
“BY MY/OUR SIGNATURE(S) BELOW, I/WE AGREE THAT THIS RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH I/WE RENEW THIS SEASON PASS.
“SEE REVERSE SIDE OF THIS SHEET * * * FOR DUTIES OF SKIERS, SNOWBOARDERS, OR SNOW RIDERS WHICH YOU MUST OBSERVE.”
(Underscoring and capitalization in original; emphases added.) The reverse side of the document detailed the “Duties of Skiers” pursuant to ORS 30.990 and ORS 30.985 and also included printed notification that “Skiers/Snowboarders/Snowriders [*394] Assume Certain Risks” under ORS 30.975–namely, the “inherent risks of skiing.” 2 In addition, because Bagley was not yet 18, his father executed a “minor release and indemnity agreement” (capitalization omitted) that read as follows:
“I HEREBY AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH [***5] THE MINOR(S) NAMED BELOW MAY SUFFER OR FOR WHICH HE OR SHE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY [**696] NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“BY MY SIGNATURE BELOW, I AGREE THAT THIS MINOR RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH THIS SEASON PASS IS RENEWED.
“I HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS.”
(Capitalization in original; emphasis added.)
2 Oregon has promulgated statutes specifically pertaining to skiing and ski areas. See ORS 30.970 – 30.990. Those statutes, inter alia, set forth the “duties” of skiers, require that ski area operators inform skiers of those duties, establish notice requirements and a statute of limitations pertaining specifically to injury or death while skiing, and provide that those who engage in the sport of skiing accept and assume the risks inherent in that activity.
Less than two weeks after purchasing the season pass and executing the [***6] above-quoted release agreement, Bagley reached the age of majority–turning 18 on October 12, 2005. Thereafter, on November 18, 2005, Bagley began using the pass, on which the crux of the release agreement was also printed:
[*395] “READ THIS RELEASE AGREEMENT
“IN CONSIDERATION FOR EACH LIFT RIDE, THE TICKET USER RELEASES AND AGREES TO HOLD HARMLESS AND INDEMNIFY MT. BACHELOR, INC., AND ITS EMPLOYEES AND AGENTS FROM ALL CLAIMS FOR PROPERTY DAMAGE, INJURY OR DEATH EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”
(Capitalization in original; emphasis added.) Further, the following sign was posted at each of Mt. Bachelor’s ski lift terminals:
“YOUR TICKET IS A RELEASE
“The back of your ticket contains a release of all claims against Mt. Bachelor, Inc. and its employees or agents. Read the back of your ticket before you ride any lifts or use any of the facilities of Mt. Bachelor, Inc. If you purchase a ticket from someone else, you must provide this ticket release information to that person or persons.
“Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and [***7] agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.
“If you do not agree to be bound by the terms and conditions of the sale of your ticket, please do not purchase the ticket or use the facilities at Mt. Bachelor.
“Presentation of this ticket to gain access to the premises and facilities of this area is an acknowledgment of your agreement to the terms and conditions outlined above.”
(Capitalization in original; emphases added.)
Ultimately, beginning on November 18, 2005, after his 18th birthday, Bagley used his season pass to ride Mt. Bachelor’s lifts at least 119 times over the course of 26 days spent snowboarding at the ski area. However, on February 16, 2006, while snowboarding over a manmade jump in Mt. Bachelor’s “air chamber” terrain park, Bagley sustained serious injuries resulting in permanent paralysis.
[*396] On June 16, 2006, approximately four months later, Bagley provided Mt. Bachelor with formal notice of his injury under ORS 30.980(1), which requires [***8] that “[a] ski area operator * * * be notified of any injury to a skier * * * within 180 days after the injury * * *.” Nearly two years after the injury, on February 15, 2008, Bagley brought this action–filing a complaint alleging negligence on Mt. Bachelor’s part in designing, constructing, maintaining, or inspecting the jump on which Bagley was injured. Mt. Bachelor answered, in part, by invoking the affirmative defense of release–pointing to the above-quoted release agreements signed by Bagley and his father prior to the date of injury.
Mt. Bachelor quickly moved for summary judgment on that ground, arguing before the trial court that, by failing to disaffirm the voidable release agreement within a reasonable [**697] period of time after reaching the age of majority, and by accepting the benefits of that agreement and “objectively manifest[ing] his intent to affirm” it (i.e., by riding Mt. Bachelor’s lifts 119 times over 26 days), Bagley had ratified the release and was therefore bound by it. Mt. Bachelor further noted that Bagley “admittedly understood that he [had] entered into a release agreement and was snowboarding under its terms on the date of [the] accident.” Accordingly, Mt. Bachelor [***9] argued, because Bagley had ratified a release agreement that unambiguously disclaimed liability for negligence, there was no material issue of fact as to whether that agreement barred Bagley’s action, and Mt. Bachelor was entitled to judgment as a matter of law. 3
3 Mt. Bachelor additionally argued, as pertinent to this appeal, that the release agreement was neither adhesionary nor contrary to public policy under Oregon law. Specifically, it argued that “skiers and snowboarders voluntarily choose to ski and snowboard and ski resorts do not provide essential public services.”
Bagley then filed a cross-motion for partial summary judgment as to Mt. Bachelor’s affirmative defense of release, arguing that “there [was] no genuine issue of material fact [as to whether] the release [was] void and unenforceable as a matter of law.” Specifically, Bagley argued that he timely disaffirmed the release agreement by (1) notifying Mt. Bachelor of the injury pursuant to ORS 30.980(1), (2) filing his complaint for negligence within the two-year statute of limitations “for injuries to a skier” established by ORS 30.980(3), [*397] and (3) “plead[ing] infancy as a defense to [Mt. Bachelor’s] First Affirmative Defense [***10] on the release executed by [Bagley] while an infant.” Additionally, in response to Mt. Bachelor’s motion, Bagley alternatively argued that “whether [he] disaffirmed the Release within a reasonable time should be determined by the jury as a question of fact” because a material issue of fact existed as to Bagley’s knowledge of both the scope of the release (namely, whether it covered claims for negligence) and “of his right to disaffirm” it (i.e., whether it was voidable). He further argued that the release was contrary to public policy and “both substantively and procedurally unconscionable.”
The trial court agreed with Mt. Bachelor, reasoning that Bagley’s “use of the pass following his eighteenth birthday constitute[d] an affirmation of the contract and release agreement each time the pass was used, a total of 119 times over a period of 26 different days, up to February 16, 2006[,]” and noting that, “[o]nce there [was] an affirmation, [Bagley could] no longer disaffirm the contract.” The court rejected Bagley’s public policy and unconscionability arguments, reasoning that “[s]now riding is not such an essential service which requires someone such as [Bagley] to be forced to sign a [***11] release in order to obtain the service.” Accordingly, having determined that Bagley ratified the release agreement after reaching the age of majority and that “there [was] no basis by which [it could] find the release invalid[,]” the trial court granted summary judgment in Mt. Bachelor’s favor and denied Bagley’s cross-motion for partial summary judgment. Bagley now appeals, reprising his arguments below.
[HN2] On appeal, we review the trial court’s ruling on summary judgment to determine whether we agree “that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law.” ORCP 47 C; see O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Ore. App. 456, 460, 157 P3d 1272 (2007). [HN3] No genuine issue of material fact exists if, “based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” ORCP 47 C.
[*398] In his first assignment of error, Bagley asserts that “[t]here is a genuine factual dispute as to whether [his] actions or omissions after reaching the age of majority [***12] were enough to disaffirm or affirm the contract he entered with [Mt. Bachelor] when he was a minor.” More specifically, Bagley argues that “[a] jury could reasonably infer from the facts that merely turning 18 years old and continuing to snowboard was not conclusive evidence of [his] intent to affirm the release [**698] and agree to waive all prospective claims for [Mt. Bachelor’s] negligence.” He argues that a jury “could just as easily find that he promptly disaffirmed the contract” by notifying Mt. Bachelor of the injury approximately four months after it occurred as required by ORS 30.980(1), by filing suit for negligence within the applicable statute of limitations, or by pleading infancy in response to Mt. Bachelor’s affirmative defense of release. 4
4 Bagley alternatively argues that, “even if there is no genuine dispute of material fact, the inferences arising from the facts in this case are susceptible to more than one reasonable conclusion precluding summary judgment.” However, Bagley does not identify any facts that purportedly give rise to inferences susceptible to more than one reasonable conclusion, and, ultimately, his generalized argument to that effect is not materially different [***13] from his argument in support of his first assignment of error. Accordingly, we reject that alternative argument without further discussion.
Mt. Bachelor likewise reprises its arguments below, asserting that Bagley admittedly knew that he was snowboarding under the terms of a release agreement, was aware of the inherent risks of snowboarding (particularly given his advanced, aerial style of snowboarding), and, “[u]nderstanding those risks,” made “an informed decision to execute the release agreement” and “an informed decision to honor the agreement after reaching the age of majority because he wanted to snowboard.” As noted, Mt. Bachelor points to Bagley’s use of the pass after reaching the age of majority–arguing that Bagley ratified the release agreement by riding the lifts “no less than 119 times on 26 days before the subject accident.”
[HN4] In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, see Highland v. Tollisen, 75 Ore. 578, 587, 147 P 558 (1915), or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, [*399] see Haldeman v. Weeks, 90 Ore. 201, 205, 175 P 445 (1918); [***14] see also Richard A. Lord, 5 Williston on Contracts § 9:17, 166-70 (4th ed 2009) (“[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”). Further, as particularly relevant here, although what constitutes a reasonable period of time after reaching the age of majority varies widely depending on the circumstances, it is well established that [HN5] ratification of a voidable contract abolishes a party’s power to later disaffirm it. See Brown et ux v. Hassenstab et ux, 212 Ore. 246, 256, 319 P2d 929 (1957) (“The two courses of action are inconsistent and the taking of one will preclude the other.”); Snyder v. Rhoads, 47 Ore. App 545, 553-54, 615 P2d 1058, rev den, 290 Ore. 157 (1980) (similar).
Applying those principles to these facts, we agree with Mt. Bachelor and conclude that no objectively reasonable juror could find that Bagley disaffirmed the release agreement within a reasonable time after turning 18. Rather, the record gives rise to only one reasonable conclusion: By using the season pass at least 119 times over the course [***15] of 26 days between November 18, 2005 and February 16, 2006, Bagley objectively manifested his intent to let the release stand–affirmatively electing to ride the lifts and snowboard under the terms of the agreement (i.e., to accept the benefits of the agreement). His actions after the date of injury–at which time the release had already been ratified and Bagley’s power to disaffirm it thereby defeated–are immaterial. Cf. Highland, 75 Ore. at 587 (former minor’s disaffirmance held valid under circumstances where she had neither taken any affirmative action on the contract nor received any benefit from it); see also Restatement (Second) of Contracts § 85 comment b (1981) (power of disaffirmance may be lost, inter alia, “by exercise of dominion over things received”); Lord, 5 Williston on Contracts § 9:17 at 170 ( [HN6] “[I]f the infant after attaining majority voluntarily receives performance in whole or in part from the other party to the contract, this will amount to a ratification.”). 5
5 Although existing Oregon case law on point is limited, several other states have similarly reasoned that a former minor’s acceptance of the benefits of a contract may constitute a ratification. See, e.g., Jones v. Dressel, 623 P2d 370, 372-74 (Colo 1981) [***16] (holding that a former minor, who had signed a release at age 17 in order to skydive, “ratified the contract, as a matter of law, by accepting the benefits of the contract when he used [the defendant’s] facilities” and further stating that the question whether that former minor’s subsequent actions constituted disaffirmance of the contract was “not relevant” because the former minor had already ratified the contract); Parsons ex rel Cabaniss v. American Family Insurance Co., 2007 WI App 211, 305 Wis 2d 630, 639, 740 NW2d 399, 403 (Wis Ct App 2007), rev den, 2008 WI 19, 307 Wis. 2d 294, 746 N.W.2d 811 (Wis 2008) (former minor ratified release agreement in connection with settlement by retaining funds given as consideration for that release).
[*400] [**699] In reaching that conclusion, we emphasize that Bagley was less than two weeks short of the age of majority when he signed the release agreement and did not begin snowboarding under its terms until well over a month after turning 18. He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor. See [***17] Haldeman, 90 Ore. at 205 (considering former minor’s maturity and life experience in determining whether contract had been ratified). Moreover, the language of the release was unambiguous, as discussed further below, and that language was both heavily emphasized and omnipresent–having been reproduced on the back of the physical season pass that Bagley was required to carry at all times and in large part on signage at each of the lift terminals to which Bagley was exposed at least 119 times. Indeed, given the exculpatory language on Bagley’s pass and the signage directing his attention to it, it is not implausible that Bagley released Mt. Bachelor from liability for negligence each time that he rode one of the lifts.
Nevertheless, Bagley affirmatively chose to accept the benefits of the agreement after reaching the age of majority and, as noted, continued to do so until the date of injury notwithstanding the pass’s and signage’s continuing reminders of the existence of the agreement and provision of ample exposure to its terms. The following exchange, which occurred during Bagley’s deposition, is particularly illustrative:
“[Mt. Bachelor’s Counsel]: The reason you didn’t go to Mt. Bachelor [***18] and tell them ‘You know what, I signed this agreement when I was 17, now I’m 18, I want to void it, I don’t want to be subject to it,’ what I’m asking you to [*401] acknowledge is the reason you didn’t do that is because you wanted [to] continue [to snowboard] and did continue [to snowboard] under the terms of the season pass agreement.
“[Bagley]: Yes.”
Thus, as the trial court correctly reasoned, when Bagley used the season pass 119 times to gain access to Mt. Bachelor’s lifts, he objectively manifested his intent to regard the release agreement as binding in order to reap its benefits–thereby ratifying it.
However, although he concedes that he was “aware of the release” and “aware of the inherent risks of his sport[,]” Bagley further argues that he did not know that the agreement released Mt. Bachelor from claims related to its own negligence. Nor, he argues, did he know that he had the power to disaffirm the contract upon turning 18. We conclude that such knowledge was not a necessary prerequisite to ratification and, therefore, that Bagley’s arguments as to his subjective understanding of both the release agreement and the law do not affect our determination that “no objectively reasonable [***19] juror could [have] return[ed] a verdict for” Bagley on the issue of ratification. ORCP 47 C.
Oregon subscribes to the “objective theory of contracts.” Kabil Developments Corp. v. Mignot, 279 Ore. 151, 156-57, 566 P2d 505 (1977) (citation omitted); Newton/Boldt v. Newton, 192 Ore. App. 386, 392, 86 P3d 49, rev den, 337 Ore. 84, 93 P.3d 72 (2004), cert den, 543 U.S. 1173, 125 S. Ct. 1365, 161 L. Ed. 2d 153 (2005). Accordingly, although there is undisputed evidence in the record showing that, after reaching the age of majority, Bagley was exposed to language expressly disclaiming liability for negligence on the part of Mt. Bachelor, 6 his subjective understanding [*402] [**700] of that language and the terms of the release agreement is not relevant to the question of whether he ratified that agreement such that it could be enforced against him. See, e.g., NW Pac. Indem. v. Junction City Water Dist., 295 Ore. 553, 557 n 4, 668 P2d 1206 (1983), modified on other grounds, 296 Ore. 365, 677 P2d 671 (1984) ( [HN7] “[F]ailure to read an instrument is not a defense to enforcement.”).
6 For instance, as noted, the season pass that he was required to carry with him at all times expressly disclaimed liability for negligence and drew his attention to that language with the following [***20] heading: “READ THIS RELEASE AGREEMENT[.]” (Capitalization in original.) Further, during his deposition testimony, Bagley confirmed that he had read signage posted prominently on the mountain that stated, as pertinent here, that
“[s]kiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.”
(Emphasis added.)
We similarly reject Bagley’s argument regarding his lack of knowledge of the power to disaffirm the release agreement upon reaching the age of majority. In raising that issue, Bagley notes that, “[i]n some states, the former infant’s knowledge, or lack thereof, of his right to disaffirm a contract may be taken into consideration” in assessing whether there has been a ratification or disaffirmance. (Emphases added.) However, we have previously stated that [HN8] “[i]gnorance of [***21] the law is not a basis for not enforcing a contract.” Shea v. Begley, 94 Ore. App. 554, 558 n 3, 766 P2d 418 (1988), rev den, 307 Ore. 514, 770 P.2d 595 (1989) (citation omitted; emphasis added); see also Walcutt v. Inform Graphics, Inc., 109 Ore. App. 148, 152, 817 P2d 1353 (1991), rev den, 312 Ore. 589, 824 P.2d 418 (1992) (the plaintiff was not entitled to avoid contract due to her and her counsel’s “failure to take reasonable measures to inform themselves about her affairs”). Moreover, as Mt. Bachelor correctly points out, Bagley’s argument is drawn from the minority view among other jurisdictions. See Lord, 5 Williston on Contracts § 9:17 at 175-77 (former minor’s ignorance of legal defense of infancy treated as irrelevant in a majority of those jurisdictions that have considered the issue). As aptly stated by the Pennsylvania Supreme Court,
“[t]o require that one must have knowledge of a right to disaffirm in order to make an effective ratification of a voidable contract made in infancy would be inconsistent with the well-established rule that failure to disaffirm such contract within a reasonable time after coming of age terminates the privilege of disaffirmance.”
Campbell v. Sears, Roebuck & Co., 307 Pa 365, 371, 161 A 310, 312 (1932).
In [***22] short, both of Bagley’s ancillary arguments are inconsistent with the objective theory of contracts to which Oregon adheres; we look to the parties’ objective conduct, [*403] and, here, after reaching the age of majority, Bagley objectively manifested his intent to let the contract stand because he “wanted to snowboard[.]”
As noted, in his second assignment of error, Bagley asserts that the release agreement was void as contrary to public policy–focusing primarily on the respective bargaining power of the parties and an asserted “public interest [in] protecting a large number of business invitees, including [Bagley], from the negligence of ski area operators.” 7 (Some capitalization omitted.) [HN9] In evaluating whether a contract disclaiming liability for negligence is contrary to public policy, we assess the language of the agreement under the circumstances in order to determine whether it violates public policy “as applied” to the facts of the particular case. Harmon v. Mt. Hood Meadows Ltd., 146 Ore. App. 215, 217-18, 222-24, 932 P2d 92 (1997) (upholding release agreement disclaiming “any and all liability (including claims based upon negligence) for damage or injury” because the plaintiff’s action [***23] pertained only to ordinary negligence and therefore did not implicate the release’s potential coverage of recklessness or intentional misconduct [**701] (capitalization and boldface omitted)). Specifically, we stated in Harmon that
[HN10] “[t]he question of whether a contract provision is unenforceable as against some general, uncodified public policy must be determined on an ‘as applied’ basis. * * * [A] party seeking to avoid contractual responsibility must demonstrate that enforcement of the contractual provision as to him or her will offend public policy. That is so regardless of whether enforcement of the same contractual provision against other parties in other circumstances would violate public policy.”
Id. at 222 (emphases added); see generally Young v. Mobil Oil Corp., 85 Ore. App. 64, 69, 735 P2d 654 (1987) ( [HN11] “Oregon requires that a public policy be clear and ‘overpowering’ before a court will interfere with the parties’ freedom to contract on the ground of public policy.” (Citation omitted.)).
7 We assume without deciding that the “void as contrary to public policy” doctrine pertaining to this type of case has not been superseded by later-evolved principles concerning substantive unconscionability. [***24] See Restatement at § 208 comment a (unconscionability analysis generally “overlaps” with public-policy analysis).
[*404] Again, the release agreement provided, as pertinent here:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”
(Underscoring and capitalization in original; emphasis added.) Although that exculpatory language expressly excludes intentional misconduct from its purview, the same cannot be said with respect to gross negligence or recklessness. However, applying Harmon, because Bagley alleges only ordinary negligence, the failure to expressly exclude gross negligence or recklessness does [***25] not render the agreement contrary to public policy “as applied” to the negligence claim in this case. 146 Ore. App at 222.
Further, in assessing the language of the agreement, our decision in Steele v. Mt. Hood Meadows Oregon, Ltd., 159 Ore. App. 272, 974 P2d 794, rev den, 329 Ore. 10, 994 P.2d 119 (1999), provides substantial guidance. There, the plaintiff in a wrongful death action brought against a ski resort argued that the trial court had erred in granting summary judgment for the ski resort in part because “the terms of the release [were] ambiguous.” Id. at 276. We concluded that the agreement was ambiguous and stated that, [HN12] “[w]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.'” Id. (quoting Estey v. MacKenzie Engineering Inc., 324 Ore. 372, 376, 927 P2d 86 (1996)). We further elaborated:
[*405] “In determining whether a contract provision meets that standard, the court has considered both the language of the contract and the possibility of a harsh or inequitable result that would fall on one party if the other were immunized from the consequences of its own negligence. The latter inquiry turns on the [***26] nature of the parties’ obligations and the expectations under the contract.”
Id. (citations and internal quotation marks omitted; emphasis added).
We conclude that the release agreement’s language “clearly and unequivocally” expressed Mt. Bachelor’s intent to disclaim liability for negligence. In reaching that conclusion, considering “the nature of the parties’ obligations and the expectations under the contract[,]” id., we note that Bagley admittedly understood that he was engaged in an inherently dangerous activity and that the agreement not only disclaimed liability [**702] for negligence but specifically stated that the “only” claims not released were those for intentional misconduct. Unlike the ambiguous release agreement in Steele, the above-quoted language expressly referred to negligence and was positioned prominently at the beginning of the release agreement; it was not obscured by unrelated provisions. See id. at 274-75 (exculpatory provision obscured by, inter alia, provision addressing skier’s duty to report injuries to the ski resort’s medical clinic). Indeed, we are hard-pressed to envision a more unambiguous expression of “the expectations under the contract”–namely, that in exchange [***27] for the right to use Mt. Bachelor’s facilities to participate in an inherently dangerous activity, Bagley was to release Mt. Bachelor from all claims related to anything other than intentional misconduct (including, of course, negligence).
Moreover, we have previously emphasized that [HN13] a release agreement disclaiming liability for negligence does not necessarily offend public policy where it pertains exclusively to “recreational activities,” and, most prominently, where the business seeking to relieve itself of such liability does “not provide an essential public service[.]” Mann v. Wetter, 100 Ore. App. 184, 187, 187 n 1, 785 P2d 1064, rev den, 309 Ore. 645, 789 P.2d 1387 (1990) (“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an [*406] essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service[.]” Id.
Thus, bearing in mind the principles set forth in Mann and the recreational context of this particular case, [***28] 8 because the release agreement “clearly and unequivocally” disclaimed liability for negligence, and because Bagley’s claims relate only to ordinary negligence, under Oregon law the agreement was not contrary to public policy “as applied” to Bagley’s action. Steele, 159 Ore. App. at 276; Harmon, 146 Ore. App. at 222.
8 Regarding that recreational context, we further note that the legislature has enacted statutes indemnifying landowners from liability in connection with “use of the land for recreational purposes[.]” ORS 105.682; see ORS 105.672 – 105.696. Accordingly, we add that, as a general matter, it would be counterintuitive to hold that a contract with the same operative effect as that statutory scheme is void as contrary to public policy.
Finally, we reject Bagley’s third assignment of error, in which, as noted, he asserts that the release agreement was both procedurally and substantively unconscionable. At the outset, we emphasize the substantive rigor historically applied by Oregon courts in assessing claims of unconscionability:
[HN14] “‘[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it [***29] relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness.'”
Hatkoff v. Portland Adventist Medical Center, 252 Ore. App. 210, 217, 287 P3d 1113 (2012) (quoting Motsinger v. Lithia Rose-FT, Inc., 211 Ore. App. 610, 626-27, 156 P3d 156 (2007)) (emphasis in Motsinger). Further, “each case is decided on its own unique facts[,]” Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Ore. App. 553, 567, 152 P3d 940 (2007), taking into account both the terms of the contract and the circumstances existing when the contract was signed.
[HN15] [*407] In assessing Bagley’s claim of procedural unconscionability, we focus on “the conditions of contract formation” and look to “two factors: oppression and surprise.” Id. at 566-67 (citation and internal quotation marks omitted). More specifically, “[o]ppression arises from an inequality of bargaining power [***30] which results in no real negotiation and an absence of meaningful [**703] choice. Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the terms.” Id. at 566 (citation and internal quotation marks omitted). Bagley addresses only the former, advancing a generalized argument that the agreement “was a contract of adhesion and there was a disparity in bargaining power.” (Some capitalization omitted.)
As noted, we do not find the release agreement procedurally unconscionable under these circumstances. Although the parties indeed came to the bargaining table with unequal power insofar as Mt. Bachelor required that the release be signed in order to allow Bagley to purchase a season pass, we have, albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive. See Harmon, 146 Ore. App. at 219 n 4 (citing cases from other jurisdictions and noting their holdings “that exculpatory provisions in ski-related form agreements were not impermissibly adhesive”); Mann, 100 Ore. App. at 187-88 [***31] (noting that “customers have a multitude of alternatives” in dealing with providers of “non-essential service[s,]” even where such providers hold an “economic advantage”). 9 Although we limit our holding to these “unique facts,” we rely in part on those principles in addressing both “oppression” and “surprise” (as well as substantive unconscionability, as set forth below).
9 Many other states, as well as federal courts, have, as Mt. Bachelor points out, “reached the same conclusion.” See, e.g., Chepkevich v. Hidden Valley Resort, L. P., 607 Pa 1, 29, 2 A3d 1174, 1191 (2010) (noting that, in the recreational context, “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”); Silva v. Mt. Bachelor, Inc., No CV 06-6330-AA, *2, 2008 U.S. Dist. LEXIS 55942 (D Or July 21, 2008) (“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”); Grbac v. Reading Fair Co., Inc., 521 F Supp 1351, 1355 (WD Pa 1981), aff’d, 688 F2d 215 (3d Cir 1982) (stock-car [***32] racing company’s standard-form release provision not adhesionary).
[*408] Here, with respect to “oppression,” Bagley was free to choose not to snowboard at Mt. Bachelor, was less than two weeks short of the age of majority when he signed the agreement, was an experienced snowboarder who had previously signed release agreements required by at least two other ski resorts, had signed a release agreement in obtaining a season pass at Mt. Bachelor during each of the preceding three years, and was accompanied by his father (who, as noted, signed a nearly identical agreement disclaiming liability for negligence). Each of those facts contributes to our conclusion that, notwithstanding the parties’ unequal bargaining power, the circumstances of contract formation were not impermissibly oppressive. Bagley and his father were presented with a “meaningful choice[,]” Vasquez-Lopez, 210 Ore. App. at 566, particularly given that, as noted, snowboarding is a recreational activity and Bagley could have simply declined to sign the release without being denied access to an essential public service.
With respect to “surprise,” as evidenced by the unambiguous language of the release agreement, and particularly given [***33] its additional clarification after disclaiming liability for negligence (“THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT”), this was not a situation where the “terms of the bargain [were] hidden” by Mt. Bachelor. Id. To the contrary, the above quoted paragraph pertaining to the skier’s release of claims, including claims for negligence, appeared at the beginning of the release agreement and was highlighted by a centered and underlined introductory heading drawing the skier’s attention to the fact that he or she was signing a release (“RELEASE AND INDEMNITY AGREEMENT”). On those facts, we find no indication of surprise and, coupled with our conclusion above as to oppression, cannot say that the release agreement was procedurally unconscionable.
In further arguing that the release agreement was substantively unconscionable, Bagley asserts that “[t]he Release term of the contract in question is unreasonably [**704] favorable to [Mt. Bachelor], the drafter of the contract and more powerful party.” Further, Bagley argues, the terms of the release “unconscionably shift[ ] the burden to protect [skiers] from [Mt. Bachelor’s] negligent behavior to the public that it invites [***34] upon its premises, including [Bagley].” [HN16] [*409] In assessing a contract for substantive unconscionability, we focus on the terms of the contract itself in light of the circumstances of its formation; ultimately, “[t]he substantive fairness of the challenged terms” is the “essential issue.” Carey v. Lincoln Loan Co., 203 Ore. App. 399, 423, 125 P3d 814 (2005), aff’d on other grounds, 342 Ore. 530, 157 P3d 775 (2007); see Vasquez Lopez, 210 Ore. App. at 566-69.
On these facts, the provision in the release agreement disclaiming liability for negligence was not “unreasonably” favorable to Mt. Bachelor. Carey, 203 Ore. App. at 422. Indeed, the principal Oregon case touching on the issue upheld a provision–albeit on an “as applied” basis in the context of that particular plaintiff’s public-policy argument–that not only disclaimed liability for negligence in connection with skiing but for “any and all liability” (presumably including liability related to gross negligence or intentional misconduct on the part of the ski resort). Harmon, 146 Ore. App. at 217-22 (emphasis added). Moreover, as noted, in Harmon we specifically cited cases from other jurisdictions “holding that exculpatory provisions in ski-related form [***35] agreements were not impermissibly adhesive.” Id. at 219 n 4. Returning to the overarching notion that the terms at issue must be read in light of their recreational context, in one of those cases, the New Jersey Superior Court aptly reasoned as follows:
“When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away. This is not so with the consumer of automobile insurance, or the individual who cannot find a place to live during a housing shortage. Unlike the skier, these individuals must face an inability to use their automobile, or the prospect of becoming homeless, if they are not willing to sign on the dotted line and exculpate the provider. The skier merely faces the prospect of a ski-less weekend.”
McBride v. Minstar, Inc., 283 NJ Super 471, 491, 662 A2d 592, 602 (NJ Super Ct Law Div 1994), aff’d sub nom McBride v. Raichle Molitor, USA, 283 NJ Super 422, 662 A2d 567 (NJ Super Ct App Div), rev den, 143 N.J. 319, 670 A.2d 1061 (1995) (emphasis in original). As noted, similar release agreements [*410] in the [***36] context of recreational activities have been upheld (including against claims of unconscionability) in a number of other jurisdictions. See Or App at n 9 (slip op at 20 n 9). Finally, [HN17] ORS 105.682 establishes a public policy in favor of indemnification of landowners where the land is used for, inter alia, recreational purposes. We fail to see how a private contract to the same effect is substantively unfair as a matter of law.
Accordingly, given existing case law and the aforementioned substantive rigor that we apply in assessing claims of unconscionability, see Hatkoff, 252 Ore. App. at 217, we conclude that the terms of Mt. Bachelor’s release were not substantively unconscionable under these circumstances. That is, the inclusion of the release provision did not constitute one of “those rare instances” where the terms of the contract were so “unreasonably favorable” to Mt. Bachelor that they were unconscionable. Id. (emphasis in original); see also Restatement at § 208 comment b (a contract has traditionally been held unconscionable only where “it was such as no man in his senses and not under delusion would make” (citations and internal quotation marks omitted)).
In sum, we conclude [***37] that Bagley ratified the release agreement prior to the date of injury, nullifying his power to later disaffirm it (whether by notice, filing suit, or pleading infancy), and that the agreement–coupled with the language printed on the season pass and signage at the lift terminals–was sufficiently clear as to its application to claims for negligence. We further conclude that Bagley’s lack of knowledge regarding the scope of the unambiguous agreement did not preclude [**705] summary judgment, nor did his lack of knowledge of the power to disaffirm it upon reaching the age of majority. As to whether the release agreement was valid in the first instance, we conclude that, as applied, the release agreement was not contrary to public policy. Nor was the agreement substantively or procedurally unconscionable. Accordingly, no genuine issue of material fact exists as to Mt. Bachelor’s affirmative defense of release, and the trial court did not err in granting summary judgment for Mt. Bachelor and denying partial summary judgment to Bagley on that basis.
Affirmed.
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2013-2014 In bound ski/board fatalities
Posted: April 30, 2014 Filed under: Ski Area | Tags: Aspen, Crystal Mountain Resort, fatality, Heavenly Resort, Killington, Mount Bachelor, Mount Charleston, Norwood, Resort, Ski, Ski Apache, ski area, Ski Bluewood, Ski Resort, Skier, Snowboard, Snowboarder, Sports, Stratton Mountain Resort, Sugarbush Ski Resort, Sugarloaf, Telluride, United States, Whitefish Mountain Resort, Winter Park, Winter sport, winter sports Leave a commentIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of March 10, 2014. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Are non-skiing/boarding fatalities that occurred inbounds on the slopes
Fatality while sledding at the Resort is in Green
2013 – 2014 Ski Season Fatalities
| Date | State | Resort | Where | Trail Difficulty | How | Cause | Ski/ Board | Age | Sex | Home | Helmet | Ref | Ref |
| 12/11 | CO | Telluride | Pick’NGad | struck a tree | 60 | M | Norwood CO | No | http://rec-law.us/190al75 | http://rec-law.us/1fchteM | |||
| 12/12 | VT | Killington | Great Northern Trail | Found | 21 | F | PA | No | http://rec-law.us/1csgWCg | ||||
| 12/16 | WA | Crystal Mountain Resort | Tinkerbell | Beginner | Lost control and veered off the trail | Blunt Force Trauma | F | Yes | http://rec-law.us/Jc4MX3 | ||||
| 1/1 | WV | skiing into a tree | M | Opp, AL | http://rec-law.us/1a6nAkQ | ||||||||
| 12/19 | CO | Winter Park | Butch’s Breezeway | Beginner | blunt force injury to the head | 19 | M | Yes | http://rec-law.us/1f3ekSy | ||||
| 12/21 | CA | Heavenly Resort | colliding with a snowboarder and being knocked into a tree | 56 | F | NV | No | http://rec-law.us/JRiP4c | http://rec-law.us/1a7REMW | ||||
| 1/11 | CO | Aspen | Belisimo | Intermediate | hitting a tree | Skier | 56 | M | CO | Yes | http://rec-law.us/1hNbHoz | http://rec-law.us/JTr7sY | |
| 1/11 | MT | Whitefish Mountain Resort | Gray Wolf and Bighorn | Found in a tree well | Skier | 54 | M | CA | http://rec-law.us/1kx1deP | ||||
| 1/11 | VT | Stratton Mountain Resort | Lower Tamarac | Sledding | Sledding | 45 | M | NJ | No | http://rec-law.us/19x4mXb | http://rec-law.us/1aRlxS5 | ||
| 1/14 | NV | Mount Charlteston | Terrain Park | Fall in Terrain Park | Blunt Force Trauma | Boarder | 20 | M | NV | No | http://rec-law.us/1dsDW8B | http://rec-law.us/1dyT1Hc | |
| 1/17 | VT | Killington | Mouse Trap Trail | Striking a tree | Boarder | 23 | M | NY | http://rec-law.us/1dFfY9j | http://rec-law.us/1dKUf0v | |||
| 1/25 | NM | Ski Apache | Intermediate | Struck a Tree | Skier | 23 | F | TX | http://rec-law.us/1n3PCCM | http://rec-law.us/M5qA85 | |||
| 1/25 | WA | Ski Bluewood | Country Road run | Beginner | Found at top of trail | blunt force abdominal injury | Skier | 14 | M | WA | No | http://rec-law.us/1eaGBUM | http://rec-law.us/1b4oewr |
| 1/28 | UT | Deer Valley | Keno Ski Run | Intermediate | hit a tree | Skier | 65 | M | FL | Yes | http://rec-law.us/1eg70Ax | http://rec-law.us/1hRbIVm | |
| 2/1 | VT | Sugarbush Ski Resort | Lower Rim Run and Lower FIS trails | went off the trail and hit a trail sign | broken neck | Skier | 19 | F | http://rec-law.us/1aeVJ3V | http://rec-law.us/1j4jIpF | |||
| 2/4 | ME | Sugarloaf resort | Hayburner | Expert | skiing off a trail into trees | Skier | 21 | M | NY | Yes | http://rec-law.us/1fQtrMz | http://rec-law.us/1b1OkG0 | |
| 2/4 | CA | Heavenly Ski resort | upper Nevada Woods | Expert | Closed area | blunt force trauma | Boarder | 18 | M | Kings Beach, CA | Yes | http://rec-law.us/1byr68d | http://rec-law.us/1b5exDA |
| 2/7 | CO | Beaver Creek | lower section of Beaver Creek | suffered trauma injuries | Skier | 64 | M | St Louis, Mo | http://rec-law.us/1ns4Hvu | ||||
| 2/8 | CO | Keystone Ski Area | Porcupine and Bighorn | Intermediate | crashed into a tree | blunt-force trauma | Skier | 46 | M | Yes | http://rec-law.us/Nph8Oa | ||
| 2/16 | MT | Whitefish Mtn Resort | between Hollwood & Silvertip | fell into treewell | Skier | 48 | M | Calgary, Alberta | http://rec-law.us/1nKj8eh | http://rec-law.us/1clTCu3 | |||
| 2/17 | WA | Stevens Pass | Corona Bowl | Expert | hit head on rock | major trauma | Boarder | 31 | M | No | http://rec-law.us/O48FQH | http://rec-law.us/1oRNQFT | |
| 2/18 | VT | Stowe | Upper Gondolier | hit another skier before sliding into trail sign | Skier | 30 | M | Brooklyn, NY | Yes | http://rec-law.us/1fkn5pt | |||
| 2/19 | WA | Crystal Mountain | Found in tree well | Boarder | 35 | M | Seattle, WA | http://rec-law.us/1ffs2kY | |||||
| 3/5 | PA | Heavenly Valley | collided with a tree | internal bleeding from blunt-force trauma | Boarder | 21 | M | Warren, PA | Yes | http://rec-law.us/PRTn2a | http://rec-law.us/1k4m72J | ||
| 3/10 | CO | Copper Mountain | Vein Glory | Beginner | striking a tree | Boarder | 22 | M | Denver, CO | No | http://rec-law.us/1kJvtTc | ||
| 3/16 | NY | Whiteface Mountain | trail and hit a tree | Boarder | 22 | M | Hemlock, NY | http://rec-law.us/1gFq34F | http://rec-law.us/1mfoli0 | ||||
| 3/18 | CO | Snowmass | Gunner’s View trail | intermediate | collided with a tree | hemorrhagic shock due to pelvic trauma | Boarder | 54 | M | Germany | Yes | http://rec-law.us/OAM3Hn | |
| 3/21 | WA | Mission Ridge Ski & Board Resort | Kiwa run | ski dislodged from its binding | Ski | 47 | M | Seattle, WA | http://rec-law.us/1jreZv1 | ||||
| 3/22 | VT | Stratton Mountain Ski Resort | 91 Trail | Veered off the trial & crashed into a sign | boarding | 16 | M | Boston, MA | http://rec-law.us/1jBxxIX | http://rec-law.us/1oZzuSX | |||
| 3/27 | CO | Keystone Resort | intermediate | lost control & hit a tree | blunt force trauma | Skier | 60 | M | Charlotte, NC | Yes | http://rec-law.us/1dV5lgV | http://rec-law.us/O6FJ9R | |
| 3/28 | CO | Snowmass | Elk Camp Chairlift at the top of Sandy Park | collision with another skier that led to Cohen hitting a tree | multiple injuries | Skier | 45 | M | Cincinnati, OH | Yes | http://rec-law.us/1dHi0co | http://rec-law.us/1dHi0co | |
| 4/1 | WY | Jackson Hole | Pair-a-Chutes ( The Parachutes) | collided with a tree | significant body trauma | Skier | 31 | M | Jackson Hole, WY & PA | http://rec-law.us/1dN158G | http://rec-law.us/1ebWibv | ||
| 4/3 | CO | Snowmass | Cirque Headwall | multiple chest injuries | Skier | 47 | M | Yes | http://rec-law.us/PyekPa | http://rec-law.us/1lA1H1g | |||
| 4/6 | CA | Northstar | Rail Splitter | Advanced | crashing into a tree | Skier | 67 | M | Van Nuys, CA | Yes | http://rec-law.us/1fWUnLK | ||
| 4/6 | NY | Lake Placid | Excelsior | lost control and struck a tree | Boarder | 22 | M | Canandaigua, NY | No | http://rec-law.us/PG1Hls | http://rec-law.us/1mUlNpW |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
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Release is used to prove an activity is hazardous and deny a claim for life insurance. Heli-skiing should have been disclosed as a risk activity or hobby according to the court when buying life insurance.
Posted: April 21, 2014 Filed under: Avalanche, Colorado, Insurance, Skiing / Snow Boarding | Tags: Alaska, Assumption of risk, Buy Sell Agreement, Colorado, Disability Insurance, Health insurance, Heli-skiing, Heliski, Life Insurance, Policy, Premium, Rescission, scuba diving, skiing 4 Comments“Rating up” is a term used to say an insured is a higher than normal risk, and the insurance rate will increase. The amount of the increase is dependent upon the risk. Heli-skiing would have tripled the cost of a life insurance policy. However, not telling the insurance company denied the claim.
West Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266
Date of the Decision: 2009
Plaintiff: West Coast Life Insurance Company
Defendants: Martha Hoar, as the personal representative of the other Estate of Stephen M. Butts; Telluride Properties, Llc., a Colorado Limited Liability Company; Telluride Properties, Inc., a Colorado corporation; Albert D. Roer, an individual; Polly Lychee, an individual
Plaintiff Claims: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act
Defendant Defenses: Rescission
Holding: for the plaintiff life insurance company
Owners in a business want to make sure the business will survive if one of the owners is disabled or dies. There is also a desire to take care of the family of the deceased. Finally, immediately purchasing the deceased share of the business keeps the business running smoothly without the worry or probate or someone with no business experience from running the business. This usually takes the form of a buy-sell agreement. The agreement sets out the terms on when the contract kicks in, how to value the business and how to pay the estate of the deceased or the disabled owner.
Many times the owners will want to make the purchase of the deceased estate immediate, so the business purchases life insurance on the owners. Upon the death of an insured, the insurance proceeds are used to keep the business going to pay for the ownership of the business from the estate of the deceased.
In this case, the parties created a business and purchased a $3 million-dollar policy on the owners. For large life insurance policies more underwriting, questions are asked and sometimes physicals are required. In this case, the insured owner was asked if he “”[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or hobby.” The insured said he was a scuba diver and skier. At the end of the form the insured had to affirm that all of his answers were full, complete, and true to the best of his knowledge and belief.
The insured was then interviewed by a third party hired to investigate the insured. The insured was asked what he did in his spare time. The insured answered he skied and golfed. He also stated he was into private aviation and scuba diving. At no time did the insured ask any clarifying questions as to what hazardous activities meant.
The insured regularly participated in heli-ski trips in Canada. He had been heli-skiing for at least six years. He purchased a Black Diamond Avalung for his ski trips. The heli-ski operation required the insured to sign a “Release of Liability, Waiver of Claims, Assumption of Risk and Indemnity Agreement.” The heli-ski operation also required avalanche rescue training, helicopter safety training and required the use of avalanche beacons.
During a heli-ski trip, the insured was killed in an avalanche.
The insurance company refused to pay the life insurance benefit because the insured had not been truthful on his application for insurance. The life insurance company sued for rescission. The trial court granted the life insurance company’s motion for summary judgment, and the case was appealed.
Summary of the case
Rescission is the term applied when a contract is unwound, and both parties are placed back in their original position. There must be a legally recognized cause for a court to require rescission. Material breach, or as in this case fraud, can be a cause for a court to rescind a contract.
To win a claim of rescission under Colorado law the insurance company had to prove:
(1) the applicant made a false statement of fact or concealed a fact in his application for insurance; (2) the applicant knowingly made the false statement or knowingly concealed the fact; (3) the false statement of fact or the concealed fact materially affected either the acceptance of the risk or the hazard assumed by the insurer; (4) the insurer was ignorant of the false statement of fact or concealment of fact and is not chargeable with knowledge of the fact; (5) the insurer relied, to its detriment, on the false statement of fact or concealment of fact in issuing the policy.
The court focused on the first and second claims that the deceased made a false statement or concealed a fact and did so knowingly.
The court did a thorough review of all the facts the life insurance company presented, which stated that heli-skiing was a high-risk operation. These facts included the acts of the insured/deceased as outlined above and statements made by the expert witness of the insurance company. One statement which the court found particularly informative was that heli-skier was “… approximately 18,702 times more likely to be killed in an avalanche than an individual skiing inbounds at a ski area.” This statement was then supported by this footnote the court included. “The probability of an avalanche fatality occurring while heli-skiing or snowcat skiing is approximately 1 per 29,000 visits.”
The risk of heli-skiing was then supported in the court’s argument by the fact the deceased had signed a release. “This is especially true where heli-skiers such as Butts were required to sign a waiver explicitly acknowledging heli-skiing was far more dangerous than resort skiing.”
The fact that the deceased had signed the release, purchased a Black Diamond Avalung, and took avalanche and helicopter training showed the activity was dangerous. That was proof of knowledge and intent that heli-skiing was a high-risk activity which his involvement in should have been disclosed to the insurance company.
The next argument was over the fourth element. The court found for this argument the insurance company had to have knowledge that the life insurance policy applicant was not truthful in answer questions.
Consequently, the beneficiary of the insurance policy, the defendants were not able to argue the contract should not be rescinded. The insurance company was granted rescission and did not have to pay the $3 million-dollar policy benefit.
So Now What?
The increase due to heli-skiing would have increased the yearly premium from $4,800 to $12,380. For most people making a living in the outdoor recreation, the basic premium is too much, the increased premium out of reach. Disability insurance can cost more.
Health insurance is probably no longer subject to such rating changes to do the Patient Protection and Affordable Care Act, which is one blessing for those of us making a living in the outdoors.
If you are just starting out, make sure you have good health, life and disability policies. Lying or misrepresenting the risks you take will subject your family to a similar situation. Purchasing the policies before you have gone too far…outdoors, may save you some money.
If you die mowing the lawn or in a car accident, the chances of this occurring are low. The investigation is triggered when you die doing a high-risk activity, and the insurance company finds out you regularly participated in the activity and did not tell them at the time you applied for the policy.
You’ll probably not have to worry about this issue. You’ll be dead.
What do you think? Leave a comment.
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West Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266
Posted: April 21, 2014 Filed under: Colorado, Insurance, Legal Case, Skiing / Snow Boarding | Tags: Colorado, Disability Insurance, Health insurance, Heli-skiing, Insurance, Life Insurance, Policy, Premium, Rescission, scuba diving, Selkirk-Tangiers, skiing Leave a commentWest Coast Life Insurance Company. Hoar, 558 F.3d 1151; 2009 U.S. App. LEXIS 5266
West Coast Life Insurance Company, a Nebraska corporation, Plaintiff – Appellee, v. Martha Hoar, as the personal representative of the other Estate of Stephen M. Butts; Telluride Properties, Llc., a Colorado Limited Liability Company; Telluride Properties, Inc., a Colorado corporation; Albert D. Roer, an individual; Polly Lychee, an individual, Defendants – Appellants.
No. 07-1080
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
558 F.3d 1151; 2009 U.S. App. LEXIS 5266
March 6, 2009, Filed
PRIOR HISTORY: [**1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. NO. 05-CV-01765-EWN-BNB).
W. Coast Life Ins. Co. v. Hoar, 505 F. Supp. 2d 734, 2007 U.S. Dist. LEXIS 5442 (D. Colo., 2007)
COUNSEL: Blain D. Myhre (Stuart Pack with him on the briefs), Isaacson Rosenbaum P.C., Denver, Colorado, for Defendants-Appellants.
Stephen G. Masciocchi (Lee F. Johnston with him on the briefs), Holland & Hart LLP, Denver, Colorado, for Plaintiff-Appellee.
JUDGES: Before BRISCOE, EBEL, and MURPHY, Circuit Judges.
OPINION BY: MURPHY
OPINION
[*1153] MURPHY, Circuit Judge.
I. INTRODUCTION
West Coast Life Insurance Company (“WCLI”) brought suit in federal district court seeking rescission of an insurance policy based upon an alleged misrepresentation by Stephen Butts. Butts, who participated in heli-skiing on numerous occasions, stated in his insurance application that he did not engage in any hazardous activities. Butts’s estate and intended beneficiaries asserted counterclaims against WCLI alleging: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act. The district court dismissed Defendants’ Consumer Protection Act counterclaim with prejudice. It then granted WCLI’s motion for summary judgment, concluding Butts had knowingly made a false statement of material fact on which WCLI relied [**2] in issuing him the life insurance policy. On appeal, Defendants contend the district court erred in granting summary judgment to WCLI on its rescission claim because genuine issues of material fact exist as to whether: (1) there was a false statement or concealed fact in the Butts application, (2) Butts knowingly made the false statement or concealed the facts, and (3) WCLI was chargeable with the knowledge Butts engaged in heli-skiing. Defendants also appeal the district court’s grant of summary judgment with respect to their bad faith claim. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
II. BACKGROUND
1. Factual Background
In August 2004, Butts (through his company, Defendant Telluride Properties, Inc.), Defendant Albert Roer, and Defendant Polly Lynchee formed a new company, Defendant Telluride Properties, LLC. 1 The three principals entered into a buy-sell agreement requiring each principal to sell his or her interest in the business to the remaining principals in the event of his or her death. The agreement was financed by insurance policies on the lives of each of the three principals. On September 21, 2004, Butts contacted WCLI agent Sharon Evanson by phone to [**3] complete an application for a three million dollar life insurance policy (the “Butts Application”). Evanson read the questions on the application and transcribed Butts’s responses.
1 The other Defendant is Martha Hoar, the personal representative of Butts’s estate.
The fifth question of the Butts Application (“Question 5”) asked if Butts “[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or hobby.” Butts answered the question in the negative. The Butts Application contained a declaration that all statements and answers were full, complete, and true to the best of Butts’s “knowledge and belief.” Butts did not at any point during the call mention he participated in “heli-skiing.” Heli-skiing involves flying by helicopter to the top of a backcountry mountain and skiing down the mountain, usually with the escort of guides.
Alex Chu, a senior life insurance reporter at First Financial Underwriting Services, Inc. (“First Financial”), conducted a telephonic interview with Butts on October 12, 2004. First Financial is an independent, third-party company that, at the request of its insurance company clients, [**4] [*1154] gathers information about the lifestyles and finances of life insurance applicants, typically through telephone interviews. Chu asked Butts what he did for recreation and exercise in his spare time, to which Butts answered he skied and golfed. Chu also asked Butts if he engaged in “any hazardous activities.” Butts stated he was involved only in scuba diving and private aviation as a pilot. Butts did not seek any clarification of this question or voice concerns or confusion as to the meaning of “hazardous activities.” During Chu’s tenure at First Financial, applicants had identified heli-skiing in response to the hazardous activity question.
Under a heading titled “Aviation-Recreation-Driving Record,” Chu’s report to WCLI (the “First Financial Report”) detailed Butts’s piloting experience, briefly noted his scuba diving activities, and stated: Butts “also enjoys skiing and golfing in his spare time. He reported no other recreational or hazardous pastimes in which he is active on a regular basis.”
In October 2004, Mark Youngquist, an underwriter for WCLI, underwrote a three million dollar policy (the “Butts Policy”) insuring Butts’s life. In so doing, Youngquist reviewed the Butts Application, [**5] Butts’s medical records, the First Financial Report, and a questionnaire completed by Butts regarding his aviation activities. Youngquist, who worked as an underwriter since 1995 for other insurance companies, had worked for WCLI for less than a month when he approved the Butts Application. The WCLI underwriting manual, published by reinsurer Swiss Re, does not rate resort skiing as an activity to be factored into the underwriting process. “Heli-skiing,” however, is a rated activity requiring the insured to pay a higher premium. Youngquist never referred to this rating table during the process of underwriting the Butts Policy.
Based on the information before him, Youngquist believed Butts engaged only in non-rated resort skiing. Youngquist made no inquiry into the nature of the “skiing” activity mentioned in the First Financial Report. Youngquist determined the Butts Policy should be issued on a “Standard, Non-Tobacco” rating. 2 On November 5, 2004, WCLI issued the Butts Policy, which expressly incorporated the Butts Application.
2 Neither party addresses the significance, if any, of the disclosure by Butts of his scuba diving activities. We therefore deem it irrelevant.
On January 15, [**6] 2005, Butts traveled to British Columbia with a group of friends for a week of heli-skiing. The group hired heli-skiing operator Selkirk-Tangiers Helicopter Skiing LLP (“Selkirk-Tangiers”). On January 18, 2005, Butts was heli-skiing with his friends when an avalanche broke above them. The avalanche caught Butts, and swept him into some trees. Within minutes, Butts was found dead. He suffered a broken neck as a result of the avalanche.
During her deposition, Butts’s ex-wife testified he took approximately ten to fifteen heli-skiing trips with Selkirk-Tangiers and additional trips to Canada with another heli-skiing operator. Butts took heli-skiing trips to British Columbia with Selkirk-Tangiers every year for at least six consecutive years prior to his application. Each year, Butts had signed a Selkirk-Tangiers “Release of Liability, Waiver of Claims, Assumption of Risk and Indemnity Agreement,” each of which included the following language:
I am aware that wilderness skiing involves risks, dangers and hazards in addition to those normally associated with downhill skiing. Avalanches occur frequently in the alpine terrain used for [*1155] wilderness skiing and may be caused by natural forces or [**7] by skiers. I acknowledge and accept that the [o]perators and their staff may fail to predict whether the alpine terrain is safe for skiing or whether an avalanche may occur. The alpine terrain used for wilderness skiing is uncontrolled, unmarked, not inspected and involves many risks, dangers and hazards in addition to that of avalanche.
* * *
I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH WILDERNESS SKIING AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE OR LOSS RESULTING THEREFROM.
Selkirk-Tangiers provides its guests with: (1) avalanche rescue and survival training; (2) helicopter safety training; and (3) specialized equipment such as “avalanche beacons,” which signal to rescuers the location of skiers buried in avalanches. Prior to each of his heli-skiing trips with Selkirk-Tangiers, Butts participated in mock avalanche drills and other onsite, hands-on training on helicopter safety protocols and avalanche rescue and survival. Although not required by Selkirk-Tangiers, Butts also had purchased and used an “Avalung” on heli-skiing trips in 2004 and 2005. An Avalung is a product designed [**8] to provide a few minutes of air should its user become buried in an avalanche.
After receiving notification of Butts’s death, WCLI initiated an investigation. WCLI received evidence indicating Butts had previously participated in heli-skiing trips. In March 2005, WCLI’s chief underwriter, Steven Hetherington, composed an opinion as to the impact of heli-skiing on the risk assumptions for the Butts Policy. Hetherington determined that had Butts disclosed his heli-skiing activities, the Butts Policy would have been rated in the amount of an extra $ 2.50 per $ 1000 of coverage. Marilyn Reed, WCLI’s Vice President of Underwriting, adopted Hetherington’s underwriting opinion.
According to WCLI underwriters, had Butts disclosed his heli-skiing avocation, his annual premium would have almost tripled, rising from $ 4880 to $ 12,380. WCLI’s independent agent, Stuart Bachman, contacted other life insurance companies to determine if they applied an additional rating for heli-skiing. Every carrier Bachman contacted indicated heli-skiing would result in an additional rating of at least $ 2.50 per $ 1000 dollars of coverage.
WCLI’s contestable claims committee met on July 26, 2006, to discuss and evaluate [**9] the Butts Policy claim. The committee considered whether “a reasonable objective person’s interpretation” of Question 5 would have led such a person to disclose a heli-skiing avocation such as that of Butts. The committee did not consider whether Butts was an expert skier, whether he believed heli-skiing was hazardous, or if he had heli-skied previously without incident because it felt such information was irrelevant to its decision. The committee voted unanimously to deny payment under the Butts Policy based upon Butts’s failure to disclose he regularly engaged in heli-skiing.
2. Procedural History
WCLI filed its complaint in the district court seeking: (1) rescission of the Butts Policy pursuant to Colorado law, and (2) a declaration that the Butts Policy was void ab initio and WCLI was thus not liable to Defendants thereunder. In their answer, Defendants asserted state law counterclaims for: (1) breach of contract, (2) bad faith, and (3) violation of the Colorado Consumer Protection Act, Colo. Rev. Stat. §§ 6-1-101 to -115. The district court [*1156] dismissed Defendants’ Consumer Protection Act counterclaim with prejudice.
Both parties moved for summary judgment. The district court granted [**10] WCLI’s motion for summary judgment, concluding: (1) Butts had made a false statement of fact or concealed a fact in his application for insurance because a reasonable person would have understood heli-skiing was a hazardous activity for purposes of Question 5, (2) Butts knew heli-skiing was a hazardous activity and knowingly concealed the fact he engaged in it, (3) the concealment materially affected the risk assumed by WCLI, (4) WCLI was ignorant of the false statement of fact or concealment of fact and was not chargeable with knowledge of the fact, and (5) WCLI relied on Butts’s false statement in issuing the Butts Policy.
On appeal, Defendants contend the district court erred in granting summary judgment to WCLI on its rescission claim because genuine issues of material fact exist as to whether: (1) there was a false statement or concealed fact in the Butts application, (2) Butts knowingly made the false statement or concealed the facts, and (3) WCLI was chargeable with the knowledge Butts heli-skied. Defendants also appeal the district court’s grant of summary judgment with respect to their bad faith claim.
III. DISCUSSION
1. Motion to Strike
In its motion to strike, WCLI contends [**11] this court should not consider certain arguments and evidence raised by Defendants for the first time on appeal. Specifically, in their reply brief, Defendants for the first time offer statistical evidence regarding auto accident fatalities and discuss the Colorado Ski Safety Act requirement that ski resort lift tickets warn of the risk of resort skiing as support for their argument that reasonable minds could differ on whether heli-skiing is a hazardous activity. Defendants ask the court to take judicial notice of the accident statistics. In addition, Defendants argue the Colorado Ski Safety Act cite was properly included in their reply brief in order to rebut an argument raised in WCLI’s answer brief.
[HN1] “Whether an appellate court will for the first time take judicial notice of a judicially notable fact rests largely in its own discretion.” Mills v. Denver Tramway Corp., 155 F.2d 808, 812 (10th Cir. 1946). Defendants offer no explanation for why they did not seek to introduce the auto accident fatality statistics before the district court. In addition, consideration of this evidence for the first time in Defendants’ reply brief denies WCLI the opportunity to contest or rebut the evidence. [**12] Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). We therefore decline to take judicial notice of the auto accident fatality statistics and grant WCLI’s motion to strike these statistics. See Am. Stores Co. v. Comm’r of Internal Revenue, 170 F.3d 1267, 1270 (10th Cir. 1999) ( [HN2] “Judicial notice is not a talisman by which gaps in a litigant’s evidentiary presentation . . . may be repaired on appeal.” (quotation omitted)).
As to the introduction of Colorado’s statutory requirement that ski resort lift tickets warn of the risk of resort skiing, Defendants maintain this evidence was properly introduced for the first time in their reply brief in response to an argument in WCLI’s answer brief. Specifically, it rebuts WCLI’s contention that the requirement that individuals sign a release before engaging in heli-skiing supports the proposition a reasonable person would view heli-skiing as hazardous. While WCLI’s precise argument regarding the release requirement was raised before the district court, the evidence Defendants now seek to introduce to rebut the argument [*1157] was never brought to the attention of the district court. This court has stated [HN3] “[i]n reviewing a grant of summary judgment, our [**13] inquiry is limited to the summary judgment record before the district court when the motion was decided.” Feichko v. Denver & Rio Grande W. R.R., 213 F.3d 586, 593 n.5 (10th Cir. 2000). In addition, as discussed above, [HN4] this court is reluctant to consider evidence raised only in a reply brief, leaving the opposing party no opportunity to challenge its validity or relevance. See Am. Stores Co., 170 F.3d at 1270. We therefore grant WCLI’s motion to strike this evidence.
2. Rescission of the Life Insurance Policy
[HN5] “We review de novo a district court’s grant of summary judgment, viewing the evidence in the light most favorable to the nonprevailing party.” Mullin v. Travelers Indem. Co. of Conn., 541 F.3d 1219, 1222 (10th Cir. 2008). [HN6] “Summary judgment is appropriate if there is no genuine dispute over any material fact, and a party is entitled to prevail as a matter of law.” Id. (quotation omitted). [HN7] Under Colorado law, to avoid a life insurance policy due to misrepresentations in the application, an insurer must prove:
(1) the applicant made a false statement of fact or concealed a fact in his application for insurance; (2) the applicant knowingly made the false statement or knowingly concealed [**14] the fact; (3) the false statement of fact or the concealed fact materially affected either the acceptance of the risk or the hazard assumed by the insurer; (4) the insurer was ignorant of the false statement of fact or concealment of fact and is not chargeable with knowledge of the fact; (5) the insurer relied, to its detriment, on the false statement of fact or concealment of fact in issuing the policy.
Hollinger v. Mut. Benefit Life Ins. Co., 192 Colo. 377, 560 P.2d 824, 827 (Colo. 1977) (footnote omitted). Defendants contend the district court erred in concluding no genuine issue of material fact existed as to the first, second, and fourth elements of the Hollinger standard.
i. The First and Second Hollinger Elements
The first element, “the applicant made a false statement,” is encompassed in the second element, “the applicant knowingly made a false statement.” Id. Because there is significant overlap in the parties’ arguments regarding the first and second elements, we consider the two elements together. Wade v. Olinger Life Insurance Co. holds that [HN8] in determining whether an applicant knowingly made a false statement, a court must look beyond the applicant’s mere knowledge she engaged in the activity [**15] which was allegedly required to be disclosed by the open-ended insurance question. 192 Colo. 401, 560 P.2d 446, 452 (Colo. 1977). Namely, “to protect innocent insurance applicants, an applicant must be reasonably chargeable with knowledge that the facts omitted or misrepresented were within the scope of questions asked on the application.” Id. The court further explained that in the context of answering an insurance application question which calls for a value judgment, “[a] particular misrepresentation . . . must be such that a [r]easonable person would, under the circumstances, have understood that the question calls for disclosure of specific information.” Id. The court elaborated on this standard in Hollinger, a companion case to Wade. Hollinger, 560 P.2d at 827. In Hollinger, the court explained the standard applied in Wade was “whether a reasonable person, with the applicant’s physical or mental characteristics, under all the circumstances, would understand that the question calls for disclosure of specific information.” Id.
[*1158] Question 5 asked Butts if he “[e]ngaged in auto, motorcycle or boat racing, parachuting, skin or scuba diving, skydiving, or hang gliding or other hazardous avocation or [**16] hobby.” WCLI contends Butts’s negative response to Question 5 was unreasonable in light of his yearly heli-skiing vacations. Defendants argue reasonable minds could differ as to whether heli-skiing constitutes a hazardous activity, and thus the question should have been submitted to the jury. Defendants further contend because Butts believed heli-skiing was not a hazardous activity, his response to Question 5 could not have constituted a misrepresentation.
This court must thus decide whether a reasonable person in Butts’s position would know heli-skiing constituted a hazardous activity for purposes of the insurance policy. We agree with the district court that reasonable purchasers of life insurance understand they are agreeing to pay a premium in exchange for the insurer’s promise to pay benefits in the event of death, and thus an insurer would be interested in learning of activities that increase the chance of premature death. Question 5 asks applicants whether they engage in hazardous activities and provides as examples of hazardous activities, skydiving, motorized racing, and scuba diving. A reasonable applicant understands these examples are provided to have the applicant determine [**17] if she engages in activities that might pose risks similar to those posed by the enumerated activities.
WCLI presented evidence indicating a heli-skier is approximately 18,702 times more likely to be killed in an avalanche than an individual skiing inbounds at a ski area. 3 In addition, the heli-skiing operator Butts skied with required its clients to: (1) demonstrate proficiency in avalanche rescue techniques and equipment, (2) undergo training on safety protocols associated with helicopter loading, flight, offloading, and landing, and (3) carry an avalanche beacon while skiing. Such training took place prior to the execution of a waiver and release agreement in which Butts recognized: (1) wilderness skiing involves “risks, dangers and hazards in addition to those normally associated with downhill skiing,” (2) avalanches occur frequently in the alpine terrain used for wilderness skiing, (3) the ski outfitter’s “staff may fail to predict whether the alpine terrain is safe for skiing or whether an avalanche may occur,” and (4) the “alpine [**18] terrain used for wilderness skiing is uncontrolled, unmarked, not inspected and involves many risks, dangers and hazards in addition to that of avalanche.” Additionally, Butts chose to purchase and carry an “Avalung” avalanche emergency air supply while heli-skiing.
3 The probability of an avalanche fatality occurring while heli-skiing or snowcat skiing is approximately 1 per 29,000 visits.
Based on these facts, a reasonable person in Butts’s position would understand Question 5 calls for an applicant to report heli-skiing. As the district court explained, “a reasonable, ordinary person would understand that a sport whose participants equip themselves with ‘avalanche beacons’ and ‘Avalungs’ and then ride in helicopters to the summits of isolated backcountry mountains in order to ski down ungroomed alpine terrain . . . falls along with sky diving, hang gliding, and scuba diving into the commonsense category of ‘hazardous’ activities.” Butts’s status as an experienced heli-skier who engaged in the activity in the past without incident does not change the conclusion it was unreasonable for an individual in his position to answer “no” to Question 5. Butts knew of the great risks of heli-skiing. [**19] Notably, [*1159] Defendants’ expert declined to refute the Utah Avalanche Center’s statement that “[a]lmost all avalanche accidents occur to recreationists who are very skilled at their sport.”
Defendants contend this court should rely on the expert opinion of Vincent Anderson, a certified alpine and ski mountaineering guide who, without citing any statistical evidence, states in a report that, in his opinion, the risks involved in heli-skiing are not unreasonably high and are not greater than those involved in skiing at a resort. This opinion, however, does little to rebut the statistical evidence presented by WCLI demonstrating a heli-skier is approximately 19,000 times more likely to die in an avalanche than someone skiing within bounds at a ski resort. Moreover, it is difficult to see how the subjective opinion testimony of this one individual, lacking any statistical support, does much to support the proposition a reasonable person with Butts’s characteristics would not understand heli-skiing to be a hazardous activity. This is especially true where heli-skiers such as Butts were required to sign a waiver explicitly acknowledging heli-skiing was far more dangerous than resort skiing.
Finally, [**20] Defendants argue that because of the language at the end of the Butts Application, wherein Butts affirmed all answers in the “application [were] full, complete and true to the best of [his] knowledge and belief,” Question 5 solicited a subjective answer and thus could not be a false statement of fact. In support of this argument Defendants cite to Hauser v. Life General Security Insurance Co., 56 F.3d 1330, 1335 (11th Cir. 1995), in which the Eleventh Circuit stated, “[w]here an insurer only requests the disclosure of information to the best of the insured’s ‘knowledge and belief,’ and where the applicant so complies, we will decline to protect the insurer from a risk it assumed by virtue of the contractual language it drafted.” Id. at 1335 (quotation omitted). The court went on to state, however:
[w]hat the applicant in fact believed to be true is the determining factor in judging the truth or falsity of his answer, but only so far as that belief is not clearly contradicted by the factual knowledge on which it is based. In any event, [HN9] a court may properly find a statement false as a matter of law, however sincerely it may be believed. To conclude otherwise would be to place insurance [**21] companies at the mercy of those capable of the most invincible self deception . . . .
Id. (quotation omitted). Here, even assuming Colorado courts would follow the reasoning of Hauser, any belief Butts may have had in the non-hazardous nature of heli-skiing is contradicted by his underlying knowledge of the significant risks inherent in heli-skiing as indicated by the training he was required to undertake, waivers he signed, and equipment he used. We therefore affirm the district court’s conclusion that as a matter of law Butts knowingly made a false statement of fact.
ii. The Fourth Element
In order to satisfy the fourth element of the Hollinger standard, WCLI must demonstrate it was “not chargeable” with the knowledge Butts heli-skied. 560 P.2d at 827. [HN10] Colorado has yet to adopt a test for determining when an insurer is “chargeable with knowledge” of an undisclosed material fact. The parties agree, however, and the district court concluded, the Colorado Supreme Court would endorse the following standard: an insurer is chargeable with knowledge of undisclosed information only where it “had sufficient information that would have put a prudent man on notice and would have caused him to [**22] start an inquiry” which would have uncovered the truth. Major Oil Corp. v. [*1160] Equitable Life Assurance Soc’y, 457 F.2d 596, 604-05 (10th Cir. 1972).
Butts gave a negative response to Question 5, indicating he did not engage in any hazardous activities. Later, however, in response to the question of what he did for recreation and exercise in his spare time during his phone interview with Chu, Butts stated he enjoyed skiing and golfing. In response to Chu’s question about hazardous activities, Butts stated only that he was involved in scuba diving and private aviation as a pilot. WCLI’s underwriter, Youngquist, interpreted Butts’s response that he participated in skiing in his spare time, to mean he engaged in resort skiing. Youngquist had only worked for WCLI for about a month, and was unaware the underwriting manual treated the various kinds of skiing differently, with heli-skiing, but not resort skiing, meriting an increase in the insured’s premium. He did not consult the manual during the course of underwriting Butts’s Policy. Defendants contend that based on Butts’s disclosure that he skied, WCLI had a duty to conduct an investigation into the nature of Butts’s skiing precisely because [**23] of the six classes of skiing identified for differing treatment in the underwriting manual. A reasonably prudent insurer, they argue, would have been put on notice to conduct further investigation into the type of skiing in which Butts engaged.
In deciding to insure Butts, Youngquist had before him: (1) Butts’s negative response to Question 5, (2) Butts’s report to Chu stating the only hazardous activities in which he engaged were scuba diving and private aviation, and (3) Butts’s report to Chu stating he “also enjoy[ed] skiing and golfing in his spare time.” Thus, even if Youngquist had been aware of the classifications in the underwriting manual, such awareness would not have sufficed to put a prudent underwriter on notice he should further investigate a situation where an applicant reports recreational skiing and denies engaging in any hazardous activities. As the district court explained, “[i]f such were the burden of a prudent insurance company, then it would seem that any report of a generally lowhazard recreational activity — e.g., wrestling, juggling, or fishing — would require the insurer to investigate the myriad possible ‘extreme’ variants thereof.” Cf. Am. Eagle Fire Ins. Co. of N.Y. v. Peoples Compress Co., 156 F.2d 663, 667 (10th Cir. 1946) [**24] (stating “honesty, good faith, and fair dealings require [an insured] to communicate [facts material to the risk] to his insurer.”).
Accordingly, [HN11] courts have generally found insurance companies chargeable with knowledge of an undisclosed fact only where it has knowledge of evidence indicating the applicant was not truthful in answering the particular application question at issue. See Major Oil Corp., 457 F.2d at 598-604 (concluding insurer was chargeable with knowledge of applicant’s alcohol problem where another insurance company considering the applicant informed the insurer of the applicant’s ongoing alcohol problem and a report by the Medical Information Bureau received by the insurer prior to issuance of the policy revealed the insured had a drinking habit); Columbian Nat. Life Ins. Co. v. Rodgers, 116 F.2d 705, 708 (10th Cir. 1940) (concluding insurer was chargeable with knowledge that applicant had previously been declined insurance despite applicant’s answer to the contrary where it had in its possession documentation indicating “that the applicant had either been declined or had been rated differently from the established rates, or that some other unusual circumstances were [**25] involved.”). Here, WCLI had no such evidence. Butts twice informed WCLI he did not engage in hazardous activities. Contrary to Defendants’ assertions, Butts’s statement he engaged in the recreational activities of skiing and [*1161] golfing does not constitute evidence or raise a red flag as to his lack of truthfulness in answering the hazardous activities question, as recreational resort skiing is not considered a hazardous activity. See Barciak v. United of Omaha Life Ins. Co., 777 F. Supp. 839, 843 (D. Colo. 1991) (concluding insurer was not chargeable with knowledge of applicant’s heart condition where applicant did not disclose he received medical care for chest pain, extensive medical tests, and had been referred to a cardiologist, but in a subsequent phone interview stated he had seen a doctor for a headache and received a variety of tests, including a chest x-ray and EKG, and the doctor’s diagnosis was unknown.).
We therefore affirm the district court’s conclusion that WCLI has met the Hollinger elements as a matter of law entitling it to summary judgment on its claim for rescission of the Butts Policy.
3. Defendants’ Counterclaim
Defendants’ bad faith counterclaim depends on the existence [**26] of a valid and enforceable insurance policy. Because we affirm the district court’s ruling that Butts’s nondisclosure voided the Butts Policy entitling WCLI to rescission, Defendants’ counterclaim fails.
IV. CONCLUSION
Because WCLI was entitled to rescission of the Butts Policy, the district court’s decision is affirmed.
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Yauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022
Posted: April 14, 2014 Filed under: Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Wisconsin | Tags: fatality, Minor, parent, Season Pass, ski area, Summary judgment, Yauger 1 CommentYauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022
Michael Yauger and Brenda Yauger, Plaintiffs-Appellants, v. Skiing Enterprises, Inc., d/b/a Hidden Valley Ski Area, a Wisconsin corporation, and Investors Insurance Company of America, a foreign corporation, Defendants-Respondents.
No. 94-2683
COURT OF APPEALS OF WISCONSIN
196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022
July 12, 1995, Oral Argument
August 23, 1995, Opinion Released
August 23, 1995, Opinion Filed
PRIOR HISTORY: [***1] APPEAL from a judgment of the circuit court for Manitowoc County: ALLAN J. DEEHR, Judge.
DISPOSITION: Affirmed.
COUNSEL: On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Gary L. Bendix and John M. Bruce of Savage, Gregorski, Webster, Stangel & Bendix, S.C. of Manitowoc. There was oral argument by John M. Bruce.
On behalf of the defendants-respondents, there was a brief and oral argument by Thomas B. Hartley of Guttormsen, Hartley & Guttormsen of Kenosha.
JUDGES: Before Anderson, P.J., Brown and Snyder, JJ.
OPINION BY: BROWN
OPINION
[**836] [*490] BROWN, J. We are asked to gauge whether the exculpatory contract in this case is void as against public policy. Here, Brenda and Michael Yauger brought a wrongful death action against Hidden Valley Ski Area after their eleven-year-old daughter, Tara, was killed when she struck the concrete base of a ski lift tower. The trial court dismissed the claim finding that the [*491] Yaugers’ contract with Hidden Valley for a season pass contained a valid exculpatory clause. The Yaugers now reassert their challenge that [***2] it is void.
The following facts were taken from the appellate record consisting of the pleadings, affidavits and depositions. On October 8, 1992, Michael Yauger submitted an application for a family season pass at Hidden Valley. This form is reproduced at the end of the opinion. The pass cost roughly $ 720. Although only Michael signed the application, his wife and two daughters (then ages ten and eight) were named on the form. Depositions reveal that Michael submitted the application in person at the Hidden Valley Ski Shop.
The Yauger family was familiar with Hidden Valley. Michael had skied there approximately sixty times in the three seasons prior to the accident, and Tara had skied there about fifty times prior to her accident. The record also shows that the Yauger family had a season pass at the resort the prior year.
On March 7, 1993, Tara suffered her fatal accident. The exact facts surrounding her death are unsettled, but the record currently suggests that she struck the side of a concrete base of a ski lift tower. The Yaugers sued Hidden Valley that October, claiming that this support was not adequately padded.
After limited discovery, Hidden Valley and its insurer [***3] sought summary judgment on grounds that the exculpatory release within the Yaugers’ contract for a season pass barred them from bringing this claim since it arose out of the “certain inherent risks in skiing.” The Yaugers responded that the clause was invalid as against public policy because it was not knowingly entered into by each of the Yaugers, was ambiguous and overbroad and also attempted to encompass protections provided under Wisconsin’s safe-place law.
[*492] The trial court granted Hidden Valley’s motion. It focused its analysis on the phrase “certain inherent risks in skiing” and reasoned that it covered the type of injury that killed Tara, namely, the risk that a skier will collide with a stationary object. It also rejected the Yaugers’ argument that Brenda Yauger was not bound by the exculpatory clause, finding that her express endorsement was not necessary since she received the benefit of the season pass.
We are reviewing a grant of summary judgment; thus, § 802.08(2), STATS., governs [**837] the analysis. See Decade’s Monthly Income and Appreciation Fund v. Whyte & Hirschboeck, S.C., 164 Wis. 2d 227, 230, 474 N.W.2d 766, 767 (Ct. App. 1991), aff’d, 173 Wis.2d 665, [***4] 495 N.W.2d 335 (1993). [HN1] Summary judgment is appropriate when there are no material issues of fact and the moving party is entitled to judgment as a matter of law. Id. Moreover, this appeal concerns the interpretation of a contract which appellate courts address de novo. Id. at 230-31, 474 N.W.2d at 767. Therefore, to defeat Hidden Valley’s motion for summary judgment the Yaugers must show that material facts are in dispute, or that the trial court erred in its analysis of the exculpatory clause. See id. at 230-31, 474 N.W.2d at 767.
We first turn to the analysis of the season pass and its exculpatory clause. Wisconsin law does not favor these agreements and courts therefore examine with care the facts of each case to ascertain whether enforcement will contravene public policy. See Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321 N.W.2d 173, 176 (1982). The goal is to strike a balance between conflicting principles of contract and tort law. See id. at 211, 321 N.W.2d at 177. [HN2] Freedom of contract suggests that [*493] courts should abstain from interfering in people’s relationships and personal affairs. See id. On [***5] the other hand, tort law recognizes that those responsible for causing harm through negligence should bear the cost of the harm and should not be allowed to circumvent this duty through contract. See id. at 211-12, 321 N.W.2d at 177.
A review of the recent supreme court cases on this issue indicates that there are two aspects to the question of whether an exculpatory contract violates public policy. In Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991), the court cited with approval § 195 of the RESTATEMENT (SECOND) OF CONTRACTS (1979), which sets out a series of situations in which an exculpatory contract would violate public policy. Id. at 515-16, 468 N.W.2d at 658-59 (citing Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 210-11, 330 N.W.2d 773, 777 (1983)). The first element tests the effect of the exculpatory clause, e.g., does it exempt an employer from suits by an employee. See id. 1
1 This two-prong analysis was also discussed in Discount Fabric House v. Wisconsin Telephone Co., 117 Wis. 2d 587, 602, 345 N.W.2d 417, 424-25 (1984), where the court faced a challenge to an exculpatory release that served to cover any errors in telephone directory advertising. The court explained that the analysis of such contracts involves an assessment of the “commercial reasonableness” of the terms (substantive) and the relationship between the parties during negotiations (procedural). Id.
[***6] The Yaugers’ assertion that the exculpatory clause in Hidden Valley’s season pass application contravenes the safe-place statute, § 101.11, STATS., fits this line of analysis. In further support of this argument they cite Meyer v. Val-Lo-Will Farms, Inc., 14 Wis. 2d 616, 111 [*494] N.W.2d 500 (1961), for the proposition that a for-profit winter sports park was subject to the safe-place law. In substance, they argue that the exculpatory clause violates public policy because it seeks to relieve Hidden Valley of the duty imposed by the statute. See RESTATEMENT (SECOND) OF CONTRACTS § 195(2)(c). 2 The trial court rejected this argument, reasoning that the safe-place statute did not create a special cause of action, but established a higher duty of care for what would ordinarily be addressed through common law negligence.
2 The applicability of the safe-place statute, § 101.11, STATS., in situations where frequenters challenge exculpatory contracts was raised, but left unanswered, in Kellar v. Lloyd, 180 Wis. 2d 162, 178-81, 509 N.W.2d 87, 93-94 (Ct. App. 1993).
[***7] While we agree with the trial court’s result, a different analysis is appropriate. Moreover, we need not decide the issue of whether the safe-place law imposed a special statutory duty on Hidden Valley. We hold that even if the statute does apply, a potential defendant may still bargain for an exclusion.
As noted above, the supreme court has endorsed § 195 of the RESTATEMENT (SECOND) OF CONTRACTS. See Merten, 108 Wis. 2d at 212-13, 321 N.W.2d at 177-78. 3 [*495] The [**838] official comment to this section, however, suggests that the enumerated standards are not a litmus test for these agreements; it states: “the rigor of this rule may, however, be mitigated by a fairly bargained for agreement to limit liability to a reasonable agreed value in return for a lower rate.” RESTATEMENT (SECOND) OF CONTRACTS § 195 cmt. a.
3 We recognize that the exact status of RESTATEMENT (SECOND) OF CONTRACTS § 195 (1979), is somewhat clouded. In Dobratz v. Thomson, 161 Wis. 2d 502, 515-16, 468 N.W.2d 654, 658-59 (1991), the court expressly quoted all the subsections after noting that it had originally “referred with approval” to them in Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 210-11, 330 N.W.2d 773, 777 (1983). When one examines the Arnold opinion, however, it includes only a general reference to the RESTATEMENT. Indeed, the rule in § 195(2)(c), which provides the basis for the Yaugers’ argument, was not referred to in the discussion. See Arnold, 111 Wis. 2d at 210-11, 330 N.W.2d at 777. Moreover, in the supreme court’s most recent exploration of these issues, the majority opinion made no reference to § 195, although it did reaffirm its confidence in the Dobratz decision. Richards v. Richards, 181 Wis. 2d 1007, 1014, 513 N.W.2d 118, 121 (1994). We have located a federal district court case in which the various subsections of § 195 were found to be a component of Wisconsin law and formed the basis for voiding an exculpatory contract. See RepublicBank Dallas, N.A. v. First Wisconsin Nat’l Bank, 636 F. Supp. 1470, 1473 (E.D. Wis. 1986) (voiding clause exempting liability for harm arising out of reckless or intentional acts). We thus find that § 195 continues to be a valid component of Wisconsin common law.
[***8] The process envisioned by the drafters of this comment aptly describes the transaction between the Yaugers and Hidden Valley. The Yaugers wanted a discount on their skiing. The resort was a willing supplier, but recognized that the increase in days skied would directly increase the risk of an accident and the potential for a damages claim. Hidden Valley therefore sought a release from liability. Gauging the deal at the time when the parties entered into the contract, we cannot say that the exchange was totally unreasonable. The Yaugers obtained their discount, but lost the right to bring a claim arising out of an accident which may never have occurred. Here, freedom of contract requires that we not delve deeper into the merits of this agreement. [*496] See Merten, 108 Wis. 2d at 211, 321 N.W.2d at 177. 4
4 Of course the above analysis certainly does not summarize all the concerns of the bargaining parties. The Yaugers and Hidden Valley were also making allowances for the risk that there would be no snow that season. The key to understanding our analysis, however, is to recognize that courts rarely are able to do a better job of writing contracts than the parties themselves.
[***9] The second prong of the public policy question entails examining the circumstances surrounding the bargaining process. See Dobratz, 161 Wis. 2d at 516 n.2, 468 N.W.2d at 659. For example, in Richards v. Richards, 181 Wis. 2d 1007, 1010, 513 N.W.2d 118, 119 (1994), 5 the supreme court was asked to review an exculpatory contract signed by a passenger in a commercial, long-haul truck. The plaintiff was married to a driver employed by the defendant and was asked to sign a “passenger authorization” before joining her husband on the road. Id. at 1012, 513 N.W.2d at 119. Within the form was a clause releasing the defendant from liability for any harm that might occur during her travels. Id. Still, the wife brought suit after she and her husband were involved in an accident. The lower courts found that the release was valid and granted summary [*497] judgment for the defendant. Id. at 1010, 513 N.W.2d at 119.
5 We discuss Richards in detail because it represents the supreme court’s most recent analysis of how flaws in the specific terms of an agreement, or the circumstances of the bargaining process, may serve as grounds for voiding an exculpatory agreement. For other examples, see Merten v. Nathan, 108 Wis. 2d 205, 214-15, 321 N.W.2d 173, 178 (1982) (release invalidated because defendant misrepresented a fact during the negotiation process), and Eder v. Lake Geneva Raceway, 187 Wis. 2d 596, 610-11, 523 N.W.2d 429, 434 (Ct. App. 1994) (release clause found to be ambiguous).
[***10] After its review of the contract, however, the supreme court found it to be void as contrary to public policy. Id. at 1011, 513 N.W.2d at 119. The majority pointed to three aspects of the agreement, which together led to this conclusion. First, the contract served two purposes. The court emphasized that the exculpatory clause was not distinguishable from other components of the document. It reasoned that highlighting the release provision would have provided greater protection for the signing party. See id. at 1017, 513 N.W.2d at 122.
Next, the court found that the contract was over-inclusive. It applied not only to the [**839] defendant, but also to all of its affiliates. Moreover, it did not delineate the nature of claims that would be excluded, such as those arising from negligence but not from intentional acts. Also, the time period through which the exclusion would apply was not limited. The majority found that the contract was lopsided in favor of the defendant and should therefore be construed against the company. See id. at 1017-18, 513 N.W.2d at 122.
Finally, the court noted that the release was embodied in a standard form contract, and the defendant [***11] did not inform the plaintiff of the purpose and effect of the authorization. This suggested that there was little or no opportunity to dicker about the terms. Id. at 1019, 513 N.W.2d at 123.
The Yaugers cite Richards and raise a number of arguments, each suggesting that they and Hidden Valley were not on equal footing when they entered into this agreement. The many issues they raise can be distilled into three central points. First, the Yaugers contend that the release clause, which was a single [*498] term in the season pass application, was never pointed out to Michael before he completed and signed the form. See Richards, 181 Wis. 2d at 1019, 513 N.W.2d at 123. They further assert that summary judgment was inappropriate because Hidden Valley presented no evidence on this issue.
We are not persuaded. This agreement was signed in October, at least one month prior to the skiing season. There was no sense of urgency. Michael could have taken the form home for further consideration. In addition, the Yaugers had purchased a season pass for the prior year. Therefore, Michael had a source of knowledge from which to draw comparisons. Compare Eder v. Lake [***12] Geneva Raceway, 187 Wis. 2d 596, 609, 523 N.W.2d 429, 433 (Ct. App. 1994)(noting that parties signing the release were not allowed onto the racetrack grounds until they signed the release form).
Next, the Yaugers assert that the language within the exculpatory clause is ambiguous. It specifically addressed “certain inherent risks in skiing.” They question what constitutes these “inherent risks” and whether the clause only applies to a “certain” number of these dangers. In addition, they note that Hidden Valley did not provide any evidence which would identify these risks. The Yaugers also raise concerns that the clause (which is composed of a single sentence) reads to limit Hidden Valley’s liability for any injury occurring on the premises. They stress that this could be reasonably interpreted as an attempt to limit the resort’s liability for any accident on the premises, such as a slip and fall in the restaurant. See Richards, 181 Wis. 2d at 1017-18, 513 N.W.2d at 122.
The trial court concluded that the terminology covered the obvious dangers in skiing, viz, falling down or [*499] colliding with another skier or a fixed object, and that the “any injury” language was limited [***13] to those harms arising out of these risks. We agree.
[HN3] Whether a contract is ambiguous is a question of law. Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990). We test whether the term is reasonable or fairly susceptible of more than one construction. Id. [HN4] A clause is not ambiguous, however, merely because its language is general or broad. See Wilke v. First Federal Savs. & Loan Ass’n, 108 Wis. 2d 650, 654, 323 N.W.2d 179, 181 (Ct. App. 1982).
This was a contract between Hidden Valley and a season pass holder. The contracting skier, therefore, could reasonably be expected to have some knowledge about the sport. The Yaugers’ interest in skiing is further demonstrated by their willingness to commit over seven hundred dollars to skiing that season. 6 The record also reveals that the Yaugers had a similar pass at the resort the prior year. We are thus hesitant to accept their arguments that such language would lead to confusion among parties executing these agreements. The language is plain and simple. It aptly describes the risks that [**840] arise whenever one’s skis are in contact with the slope. 7
6 The season pass was not refundable.
[***14]
7 Very similar language can be found in Wisconsin’s recreational responsibility law. See § 895.525(3), STATS. (“A participant in a recreational activity … accepts the risks inherent in the recreational activity ….”) (emphasis added). Moreover, several states have adopted specific skier responsibility laws which codify these terms. For example, Colorado law provides, in part:
“Inherent dangers and risks of skiing” means those dangers or conditions which are an integral part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
COLO. REV. STAT. ANN. § 33-44-103(10) (West Supp. 1994) (emphasis added).
Further discussion of these laws, and judicial efforts in providing interpretation, are set forth in Arthur N. Frakt and Janna S. Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 IDAHO L. REV. 227 (1991-92).
[***15] [*500] Finally, the Yaugers argue that the exculpatory clause should be held void because it was “not clearly identified or distinguished.” See Richards, 181 Wis. 2d at 1017, 513 N.W.2d at 122.
The trial court noted that although the exculpatory language was not highlighted, there was no indication that it was disguised and therefore did not provide grounds for rendering the agreement void. Indeed, the clause is set out in a separate paragraph.
Any break in text requires the reader to pause and thus provides a moment for reflection.
The face of the application does not otherwise suggest that Hidden Valley was trying to trick season pass holders into signing away their rights. It was an application form. Not only did the applicants have to sign the agreement, but they had to furnish information [*501] such as their address, age, other family member names, etc. In sum, the form and application process provided ample opportunity for Michael to consider the terms of the agreement.
We have addressed a variety of concerns about the exculpatory clause of the season pass contract. Although no single point is troublesome enough to render the clause void, Richards suggests that [***16] courts may consider all these aspects together when making a determination about the effects of public policy. See id. at 1011, 513 N.W.2d at 119. But even the totality of the circumstances presented here does not warrant that this contract be set aside. The contracting process simply does not raise any concern of overreaching by the party seeking to be released from liability. 8
8 The Yaugers raised one other challenge to the exculpatory clause relating to the contract language. They assert that under Hortman v. Otis Erecting Co., 108 Wis. 2d 456, 463, 322 N.W.2d 482, 485-86 (Ct. App. 1982), an agreement which indemnifies a party for its own negligence must specifically include the term “negligence.” As the defendants contend, however, this specific argument was not presented to the trial court and is therefore waived on appeal. See, e.g., Bank One, Appleton, N.A. v. Reynolds, 176 Wis. 2d 218, 222, 500 N.W.2d 337, 339 (Ct. App. 1993).
We now turn to the second issue presented. [***17] Although we have found that the exculpatory clause serves as a bar to the Yaugers’ claim, Brenda nonetheless asserts that it should not run against her individually since she did not expressly acknowledge these terms, nor did she authorize her husband to execute a contract releasing these claims. In support of her argument, she draws an analogy to Arnold v. Shawano County Agri. Soc’y, 111 Wis. 2d 203, 214-15, 330 N.W.2d 773, 779 (1983), where the court held that a [*502] spouse’s claim for consortium rights is not defeated by a valid exculpatory contract running against the deceased.
In dismissing this claim the trial court distinguished Arnold, stating:
In this case the plaintiff Brenda Yauger did not sign the application, but the application was made on her behalf and for her [**841] benefit, which is not the factual situation in Arnold. And she is specifically identified and money is specifically paid for her membership, for her use, and the use of her daughter ….
Although we agree in substance with the trial court’s analysis, we feel it necessary to elaborate further. We add that Brenda’s claim is barred by the exculpatory clause because it is so intertwined [***18] with that of her husband, and thus it was reasonable for Hidden Valley to assume that Michael was acting on her behalf when he executed the agreement.
The Yaugers’ claim has three components: loss of consortium, Tara’s medical expenses and the cost of her funeral. See § 895.04(4), STATS. The right to pursue a claim for these losses accrues to Michael and Brenda as the “parents of the deceased.” See id. This is not a situation in which one parent’s recovery is limited or barred by his or her negligence. See § 895.04(7). This distinction recently was addressed in Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 561, 514 N.W.2d 399, 403 (1994), where the court noted: “the right to sue and recover damages under the wrongful death statute must be distinguished from the ownership and allocation of the recovery itself.”
Brenda alleges that she never authorized her husband to enter into this exculpatory clause (and bargain [*503] away her right to pursue a potential claim), nor was she aware of its effects. Nevertheless, she shared equally in the benefits that arose to her family, and the face of the application form would suggest that all [***19] named parties are bound by its terms.
Although there is little case law applying the principles of agency in transactions between married persons and third parties, Smart v. Estate of Ford, 23 Wis. 2d 60, 65-66, 126 N.W.2d 573, 576 (1964), summarized the Wisconsin rule that third parties may reasonably believe that one spouse had authority to act on behalf of the other. Here, we are dealing with the Yaugers’ joint interest in the companionship of their beloved daughter. Michael completed the season pass application on behalf of his whole family and paid the appropriate sum. Absent any evidence that Brenda informed Hidden Valley that she was not bound by this agreement, the Yaugers should both be held by the terms of the application.
By the Court.–Judgment affirmed.
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April is an awesome month for skiing and also an fantastic time to PARTY FOR A PURPOSE and support the CAIC!
Posted: April 10, 2014 Filed under: Avalanche, Colorado | Tags: avalanche, CAIC, Colorado, Colorado Avalanche Information Center, Fund Raiser, Loveland Ski Area Leave a commentJoin the Friends of CAIC at the below events and say “Thank You” to our avalanche forecasters for a season for hard work.
April 11th: Après in the Boat – Steamboat, CO
Featuring: Steamboat’s own – Missed the Boat
Where: Bear River Bar and Grill, Steamboat Ski Area
Tickets: $25 in advance; $30 at the door.
Ticket price includes: Bowl of Chili, 2 drink tickets, 1 door prize tickets, access to great music! Advance tickets available until April 10, 2014.
April 17th: Thank you CAIC! – Edwards, CO
E-Town: 5:30pm – 9:00pm
Hug and thank a forecaster for all their hard work this season. Join us in Edwards, Colorado for a benefit party for the CAIC. We will have a ton of gear to give away, some great food, and fantastic beer. All the money raised will go toward the Friends of CAIC Stay Informed, Stay Alive $150,000 challenge. Jump on board today!
Requested donation: $20 at the door.
April 26th: Loveland Corn Harvest – Loveland Ski Area
Join your friends for a fun day of spring skiing, lunch, music, prizes, and refreshments at this year’s Corn Harvest.
Where: Loveland Ski Area
When: April 26, 2014
Tickets: $60 (includes: Lunch, Beer, Lift Ticket, door prize ticket)
$30 – With Season Pass
More information can be found here: http://cornharvest.org/
Also, don’t forget. We are in the middle of our Stay Informed, Stay Alive $150,000 Challenge campaign. We have had tremendous support over the past few weeks. Do your part and donate now! http://www.crowdrise.com/stayinformedstayalive/fundraiser/FriendsofCAIC
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Update on whether Avalanches are in inherent risk of inbounds skiing reviewed by Appellate court in Colorado.
Posted: March 13, 2014 Filed under: Assumption of the Risk, Avalanche, Colorado, Ski Area, Skiing / Snow Boarding | Tags: avalanche, Colorado, Colorado Supreme Court, Inbounds, Inbounds Avalanche, Intawest, IntraWest Winter Park Operations Corporation, Ski Resort, Winter Park, Winter Park Ski Area Leave a commentFor background on the issues see Issue of whether avalanches are an inherent risk of skiing in Colorado headed for appeal. Even with this decision, this issue I am still betting will head to the Supreme Court of Colorado.
The first case in the two avalanche deaths that occurred several years ago inbound at ski areas has reached the appellate level. The court in Fleury v. IntraWest Winter Park Operations Corporation, 2014 Colo. App. LEXIS 242 held for the ski area stating that the Colorado Ski Safety Act included in its terms of inherent risks Avalanches.
For that reason, because an appeal is probably forthcoming and the time for filing for an appeal has just started to run, I’ll not review the case at this time.
If the case is not appealed…
To read the decision see Fleury v. IntraWest Winter Park Operations Corporation, 2014 Colo. App. LEXIS 242
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Friends of CAIC Launches $150,000 fundraising campaign
Posted: March 7, 2014 Filed under: Avalanche, Colorado | Tags: avalanche, CAIC, Colorado, Colorado Avalanche, Colorado Avalanche Information Center Leave a commentHi There,
We have had 7 fatalities thus far this season including the most recent, which happened yesterday in Southern Colorado. Our sincerest condolences go out to the family and friends of the victim. Numerous accidents have happened throughout Colorado and we recently saw an avalanche cycle that was one of the largest in 30 years. It has been and continues to be a very busy season.
The Colorado Avalanche Information Center’s Backcountry Avalanche Forecasting program is small but mighty. The CAIC operates on limited funding and they do incredible work with what they have. Colorado is a very big place and there are more and more people enjoying the State’s spectacular winter backcountry each year. We deserve the best avalanche center in the country. To achieve this goal we need everyone’s support. The State of Colorado is incredibly supportive and has increased the CAIC’s funding. But to really grow, we need you involved. This private public partnership is the best way we can expand the CAIC’s backcountry forecast program and I am personally asking you to support avalanche forecasting and education throughout the State of Colorado. In fact, to show how strongly I feel about the CAIC’s backcountry forecasting program, I will kick off the campaign with my own $200 donation.
Starting today and for the next 7 weeks the Friends of CAIC will be offering prizes, challenges, and incentives, to anyone who donates $25 or more. Click here for more information or to DONATE NOW!
We will be accepting donations in the following ways:
Donate on Crowdrise.com.http://www.crowdrise.com/stayinformedstayalive/
(Remember you don’t have to pay the “Optional Processing Fee”. Click on the text and select 0%.)
Mail us a check: PO BOX 140817 Denver, CO 80214
Donate ONLINE on our website: http://friendsofcaic.org
Hand us cash!
We are looking forward to your help in this campaign.
Sincerely,
Aaron Carlson
Executive Director
Friends of CAIC
Ethan Greene
Director
Colorado Avalanche Information Center
=
An attempt to divert criminal prosecution or is there something to gluing cameras on helmets weakening the helmet.
Posted: March 4, 2014 Filed under: Skiing / Snow Boarding | Tags: Europe, helmet, Helmet Camera, HelmetCam, Michael Schumacher, Off-Piste, Race Car Driver, ski area, skiing, Video Camera Leave a commentAn attempt to divert criminal prosecution or is there something to gluing cameras on helmets weakening the helmet.
Remember Europe has a different system of enforcement of laws to keep people safe than the US. Where we would sue, Europe regulates and if you violate the regulation you are criminally charged.
The article states that the head injuries to Michael Schumacher the famous race car driver might have been caused by his camera changing the effectiveness of his helmet.
Investigators are exploring the theory that Michael Schumacher’s helmet camera could have caused the helmet to shatter, leading to serious head injuries
Schumacher, an experienced skier, was travelling at a moderate speed when he fell and hit a rock. His skis were new; his bindings have been subsequently tested and were not at fault; he was fully in control of his movements as he left the marked pistes and traversed the patch of snow in-between two groomed runs in Meribel.
But now investigators believe that they may have found a reason for the seriousness of the crash. They think that his helmet camera could have actually worsened the blown, and caused the helmet to shatter into pieces.
Experts from ENSA, the world-renowned ski and climbing academy in the French ski resort of Chamonix, have conducted tests to determine whether the presence of a solid object between a helmet colliding with a rock would weaken the structure.
The helmet smashed – but the camera he had attached to it, in order to record him and his son skiing, was undamaged. The footage, audio and visual, has provided police with crucial information about the crash.
“The helmet completely broke. It was in at least two parts. ENSA analysed the piece of the helmet to check the material, and all was OK,” said a source close to the investigation.
“But why did it explode on impact? Here the camera comes into question. The laboratory has been testing to see if the camera weakened the structure.”
The following, however, maybe the real reason for the statements.
Lawyers had argued that managers of the ski resort might face up to three years in prison because the dangers lurking within the off-piste section were not properly marked.
Off-piste, usually meaning out of bounds or off trail here sections of the ski area where Mr. Schumacher fell might not have met the necessary requirements.
Do Something
Think. Although it is not outside the realm of possibility, it is hard to determine why a camera mounted on a helmet would affect the helmet’s performance. On top of that, ski helmets are designed to break. In fact most helmets only are effective once they break.
Believe me, as you know helmets are a real issue in my opinion. But to blame the injury on the helmet or the camera I think is just a way to dodge a criminal charge or change public opinion about the incident.
SeeMichael Schumacher skiing crash: did helmet camera cause head injuries?
To further understand the difference between the US and Europe see:
Another Litigation versus Criminal example
Criminal Charges brought against Everest Guide in the UK
Death of young climber leads to criminal charges in Italy
Forgetting your beacon is manslaughter in Europe….if you wife dies in an Avalanche
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
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