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Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132

Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132

C. Gary Lloyd, Plaintiff v. Tom Bourassa, Sugarloaf Mountain Corp., and United States Cycling, Inc. d/b/a National Off-Road Bicycle Association, Defendants

Civil Action Docket No. 01-CV-039

Superior Court of Maine, Hancock County

2002 Me. Super. LEXIS 132

August 20, 2002, Decided

August 21, 2002, Filed and Entered

SUBSEQUENT HISTORY: Affirmed by, Remanded by, Sub nomine at Lloyd v. Sugarloaf Mt. Corp., 2003 ME 117, 2003 Me. LEXIS 131 (Sept. 25, 2003)

JUDGES: Ellen A. Gorman.

OPINION BY: Gorman

OPINION

ORDER

PROCEDURAL HISTORY

On June 22, 1995, C. Gary Lloyd applied for membership in “USCF . NORBA . NCCA.” After filling in some identifying information on the first page of the application form, Lloyd placed his signature on the second page, under a section entitled “Acknowledgment of Risk and Release of Liability.” That section contained the following language:

Please accept this as my application for membership and a USCF, NORBA and/or NCCA license.

I acknowledge that cycling is an inherently dangerous sport in which I participate at my own risk and that the United States Cycling Federation, Inc. is a non-profit corporation formed to advance the sport of cycling, the efforts of which directly benefit me. In consideration of the agreement of the USCF to issue a license to me, hereby on behalf of myself, my heirs, assigns and personal representatives, I release and forever discharge the USCF, its employees, agents, members, [*2] sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.

On August 11, 1995, with his NORBA membership in hand, Lloyd traveled to Kingfield, Maine to participate in a mountain biking event sponsored by the Sugarloaf Mountain Corporation known as the Widowmaker Challenge. At Kingfield, Lloyd signed the Official Entry Form, which included the following language under the heading of “Athlete’s Entry & Release Form 1“:

I fully realize the dangers of participating in a bicycle race and fully assume the risks associated with such participation including, by way of example, and not limitations, the following: the dangers of collision with pedestrians, vehicles, other racers and fixed or moving objects; the [*3] dangers arising from surface hazards, equipment failure, inadequate safety equipment and weather conditions; and the possibility of serious physical and/or mental trauma or injury associated with athletic cycling competition.

I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and…. through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . .

I agree, for myself and successors, that the above representations are contractually binding, and are not mere recitals, and that should I or my successors assert my claim in contravention of this agreement, I or my successors shall [*4] be liable for the expenses incurred (including legal fees) incurred by the other party or parties in defending, unless the other parties are financially adjudged liable on such claim for willful and wanton negligence.

1 To avoid confusion, the “release” signed in June shall be referred to as the “Membership Release,” and the release signed in August shall be referred to as the “Event Release.”

Lloyd registered to participate in both the cross-country race and the downhill challenge. While completing a mandatory practice run on August 11, 1995, Lloyd was involved in a collision with another participant, Tom Bourassa.

On August 10, 2001, Lloyd filed suit against Bourassa, Sugarloaf Mountain Corporation, and United States Cycling Federation d/b/a National Off-Road Bicycle Association, asserting negligence claims against all three. Soon thereafter, Lloyd learned that he had failed to name the appropriate corporate defendant, and filed a motion to amend the complaint. Over objection, that motion was granted, [*5] and U.S.A. Cycling, Inc. replaced United States Cycling Federation d/b/a National Off-Road Bicycle Association.

In their Answers, both Sugarloaf and U.S.A. Cycling responded that Lloyd’s claims were barred by the releases quoted above. In addition, both asserted Counterclaims against Lloyd for breaching the terms of the releases. Both demanded Lloyd be held liable for any expenses they incurred in defending his suit.

On January 25, 2002, Lloyd filed a Motion for Judgment on the Pleadings with respect to Defendants’ Counterclaims and Affirmative Defenses of Release and Waiver. Sugarloaf Mountain Corporation opposed that motion and filed its own Motion for Summary Judgment on March 11, 2002. U.S.A. Cycling also opposed the plaintiff’s motion, and filed its Motion for Summary Judgment on April 11, 2002. All of the motions requested that the court review the language of the releases and determine whether and how it affected the outcome of this suit. A hearing on all three motions was held on July 3, 2002. Any findings included below are based upon the properly submitted affidavits and statements of material fact. Specifically excluded from that category is the affidavit form Attorney [*6] Greif.

DISCUSSION

1. Plaintiff’s Motion for Judgment on the Pleadings

The plaintiff argues that he is entitled to judgment on the defendants’ counterclaims and on their affirmative defenses of release and waiver because “the release, 2” by its terms, does not apply to U.S.A. Cycling, does not apply to the facts of this case, does not protect the defendants from their own negligence, and is unenforceable as contrary to public policy.

2 Plaintiff did not address the language of the Membership Release in his motion.

In considering a motion for judgment on the pleadings, the court is required to accept all of the responding party’s pleadings as true, and draw all reasonable inferences in its favor. Judgment is only appropriate if the responding party can prove no set of facts that would entitle it to relief. The plaintiff has failed to meet that burden.

Applicability to U.S.A. Cycling

In support of his first assertion, Lloyd argued that, because the Event Release does not mention U.S.A. Cycling, [*7] that defendant is not within the category of potentially released entities. With its response to this motion, U.S.A. Cycling filed an affidavit by Barton Enoch to establish that NORBA, a named sponsor of the Widowmaker, was the off-road division of U.S.A. Cycling, Inc. The clear language of the Entry Release covers sponsors, including U.S.A. Cycling d/b/a NORBA.

As mentioned above, Lloyd applied for membership in the United States Cycling Federation (USCF) and NORBA in June 1995. Soon thereafter, USCF merged into a new corporation, U.S.A. Cycling, Inc, that assumed all of its rights and responsibilities. By signing the Membership Release, Lloyd released U.S.A. Cycling, Inc. from responsibility for any accidents that might occur during his participation in any race events it sponsored.

Definition of Event

Lloyd has argued that the strictly construed language of the Event Release does not cover accidents that occur during the training run. In support of this argument, he has cited Doyle v. Bowdoin College, 403 A.2d 1206 (Me. 1979.) In that case, the Law Court said “releases absolving a defendant of liability for his own negligence must expressly spell out [*8] ‘with the greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” Doyle, at 1208. Contrary to the plaintiff’s assertions, the language of the Event Release does precisely that:

I hereby waive, release and discharge for myself, my heirs, executors, administrators, legal representatives, assigns, and successors in interest (hereinafter collectively “successors”) any and all rights and claims which I have or which may hereafter occur to me against the sponsors of this event, the National Off-Road Bicycle Association, the promoter and any promoting organization(s), property owners, law enforcement agencies, all public entities, and special districts and properties . . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event . . . . (emphasis added)

All parties have agreed that the training run was a mandatory part of the event. To interpret the Event Release in such a convoluted fashion that it excludes a mandatory part of the [*9] event from the term “event” defies logic and is contrary to the intent of the parties as demonstrated by the plain language of the release. Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368.

Public Policy

Although releases of liability are “traditionally disfavored,” in Maine that disfavor has resulted in strict interpretation rather than prohibition. Doyle v. Bowdoin College, Id. The cases cited by plaintiff in support of his contrary argument are from other jurisdictions and do not accurately describe the law in Maine. When asked to consider the issue raised here, both Maine state courts and the First Circuit have consistently enforced the language of releases. See, e.g., Hardy v. St. Clair, 1999 ME 142, 739 A.2d 368; McGuire v. Sunday River Skiway Corp., 1994 WL 505035 (D.Me.)(Hornby, J.), aff’d 47 F.3d 1156 (1st Cir. 1995). Despite his reference to a “contract of adhesion,” Lloyd was not compelled to sign either release. He chose to sign both because he wanted to participate in an inherently risky sport. He is free to make such choices, but must also accept responsibility for what happens as a result [*10] of that choice.

For the reasons stated above, plaintiff’s motion for judgment on the pleadings is denied.

2. Defendants’ Motions for Summary Judgment

The Law Court has addressed motions for summary judgment on many occasions:

In reviewing a summary judgment, we examine the evidence in the light most favorable to the nonprevailing party to determine whether the record supports the conclusion that there is no genuine issue of material fact and that the prevailing party is entitled to a judgment as a matter of law. (citation omitted) In testing the propriety of a summary judgment, we accept as true the uncontroverted facts properly appearing in the record. (citation omitted)

Champagne v. Mid-Maine Med. Ctr., 1998 ME 87, P5, 711 A.2d 842, 844. The issue is not whether there are any disputes of fact, but whether any of the disputes involve a “genuine” issue of “material” fact. See Rule 56(c). After reviewing the record provided with these standards in mind, the court must conclude that there are no genuine issues of disputed fact.

Both Lloyd and the defendants agree that Lloyd was required to complete a practice run in order to participate [*11] in the Widowmaker Challenge. All of them agree that Lloyd signed both releases before he took that mandatory run, and all agree that he was involved in a collision with another bicyclist during that run. As was discussed above, the practice run and any problems encountered during it are covered by the terms of the releases Lloyd signed. The Membership Release contains express language releasing claims arising from negligence. The Entry Release contains express language describing the types of accidents or dangers covered by the release, including “the dangers of collision with … other racers.” The collision between Lloyd and Bourassa was precisely the type of accident contemplated by the parties and waived by Lloyd in both releases.

Lloyd has failed to refer to any evidence in the record that might support his theory that that the Event Release should be seen as a substitution or novation of the Membership Release. Without such evidence, the court may not presume that the parties intended that one contract be substituted for the other.

Lloyd has asserted that the reference in the Event Release to an exception for “willful and wanton negligence” precludes summary judgment. However, [*12] no such tort has yet been recognized in Maine, so no jury could be asked to determine whether the defendants had acted with willful or wanton negligence. That exception is inapplicable in this jurisdiction. In addition, that language refers only to the portion of the Release that discusses the defendants’ right to recover expenses, including legal fees. On the record presented, there are no material issues of disputed fact concerning the language of the releases.

U.S.A. Cycling was a sponsor and Sugarloaf was a promoter of the race. As a matter of law, the court finds that the mandatory practice run was included within the language of the Releases, that the releases are clear and unambiguous, and that the accident Lloyd claims falls entirely within the types of harms contemplated by the parties at the time the releases were signed. There is nothing left to be litigated on either plaintiff’s Complaint against defendants U.S.A. Cycling and Sugarloaf, or on their Counterclaims against him.

For the reasons stated above, the court finds that the releases signed by Lloyd individually and collectively bar any civil action against either U.S.A. Cycling, d/b/a NORBA or against Sugarloaf for [*13] the injuries Lloyd allegedly sustained on August 11, 1995. Summary judgment on plaintiff’s Complaint is granted to U.S.A. Cycling, d/b/a NORBA and to Sugarloaf. In addition, summary judgment against Lloyd on their Counterclaims is granted to both U.S.A. Cycling, d/b/a NORBA and. Within thirty (30) days, counsel for these defendants shall submit proof of expenses, including attorney fees, incurred in defense of this action.

ORDER

Plaintiff’s motion for judgment on the pleadings is denied. The motions for summary judgment filed by defendants U.S.A. Cycling and Sugarloaf are granted. Judgment is granted to those defendants on Counts II and III of plaintiff’s amended complaint.

DOCKET ENTRY

The Clerk is directed to incorporate this Order in the docket by reference, in accordance with M.R.Civ.P. 79(a).

DATED: 20 August 2002

Ellen A. Gorman

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Maine Ski Area Safety Act

Maine Ski Area Safety Act

TITLE 14. COURT PROCEDURE–CIVIL

PART 2. PROCEEDINGS BEFORE TRIAL

CHAPTER 205. LIMITATION OF ACTIONS

SUBCHAPTER 1. GENERAL PROVISIONS

GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY

14 M.R.S. § 752-B (2012)

§ 752-B. Ski areas

All civil actions for property damage, bodily injury or death against a ski area owner or operator or tramway owner or operator or its employees, as defined under Title 32, chapter 133, whether based on tort or breach of contract or otherwise, arising out of participation in skiing or hang gliding or the use of a tramway associated with skiing or hang gliding must be commenced within 2 years after the cause of action accrues.

TITLE 32. PROFESSIONS AND OCCUPATIONS

CHAPTER 133. BOARD OF ELEVATOR AND TRAMWAY SAFETY

GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY

§ 15201. Declaration of policy

It is the policy of the State to protect its citizens and visitors from unnecessary mechanical hazards in the operation of elevators and tramways and to ensure that reasonable design and construction are used, that accepted safety devices and sufficient personnel are provided and that periodic maintenance, inspections and adjustments considered essential for the safe operation of elevators and tramways are made. The responsibility for design, construction, maintenance and inspection rests with the firm, person, partnership, association, corporation or company that owns elevators or tramways.

32 M.R.S. § 15202 (2012)

§ 15202. Definitions.

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. APPROVED. “Approved” means as approved by the Board of Elevator and Tramway Safety.

2. BOARD. “Board” means the Board of Elevator and Tramway Safety.

2-A. CHIEF INSPECTOR. “Chief inspector” means an individual in the employ of the State whose duties include the examination and inspection of elevators and tramways and who has been designated as chief inspector by the Commissioner of Professional and Financial Regulation.

3. COMMISSIONER. “Commissioner” means the Commissioner of Professional and Financial Regulation.

4. DEPARTMENT. “Department” means the Department of Professional and Financial Regulation.

4-A. DEPUTY INSPECTOR. “Deputy inspector” means an individual in the employ of the State whose duties include the examination and inspection of elevators and tramways under the direction of the chief inspector.

4-B. DIRECT SUPERVISION. “Direct supervision” means that a helper is working in the presence of a licensed elevator or lift mechanic at all times.

4-C. DIRECTOR. “Director” means the Director of the Office of Licensing and Registration.

5. ELEVATOR. “Elevator” includes an escalator or a manlift and means a guided hoisting and lowering mechanism equipped with a car, platform or load-carrying unit, including doors, well, enclosures, means and appurtenances. “Elevator” does not include an inclined stairway chairlift, a conveyor, chain or bucket hoist or a tiering, piling or feeding device. For the purposes of this subsection, “inclined stairway chairlift” means a mechanized chair apparatus running on a track or rail along the side of a staircase.

5-A. ELEVATOR CONTRACTOR. “Elevator contractor” means any person, firm, partnership, association, corporation or company engaged in the installation, sale, service, maintenance or inspection of elevators in this State.

6. ESCALATOR. “Escalator” means a power-driven, inclined and continuous stairway used for raising or lowering passengers.

7. REPEALED. Laws 2001, c. 573, § B-3.

7-A. HELPER. “Helper” means a person who is not licensed under this chapter as an elevator mechanic or lift mechanic and who assists in the installation, service or maintenance of elevators located in this State while working under the direct supervision of a licensed elevator mechanic or licensed lift mechanic.

7-B. LICENSED PRIVATE ELEVATOR INSPECTOR. “Licensed private elevator inspector” or “licensed private elevator and lift inspector” means an individual who has been licensed by the board to inspect elevators pursuant to this chapter and who is not a state employee whose duty is to inspect elevators.

8. LICENSED PRIVATE TRAMWAY INSPECTOR. “Licensed private tramway inspector” means an individual who has been licensed by the Board of Elevator and Tramway Safety to inspect tramways pursuant to this chapter and who is not a state employee whose duty is to inspect tramways.

9. MANLIFT. “Manlift” means a device, consisting of a power-driven, endless belt or chains, provided with steps or platforms and handholds attached to it for the transportation of personnel from floor to floor.

10. OPERATOR. “Operator” means the person or persons who physically operate an elevator or tramway.

11. OWNER. “Owner” means a firm, person, partnership, association, corporation or state or political subdivision that owns an elevator or tramway.

12. REPEALED. Laws 2001, c. 573, § B-6.

13. PHYSICALLY HANDICAPPED PERSON. “Physically handicapped person” means a person who has a physiological disability, infirmity, malformation, disfigurement or condition that eliminates or severely limits the person’s ability to have access to the person’s environment by normal ambulatory function, necessitating the use of crutches, a wheelchair or other similar device for locomotion.

14. SKIER. “Skier” means any person who engages in any of the activities described in section 15217, subsection 1, paragraph B.

15. SKI AREA. “Ski area” means the ski slopes and trails, adjoining skiable terrain, areas designated by the ski area operator to be used for skiing as defined by section 15217, subsection 1, paragraph B and passenger tramways administered or operated as a single enterprise within this State.

16. SKI INDUSTRY. “Ski industry” means the activities of all ski area operators.

17. SKI AREA OPERATOR. “Ski area operator” means a person or organization having operational responsibility for a ski area, including an agency or a political subdivision of this State.

18. REPEALED. Laws 2001, c. 573, § B-8.

19. TRAMWAY. “Tramway” means a device used to transport passengers uphill on skis or in cars on tracks or suspended in the air by the use of steel cables, chains or belts or by ropes usually supported by trestles or towers with one or more spans. “Tramway” includes the following:

A. Reversible aerial tramways, which are that class of aerial passenger tramways and lifts by which passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers reciprocate between terminals. This class includes:

1) Single-reversible tramways, which are a type of reversible lift or aerial tramway having a single carrier, or single group of carriers, that moves back and forth between terminals on a single path of travel, sometimes called “to-and-fro” aerial tramways; and

2) Double-reversible tramways, which are a type of reversible lift or aerial tramway having 2 carriers, or 2 groups of carriers, that oscillate back and forth between terminals on 2 separate paths of travel, sometimes called “jig-back” aerial tramways;

B. Aerial lifts and skimobiles, which are that class of aerial passenger tramways and lifts by which passengers are transported in carriers and are not in contact with the ground or snow surface, and in which the carriers circulate around a closed system and are activated by a wire rope or chain. The carriers usually make U-turns in the terminals and move along parallel and opposing paths of travel. The carriers may be open or enclosed cabins, chairs, cars or platforms. The carriers may be fixed or detachable. This class includes:

1) Gondola lifts, which are a type of lift or aerial tramway by which passengers are transported in open or enclosed cabins. The passengers embark and disembark while the carriers are stationary or moving slowly under a controlled arrangement;

2) Chair lifts, which are a type of lift or aerial tramway by which passengers are transported in chairs, either open or partially enclosed; and

3) Skimobiles, which are a type of lift or aerial tramway by which passengers are transported in open or enclosed cars that ride on a rigid structural system and are propelled by a wire rope or chain;

C. Surface lifts, which are that class of conveyance by which passengers are propelled by means of a circulating overhead wire rope while remaining in contact with the ground or snow surface. Transportation is limited to one direction. Connection between the passengers and the wire rope is by means of a device attached to and circulating with the haul rope known as a “towing outfit.” This class includes:

1) T-bar lifts, which are a type of lift in which the device between the haul rope and passengers forms the shape of an inverted “T,” propelling passengers located on both sides of the stem of the “T”;

2) J-bar lifts, which are a type of lift in which the device between the haul rope and passenger is in the general form of a “J,” propelling a single passenger located on the one side of the stem of the “J”; and

3) Platter lifts, which are a type of lift in which the device between the haul rope and passenger is a single stem with a platter or disk, attached to the lower end of the stem, propelling the passenger astride the stem of the platter or disk;

D. Tows, which are that class of conveyance in which passengers grasp a circulating haul rope, which may be natural or synthetic fiber or metallic, or a handle or gripping device attached to the circulating haul rope, and are propelled by the circulating haul rope. The passengers remain in contact with the ground or snow surface. The upward-traveling haul rope remains adjacent to the uphill track at an elevation that permits the passengers to maintain their grasp on the haul rope, handle or gripping device throughout the portion of the tow length that is designed to be traveled; and

E. Similar equipment not specified in this subsection, but conforming to at least one of the general descriptions in this subsection.

20. TRAMWAY PASSENGER. “Tramway passenger” means a person being transported or conveyed by a tramway, waiting in the immediate vicinity for transportation or conveyance by a tramway, moving away from the disembarkation or unloading point of a tramway to clear the way for the following passengers or boarding, embarking upon or disembarking from a tramway.

§ 15203. Retroactive effect; exception

This chapter may not be construed to prevent the use or sale of elevators in this State that were being used or installed prior to January 1, 1950 and that have been made to conform to the rules of the board covering existing installations and must be inspected as provided for in this chapter.

This chapter does not apply to elevators or tramways on reservations of the Federal Government, to elevators used for agricultural purposes on farms or to elevators located or maintained in private residences, as long as they are exclusively for private use.

§ 15204. Appeals; variances

A person aggrieved by an order or act of the chief inspector or a deputy inspector under this chapter may, within 15 days after notice of the order or act, appeal from the order or act to the board, which shall hold a hearing pursuant to Title 5, chapter 375, subchapter IV. After the hearing, the board shall issue an appropriate order either approving or disapproving the order or act.

Any person who is or will be aggrieved by the application of any law, code or rule relating to the installation or alteration of elevators or tramways may file a petition for a variance, whether compliance with that provision is required at the time of filing or at the time that provision becomes effective. The filing fee for a petition for a variance must be set by the director under section 15225-A. The chief inspector may grant a variance if, owing to conditions especially affecting the particular building or installation involved, the enforcement of any law, code or rule relating to elevators or tramways would do manifest injustice or cause substantial hardship, financial or otherwise, to the petitioner or any occupant of the petitioner’s building or would be unreasonable under the circumstances or condition of the property, provided that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of that law, code or rule. In granting a variance under this section, the chief inspector may impose limitations both of time and of use, and a continuation of the use permitted may be conditioned upon compliance with rules made and amended from time to time. A copy of the decision must be sent to all interested parties.

§ 15205. Board of Elevator and Tramway Safety

The Board of Elevator and Tramway Safety, as established by Title 5, section 12004-A, subsection 14, consists of 9 members, of whom 7 are appointed by the Governor. Of the 7 members of the board appointed by the Governor, one must be an owner or lessee of an elevator in the State; one must be a manufacturer of elevators; one must be a manufacturer or installer of accessibility lifts; one must be a licensed elevator mechanic; one must be a ski area operator presently operating tramways in the State; one must be a qualified licensed professional engineer who is familiar with tramway design, inspection and operation; and one must be a public member as defined in Title 5, section 12004-A. The 8th member of the board must be a physically handicapped person appointed by the Director of the Bureau of Rehabilitation Services, subject to the approval of the Governor. The 9th member of the board must be a member of the Division of Fire Prevention appointed by the Commissioner of Public Safety. Appointments are for 3-year terms. Appointments of members must comply with Title 10, section 8009. A member may be removed by the Governor for cause.

1. DELETED. Laws 2007, c. 402, § NN-1.

2. MEETINGS; CHAIR; QUORUM. The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Five members of the board constitute a quorum.

3. DELETED. Laws 2007, c. 402, § NN-1.

§ 15205. Board of Elevator and Tramway Safety

The Board of Elevator and Tramway Safety, as established by Title 5, section 12004-A, subsection 14, consists of 9 members, of whom 7 are appointed by the Governor. Of the 7 members of the board appointed by the Governor, one must be an owner or lessee of an elevator in the State; one must be a manufacturer of elevators; one must be a manufacturer or installer of accessibility lifts; one must be a licensed elevator mechanic; one must be a ski area operator presently operating tramways in the State; one must be a qualified licensed professional engineer who is familiar with tramway design, inspection and operation; and one must be a public member as defined in Title 5, section 12004-A. The 8th member of the board must be a physically handicapped person appointed by the Director of the Bureau of Rehabilitation Services, subject to the approval of the Governor. The 9th member of the board must be a member of the Division of Fire Prevention appointed by the Commissioner of Public Safety. Appointments are for 3-year terms. Appointments of members must comply with Title 10, section 8009. A member may be removed by the Governor for cause.

1. DELETED. Laws 2007, c. 402, § NN-1.

2. MEETINGS; CHAIR; QUORUM. The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members. Five members of the board constitute a quorum.

3. DELETED. Laws 2007, c. 402, § NN-1.

§ 15206. Powers and duties of board

The board shall administer, coordinate and enforce this chapter and has the following powers and duties in addition to those otherwise set forth in this chapter.

1. RULES. The board shall, in accordance with Title 5, chapter 375, adopt rules to implement the purposes of this chapter, including rules for the safe and proper construction, installation, alteration, repair, use, operation and inspection of elevators and tramways in the State. The rules must include standards for the review and audit of inspections performed by licensed private elevator inspectors not employed by the State. The rules must conform as nearly as practicable to the established standards as approved by the American National Standards Institute or its successor or other organization approved by the board. Rules adopted by the board under this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

Board rules that are standards of the American National Standards Institute or its successor or other organization approved by the board must be obtained from the publisher.

2, 3. DELETED. Laws 2007, c. 402, § NN-2.

§ 15206-A. Denial or refusal to renew license; disciplinary action

The board may deny a license, refuse to renew a license or impose the disciplinary sanctions authorized by Title 10, section 8003, subsection 5-A for any of the reasons enumerated in Title 10, section 8003, subsection 5-A, paragraph A.

§ 15207.  Repealed. Laws 1999, c. 687, § F-11

§ 15208.  Examination of private elevator and lift inspectors; licenses and renewals

The board shall set standards necessary for the licensure and renewal of private elevator and lift inspectors. The board may adopt rules relating to the qualifications for licensure and renewal of private elevator and lift inspectors, including requirements for examination and continuing education. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. The fee for applications, examinations, licenses and renewals must be established by the director pursuant to section 15225-A and Title 10, section 8003, subsection 2-A, paragraph D. Licenses are issued for a period of one year.

An elevator contractor or a person who is licensed as a private elevator and lift inspector who services an elevator or lift equipment may not inspect that elevator or lift equipment within 12 months from the date of servicing that elevator or lift equipment.

§ 15208-A.  Registration of elevator contractors

Any person, firm, partnership, association, corporation or company engaged in the installation, sale, service, maintenance or inspection of elevators in this State shall register with the board annually. The registration must be submitted on a form provided by the board and must include the names and addresses of all licensed private inspectors, licensed mechanics and all helpers employed by the elevator contractor. An elevator contractor shall notify the board of any change in the information required under this section within 30 days of the change. The required fee for registration must be set by the director under section 15225-A.

§ 15209. Examination of private tramway inspectors; licenses

The board shall license an applicant as a private tramway inspector, who may perform the inspections required on tramways, if that applicant:

1. REGISTRATION. Is a professional engineer with a current valid registration in some state. If an applicant for a private tramway inspector’s license demonstrates to the board that the applicant possesses more than 6 years’ experience in the construction, design, inspection and operation of tramways, this registration requirement may be waived by the board;

2. EXPERIENCE. Has considerable experience in the construction, design or maintenance of tramways;

3. EXPERIENCE IN INSPECTING. Has 4 years’ experience inspecting tramways while working for an insurance company, a government agency or a company performing tramway or similar equipment inspections;

4. CAPABILITY AND APTITUDE. Has the physical capability and aptitude to perform the duties of a private tramway inspector in a safe and thorough manner; and

5. EXAMINATION. Has sufficient experience and knowledge to achieve a satisfactory rating in an examination designed to test the applicant’s knowledge of orders and principles of tramway safety. When an applicant for a private tramway inspector’s license demonstrates more than 6 years’ experience in the construction, design, inspection and operation of tramways, the provisions for examination must be waived.

A. The examination for a licensed private tramway inspector must be given by the chief inspector or by 2 or more examiners appointed by the chief inspector. The examination must be written, in whole or in part, and must be confined to questions the answers to which will aid in determining the fitness and competency of the applicant for the intended service and must be of uniform standard throughout the State.

B. Deleted. Laws 2001, c. 573, § B-15.

C. A private tramway inspector’s license is issued for a period of one year. The license fee must be set by the director under section 15225-A.

D. Applications for examination and license must be on forms furnished by the board. The examination fee for a private tramway inspector’s license must be set by the director under section 15225-A.

§ 15209-A. Private wire rope inspectors; licenses

The board shall license an applicant as a private wire rope inspector, who may perform the inspections required for each tramway equipped with wire rope, if that applicant has a total of 5 years’ experience in wire rope manufacture, installation, maintenance or inspection. A private wire rope inspector’s license is issued for a period of one year. The license fee must be set by the director under section 15225-A.

§ 15210. Revocation of private tramway or elevator inspector’s license

The board may revoke a private tramway, elevator or lift inspection license or remove inspection endorsements from an elevator or lift mechanic’s license for the following causes:

1. FAILURE TO SUBMIT TRUE REPORTS. For failure to submit true reports concerning the conditions of a tramway or elevator or for conduct determined by the board to be contrary to the best interests of tramway or elevator safety or the board;

2. PHYSICAL INFIRMITIES. For physical infirmities that develop to a point at which it appears that an inspector or mechanic is no longer able to perform the required duties in a thorough and safe manner; or

3. REPEALED. Laws 2007, c. 402, § NN-4.

§ 15211. Notice of accidents

1. REPORTING ACCIDENTS. Each elevator or tramway accident that is caused by equipment failure or results in significant injury to a person or results in substantial damage to equipment must be reported by the owner or lessee to the chief inspector in accordance with the board’s rules.

2. REVOCATION OF CERTIFICATE. When an elevator or tramway accident as described in subsection 1 occurs, the inspection certificate for the involved elevator or tramway may be summarily revoked in accordance with and subject to the standards and limitations of Title 5, section 10004, pending decision on any application with the District Court for a further suspension.

§ 15212. Examination of accidents

The chief inspector may examine or cause to be examined the cause, circumstances and origin of all elevator or tramway accidents within the State. Upon request, the chief inspector shall furnish to the proper district attorney the names of witnesses and all information obtained.

§ 15213. Elevator or lift mechanics; license; definition

A person may not service, repair, alter or install any elevator unless that person is licensed as an elevator or lift mechanic under this chapter. Elevator work in industrial plants and manufacturing plants may be performed by plant personnel who are not licensed under this chapter if the work is supervised by the plant engineer and performed in compliance with rules adopted by the board.

The word “elevator,” as used in this chapter, includes all electrical equipment, wiring, steelwork and piping in the elevator machine room, hoistway and pit pertaining to the operation and control of an elevator, except power feeders and required power equipment up to the control panel, heating, lighting, ventilation and drainage equipment.

CASE NOTES

1. Term “industrial plant” would be understood by an ordinary man to apply to any factory, business, or concern that is engaged primarily in the manufacture or assembly of goods or the processing of raw materials or both. Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).

2. By no stretch of the imagination could a bank building, a hotel, a theater, an office building, or a restaurant be considered an industrial plant; while one sometimes speaks of “the movie industry,” the “hotel industry,” or “the banking industry,” that is merely a loose use of language to convey that idea that the particular business is a sizeable one; in spite of that colloquialism, we do not speak of the buildings housing such businesses as “industrial plants.” Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).

3. Insurance company’s home office, which consisted of office facilities at which its employees worked, was not an “industrial plant” as that term is used in former Me. Rev. Stat. Ann. tit. 26, § 439 (now Me. Rev. Stat. Ann. tit. 32, § 15213). Union Mut. Life Ins. Co. v. Emerson, 345 A.2d 504, 1975 Me. LEXIS 300 (Me. 1975).

§ 15214. Issuance; qualifications

The board shall issue an elevator or lift mechanic’s license to any applicant who has at least 2 years’ experience in the service, repair, alteration or installation of elevators and lifts while employed by an elevator company, or has equivalent experience as defined by rules of the board, and meets the requirements established pursuant to section 15216.

A licensed elevator or lift mechanic may not have more than 2 helpers under direct supervision. These helpers need not be licensed.

A licensed elevator or lift mechanic shall comply with the provisions of this chapter and the rules adopted by the board. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.

§ 15215.  Repealed. Laws 2001, c. 573, § B-22

§ 15216. Examination of elevator or lift mechanics; applications; licenses; renewals

The board shall set standards necessary for the licensure and renewal of elevator or lift mechanics. The board may adopt rules relating to the qualifications for licensure and renewal of elevator or lift mechanics, including requirements for examination and continuing education. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A. The fee for applications, examinations, licenses and renewals must be established by the director pursuant to section 15225-A and Title 10, section 8003, subsection 2-A, paragraph D. Licenses are issued for a period of one year.

§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24

§§ 15216-A, 15216-B. Repealed. Laws 2001, c. 573, § B-24

§ 15216-C. License renewal

Any license issued under this chapter is renewable upon satisfaction of the applicable requirements for renewal and payment of the renewal fee as set by the director under section 15225-A. The expiration dates for licenses issued under this chapter may be established at such other times as the commissioner may designate.

A license may be renewed up to 90 days after the date of its expiration upon payment of a late fee in addition to the renewal fee as set under section 15225-A. Any person who submits an application for renewal more than 90 days after the license expiration date must pay an additional late fee as set under section 15225-A and is subject to all requirements governing new applicants under this chapter, except that the board may in its discretion waive the examination and other requirements. Notwithstanding any other provision of this chapter, the board shall waive the examination if a renewal application is made within 90 days after separation from the United States Armed Forces, under conditions other than dishonorable, by a person who failed to renew that person’s license because that person was on active duty in the Armed Forces; except that the waiver of examination may not be granted if the person served a period of more than 4 years in the Armed Forces, unless that person is required by some mandatory provision to serve a longer period and that person submits satisfactory evidence of this mandatory provision to the board.

§ 15217. Skiers’ and tramway passengers’ responsibilities

1. DEFINITIONS. As used in this section, unless the context otherwise indicates, the following terms have the following meanings.

A. “Inherent risks of skiing” means those dangers or conditions that are an integral part of the sport of skiing, including, but not limited to: existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, slush and granular, corn, crust, cut-up and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, forest growth, rocks, stumps, trees and other natural objects and collisions with or falls resulting from such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects and their components, and collisions with or falls resulting from such man-made objects; variations in steepness or terrain, whether natural or as a result of slope design; snowmaking or snow-grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.

B. “Skiing” means the use of a ski area for snowboarding or downhill, telemark or cross-country skiing; for sliding downhill or jumping on snow or ice on skis, a toboggan, sled, tube, snowboard, snowbike or any other device; or for similar uses of any of the facilities of the ski area, including, but not limited to, ski slopes, trails and adjoining terrain.

C. “Skier” means any person at a ski area who participates in any of the activities described in paragraph B.

D. “Competitor” means a skier actually engaged in competition or a special event or training or practicing for competition or a special event on any portion of the ski area made available by the ski area operator.

E. “Freestyle terrain” includes, but is not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes and all other constructed or natural features, halfpipes, quarterpipes and freestyle-bump terrain.

2. ACCEPTANCE OF INHERENT RISKS. Because skiing as a recreational sport and the use of passenger tramways associated with skiing may be hazardous to skiers or passengers, regardless of all feasible safety measures that may be taken, each person who participates in the sport of skiing accepts, as a matter of law, the risks inherent in the sport and, to that extent, may not maintain an action against or recover from the ski area operator, or its agents, representatives or employees, for any losses, injuries, damages or death that result from the inherent risks of skiing.

3. WARNING NOTICE. A ski area operator shall post and maintain at the ski area where the lift tickets and ski school lessons are sold and at the loading point of each passenger tramway signs that contain the following warning notice:

WARNING:

Under Maine law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including, but not limited to: existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, corn, crust and slush and cut-up, granular and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, rocks, stumps, trees, forest growth or other natural objects and collisions with such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities.

4. DUTY TO SKI WITHIN LIMITS OF ABILITY. A skier has the sole responsibility for knowing the range of the skier’s own ability to negotiate any slope or ski trail, and it is the duty of the skier to ski within the limits of the skier’s own ability, to maintain control of the rate of speed and the course at all times while skiing, to heed all posted and oral warnings and instructions by the ski area operator and to refrain from acting in a manner that may cause or contribute to the injury of the skier or others.

4-A. COMPETITION AND FREESTYLE TERRAIN. A competitor accepts all inherent risks of skiing and all risks of course, venue and area conditions, including, but not limited to: weather and snow conditions; obstacles; course or feature location, construction and layout; freestyle terrain configuration and condition; collision with other competitors; and other courses, layouts and configurations of the area to be used.

5. RESPONSIBILITY FOR COLLISIONS. The responsibility for a collision between any skier while skiing and any person or object is solely that of the skier or skiers involved in the collision and not the responsibility of the ski area operator or its agents, representatives or employees.

6. LIABILITY. A ski area operator or its agents, representatives or employees are not liable for any loss, injury, damage or death resulting from the design of the ski area.

7. PROVISION OF NAME AND CURRENT ADDRESS REQUIRED. A skier involved in, causing or contributing to a collision or other accident at a ski area that results in a fall or injury may not leave the vicinity of the collision or accident before giving that skier’s name and current address to an employee or representative of the ski area operator or a member of the ski patrol, except for the purpose of securing aid for a person injured in the collision, in which case the person leaving the scene of the collision shall give that skier’s name and current address after securing such aid. A ski area operator, or its agents, representatives or employees, is not liable for a skier’s failure to provide that skier’s name and address or for leaving the vicinity of an accident or collision.

8. ACTIONS NOT PROHIBITED. This section does not prevent the maintenance of an action against a ski area operator for:

A. The negligent operation or maintenance of the ski area; or

B. The negligent design, construction, operation or maintenance of a passenger tramway.

CASE NOTES

1. In a negligence action arising from the collision of two skiers, plaintiff and defendant, the clear intent under Maine law to confine the responsibility for skiing accidents to those skiers involved, coupled with the lack of an agreement of any sort between plaintiff and defendant as to any allocation of responsibility for any such accident, defendant failed to prove by a preponderance of the evidence that he should prevail as a matter of law on his defense of assumption of risk. Bresnahan v. Bowen, 263 F. Supp. 2d 131, 2003 U.S. Dist. LEXIS 8623 (D. Me. 2003).

2. Proposed instruction by an injury claimant in a skiing accident case that a ski slope operator had a duty to protect the public from a recurring dangerous condition and to protect skiers from unseen hazards by adequately warning of or removing the hazard was not given by the trial court, which was an exercise of its proper discretion because the instruction might have been inconsistent with the intended immunity from liability for inherent risks provided by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), and the trial court’s instructions adequately charged the issues raised. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

3. Former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) did not support the application of a primary assumption of the risk defense, and the statute also lacked any language that added proof of the nonexistence of an inherent risk to the elements of a skier’s negligence claim. Former § 488 established a relatively simple and straightforward process, which, first, protected ski area operators from strict liability claims that otherwise might arise from allegations that ski area operation is an inherently dangerous activity, and second, stated that establishing liability required an injured skier to prove that the skier’s damages were caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

4. In a personal injury action that arose from a skiing accident, the trial court erred in its application of former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) where it required the injured skier to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence in order to demonstrate causation. The trial court’s instruction that the skier had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to the skier and constituted prejudicial error. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

5. Under former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), a defending ski slope operator could rely on an injury claimant’s burden to prove negligence and causation by a preponderance of the evidence and could assert that the injury claimant failed to meet that burden, or if a ski slope operator went beyond relying on the injury claimant’s burden of proof to assert affirmatively that the injury claimant’s damages were caused not by the ski slope operator’s negligence, but by some other causative factor, be that inherent risk, independent intervening event, comparative fault, or any other theory, the burden shifted to the ski slope operator to prove by a preponderance of the evidence that the other condition or factor caused the injury claimant’s damages in whole or in part. Whether to assume such a burden or rely on the injury claimant’s burden of proof on causation was a matter of the defending ski slope operator’s choice and trial strategy, but a ski slope operator who chose to affirmatively claim causation by inherent risk had to prove it by a preponderance of the evidence. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

6. Under Me. Rev. Stat. Ann. tit. 32, § 15217(1)(A) and (2), a ski area was immune from an injured skier’s tort suit arising out of a collision with a snow-making hydrant; thus, summary judgment for the ski area was proper. The skier’s contention that his claim was cognizable under § 15217(8) if the ski area had been negligent in the operation and maintenance of the snow-making hydrant was without merit because such a suit must not arise out of an inherent risk of skiing, of which a collision with snow-making equipment is such a risk. Green v. Sunday River Skiway Corp., 81 F. Supp. 2d 122, 1999 U.S. Dist. LEXIS 19890 (D. Me. 1999).

7. Former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) does not specify what risks are inherent in skiing, and in the absence of such statutory specification, whether a skier’s injury results from an inherent risk depends on the factual circumstances of each case. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

8. Whether a ski area is protected from liability by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) depends on whether the skier’s injuries resulted from an inherent risk; if the skier’s injuries result from a risk that is inherent in the sport, the ski area is not liable for those injuries because the ski area has no duty to protect or warn the skier of such dangers, but if the skier’s injuries are not caused by an inherent risk, the trier of fact must determine whether the injuries are actually caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

9. Trial court did not err in granting the ski area operator’s motion for summary judgment because no negligence was demonstrated where Me. Rev. Stat. Ann. tit. 32, § 15217 did not impose any duty on ski area operators to instruct skiers or snow tubers on safety measures; the only affirmative duty placed on ski area operators was the posting of a warning pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217(3), a duty with which the ski area operator complied. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).

10. Proposed instruction by an injury claimant in a skiing accident case that a ski slope operator had a duty to protect the public from a recurring dangerous condition and to protect skiers from unseen hazards by adequately warning of or removing the hazard was not given by the trial court, which was an exercise of its proper discretion because the instruction might have been inconsistent with the intended immunity from liability for inherent risks provided by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), and the trial court’s instructions adequately charged the issues raised. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

11. Whether a ski area is protected from liability by former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) depends on whether the skier’s injuries resulted from an inherent risk; if the skier’s injuries result from a risk that is inherent in the sport, the ski area is not liable for those injuries because the ski area has no duty to protect or warn the skier of such dangers, but if the skier’s injuries are not caused by an inherent risk, the trier of fact must determine whether the injuries are actually caused by the negligent operation or maintenance of the ski area. Merrill v. Sugarloaf Mt. Corp., 1997 ME 180, 698 A.2d 1042, 1997 Me. LEXIS 186 (1997), remanded by 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

12. In a personal injury action that arose from a skiing accident, the trial court erred in its application of former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217) where it required the injured skier to assume a double burden of proof: first, to prove the negative of inherent risk and, second, to prove the affirmative of negligence in order to demonstrate causation. The trial court’s instruction that the skier had the burden to disprove causation by the dangers inherent in the sport of skiing improperly shifted the burden of proof to the skier and constituted prejudicial error. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

13. Under former Me. Rev. Stat. Ann. tit. 26, § 488 (now Me. Rev. Stat. Ann. tit. 32, § 15217), a defending ski slope operator could rely on an injury claimant’s burden to prove negligence and causation by a preponderance of the evidence and could assert that the injury claimant failed to meet that burden, or if a ski slope operator went beyond relying on the injury claimant’s burden of proof to assert affirmatively that the injury claimant’s damages were caused not by the ski slope operator’s negligence, but by some other causative factor, be that inherent risk, independent intervening event, comparative fault, or any other theory, the burden shifted to the ski slope operator to prove by a preponderance of the evidence that the other condition or factor caused the injury claimant’s damages in whole or in part. Whether to assume such a burden or rely on the injury claimant’s burden of proof on causation was a matter of the defending ski slope operator’s choice and trial strategy, but a ski slope operator who chose to affirmatively claim causation by inherent risk had to prove it by a preponderance of the evidence. Merrill v. Sugarloaf Mt. Corp., 2000 ME 16, 745 A.2d 378, 2000 Me. LEXIS 22 (2000).

14. Trial court did not err in granting the ski area operator’s motion for summary judgment because the injured patron was barred from recovery pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217 where the patron’s injury resulted from a collision with a hillock, and collisions with or falls resulting from natural and manmade objects were included within the inherent risks of skiing. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).

15. Trial court did not err in granting the ski area operator’s motion for summary judgment because no negligence was demonstrated where Me. Rev. Stat. Ann. tit. 32, § 15217 did not impose any duty on ski area operators to instruct skiers or snow tubers on safety measures; the only affirmative duty placed on ski area operators was the posting of a warning pursuant to Me. Rev. Stat. Ann. tit. 32, § 15217(3), a duty with which the ski area operator complied. Maddocks v. Whitcomb, 2006 ME 47, 896 A.2d 265, 2006 Me. LEXIS 47 (2006).

§ 15218. Duties of skiers and tramway passengers; acts prohibited

A person engaged in skiing or riding on a tramway may not:

1. EMBARK OR DISEMBARK FROM TRAMWAY EXCEPT AS DESIGNATED. Embark or disembark from any tramway, except at a designated area;

2. THROW OR EXPEL OBJECTS FROM TRAMWAY. While riding on any tramway or similar device, throw or expel any object or do any act or thing that interferes with the running of that tramway;

3. ENGAGE IN HARMFUL CONDUCT. While riding on any tramway, willfully engage in any type of conduct that will contribute to or cause injury to any person, or to the tramway, or willfully place any object in the uphill ski track that will cause injury to any person or cause damage to or derailment of the tramway;

4. CLOSED TRAILS. Ski or otherwise use a slope or trail that has been designated “closed” by the operator without written permission of the operator or the operator’s designee;

5. REMOVAL OR DESTRUCTION OF SIGNS. Remove, alter, deface or destroy any sign or notice placed in the ski area or on the trail by the operator; or

6. OUT-OF-BOUNDS AREAS. Ski or otherwise use any portion of the ski area that is not a part of a regular network of trails or areas open to the public, including wooded areas between trails, undeveloped areas and all other portions not open to the public, if the operator has properly posted these areas as being closed to public access.

§ 15219. Hang gliding

Hang gliding is also recognized as a hazardous sport. Therefore, a person who is hang gliding is deemed to have assumed the risk and legal responsibility for any injury to the hang glider’s person or property in the same manner and to the same extent as skiers under this chapter.

§ 15220. Penalties

1. VERBAL WARNING; FORFEITURE OF LIFT TICKET. Any owner, manager or employee of any ski area, who finds a person in violation of section 15218, may first issue a verbal warning to that individual or suspend the individual’s lift use privileges. Any person who fails to heed the warning issued by the ski area owner, manager or employee shall forfeit the ski lift ticket and ski lift use privileges and must be refused issuance of another lift ticket and is liable for any damages to the tramway and its incidental equipment that have been caused by the individual’s misconduct.

2. COST OF RESCUE OPERATION. When it is necessary to commence a rescue operation as a result of a violation of section 15218, subsection 6, any person who has committed the violation is liable for the cost of that rescue operation.

§ 15221. Inspection of elevators and tramways

1. FEES; INSPECTION CERTIFICATE. Each elevator or tramway proposed to be used within this State must be thoroughly inspected by either the chief inspector, a deputy inspector or a licensed private elevator or tramway inspector and, if found to conform to the rules of the board, the board shall issue to the owner an inspection certificate. Fees for inspection and certification of elevators and tramways must be set by the director under section 15225-A and must be paid by the owner of the elevator or tramway. The certificate must specify the maximum load to which the elevator or tramway may be subjected, the date of its issuance and the date of its expiration. The elevator certificate must be posted in the elevator and the tramway certificate at a conspicuous place in the machine area.

2. SCHEDULED INSPECTIONS. The owner of an elevator shall have the elevator inspected annually by a licensed private elevator inspector, the chief inspector or a deputy inspector. The owner of a tramway shall have the tramway inspected by a licensed private tramway inspector, the chief inspector or a deputy inspector twice each year. One tramway inspection must be made when weather conditions permit a complete inspection of all stationary and moving parts. The 2nd tramway inspection must be made while the tramway is in operation.

3. TEMPORARY SUSPENSION OF INSPECTION CERTIFICATE; CONDEMNATION CARD. When, in the inspector’s opinion, the elevator or tramway can not continue to be operated without menace to the public safety, the chief inspector or deputy inspector may temporarily suspend an inspection certificate in accordance with Title 5, section 10004 and post or direct the posting of a red card of condemnation at every entrance to the elevator or tramway. The condemnation card is a warning to the public and must be of such type and dimensions as the board determines. The suspension continues, pending decision on any application with the District Court for a further suspension. The condemnation card may be removed only by the inspector posting it or by the chief inspector.

4. SPECIAL CERTIFICATE; SPECIAL CONDITIONS. When, upon inspection, an elevator or tramway is found by the inspector to be in reasonably safe condition but not in full compliance with the rules of the board, the inspector shall certify to the chief inspector the inspector’s findings and the chief inspector may issue a special certificate, to be posted as required in this section. This certificate must set forth any special conditions under which the elevator or tramway may be operated.

5. INSPECTION REPORTS. Licensed private tramway and elevator inspectors shall submit inspection reports to the owner on a form provided by the board within 15 working days from the date of the inspection.

6. FOLLOW-UP INSPECTIONS. All follow-up inspections necessary to enforce compliance must be performed by either the chief inspector or a deputy inspector. A fee set by the director under section 15225-A must be charged for those follow-up inspections.

7. CERTIFICATE NOT TRANSFERABLE. An inspection certificate may not be transferred to any other person, firm, corporation or association. If ownership of an elevator or tramway is transferred, the new owner must apply for a new inspection certificate as required by section 15229, subsection 7.

§ 15222. Condemned elevators and tramways not to be operated

An elevator or tramway that has been condemned under section 15221 may not be operated in this State. Any person who owns or operates or causes to be operated for other than repair or corrective purposes an elevator or tramway in violation of this section commits a Class E crime and must be punished by a fine of not more than $ 500 or by imprisonment for not more than 6 months, or by both.

§ 15223. Criminal operation of elevator or tramway

1. PROHIBITION. An owner of an elevator or tramway is guilty of criminal operation of an elevator or tramway if that owner operates that elevator or tramway without a current and valid inspection certificate.

2. STRICT LIABILITY. Criminal operation of an elevator or tramway is a strict liability crime as defined in Title 17-A, section 34, subsection 4-A.

3. SPECIFIC NUMBER OF DAYS OF CRIMINAL OPERATION. Each day of criminal operation does not constitute a separate crime.

4. CLASS OF CRIME; ENHANCED FINE. Criminal operation of an elevator or tramway is a Class E crime. However, notwithstanding Title 17-A, section 1301, subsection 1-A, paragraph E or Title 17-A, section 1301, subsection 3, paragraph E, the court may impose an enhanced fine. The fine amount above that authorized under Title 17-A, section 1301 is based solely on the number of days of criminal operation pleaded and proved by the State. For each day of criminal operation pleaded and proved, the court may increase the fine amount by up to $ 100 for each of those days.

5. IMPOSITION OF SENTENCE WITHOUT ENHANCED FINE. Nothing in subsection 3 or 4 may be construed to restrict a court, in imposing any authorized sentencing alternative, including a fine in an amount authorized under Title 17-A, section 1301, subsection 1-A, paragraph E or Title 17-A, section 1301, subsection 3, paragraph E, from considering the number of days of illegal operation, along with any other relevant sentencing factor, which need not be pleaded or proved by the State.

§ 15224. Installation of new elevators and tramways; fees

Detailed plans or specifications of each new or altered elevator or tramway must be submitted to and approved by the chief inspector before the construction may be started. Fees for examination of the plans or specifications must be set by the director under section 15225-A.

§ 15225. Repealed. Laws 2001, c. 573, § B-29

§ 15225-A. Fees

The Director of the Office of Licensing and Registration within the Department of Professional and Financial Regulation may establish by rule fees for purposes authorized under this chapter in amounts that are reasonable and necessary for their respective purposes, except that the fee for any one purpose other than permit and inspection fees may not exceed $ 500. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

§ 15226. Reports by inspectors

A deputy inspector or licensed private inspector shall make a full report to the chief inspector, giving all data required by the rules adopted by the board and shall report to the chief inspector and to the owner all defects found and all noncompliances with the rules. When any serious infraction of the rules is found by a deputy inspector or licensed private inspector and that infraction is, in the opinion of the inspector, dangerous to life, limb or property, the inspector shall report that infraction immediately to the chief inspector.

§ 15227. Powers of chief inspector

The board is authorized to investigate all elevator and tramway accidents that result in injury to a person or in damage to the installation.

The chief inspector is authorized:

1. ENFORCE LAWS AND RULES. To enforce the laws of the State governing the use of elevators and tramways and to enforce adopted rules of the board;

2. FREE ACCESS TO PREMISES OR LOCATION. To provide free access for deputy inspectors, including the chief inspector, at all reasonable times to any premises in the State where an elevator or tramway is installed or is under construction for the purpose of ascertaining whether that elevator or tramway is installed, operated, repaired or constructed in accordance with this chapter;

3. SUPERVISE INSPECTORS. To allocate and supervise the work of deputy inspectors;

4. CERTIFICATES. To issue and temporarily suspend certificates allowing elevators and tramways to be operated pursuant to Title 5, chapter 375;

5. EXAMINATIONS. To hold examinations and establish the fitness of applicants to become licensed private elevator or tramway inspectors or elevator mechanics, and to issue certificates or licenses to those persons who have successfully passed required examinations and been approved by the board as licensed private elevator or tramway inspectors or elevator mechanics; and

6. TAKE UNINSPECTED OR UNREPAIRED ELEVATORS AND TRAMWAYS OUT OF SERVICE. To take an elevator or tramway out of service in accordance with Title 5, section 10004 if an inspection report has not been submitted to the board within 60 days of the expiration of the most recent certificate or if the owner has failed to make repairs as required by the board. This power is in addition to the chief inspector’s powers under section 15221, subsection 3.

§ 15228. Elevator size

1. REQUIREMENTS. Notwithstanding section 15206, whenever a passenger elevator is installed in a building being newly constructed or in a new addition that extends beyond the exterior walls of an existing building, the passenger elevator must reach all levels within the building and be of sufficient size to allow the transport of a person on an ambulance stretcher in the fully supine position, without having to raise, lower or bend the stretcher in any way. This requirement applies to all plans approved by the board after January 1, 2002. The board shall adopt rules necessary to carry out the provisions of this section. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter II-A.

2. APPLICABILITY. This section applies only to multi-story buildings that house private entities or nonprofit organizations that serve the public or are places of public accommodation. Notwithstanding Title 5, section 4553, subsection 8, places of public accommodation include restaurants, cafes, hotels, inns, banks, theaters, motion picture houses, bars, taverns, night clubs, country clubs, convention centers, retail stores, shopping centers, hospitals, private schools, day care centers, senior citizen centers, doctor offices, professional offices, manufacturing facilities, apartment buildings, condominiums, state facilities or any private establishment that in fact caters to, or offers its goods, facilities or services to, or solicits or accepts patronage from, the general public. This section does not apply to any building owned by a local unit of government.

§ 15229. Duties of owners of elevators or tramways

1. OWNER RESPONSIBILITY. The responsibility for design, construction, maintenance and inspection of an elevator or tramway rests with the person, firm, partnership, association, corporation or company that owns the elevator or tramway.

2. OBTAIN INSPECTION CERTIFICATE. The owner of an elevator or tramway shall submit an annual application for an annual inspection certificate together with the inspection report within 30 business days of the inspection and prior to the expiration of the current certificate. The application must be on a form provided by the board and must be accompanied by the required fee set by the director under section 15225-A. A late fee set by the director under section 15225-A may be assessed for failure to submit the application and inspection report in a timely manner.

3. FAILURE TO QUALIFY FOR INSPECTION CERTIFICATE. The owner of an elevator or tramway that does not qualify for an inspection certificate shall take the elevator or tramway out of operation until the required repairs have been made and a new inspection certificate has been issued.

4. NOTIFY BOARD WHEN REQUIRED REPAIRS MADE. The owner of an elevator or tramway shall notify the board when required repairs have been made and provide the board with satisfactory evidence of completion.

5. ELEVATOR OR TRAMWAY DECLARED IDLE OR PLACED OUT OF SERVICE. The owner of an elevator or tramway that has been declare d idle or placed out of service in accordance with rules adopted by the board shall notify the board within 30 days of declaring the elevator or tramway idle.

6. REMOVAL. The owner of an elevator or tramway shall notify the board within 30 days of the removal of the elevator or tramway.

7. CHANGE OF OWNERSHIP. The owner of record of an elevator or tramway shall notify the board of a transfer of ownership of an elevator within 30 days of such transfer. The new owner shall apply, on a form provided by the board, for a new inspection certificate that will be issued without the need for an additional inspection for the remainder of the term of the current certificate. A fee for issuance of a new inspection certificate may be set by the director under section 15225-A.

8. FAILURE TO COMPLY. In addition to the remedies available under this chapter, an owner who fails to comply with the provisions of this chapter or rules adopted by the board is subject to the provisions of Title 10, section 8003, subsection 5 whether or not the elevator or tramway has a current inspection certificate, except that, notwithstanding Title 10, section 8003, subsection 5, paragraph A-1, subparagraph 3, a civil penalty of up to $ 3,000 may be imposed for each violation.


Discover Maine in a whole new way!

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Discover Maine by Bike

 

The Bicycle Coalition of Maine has launched a week-long bicycle ride, BikeMaine, that will run from September 7-14, 2013.

The 400 mile loop ride travels on mostly rural, low traffic roads offering magnificent scenery and allows riders to explore six host communities, each providing a unique Maine experience:  college town, mill town, arts community, historic maritime village, summer colony, and traditional Maine camp.

Riders will enjoy meals featuring locally sourced, in season food, tours and nightly entertainment. The $875 registration fee includes a fully supported route, 18 meals, ample beverages and snacks during each day’s ride, baggage transport, camping facilities, hot showers, and other rider amenities.

Visit BikeMaine for more detailed information.  This year’s ride is limited to 350 riders, so sign up today to ensure your place in the inaugural BikeMaine ride. 

What do you think? Leave a comment.

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Maine Sales Representative

Maine Revised Statutes Annotated by LexisNexis(R)

TITLE 10. COMMERCE AND TRADE

PART 3. REGULATION OF TRADE

CHAPTER 210-A. SALES REPRESENTATIVE COMMISSION CONTRACTS

GO TO MAINE REVISED STATUTES ARCHIVE DIRECTORY

10 M.R.S. § 1341 (2012)

§ 1341. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. COMMISSIONS. “Commissions” means compensation accruing to a sales representative for payment by a principal, the rate of which is expressed as a percentage of the amount of orders or sales.

2. PRINCIPAL. “Principal” means a person, partnership, corporation or other business entity that does not have a permanent or fixed place of business in this State and that:

A. Manufactures, produces, imports or distributes a product for wholesale;

B. Contracts with sales representatives to solicit orders for the product; and

C. Compensates the sales representative, in whole or in part, by commission.

3. SALES REPRESENTATIVE. “Sales representative” means a person who:

A. Contracts with a principal to solicit orders for the purchase at wholesale of the principal’s product;

B. Is compensated, in whole or in part, by commission; and

C. Does not place orders or purchase for that person’s own account or for resale.

§ 1342. Notice of termination

Unless a contract between a sales representative and a principal provides otherwise, a party terminating the contract must give the other party 14 days’ written notice of the termination.

§ 1343. Contract

If a contract between a sales representative and a principal is terminated, the principal shall pay to the sales representative all commissions accrued under the contract within 30 days after the effective date of that termination. Any provision of any contract between a sales representative and a principal that purports to waive any provision of this chapter is void.

§ 1344. Civil liability

1. PRINCIPAL LIABILITY. A principal who fails to comply with the provisions of section 1343 is liable to the sales representative in a civil action for exemplary damages in an amount that does not exceed 3 times the amount of commissions due the sales representative, plus reasonable attorney’s fees and costs.

2. FRIVOLOUS ACTION. When the court determines that an action brought by a sales representative against a principal under this chapter is frivolous, the sales representative is liable to the principal for attorney’s fees actually and reasonably incurred by the principal in defending the action and court costs.

3. OTHER REMEDIES. Nothing in this chapter invalidates or restricts any other right or remedy available to a sales representative, or precludes a sales representative from seeking to recover in one action on all claims against a principal.

4. JURISDICTION. A principal who is not a resident of this State that contracts with a sales representative to solicit orders in this State is declared to be transacting business in this State for purposes of the exercise of personal jurisdiction over nonresidents under Title 14, section 704-A.

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Maine upholds release in a mountain bike race and awards defendants costs and attorney fees

Lloyd v. Sugarloaf Mountain Corp. et al., 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

The plaintiff argued the release was not valid because the injury occurred during a practice run.

In this case, the plaintiff was injured during a practice run for a mountain-bike race. The plaintiff sued the ski area, Sugarloaf Mountain and the organization that sponsored the race National Off-Road Bicycle Association (NORBA). NORBA is now part of USA Cycling. The name of the race was the Widowmaker Challenge mountain bicycle race. The name was mentioned several times in the opinion.

Before racing the plaintiff had to sign a release to join NORBAwhere he signed a release. He also signed a release to enter the race. The lower court granted the defendants motion for summary judgment and based on an indemnification clause in one of the releases granted the defendants judgment against the plaintiff for $18,420.50.

2011 USA Cycling Pro Gravity Tour at Northstar

The plaintiff argued the first release was superseded by the second release, and the second release was ambiguous and vague. He also argued that because the injury occurred during a practice run, the releases did not apply. All parties agreed that the racers had to participate in the practice session.

The NORBA release was a well-written release and excluded claim for liability for negligence of any person or organization. The race release simply said discharge the defendant for all claims and liability and promise not to sue. However, the race release contained indemnification language that allowed the defendants to counterclaim for the costs and attorney fees for defending the lawsuit.

The plaintiff sued for negligence and willful and wanton negligence. The race release gave the plaintiff the idea to sue for willful and wanton negligence I suspect because in the indemnification clause language, it excluded claims for willful and wanton negligence.

However, Maine does not support claims for willful and wanton negligence.

Summary

The court first looked at the releases to see if one release superseded the prior release. To supersede another agreement one agreement must be inconsistent with the other agreement. The court found this was not the case. Although they were similar and overlapped, and one was more specific than the other was not enough to make the releases inconsistent. Nor was there anything in either agreement to indicate that one release was to supersede the other release.

The next issue the court reviewed was whether the releases were valid under Maine law. Maine like most states holds that a release “…must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.”” Releases are strictly construed against the party seeking immunity from liability.

The court found the membership release, the NORBA release that referenced negligence in the release “…sufficiently spells out the parties’ intent to extinguish the negligence liability of NORBA and Sugarloaf

The court then examined the claim that the practice run where the plaintiff was injured was not sufficiently connected to the race to be covered by the release. However, the court found that since the practice session was mandatory the release covered it. The court also found the language in the release covered the practice run.

The final argument made by the plaintiff was the release was against public policy in Maine. The court stated it would be “hard-pressed” to conclude that an event titled Widowmaker Challenge is a public service or that there was a compulsion on the part of the participants to sign that would make the release void as against public policy.

Finally, the court looked at the indemnification clause in the second or race release. The court found the language was unambiguous and that the plaintiff was contractually bound to indemnify the defendants.

There was a dissent in the case. The dissent argued the release should be upheld but that the indemnification clause in the release was unclear and ambiguous. Under Maine’s law to be clear the language of the release must be unequivocal in its intent:

…on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability.

The dissent also found the indemnification clause to be ambiguous. A contractual provision is “ambiguous if it is reasonably possible to give that provision at least two different meanings.”

The dissent found two different meanings to the clause in the defendant’s motions. NORBA’ s briefs argued the clause one way and Sugarloaf’s brief interpreted the clause a different way.

So Now What?

This case is pretty simple and quite clear.

1. Your release needs to include the word negligence under Maine law.

2. Your release must not be written to conflict with any other release that may be used in the same case to prevent litigation. If you are aware of two or more releases being signed by the parties for the same event, make sure the releases do not cancel each other out.

3. Make sure your release covers all aspects of the activity. You can never tell when an accident will occur, where a person will be injured or whether or not someone may sue because of those issues.

4. Although upheld by the majority a dissent always should be read to make sure your release or language incorporates any of those issues in the future. Dissents with a change of the court can become a majority opinion in the future, even with the legal precedent of stare decisis.

5. If you name your event with a scary name, there is a better chance that participants and the courts will understand it was a risk event.

6. Make sure your release is clearly written and written so that the person signing the release cannot argue they did not understand the release.

Sugarloaf needs to thank NORBA for writing a release that protected both of them. NORBA should thank Sugarloaf for at least writing an indemnification clause that worked.

What do you think? Leave a comment.

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Lloyd v. Sugarloaf Mountain Corp. et al. 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

Lloyd v. Sugarloaf Mountain Corp. et al. 2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

C. Gary Lloyd v. Sugarloaf Mountain Corp. et al.

Docket: Han-03-76

SUPREME JUDICIAL COURT OF MAINE

2003 ME 117; 833 A.2d 1; 2003 Me. LEXIS 131

June 10, 2003, Argued

September 25, 2003, Decided

PRIOR HISTORY: Lloyd v. Bourassa, 2002 Me. Super. LEXIS 132 (Me. Super. Ct., Aug. 20, 2002)

DISPOSITION: [***1] Affirmed. Remanded.

COUNSEL: Attorneys for plaintiff: Arthur J. Greif, Esq. (orally), Julie D. Farr, Esq., Gilbert & Greif, P.A., Bangor, ME.

Attorneys for defendants: Evan M. Hansen, Esq. (orally), Preti Flaherty Beliveau Pachios & Haley, LLC, Portland, ME, (for Sugarloaf Mountain Corp.).

Stephen J. Burlock, Esq., [John A. Woodcock Jr., Esq (orally), withdrew June 24, 2003], Weatherbee & Burlock, P.A., Bangor, ME, (for USA Cycling).

JUDGES: Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ. Majority: SAUFLEY, C.J., and CLIFFORD, RUDMAN, and DANA, JJ. Dissenting: ALEXANDER, CALKINS, and LEVY, JJ.

OPINION BY: RUDMAN

OPINION

[**2] RUDMAN, J.

[*P1] C. Gary Lloyd appeals from a summary judgment entered in Superior Court (Hancock County, Gorman, J.) in favor of Sugarloaf Mountain Corp. and U.S.A. Cycling, Inc., d/b/a National Off-Road Bicycle Association (NORBA), on Lloyd’s negligence complaint and on their counterclaims for indemnification. Lloyd argues that the two releases he signed prior to the Widowmaker Challenge mountain bicycle [***2] race did not effectively discharge Sugarloaf and NORBA from liability for his injury. He contends that the first release, which he signed when he became a member of NORBA, was superseded by the second release, a race entry release he signed a few days before the race, and the entry release was ambiguous and too vague to exonerate Sugarloaf and NORBA from their own negligence. He further argues that because his injury occurred during a practice run instead of the race itself, the releases are inapplicable, and that, in any event, the releases should be unenforceable as contrary to public policy. In addition, Lloyd argues that a summary judgment should not have been granted to Sugarloaf and NORBA on their claims for indemnification. We affirm the judgment for Sugarloaf and NORBA on the complaint because the membership release unambiguously discharged them from liability for damages caused by their negligence, and affirm the judgment for Sugarloaf and NORBA on their claims for indemnification and the award of attorney fees because the indemnification clause is clear and unambiguous.

I. BACKGROUND

[*P2] Lloyd alleges that he was injured in a bicycle accident in August 1995, when [***3] he was participating in a practice session prior to the Widowmaker Challenge at Sugarloaf ski resort. The race was sponsored by NORBA. The injury occurred in a collision with another participant. 1 All parties agreed that race entrants were required [**3] to participate in the practice session.

1 The other participant was also initially named a defendant but was later dismissed from the suit.

[*P3] Lloyd became a member of NORBA and signed a membership release in June 1995, in which he acknowledged that cycling is an inherently dangerous sport and that his participation was at his own risk. In the membership release, he stated:

I release and forever discharge [NORBA, its employees, agents, members, sponsors, promoters and affiliates from any and all liability, claim, loss, cost or expense, and waive and promise not to sue on any such claims against any such person or organization, arising directly or indirectly from or attributable in any legal way to any negligence, action or omission to act of any such person [***4] or organization in connection with sponsorship, organization or execution of any bicycle racing or sporting event, including travel to and from such event, in which I may participate as a rider, team member or spectator.

[*P4] Lloyd signed another release a few days before the Widowmaker Challenge was to take place. In this entry release, Lloyd again acknowledged the dangers of participating in a bicycle event and the possibility of serious injury. The entry release provided:

I hereby waive, release and discharge . . . any and all rights and claims . . . against the sponsors of this event, [NORBA, the promoter and any promoting organizations(s), property owners . . . through or by which the events will be held for any and all damages which may be sustained by me directly or indirectly in connection with, or arising out of, my participation in or association with the event, or travel to or return from the event.

The entry release also contained an indemnification provision:

Should I or my successors assert my claim in contravention of this agreement, I or my successors shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, [***5] unless the other party or parties are financially adjudged liable on such claim for wilful and wanton negligence.

[*P5] Several years after his injury, Lloyd filed this action against Sugarloaf and NORBA in which he alleges that both entities acted negligently and with willful and wanton negligence. Both entities defended on the ground that the releases barred any claims, and both counterclaimed for indemnification. Lloyd sought a summary judgment on the counterclaims, and Sugarloaf and NORBA sought a summary judgment on the complaint. The court granted a summary judgment to Sugarloaf and NORBA on both the complaint and counterclaims. The court thereafter approved $ 18,420.50 in attorney fees and an additional amount in costs against Lloyd.

II. DISCUSSION

A. The Exculpatory Releases

[*P6] Lloyd first argues that the membership release was superseded, replaced, and discharged by the entry release because the entry release is more recent and applies to a specific race, and because the two releases are inconsistent. Lloyd claims that the membership release specifically releases claims of negligence whereas the entry release more generally releases “any and all” claims. Additionally, [***6] the entry release contains the indemnification clause providing for legal fees to be assessed against the releaser unless damages for willful and wanton negligence are awarded.

[*P7] While these two releases overlap, they are not inconsistent. The fact that [**4] one release specifies negligence and the other is more general does not create an inconsistency nor does the fact that the entry release contains an indemnification clause. There is nothing in the parties’ statements of material fact that indicates they intended the entry release to supersede or replace the membership release. In fact, the entry release affirmatively states that only NORBA members, that is, people who had signed a membership release, are allowed to sign up for the Widowmaker Challenge. We fail to discern any inconsistency that would demonstrate that the parties intended that the execution of the entry release would abrogate the membership release. The entry release is unambiguous and consistent with the membership release. Thus, we reject Lloyd’s argument that the membership release is inapplicable.

[*P8] [HN1] In order for the releases signed by Lloyd to absolve Sugarloaf and NORBA of their own negligence, [***7] they must “expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.” Doyle v. Bowdoin Coll., 403 A.2d 1206, 1208 (Me. 1979) (internal quotation marks omitted). We strictly construe such releases against the party seeking immunity from liability. Id. at 1207-08; see also Hardy v. St. Clair, 1999 ME 142, P6, 739 A.2d 368, 370. The membership release declares with specificity that Lloyd releases and discharges NORBA, as well as any sponsors and promoters, from all liability that arises directly or indirectly from the negligence of anyone connected with the sponsorship, organization, or execution of any bicycle race. Unlike the release in the Doyle case, 403 A.2d at 1208, but similar to the release in the Hardy case, 1999 ME 142, P4, 739 A.2d at 369, there is a specific reference in the membership release to the negligence of the parties seeking immunity. We conclude that the membership release, with its express reference to negligence, sufficiently spells out the parties’ intent to extinguish the negligence liability of NORBA [***8] and Sugarloaf.

[*P9] Lloyd contends the practice or inspection run in which he was injured was not sufficiently connected to the race to be covered by the releases. Given that the parties agree that the practice session was mandatory to participation in the race itself, it would be disingenuous to conclude that the practice run was not, in the words of the membership release, “arising directly or indirectly from or attributable . . . to any negligence . . . in connection with . . . any bicycle racing or sporting event,” and, therefore, we reject this contention. See Hardy, 1999 ME 142, P5, 739 A.2d at 370; see also Barnes v. New Hampshire Karting Ass’n, 128 N.H. 102, 509 A.2d 151, 155-56 (N.H. 1986) (holding that participation in a practice lap came within release language of “participating in the event”). Because the practice run was mandatory, any negligence occurring during the practice run was attributable to the bicycle racing event.

[*P10] Lloyd also argues that if the releases are otherwise valid we should nonetheless reject them as violating public policy. We have held that [HN2] releases saving a party from damages due to that party’s [***9] own negligence are not against public policy. Hardy, 1999 ME 142, P3 n.1, 739 A.2d at 369 (citing Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983)).

[*P11] Generally speaking, courts holding that similar releases for recreational activities are void as against public policy do so because they find that the activity is a public service or open to the public; the facility invites persons of every skill level to participate; the facility has the expertise and opportunity to control hazards and guard against negligence; the facility is in [**5] a better position to ensure against risks; and broad releases of liability would remove incentives for the facility to manage risks, thereby requiring the public generally to bear the costs. See Spencer v. Killington, Ltd., 702 A.2d 35, 36-38 (Vt. 1997) (holding entry form release for ski racing event void as against public policy); Umali v. Mount Snow, Ltd., 247 F. Supp. 2d 567, 575 (D. Vt. 2003) (applying Vermont law and finding NORBA releases for mountain bike races void as against public policy). An example of an analysis by a jurisdiction holding that releases [***10] are not against public policy is Barnes, 128 N.H. 102, 509 A.2d 151. In holding that a release of liability of a kart racing facility was valid, the New Hampshire Supreme Court found that the provision of kart racing was neither a public service nor a practical necessity, that the plaintiff was under no compulsion to participate in racing, and, therefore, under no compulsion to sign the release. Id. at 155. See also Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986); Jones v. Dressel, 623 P.2d 370, 375 (Colo. 1981).

[*P12] Even if we had no precedent stating that releases like these are not violative of public policy, we would be hard-pressed on this record to conclude that provision of an event entitled “Widowmaker Challenge” is a public service or that its entrants were under any compulsion to sign the release. We do not accept Lloyd’s invitation to overturn our previous decisions.

B. The Indemnification Provision

[*P13] Lloyd’s final argument is that judgment should not have been granted to Sugarloaf and NORBA on their counterclaims for indemnification. The court held that Sugarloaf and NORBA were [***11] entitled to an award of fees because of the indemnification language in the entry release: ”

I . . . shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, unless the other party or parties are financially adjudged liable on such claim for willful and wanton negligence.”

[*P14] The language in the entry release could not have been clearer. In his application for membership in NORBA, Lloyd not only released both NORBA and Sugarloaf from any and all liability, but also waived and promised not to sue on any such claims. Lloyd, in spite of the fact that he had signed two waivers, asserted claims against both Sugarloaf and NORBA. As we note, the releases signed by Lloyd prevent him from pursuing claims against either Sugarloaf or NORBA. Therefore, neither Sugarloaf nor NORBA will be “financially liable” on any basis, let alone “for willful and wanton negligence.” The language of the indemnification clause is unambiguous. Lloyd is contractually bound to indemnify the parties defending for the expense they incurred. The trial court appropriately enforced the contractual obligation assumed by Lloyd.

The entry is:

Judgment for NORBA [***12] and Sugarloaf on the complaint and the counterclaims are affirmed. Remand for assessment of attorney fees on the appeal.

DISSENT BY: CALKINS

DISSENT

CALKINS, J., with whom ALEXANDER and LEVY, JJ., join, dissenting.

[*P15] Although I agree with the Court that the membership release, which is unambiguous and specifically refers to negligence, absolves Sugarloaf and NORBA of their own negligence, I write separately because I believe that we should vacate the summary judgment granted to Sugarloaf and NORBA on their counterclaims for indemnification. In my opinion, the indemnification clause, which is contained [**6] in the entry release form, cannot support the judgment for attorney fees against Lloyd because it is unclear and ambiguous.

[*P16] In my analysis, I start with the principle that contracts indemnifying a party from the party’s own negligence are strictly construed against the indemnitee. In Emery Waterhouse Co. v. Lea, 467 A.2d 986 (Me. 1983), we said that such contractual provisions are looked upon with disfavor and are construed strictly. Id. at 993.

It is only where the contract on its face by its very terms clearly and unequivocally reflects [***13] a mutual intention on the part of the parties to provide indemnity for loss caused by negligence of the party to be indemnified that liability for such damages will be fastened on the indemnitor, and words of general import will not be read as expressing such an intent and establishing by inference such liability.

Id. In that case, the tenant had indemnified the landlord “against any and all claims” from damages “arising from or out of any occurrence in, upon or at the leased premises.” Id. However, because another portion of the indemnification clause “inferentially suggested” that attorney fees would be incurred only if the landlord was without fault, we found that the clause was inadequate. Id. In McGraw v. S.D. Warren Co., 656 A.2d 1222 (Me. 1995), we held that the contract indemnifying the defendant by a third party for “any claims” caused by anyone employed by the third party or the defendant was not sufficiently specific to indemnify the defendant for its own negligence. Id. at 1224.

[*P17] Secondly, just as with other contracts, we interpret a particular provision in light of the entirety of the agreement between [***14] the parties. See Crowe v. Bolduc, 334 F.3d 124, 137 (1st Cir. 2003) (applying Maine law and finding ambiguity in two agreements read in conjunction). Here, that means that the indemnification clause must be construed in the context of the contract in which it appears. That contract is the entry release.

[*P18] Thus, I look at the indemnification clause through the lens of strict construction, knowing that we disfavor such clauses, and in the context of the entire contract, and I proceed to decide whether the indemnification clause is clear and unambiguous. In doing so, I consider whether there are different interpretations that can be given reasonably to the contract. “[A contractual provision is considered ambiguous if it is reasonably possible to give that provision at least two different meanings.” Villas by the Sea Owners Ass’n v. Garrity, 2000 ME 48, P9, 748 A.2d 457, 461.

[*P19] The indemnification clause states: ”

I . . . shall be liable for the expenses (including legal fees) incurred by the other party or parties in defending, unless the other party or parties are financially adjudged liable on such claim for willful and wanton [***15] negligence.” Several lines above the indemnification clause and in close proximity to it, there is other language in the entry release that discharges NORBA and Sugarloaf from “any and all damages” for “any and all claims.” Lloyd suggests that the indemnification clause is ambiguous and equivocal because it contains an exception for willful and wanton negligence, whereas the other provision in the entry release exculpates NORBA and Sugarloaf from “any and all claims.”

[*P20] There are several possible constructions of the indemnification clause. First, there is the interpretation urged by Sugarloaf that the exception for willful and wanton negligence is inapplicable because Maine does not recognize the tort of willful and wanton negligence. Thus, Sugarloaf and NORBA cannot be found liable by a Maine court for willful and wanton negligence, [**7] and, therefore, the indemnification clause is consistent with the remainder of the release. NORBA proposes a slightly different interpretation: it could never be found liable for willful and wanton negligence because the entry release excuses it from “any and all claims,” which must include willful and wanton negligence. Although both of these [***16] interpretations have the effect of negating the willful and wanton exception in the clause, they are reasonable interpretations.

[*P21] A third reasonable interpretation is that although the entry release speaks to “any and all claims,” it only applies to claims for ordinary negligence. This construction recognizes the principle enunciated in a number of cases and commentaries that exculpatory releases, which immunize a party from its own gross negligence or willful and wanton negligence, are void as against public policy. Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235 (9th Cir. 1995); Schutkowski v. Carey, 725 P.2d 1057, 1059 (Wyo. 1986); Mary Ann Connell & Frederick G. Savage, Releases: Is There Still a Place for Their Use by Colleges and Universities?, 29 J.C. & U.L. 579, 603 (2003) (“Courts generally agree that one may not exonerate [oneself from liability for willful or wanton misconduct, for gross negligence, or for intentional torts, even if there is broad exculpatory language.”); Walter T. Champion, Jr., Fundamentals of Sports Law § 11:2 at 209 (1990) (“It is universally held that a release will not bar a claim for gross negligence. [***17] “). This interpretation anticipates that Maine courts would hold that Sugarloaf and NORBA are not exempt from willful and wanton negligence even though the release may excuse them from all other claims.

[*P22] Where the terms of an indemnification clause are not clear and unequivocal, the clause will not suffice to indemnify. Emery Waterhouse Co., 467 A.2d at 993. The indemnification clause here is equivocal, unclear, and ambiguous because it is susceptible to reasonable and differing interpretations. The membership release stands in sharp contrast to the entry release. The former clearly and unambiguously releases NORBA and Sugarloaf for “any and all liability” arising from “any negligence, action or omission to act.” The indemnification clause in the entry release provides for the payment of attorney fees “unless the other party or parties are financially adjudged liable on such claim for willful and wanton negligence,” but that same document discharges the indemnitees from “any and all claims.” The entry release does not unequivocally state that the bringing of a negligence claim against the indemnitee will result in the imposition of costs and attorney fees [***18] against the claimant. For this reason, it cannot be the basis for the imposition of an award for attorney fees. 2 Thus, I would vacate the summary judgment on the counterclaim and the award of attorney fees assessed against Lloyd.

2 At least one jurisdiction has held that an indemnity clause with an attorney fee provision in a recreational activity release is void as against public policy. Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205, 793 A.2d 125, 136 (N.J. Super. Ct. App. Div. 2002).


Rice, et als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90

Thomas Rice, et als, Plaintiffs vs. American Skiing Company, Et Als, Defendants

Civil Action Docket No. CV-99-06

SUPERIOR COURT OF MAINE, OXFORD COUNTY

2000 Me. Super. LEXIS 90

May 8, 2000, Decided

May 9, 2000, Filed

DISPOSITION: [*1] Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim GRANTED; Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint DENIED; and Defendants’ Motion for Summary Judgment on Count II of Plaintiffs’ Complaint GRANTED.

OPINION

DECISION AND ORDER

This matter is before the court on the motion of the plaintiff Laurene Rice for summary judgment, dated December 6, 1999, directed to the defendants’ counterclaim and on the defendants’ motion for summary judgment, dated January 6, 2000, directed to the plaintiffs’ complaint.

FACTUAL BACKGROUND

The plaintiffs Thomas and Laurene Rice are the parents of the plaintiff Nicholas Rice. The defendants Sunday River Skiway Corporation (SRS) and Perfect Turn, Inc. (Perfect Turn), are affiliates of each other and subsidiaries of the defendant American Skiing Company (American Skiing). 1 SRS owns and operates the Sunday River Ski Resort in Newry, Maine (Sunday River). SRS also operates a ski school there called “Perfect Kids Children’s Program” (ski school), but does not require individuals to enroll in the ski instruction program as a precondition to skiing at Sunday River. The defendant Timothy McGuire [*2] is employed by SRS as a ski instructor.

1 On April 26, 2000, the parties filed a stipulation of dismissal without prejudice as to American Skiing Company and Perfect Turn, Inc.

On December 13, 1997, the plaintiffs went to Sunday River to ski. Nicholas was almost nine years old at the time and Laurene enrolled him in the ski school. She selected the Level Three program for people who already had certain skiing skills. 2

2 In deposition testimony, Timothy McGuire described that skill level:

Q. Would you please tell us again what Level Three meant in terms of skill level?

A. That it meant that they were able to form a wedge, to be able to stop and start and to get up on their own if they fall and they can put their skis on by themselves and that they have experience riding the chairlift.

Defendants’ Statement of Material Facts, Ex. B at p. 22.

[*3] Prior to Nicholas’ enrollment in the class, Laurene signed a form entitled “Acknowledgement & Acceptance of Risks & Liability Release” (Ski Enrollment Form) on behalf of herself and her son. The document began with a “WARNING” about the hazards of “Alpine activities” 3 and the challenges of the ski school program, then included language purporting to be a release by Laurene and Nicholas 4 of SRS and

“its owners, affiliates, employees and agents from any and all liability for all personal injury [] arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”

See Affidavit of Joseph R. Saunders, Esq. The document concluded with Laurene’s agreement to indemnify the defendants “for all awards, legal expenses and settlements arising out of” her child’s participation in the ski school and his use of the Sunday River premises. Thomas did not sign the Ski Enrollment Form and there is no evidence that he was involved in the enrollment process. The parents went off to ski while Nicholas was in class.

3 The hazards included many of the dangers or conditions included in the definition of “inherent risks of skiing” in Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act. 32 M.R.S.A. § 15217(1)(A) (Supp. 1999). See Affidavit of Joseph R. Saunders, Esq.

[*4]

4 The document included the following language:

“As a parent/guardian with legal responsibility for a minor participant, I am authorized to sign this agreement for that child. I consent and agree for the minor child to be bound by this agreement ….”

See Affidavit of Joseph R. Saunders, Esq.

The ski class began around 9:30 a.m. McGuire first taught the class “rule number one” which was “you don’t pass the coach.” Nicholas fell at one point during a training run in the morning session. McGuire and the rest of the class went further ahead, then stopped and formed a group. When the boy caught up to them, McGuire was finishing an instruction about a skiing maneuver for stopping called a “hockey stop”.

The class broke for lunch at 11:15 a.m. and resumed shortly after the noon hour on a trail called Mixing Bowl. Ski conditions were good and the trail was in good shape. McGuire took his charges on a “fun run” down the slope again instructing the class not to ski past him. Nicholas fell and the group stopped further on to wait for him. He got up and began skiing toward them. He [*5] started going faster and panicked. As he approached the group, he could not slow down. He tried to do a “hockey stop”, skied off the side of the trail, hit a tree and was injured.

DECISION

A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Panasonic Communications & Sys. Co. v. State, 1997 ME 43, P10, 691 A.2d 190, 194 (citing Gonzales v. Comm’r, Dep’t of Pub. Safety, 665 A.2d 681, 682-83 (Me. 1995)). Even if the parties differ as to the legal conclusions to be drawn from the historical facts before the court, if there is no serious dispute as to what those facts are, consideration of a summary judgment is proper. North East Ins. Co. v. Soucy, 1997 ME 106, P8, 693 A.2d 1141.

At the heart of it, the plaintiffs allege that the defendants, acting through McGuire, were negligent in their supervision of Nicholas. Laurene’s separate claim for lost wages can only survive on the strength of this negligence claim. The defendants disclaim responsibility by virtue of the immunity provisions of Maine’s Skiers’ and Tramway Passengers’ Responsibilities [*6] Act, 32 M.R.S.A. § 15217 (Supp. 1999), and the provisions of the Ski Enrollment Form signed by Laurene.

Maine’s Skiers and Tramway Passengers’ Responsibilities Act

The threshold issue is whether the Act immunizes the defendants against liability for a claim of negligent supervision. The court concludes that it does not. The Act relieves ski area operator’s from responsibility for injuries that result from the “inherent risks of skiing–such as skiing into a tree. Id. However, the statute expressly provides that it “does not prevent the maintenance of an action against the ski area operator for [] the negligent operation [] of the ski area”. 32 M.R.S.A. § 15217(8)(A). 5 Nicholas’ claim of negligent supervision clearly falls within the Act’s “negligent operation” exclusion.

5 See McGuire v. Sunday River Skiway Corp., 1994 WL 505035, *5 (D. Me.), in which Judge Hornby wrote “McGuire’s argument for liability might have some appeal if her skiing instructor had encouraged her to do something inappropriate during her lesson. That might amount to negligent operation of the ski area.”

[*7] Nicholas’ Claim

The issue then becomes whether the boy’s claim against the defendants has been effectively released by his mother. This issue requires an examination of the meaning and validity of the release language in the Ski Enrollment Form.

Releases in general are not against public policy. See Emery Waterhouse Co. v. Lea, 467 A.2d 986, 993 (Me. 1983). However, for its terms to be valid, a release absolving a defendant of liability for its own negligence “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” The courts have “traditionally disfavored contractual exclusions of negligence liability and have exercised a heightened degree of judicial scrutiny when interpreting contractual language which allegedly exempts a party from liability for his own negligence.” See Hardy v. St. Clair, 1999 ME 142, P3, 739 A.2d 368, 369, citing Doyle v. Bowdoin College, 403 A.2d 1206, 1207 (Me. 1979). The release must be construed strictly. See Doyle, 403 A.2d at 1207-08 (citing Prosser, Torts, § 68 (4th ed. 1971)) (it must appear that [*8] the terms of the release were “brought home to the plaintiff”).

The release that Laurene signed on behalf of herself and Nicholas prevents claims

“against [SRS], its owners, affiliates, employees and agents from any and all liability for all personal injury, including death or property damage arising from any alleged negligence in the operation and maintenance or design of the ski area and other conditions such as those listed in the WARNING above.”

See Affidavit of Joseph R. Saunders, Esq. (emphasis added). This language is unambiguous and, if valid, clearly releases the defendants from liability for damages and losses sustained as a result of negligence in the operation of the ski area, which would include the claim of negligent supervision in this case. The interpretation of an unambiguous contract is a question of law, see Fleet Bank of Maine v. Harriman, 1998 ME 275, P4, 721 A.2d 658.

More to the point of this case, the issue is whether an unambiguous release of negligence claims given by a parent on behalf of her child is valid. The defendants cite Zivich v. Mentor Soccer Club, Inc., 82 Ohio St. 3d 367, 696 N.E.2d 201 (Ohio 1998), as [*9] support for their assertion that a parent can give a binding release of such claims on behalf of the child. However, Zivich stands for the more limited proposition “that parents have the authority to bind their minor children to exculpatory agreements in favor of volunteers and sponsors of nonprofit sports activities where the cause of action sounds in negligence.” 82 Ohio St. 3d at 374 (emphasis added). The decision was grounded on two public policy considerations: first, nonprofit sports organizations would be unable to get volunteers without such releases and would go out of existence; and, second, parental authority to make and give such releases is of constitutional importance. However, the first consideration is inapplicable to the facts of this case–none of the defendants is a nonprofit organization and McGuire was not a volunteer–and the court is not persuaded by the second.

The defendants’ do make a broader public policy argument addressed to the facts of this case. They assert that ski schools are offered by ski areas for the convenience and safety of their guests. If releases on behalf of minors are unenforceable, ski areas will be reluctant to offer [*10] training and instructions to children, whose safety will then be as risk. This is not an inconsequential point. However, it is a risk against which a for-profit business may insure itself. 6 This court cannot conclude that the public policy consideration espoused by the defendants is paramount to the right of the infant to his negligence claim.

6 The court is mindful that in Zivich the Ohio Supreme court determined that “insurance for the [nonprofit] organizations is not the answer, because individual volunteers may still find themselves potentially liable when an injury occurs.” 82 Ohio St. 3d at 371-72. However, the point in Zivich, which involves a volunteer, is distinguishable from this case, which involves a paid employee. While a volunteer may reasonably expect that he should suffer no penalty for the consequences of his gratuitous acts, a paid employee–such as Defendant McGuire–may not.

There are numerous cases holding contrary to the defendants’ position. See, e.g., Scott v. Pacific West Mtn. Resort, 119 Wn.2d 484, 834 P.2d 6 (Wash. 1992) [*11] (en banc); Whitcomb v. Dancer, 140 Vt. 580, 443 A.2d 458, 460 (Vt. 1982). Maine appears to side with these decisions. In the case of Doyle v. Bowdoin College, supra, the Law Court was unequivocal in its declaration, albeit dicta, 7 that “this Court has held that a parent, or guardian, cannot release the child’s or ward’s, cause of action.” Doyle v. Bowdoin College, 403 A.2d at 1208 n.3. This language is too unequivocal to ignore. In fact, other courts holding in line with Scott have cited Doyle as support for this proposition. See Scott, 834 P.2d at 12 n.19; see also International Union v. Johnson Controls, Inc., 499 U.S. 187, 214, 113 L. Ed. 2d 158, 111 S. Ct. 1196 (1991)(White, J., concurring) (“the general rule is that parents cannot waive causes of action on behalf of their children”); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 634 N.E.2d 411, 414, 199 Ill. Dec. 572 (Ill. App. 1994).

7 Although it is dicta, courts have cited Doyle for the proposition that a parent cannot release a child’s causes of action.

[*12] The court concludes that the claim for negligent supervision brought on behalf of Nicholas is not barred by the release provisions of the Ski Enrollment Form signed by his mother.

Laurene’s Claim

Laurene’s claim for lost wages arises out of and is dependant upon her son’s claim for negligent supervision. As noted, the release language is unambiguous and clearly releases the defendants from liability for damages and losses “arising from any alleged negligence in the operation [] of the ski area”, which includes the claim of negligent supervision in this case. Although this court concludes that Nicholas’ cause of action survives the release provisions of the Ski Enrollment Form, his mother’s claim does not. See Scott v. Pacific West Mtn. Resort, 834 P.2d at 12 (holding that although child’s cause of action is not barred by parents’ signing of release, parents’ claims based on child’s injury are barred by unambiguous and conspicuous release); see also Childress v. Madison Cty., 777 S.W.2d 1, 7-8 (Tenn. Ct. App. 1989) (although child and child’s father are not bound by release signed by mother, she is barred from bringing claims based [*13] on child’s injuries).

Indemnification Clause

Finally, there remains the issue of whether Laurene is obligated to indemnify the defendants against Nicholas’ cause of action. In Maine, the Law Court views clauses “indemnifying a party against its own negligence with disfavor, and directs courts to construe them strictly against such a result.” See International Paper Co. v. A&A Brochu, 899 F. Supp. 715, 719 (D. Me. 1995), citing Emery Waterhouse, 467 A.2d at 993. However, the court may uphold an indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties. “[A] clear reflection of mutual intent requires language from the face of which the parties unambiguously agree to indemnification for indemnitee negligence.” See id. In International Paper, the court upheld the validity of such an indemnification clause that provided, as follows:

“SELLER does hereby agree to indemnify and hold harmless PURCHASER from and against any and all claims, damages, debts, demands, suits, actions, attorney fees, court costs and expenses arising [*14] out of, attributable to, or resulting from SELLER’S or any supplier’s said operations, whether the same are caused or alleged to have been caused in whole or in part by the negligence of PURCHASER, Its (sic) agents or employees.”

Id. (emphasis added). However, unlike International Paper, it is not clear that the indemnification provision in this case applies to the defendants’ own negligence. 8 The Ski Enrollment Form provides as follows:

“I hereby indemnify the ski areas named above, its owners, affiliates, employees and agents for all awards, legal expenses and settlements arising out of the child’s participation in this clinic and the use of the ski area premises.”

Employing a strict construction analysis, the court concludes that this language is ambiguous and does not reflect an express mutually intended agreement that Laurene will indemnify the defendants against their own negligence. In fact, it seems more suited to an interpretation that the indemnification is for losses or damages caused by Nicholas while participating in the ski school.

8 See McGraw v. S.D. Warren Co., 656 A.2d 1222, 1224 (Me. 1995), where the court held that Cianbro did not specifically agree to indemnify Warren for damages caused by Warren’s own negligence where the clause provided:

The contractor [Cianbro] is responsible for and shall continuously maintain protection of all the work and property in the vicinity of the work from damage or loss from any cause arising in connection with the contract and any work performed thereunder. [Cianbro] shall indemnify and hold owner [Warren] harmless for any claims, suits, losses or expenses including attorneys’ fees suffered by [Warren] arising out of injury to any person including [Warren’s] or [Cianbro’s] employees or damage to any property, including [Warren’s] property if the injury or damage is caused in whole or in part by [Cianbro] or any of [Cianbro’s] subcontractors, material men or anyone directly or indirectly employed or otherwise controlled by any of them while engaged in the performance of any work hereunder.

[*15] Based on the conclusion that the Ski Enrollment Form does not include an indemnification by Laurene against the defendants’ own negligence, the court does not need to reach the plaintiffs’ further claim that the indemnification clause is unconscionable as a contract of adhesion. See Dairy Farm Leasing Co., Inc. v. Hartley, 395 A.2d 1135, 1139-40 (Me. 1978) (“where a standard-form, printed contract is submitted to the other on a ‘take it or leave it’ basis, upon equitable principles the provisions of the contract are generally construed to meet the reasonable expectations of the party in the inferior bargaining position; when a contract of adhesion is exacted by the overreaching of a party, the defense of unconscionability may be asserted”).

Pursuant to Rule 79(a) M.R.Civ.P., the Clerk is directed to enter this Decision and Order on the Civil Docket by a notation incorporating it by reference, and the entry shall be:

Plaintiff Laurene’s Motion for Summary Judgment on Defendants’ Counterclaim is GRANTED;

Defendants’ Motion for Summary Judgment on Count I of Plaintiffs’ Complaint is DENIED; and

Defendants’ Motion for Summary Judgment on Count II of [*16] Plaintiffs’ Complaint is GRANTED.

Dated: May 8, 2000

/s/ signed

Justice, Superior Court