The articles next to the term or phrase and state identify an article where the court has defined the term in the legal decision and it is quoted in the article.
This does not cover every decision posted on Recreation-law.com. However, you might find it helpful to understand some terms.
Last Updated April 24, 2018
Louisiana does not allow the use or releases. A trampoline park tried to use an assumption of risk agreement with an arbitration clause and liquidated damage’s clause which the LA Supreme Court found to be a contract of Adhesion.Posted: March 26, 2018
If you are going to have check boxes, then every paragraph has to have check boxes.
State: Louisiana, Supreme Court of Louisiana
Plaintiff: James Duhon
Defendant: Activelaf, LLC, D/B/A Skyzone Lafayette and Underwriters at Lloyds, London
Plaintiff Claims: Negligence
Defendant Defenses: Mandatory Arbitration
Holding: for the Plaintiff
Louisiana does not allow the use of a release so amusement and recreation businesses always scramble to find ways to protect themselves. However, you can go too far.
This trampoline park had an arbitration clause hidden in a paragraph. The Louisiana Supreme Court determined that made the agreement and adhesion contract and voided the agreement.
The plaintiff sued. The defendant filed a motion to require mandatory arbitration as required under the agreement. The trial court denied the motion, and the defendant appealed. The defendant appealed the trial court decision to the appellate court which upheld the mandatory arbitration clause. The plaintiff appealed, and the Supreme Court of Louisiana reversed the appellate court and held the arbitration clause was not enforceable.
The contract, as explained by the court, has terms that become important in this decision’s analysis. The contract included a video and photography release, allowed the defendant to email the signors, waives the signor’s right to sue, mandatory arbitration clause and a liquidated damage’s clause requiring the signor to pay the defendant $5,000 if the plaintiff sued.
Three paragraphs then had boxes next to them had that to be checked. The rest of the paragraphs did not.
The total issues of the agreement, the fact the important clauses were not identified, and only three paragraphs required check boxes were of issue before the court.
Analysis: making sense of the law based on these facts.
The court found that signing the agreement electronically did not mean anything.
As an initial matter, we note the electronic nature of the Agreement in this case is of no legal consequence and does not fundamentally change the principles of contract. Louisiana law gives legal effect to both electronic contracts and signatures. We interpret and analyze the terms of the Agreement using the same rules that we would apply to oral and written contracts.
Louisiana law, like federal law, favor arbitration clauses. Arbitration does not require on the court system, allows hiring of an agreeable arbiter by the parties, is much cheaper and much quicker than a trial.
The plaintiff argued the agreement in this case was adhesive. If a contract is found to be an adhesion contract, the contract is void. The court defined an adhesion contract as:
Broadly defined, a contract of adhesion is a standard contract, usually in printed form, prepared by a party of superior bargaining power for adherence or rejection of the weaker party. Often in small print, these contracts sometimes raise a question as to whether or not the weaker party actually consented to the terms.
The court stated that just because a contract was a standard form contract does not immediately mean it was an adhesion contract. “Therefore, we are not willing to declare all standard form contracts adhesionary; rather, we find standard form serves merely as a possible indicator of adhesion.”
The court then looked at other cases and came up with the following test to determine if the arbitration clause in a contract was adhesionary. The court must look at:
(1) the physical characteristics of the arbitration clause, (2) the distinguishing features of the arbitration clause, (3) the mutuality of the arbitration clause, and (4) the relative bargaining strength of the parties.
The test is not a definitive test, but one that the court must use and apply to all arbitration clauses and evaluate each clause.
Using those four requirements the court looked at the clause in this agreement.
The first problem the court found was the arbitration clause was hidden in the agreement. There was no check box for the paragraph which contained the clause, no heading, no bold type, nothing to indicate there was an important clause in the paragraph.
However, the lack of distinguishing features and the specific placement of the arbitration clause serve to conceal the arbitration language from Sky Zone patrons. The Agreement is structured with check boxes next to the first three paragraphs, followed by five additional paragraphs without corresponding check boxes.
Additionally, the paragraph containing the arbitration clause contained several different legal points. Consequently, the court thought the arbitration clause was hidden in the agreement and difficult to find.
Thus, looking at the Agreement as a whole, the arbitration language appears to be the only specific provision not relegated to a separate paragraph or set apart in some explicit way. Here, the two-sentence provision mandating arbitration is camouflaged within the confines of an eleven-sentence paragraph, nine of which do not discuss arbitration. The effect of the placement of the arbitration language is to cloak it within a blanket of boilerplate language regarding rules and risks of participating in the Sky Zone activities.
Consequently, the court held the plaintiff did not consent to the arbitration clause.
The court then went on to find more issues with the agreement. The court found there was no mutuality in the arbitration clause. Meaning the plaintiff was bound to arbitrate and the defendants were not.
The court was also disturbed when it found a punitive provision which required an injured patron, if they sued, to pay the defendant $5,000.00 within sixty days of filing a lawsuit. The $5,000 would earn interest at 12% per year.
Even more troublesome in this case is the punitive provision compelling patrons to pay Sky Zone liquidated damages of $5,000 within sixty days should the patron file suit, with legal interest added at 12% per year. Sky Zone has no mutual obligation in the Agreement.
The court found the arbitration clause was adhesionary and unenforceable.
Considering the lack of mutuality together with the obscure placement of the arbitration language in the Agreement, and in comparison to the contract in Aguillard, we are compelled to find the arbitration clause in the Sky Zone Agreement is adhesionary and unenforceable.
The case could proceed to trial.
The decision had two short concurring decisions and one dissenting decision.
So Now What?
Here three items doomed the defendant. The first was the check boxes. Electronically, the check boxes do not provide the same problems as with a paper agreement. However, having three check boxes next to relatively unimportant clauses and no check boxes next to the clause at issue disturbed the court and found it an attempt to hide the arbitration clause from signors.
The second was the fact a major clause in a contract was hidden. It was mixed in a paragraph with other legal clauses and not pointed out as an important clause.
The third was the clause requiring the plaintiff to pay the defendant if they filed suit. Honestly, this one caught me off guard. There was no legal basis for it. Nothing was required by a party to do or not to do such as sue and lose. Filing a lawsuit was going to cost the plaintiff $5,000.
Arbitration clauses are good in those states that do not recognize a release. See States that do not Support the Use of a Release. You do not want to use an arbitration clause if you are in a state where releases are valid. Arbitration does not allow motions; you just go to a hearing. When you have the opportunity to win by using the release, the arbitration clause may set you up for a longer fight. Also, arbitrators are more than likely to split decisions, providing some benefit to both sides of the arbitration.
Many state laws encouraging arbitration clauses also limit the types of damages an arbitrator can award. Many do not allow an arbitrator to award punitive damages. If you are in a recreation industry where damages may be excessive, arbitration may provide a benefit.
A release allows you to win without having to pay the plaintiff anything. If you have a state that supports a release, use a release.
Arbitration clauses require more work than simply requiring arbitration. You need to define what type of arbitration, where and how the rules will be applied. You just can’t require it without knowing what you are getting yourself into.
For other cases looking at Louisiana law on releases and recreation see:
Articles looking at arbitration clauses in outdoor recreation.
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Colorado Federal District Court judge references a ski area lift ticket in support of decision granting the ski area’s motion for summary judgment and dismissing the lawsuit.Posted: August 7, 2017
The Federal District Court in this case used the language of the lift ticket to support the defendant ski area’s motion for summary judgment. The decision also says the release is valid for lift accidents in Colorado closing one of the last gaps in suits against ski areas in Colorado.
State: Colorado, United States District Court for the District of Colorado
Plaintiff: Sally Rumpf & Louis Rumpf
Defendant: Sunlight, Inc.
Plaintiff Claims: negligence, negligence per se, and loss of consortium
Defendant Defenses: (1) they are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket; (2) they fail for a lack of expert testimony; and (3) that Sally Rumpf
was negligent per se under the Ski Safety Act.
Holding: for the Defendant
The plaintiff traveled to Glenwood Springs, Colorado to visit family and ski. She rented equipment from the
defendant ski area, Ski Sunlight and purchased a lift ticket. As required to rent the ski equipment, the plaintiff signed a release.
While attempting to board a chair lift, the plaintiff injured her shoulder. The defendant filed a motion for summary judgment which the court granted with this decision.
Analysis: making sense of the law based on these facts.
In the statement of the facts, the court quoted from the language on the lift ticket.
Holder understands that he/she is responsible for using the ski area safely and for having the physical dexterity to safely load, ride and unload the lifts. Holder agrees to read and understand all signage and instructions and agrees to comply with them. Holder understands that he/she must control his/her speed and course at all times and maintain a proper lookout. Holder understands that snowmobiles, snowcats, and snowmaking may be encountered at any time. In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property. Holder agrees that any and all disputes between Holder and the Ski Area regarding an alleged incident shall be governed by COLORADO LAW and EXCLUSIVE JURISDICTION shall be in the State or Federal Courts of the State of Colorado.
What is interesting is the Colorado Skier Safety Act, C.R.S. §§ 33-44-107(8)(b) requires specific language to be on the lift ticket.
Under Colorado 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: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.
It is unclear from the decision, and I do not have a copy of the Ski Sunlight lift ticket, to know if the required language is on the lift ticket. However, the language that was on the lift ticket was important and used by the court to make its decision.
The language required by the Colorado Skier Safety Act speaks to the risks assumed by a skier while skiing and does not speak to any risks of a chair lift. This creates an obvious conflict in the law for a ski area. Do you use the language required by the statute or use different language that a federal judge has said was instructive in stopping the claims of a plaintiff.
The court found the plaintiff had read and understood the release and knew she was bound by it. The plaintiff’s argument centered on the theory that the release did not cover lift accidents based on a prior case, Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (1998). That case held that a ski area owes the highest degree of care to skiers on the lift.
Plaintiffs further argue that the exculpatory language at issue is “only applicable to ski cases when the accident or injury occurs while the plaintiff is skiing or snowboarding on the slopes,” and not when loading the ski lift.
The Bayer decision changed the liability issues for Colorado Ski Areas. It also created the only gap in protection for Colorado Ski Areas between the Colorado Skier Safety Act and release law. However, this was significantly modified by Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662, reviewed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?
The court then reviewed the requirements under Colorado law for releases to be valid.
Exculpatory agreements, which attempt to insulate a party from liability for its own negligence, are generally recognized under Colorado law, but are construed narrowly and “closely scrutinized” to ensure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Additionally, the terms of exculpatory agreements must be strictly construed against the drafter.
The court reiterated several times that it was the intent of the parties within the language of the release that was the important aspect of the release, more than the specific language of the release. This intent was supported by the language on the lift ticket. Colorado has a 4 factor test to determine the validity of a release.
…in determining the validity of an exculpatory agreement, the Court must consider the following factors: (1) whether the service provided involves a duty to the public; (2) the nature of the service provided; (3) whether the agreement was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.
Skiing in Colorado is recreational and not a service, so there is no public duty that would void a release. Because it is a service, and the plaintiff is free to go ski else where there is no adhesion so the agreement was entered into by the parties fairly.
Adhesion was defined by the court in Colorado as:
…Colorado defines an adhesion contract as “generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.” However, printed form contracts offered on a take it or leave it basis, alone, do not render the agreement an adhesion contract.
For the plaintiff to win her argument, the plaintiff must show “, “that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that [the] services could not be obtained elsewhere.”
The court then applied contract law to determine if the agreement was ambiguous.
“Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Under Colorado law, I must examine the actual language of the agreements for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.
The court in reviewing the release found the release to clearly and unambiguously set forth the party’s intent to release the ski area from liability.
The court again backed up its decision by referring to the language on the lift ticket.
Furthermore, the ski lift ticket specifically references safely loading, riding and unloading Sunlight’s ski lifts and provides that the “Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property.”
As such the release was valid and stopped the claims of the plaintiff and her spouse.
So Now What?
Although the basics of the decision are familiar under Colorado law, the court’s reference to the language on the lift ticket is a departure from Colorado law and the law of most other states. See Lift tickets are not contracts and rarely work as a release in most states.
Whether or not a lift ticket standing by itself is enough to stop a claim is still in the air and probably will be. The language on this lift ticket may have been different than the language required by law, which basically states the skier assumes the risk of skiing. The required statutory language does not cover any issues with loading, unloading or riding chair lifts.
This creates a major conflict for ski areas. What do you put on the lift ticket. The statute requires specific language; however, there are no penalties for failing to put the language on the lift ticket. However, it is negligence to violate any part of the statute, if that negligence caused an injury.
C.R.S. §§ 33-44-104. Negligence – civil actions.
(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.
(2) A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704 (1) (a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.
Failing to put the language on the lift ticket by itself could not cause an injury. The language required on the lift ticket is the same language required to be posted where ever lift tickets are sold and posted at the bottom of all base area lifts. Base area lifts are the lifts used to get up the mountain. Lifts that start further up the mountain, which require a lift right to reach don’t need the warning signs.
My advice is to include the statutory language and much of the language of this decision on lift tickets. You just don’t want to walk into a courtroom and be accused of failing to follow the law. You might be right, but you will look bad and looking bad is the first step in writing a check. The biggest limitation is going to be the size of the lift ticket and print size.
This case, although decided before Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard? and was quoted in this decision, it adds another block into what is now an almost impregnable wall against claims from skiers in Colorado.
What do you think? Leave a comment.
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Sally Rumpf & Louis Rumpf, Plaintiffs, v. Sunlight, Inc., Defendant.
Civil Action No. 14-cv-03328-WYD-KLM
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
August 3, 2016, Decided
August 3, 2016, Filed
CORE TERMS: exculpatory, ski lift, rental agreement, lift tickets, ski, summary judgment, sports, recreational, snow, service provided, ski area, loading, skiing, language contained, unambiguous language, adhesion contract, unambiguously, exculpation, bargaining, equipment rental, loss of consortium, negligence claims, collectively, safely, riding, Ski Safety Act, question of law, ski resort, standard of care, moving party
COUNSEL: [*1] For Sally Rumpf, Louis Rumpf, Plaintiffs: Michael Graves Brownlee, Brownlee & Associates, LLC, Denver, CO USA.
For Sunlight, Inc., Defendant: Jacqueline Ventre Roeder, Jordan Lee Lipp, Davis Graham & Stubbs, LLP-Denver, Denver, CO USA.
JUDGES: Wiley Y. Daniel, Senior United States District Judge.
OPINION BY: Wiley Y. Daniel
I. INTRODUCTION AND RELEVANT FACTUAL BACKGROUND
This matter is before the Court on the Defendant’s Motion for Summary Judgment (ECF No. 39) and the response and reply to the motion. For the reasons stated below, Defendant’s motion is granted.
I have reviewed the record and the parties’ respective submissions, and I find the following facts to be undisputed, or if disputed, I resolve them in the light most favorable to the Plaintiffs.
On December 24, 2012, Plaintiffs Sally Rumpf and her husband Louis Rumpf traveled to Glenwood Springs, Colorado to visit family and go skiing. On December 27, 2012, Plaintiffs went to Sunlight, a ski resort near Glenwood Springs. Prior to skiing, Plaintiffs rented ski equipment from Sunlight. As part of the ski rental, the Plaintiffs each executed a release, which provides in pertinent part:
I understand that the sports of skiing, snowboarding, skiboarding, [*2] snowshoeing and other sports (collectively “RECREATIONAL SNOW SPORTS”) involve inherent and other risks of INJURY and DEATH. I voluntarily agree to expressly assume all risks of injury or death that may result from these RECREATIONAL SNOW SPORTS, or which relate in any way to the use of this equipment.
* * *
I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, owners, affiliates, agents, officers, directors, and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.
I further agree to defend and indemnify PROVIDERS for any loss or damage, including any that results from claims or lawsuits for personal injury, death, and property loss and damage related in any way to the use of this equipment.
This agreement is governed by the applicable law of this state or province. [*3] If any provision of this agreement is determined to be unenforceable, all other provisions shall be given full force and effect.
I THE UNDERSIGNED, HAVE READ AND UNDERSTAND THIS EQUIPMENT RENTAL & LIABILITY RELEASE AGREEMENT.
(ECF No. 39, Ex. 2) (emphasis in original).
The Plaintiffs also purchased lift tickets from Sunlight, which included the following release language:
Holder understands that he/she is responsible for using the ski area safely and for having the physical dexterity to safely load, ride and unload the lifts. Holder agrees to read and understand all signage and instructions and agrees to comply with them. Holder understands that he/she must control his/her speed and course at all times and maintain a proper lookout. Holder understands that snowmobiles, snowcats, and snowmaking may be encountered at any time. In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property. Holder agrees that any and all disputes between Holder and the Ski Area regarding an alleged incident shall be governed by COLORADO LAW and EXCLUSIVE JURISDICTION [*4] shall be in the State or Federal Courts of the State of Colorado. …
(ECF No. 39, Ex. 4) (emphasis in original).
Plaintiff Sally Rumpf injured her shoulder when she attempted to board the Segundo chairlift at Sunlight. Plaintiffs Sally and Louis Rumpf bring this action against Defendant Sunlight alleging claims of negligence, negligence per se, and loss of consortium. (Compl. ¶¶ 21-35).1
1 Plaintiff Sally Rumpf asserts the two negligence claims while Plaintiff Louis Rumpf asserts the loss of consortium claim.
The Defendant moves for summary judgment on all three claims, arguing that (1) they are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket; (2) they fail for a lack of expert testimony; and (3) that Sally Rumpf was negligent per se under the Ski Safety Act.
II. STANDARD OF REVIEW
Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the … moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, the court must ‘view [*5] the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.'” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). “‘Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'” Id. (quotation omitted). Summary judgment may be granted only where there is no doubt from the evidence, with all inferences drawn in favor of the nonmoving party, that no genuine issue of material fact remains for trial and that the moving party is entitled to judgment as a matter of law. Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984).
I first address Defendant’s argument that it is entitled to summary judgment on Plaintiffs’ three claims for relief based on the exculpatory agreements contained in both the ski rental agreement and the lift ticket. It is undisputed that Plaintiff Sally Rumpf read and understood that she was bound by the release language on both the rental agreement and the lift ticket. (Sally Rumpf Dep. at 72:17-23, 97-8-17, 99:2-25, 101:11-25, 102:1-21, 106:6-25, 107:1-25, 108:1-25, and 109:1-7).2
2 The evidence reveals that Plaintiff Louis Rumpf also understood and agreed to the release language on both the [*6] rental agreement and the lift ticket.
Defendant argues that the exculpatory language is valid and enforceable under the four-factor test set forth in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the Court. Jones, 623 P.2d at 376. Exculpatory agreements, which attempt to insulate a party from liability for its own negligence, are generally recognized under Colorado law, but are construed narrowly and “closely scrutinized” to ensure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Id. Additionally, the terms of exculpatory agreements must be strictly construed against the drafter. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1990). Pursuant to Jones, in determining the validity of an exculpatory agreement, the Court must consider the following factors: (1) whether the service provided involves a duty to the public; (2) the nature of the service provided; (3) whether the agreement was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones, 623 P.2d at 376; Heil Valley Ranch, 784 P.2d at 784, see Robinette v. Aspen Skiing Co., L.L.C., No. 08-cv-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (D. Colo. April 23, 2009).
Based on the Plaintiffs’ response, it does not appear that they [*7] are contesting that the exculpatory language contained in the rental agreement or the lift ticket satisfies the above-mentioned Jones criteria, arguing instead that because “this case arises from a ski lift attendant’s negligence, the exculpatory release language is inapplicable and irrelevant.” (Resp. at 1). Citing Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (1998), Plaintiffs claim that Colorado law “specifically provides negligence causes of action for skiers injured getting on and getting off ski lifts.” (Resp. at 10).
In Bayer, the plaintiff was injured when he attempted to board a ski lift at Crested Butte ski resort. After the Tenth Circuit Court of Appeals certified various questions to the Colorado Supreme Court, the Colorado Supreme Court held that “the standard of care applicable to ski lift operators in Colorado for the design, construction, maintenance, operation, and inspection of a ski lift, is the highest degree of care commensurate with the practical operation of the lift. Neither the Tramway Act nor the Ski Safety Act preempt or otherwise supersede this standard of care, whatever the season of operation.” Id. at 80. I agree with Defendant, however, that Bayer is not controlling here because the question of the applicability [*8] of exculpatory language was not presented.
Plaintiffs further argue that the exculpatory language at issue is “only applicable to ski cases when the accident or injury occurs while the plaintiff is skiing or snowboarding on the slopes,” and not when loading the ski lift. (Resp. at 11).
I now analyze the exculpatory language at issue using the four Jones factors mentioned above. In Jones, the court instructed that for an exculpatory agreement to fail, the party seeking exculpation must be engaged in providing a service of great importance to the public, which is often a matter of practical necessity to some members of the public. Jones, 623 P.2d at 376-77. Here, the service provided is recreational and not an essential service that gives the party seeking exculpation an unfair bargaining advantage. Thus, there is no public duty that prevents enforcement of either the ski rental agreement or the exculpatory language included in Sunlight’s lift ticket.
To the extent that Plaintiffs contend that the exculpatory language at issue was “adhesive,” I note that Colorado defines an adhesion contract as “generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.” Id. at 374. However, [*9] printed form contracts offered on a take it or leave it basis, alone, do not render the agreement an adhesion contract. Clinic Masters v. District Court, 192 Colo. 120, 556 P.2d 473 (1976). Rather, “[t]here must a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that [the] services could not be obtained elsewhere.” Id. In Jones, the court held that the agreement was not an adhesion contract and the party seeking exculpation did not possess a decisive bargaining advantage “because the service provided … was not an essential service.” Jones, 623 P.2d at 377-78. Thus, here, I find that the exculpatory agreements were fairly entered into and are not adhesion contracts.
Finally, I examine whether the exculpatory agreements express the parties’ intent in clear and unambiguous language. Plaintiffs argue that loading or riding a ski lift is outside the scope of the exculpatory language set forth in both the ski rental agreement and the lift ticket.
“Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo. 1996). Under Colorado law, I must examine the actual language of the agreements for legal jargon, length and complication, and any likelihood of [*10] confusion or failure of a party to recognize the full extent of the release provisions. See Heil Valley Ranch 784 P.2d at 785; Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Specific terms such as “negligence” or “breach of warranty” are not required to shield a party from liability. What matters is whether the intent of the parties to extinguish liability was clearly and unambiguously expressed. Heil Valley Ranch, 784 P.2d at 785.
After carefully reviewing the relevant language set forth in both the ski rental agreement and the lift ticket, I find that both agreements clearly and unambiguously express the parties’ intent to release Sunlight from liability for certain claims. When Plaintiffs executed the ski rental agreement, they agreed to
RELEASE AND HOLD HARMLESS the equipment rental facility [Sunlight], its employees, owners, affiliates, agents, officers, directors, and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury … which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.
(ECF [*11] No. 39, Ex. 2) (emphasis in original). I find that this language unambiguously encompasses the use of Sunlight’s ski lifts. Furthermore, the ski lift ticket specifically references safely loading, riding and unloading Sunlight’s ski lifts and provides that the “Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property.” (ECF No. 39, Ex. 4) (emphasis in original). I find that the language at issue is neither long nor complicated and clearly expresses the intent to bar negligence claims against Sunlight arising from the participation in recreational snow sports, which includes loading or riding ski lifts. Accordingly, Plaintiffs’ negligence claims and loss of consortium claim are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket. Defendant’s motion for summary judgment is granted.3
3 In light of my findings in this Order, I need not address Defendant’s additional, independent arguments in support of summary judgment.
Accordingly, it is
ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 39) is GRANTED. This [*12] case is DISMISSED WITH PREJUDICE, and Judgment shall enter in favor of Defendant against the Plaintiffs. It is
FURTHER ORDERED that the Defendant is awarded its costs, to be taxed by the Clerk of the Court under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated: August 3, 2016
BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
Every time someone comes to your business or every time they sign up again they should sign a release. This time it got rid of a major problem.Posted: March 19, 2012
Releases work for future injuries and for injuries that may have all ready occurred.
This is a case where as part of the employment at a ski area, the family of the employee was able to get season passes. A requirement for the season pass was to sign a release.
In this case, the plaintiff was injured skiing on a season pass issued to the family member of an employee. The plaintiff sued the ski resort for his injuries. After the lawsuit had commenced but before trial, the plaintiff got another season pass and signed another release. The second release language was sufficient to stop the lawsuit.
The release was called a post injury release now because it stopped a lawsuit after the injury. Normally, I discuss pre-injury releases. Pre-Injury releases are releases that are signed in case someone is injured in a negligent manner.
Summary of the case
After it was discovered the plaintiff had signed a second release, the defense moved to amend their answer and filed a motion for summary judgment. The trial court granted the motion to amend and add the defense of release and accord and satisfaction. The plaintiff appealed.
“Release” is an affirmative defense. An affirmative defense is one that must be plead immediately in the answer of the defendant or the defense is waived. Release as a defense means that the parties have executed an agreement that releases the defendant from any claims.
“Accord and Satisfaction” are also an affirmative defense. Accord and Satisfaction means the party have come to an agreement, an accord and resolved their differences to the satisfaction of all parties.
The plaintiff argued that the post injury release was unconscionable. The contract should not be enforced because of:
“….inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process.”
An unconscionable contract or a contract of adhesion is one that the terms were offered on a take or leave it basis the terms are unjust to the point the court cannot allow the contract to stand. The contract must be so bad as to shock the conscience of the court. However, the contract cannot just be bad to one party.
Here, there are several factors that would not make the contract unconscionable. The contract is not for a necessary service. The services could be received from the same party in other ways. (Instead of signing a release and getting a season pass, the plaintiff could have purchased daily lift tickets and not signed a release.) The services were available from other providers.
The court found there were no coercion, duress, fraud or “sharp practices” by the defendant. The agreement did not change the duty of care nor did it “incentivize negligence.” Each of the contracting parties gained or gave away something of value.
So Now What?
Here the defendant was lucky. The plaintiff unknowingly signed a release to get his season pass that had the language necessary to stop a claim that had already occurred. There are two important points to bring up from this case.
1 Make sure your release has language to top future claims and past claims.
2. Every single time have every single-person sign a release. Get a new season pass, you sign the release again. Go rafting again, you sign the release. Buy another widget sign the release.
You just never know when a release from the future may stop a claim from the past.
What do you think? Leave a comment.
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Dearnley v. Mountain Creek, 2012 N.J. Super. Unpub. LEXIS 527
Derek Dearnley and Vicky Dearnley, his wife, Plaintiffs-Appellants, v. Mountain Creek, its agents, servants and employees, Defendant-Respondent.
Docket no. A-5517-10T1
Superior Court of New Jersey, Appellate Division
2012 N.J. Super. Unpub. LEXIS 527
February 29, 2012, Argued
March 12, 2012, Decided
Notice: not for publication without the approval of the appellate division.
Please consult new jersey rule 1:36-3 for citation of unpublished opinions.
Prior History: [*1]
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-540-09.
CORE TERMS: season, summary judgment, ski area, unconscionability, unconscionable, affirmative defenses, resort, Law Division, contract of adhesion, exculpatory provisions, releasor’s, surgery, ski, pass holder, bold, tort liability, de novo, contracting party’s, public policy, sliding scale, unenforceable, snowboarding, exculpatory, non-moving, favorable, equitable, adhesion, binding, bargain, quod
COUNSEL: Evan D. Baker argued the cause for appellants (Law Offices of Rosemarie Arnold, attorneys; Mr. Baker, of counsel and on the brief).
Samuel J. McNulty argued the cause for respondent (Hueston McNulty, P.C., attorneys; Mr. McNulty, of counsel and on the brief; John F. Gaffney and Stephen H. Shaw on the brief).
JUDGES: Before Judges Harris and Koblitz.
Plaintiffs Derek Dearnley and Vicky Dearnley appeal from the June 16, 2011, summary judgment dismissal of their six-count complaint. Plaintiffs sought tort remedies for injuries suffered by Mr. Dearnley while snowboarding at defendant Mountain Creek Resort, Inc.’s ski area in Vernon. We affirm.
1 This appeal arises from the motion court’s grant of summary judgment in defendant’s favor. Accordingly, we present the evidence in the light most favorable to plaintiffs. See Durand v. The Nutley Sun, N.J. , (2012) (slip op. at 3 n.1) (citing G.D. v. Kenny, 205 N.J. 275, 304 (2011) (citations omitted); R. 4:46-2(c)).
Between 1998 and 2010, Mrs. Dearnley was employed by defendant in its retail department. As part of her compensation benefits, [*2] she and her family members were entitled to apply for, and obtain, a free season pass to use defendant’s facilities at its Vernon ski resort. On November 25, 2008, because her husband desired to take advantage of this benefit for the 2008-2009 winter season, Mrs. Dearnley applied for, and obtained, the pass. She signed, on his behalf, a document entitled, “Season Pass Contract, Student Ski & Ride Voucher Program, Rules and Conditions of Sale, Release of Liability and Indemnity Agreement” (the 2008 agreement). The 2008 agreement contained exculpatory provisions purporting to release tort claims before they occurred. For example, the pass holder “fully release[d] Mountain Creek FROM ANY AND ALL LIABILITY for personal injury, death or property damage arising out of or resulting from [the pass holder’s] participation in this sport, MOUNTAIN CREEK’S NEGLIGENCE, conditions on or about the premises and facilities or the operations of the ski area” (capitalization in the original). The outcome of this appeal, however, does not turn on this language.
On January 4, 2009, Mr. Dearnley was snowboarding at the Mountain Creek ski area when he suffered an accident that he attributes to defendant’s [*3] negligence and breach of its duties under N.J.S.A. 5:13-1 to -11 (the Ski Act). As a result of the accident, Mr. Dearnley incurred serious injuries, which required immediate emergency surgery to stabilize his back by the implantation of metal rods and screws. According to his answers to interrogatories, Mr. Dearnley ultimately spent approximately six weeks in the hospital, had to endure three surgeries, and underwent weeks of physical therapy and rehabilitation.
On October 13, 2009, plaintiffs filed their personal injury and per quod complaint against defendant in the Law Division, Sussex Vicinage. Defendant’s answer listed ten affirmative defenses, but did not assert that the 2008 agreement’s exculpatory provisions barred the action.
Two months later, on December 21, 2009, while his wife was still employed by defendant, Mr. Dearnley applied for a season pass for the 2009-2010 winter season. He was presented with, and signed, a two-page document entitled, “Mountain Creek Resort, Inc. 2009-’10 Season Pass Wavier” (the 2009 agreement). In bold, capitalized print at the top of the first page, the 2009 agreement stated, “RELEASE, WARNINGS AND DISCLAIMERS ON SKIING.”
At the top of the second [*4] page, to which Mr. Dearnley affixed his signature, the following appeared in bold typeface:
I FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST MOUNTAIN CREEK RESORT, INC. THIS RELEASES ALL CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE AND THOSE NOT MENTIONED IN THIS RELEASE. THIS RELEASE APPLIES TO CLAIMS RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.
The 2009 agreement also stated in bold typeface: “I AM AWARE THAT THIS CONTRACT IS LEGALLY BINDING AND THAT I AM RELEASING LEGAL RIGHTS BY SIGNING IT.”
During discovery, the 2008 and 2009 agreements were exchanged between the parties’ attorneys. Upon the realization of what Mr. Dearnley had signed, plaintiffs filed a motion “for an Order barring the affirmative defenses related to two adhesion contracts.” Defendant filed a cross-motion seeking (1) summary judgment, (2) permission to file an amended answer, and (3) denial of plaintiffs’ motion.
On April 29, 2011, Judge Edward V. Gannon heard oral argument. The judge granted defendant’s motion to amend its answer to permit the pleading of (1) release and (2) accord and satisfaction as affirmative defenses. The judge noted that the 2009 agreement [*5] was executed after both the filing of plaintiffs’ complaint and defendant’s answer, and therefore could not have been contemplated by the first exchange of pleadings. Reciprocally, he denied plaintiff’s motion to bar the affirmative defenses. Finally, he reserved decision on what he called “a matter of first impression with regard to this particular type of release.”
On June 16, 2011, Judge Gannon entered an order granting summary judgment dismissing plaintiffs’ complaint with prejudice. He explained his decision in a thorough ten-page statement of reasons, taking pains to carefully explicate the two agreements and then analyze them under the lens of applicable law. This appeal ensued.
Orders granting summary judgment pursuant to Rule 4:46-2 are reviewed de novo, and we apply the same legal standard employed by the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). In performing our appellate function we consider, as did the motion court, “‘whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in [*6] favor of the non-moving party.'” Advance Hous., Inc. v. Twp. of Teaneck, 422 N.J. Super. 317, 327 (App. Div. 2011) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. granted, N.J. (Jan. 24, 2012).
Similarly, when the legal conclusions of a motion court’s Rule 4:46-2 summary judgment decision are reviewed on appeal, “‘[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]’ and, hence, an ‘issue of law is subject to de novo plenary appellate review.'” Estate of Hanges v. Metro. Prop. Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010)).
Judge Gannon dismissed plaintiffs’ claims based upon the release contained in the 2009 agreement, which was personally executed by Mr. Dearnley months after his injuries and surgeries, months after he hired a lawyer, and months after he filed suit. From our review of the undisputed factual record, we are satisfied that this case does not present any novel or first impression issues. Rather, it revolves around an ordinary release —- not exculpatory —- clause and is governed [*7] by familiar principles of contract interpretation. As Judge Gannon stated,
Invalidating the agreed upon waiver would signal judicial mistrust of our citizen’s ability to intelligently enter contracts, in which benefits derive from the assumptions of burdens. In this case, Mr. Dearnley surrendered his right to maintain this suit in exchange for the benefits afforded to season pass holders. A contracting party’s assumption of a substantial burden is no basis for interfering with our citizens’ right to freely contract.
We affirm substantially for the reasons expressed by Judge Gannon, and add only the following brief comments.
Plaintiffs condemn the 2009 agreement as a contract of adhesion, fraught with unconscionabilty, and contrary to public policy. We emphasize that our review is limited to the 2009 agreement, not the 2008 agreement. We are not concerned with defendant’s efforts to exculpate itself from tort liability before an invitee becomes injured at its ski area. Instead, we parse Mr. Dearnley’s release of a claim after it allegedly accrued.
We begin our analysis of the enforceability of the release contained in the 2009 agreement with recognition of the deep-seated principle that [*8] contracts will be enforced as written. Vasquez v. Glassboro Serv. Ass’n, Inc., 83 N.J. 86, 98-100 (1980). Ordinarily, courts will not rewrite contracts to favor a party, for the purpose of giving that party a better bargain. Relief is not available merely because enforcement of the contract causes oppression, improvidence, or unprofitability, or because it produces hardship to one of the parties. Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 N.J. 210, 223 (2005). A court cannot “‘abrogate the terms of a contract unless there is a settled equitable principle, such as fraud, mistake, or accident, allowing for such intervention.'” Id. at 223-24 (quoting Dunkin’ Donuts of America, Inc. v. Middletown Donut Corp., 100 N.J. 166, 183-84 (1985)).
Rational personal and economic behavior in the modern post-industrial world is only possible if agreements between parties are respected. The reasonable expectations created by mutual assent ought to receive the protection of the law and courts should not be encouraged to fashion a better arrangement for a party because of a gaffe to which the other party is not privy. In other words, avoidance of a contract is a very stern [*9] remedy that requires clear evidence demonstrating that the consequences of the mistake are so grave that enforcement of the contract would be unconscionable. That formidable threshold has not been surmounted here.
Notwithstanding the foregoing, a contract provision that is procedurally and substantively unconscionable can be set aside. See Muhammad v. Cnty. Bank of Rehoboth Beach, 189 N.J. 1, 15 (2006), cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763 (2007). “[P]rocedural unconscionability . . . ‘can include a variety of inadequacies, such as age, literacy, lack of sophistication, hidden or unduly complex contract terms, bargaining tactics, and the particular setting existing during the contract formation process[.]'” Ibid. (quoting Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564-66 (Ch. Div. 2002). A contract of adhesion, presented by the drafting party to the other party on a take-it-or-leave-it basis, as here, typically involves “some characteristics of procedural unconscionability[.]” Id. at 16. The determination “that a contract is one of adhesion, however, ‘is the beginning, not the end, of the inquiry’ into whether a contract, or any specific term therein, [*10] should be deemed unenforceable based on policy considerations.” Id. at 28 (citing Rudbart v. N. Jersey Dist. Water Supply Comm., 127 N.J. 344 (1992)).
Substantive unconscionability essentially refers to the inclusion within a contract of “harsh or unfair one-sided terms.” Id. at 15 (citing Sitogum, supra, 352 N.J. Super. at 564-66). It is also described as “‘the exchange of obligations so one-sided as to shock the court’s conscience.'” B & S Ltd., Inc. v. Elephant & Castle Intern., Inc., 388 N.J. Super. 160, 176 (Ch. Div. 2006)(quoting Sitogum, supra, 352 N.J. Super. at 565).
Generally, courts must undertake “a careful fact sensitive examination into [claims of] substantive unconscionability.” Id. at 16 (footnote omitted). “When making the determination that a contract of adhesion is unconscionable and unenforceable, we consider, using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest.” Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 301 (2010).
The release provisions of the 2009 agreement are not the analytical equivalent of its exculpatory provisions. “The law does not favor exculpatory [*11] agreements because they encourage a lack of care.” Gershon v. Regency Diving Ctr., Inc., 368 N.J. Super. 237, 247 (App. Div. 2004). For that reason, courts closely scrutinize attempts to contract in advance to release tort liability. “‘[C]ourts have not hesitated to strike limited liability clauses that are unconscionable or in violation of public policy.'” Hojnowski v. Vans Skate Park, 187 N.J. 323, 333 (2004) (quoting Lucier v. Williams, 366 N.J. Super. 485, 491 (App. Div. 2004)).
The subject release does not call forth any of the foregoing concerns. Mr. Dearnley’s 2009 agreement with defendant neither eroded defendant’s duty of care nor did it incentivize negligence. Each of the contracting parties gained or gave away something of value. There was no coercion, duress, fraud, or sharp practices afoot. Public policy is not offended by requiring a non-incapacitated adult to honor the type of promise given here. See Raroha v. Earle Fin. Corp., 47 N.J. 229, 234 (1966) (holding that in the absence of fraud, misrepresentation or overreaching by the releasee, in the absence of a showing that the releasor was suffering from an incapacity affecting his ability to understand the meaning of [*12] the release and in the absence of any other equitable ground, it is the law of this State that the release is binding and that the releasor will be held to the terms of the bargain he willingly and knowingly entered).
Judge Gannon properly calibrated the “sliding scale” of our unconscionabilty jurisprudence and correctly determined that the 2009 agreement’s release was enforceable. Mr. Dearnley’s releasor’s remorse is an insufficient basis to return this matter to the Law Division for trial.2
2 Mrs. Dearnley’s claims are entirely derivative of her husband’s and consequently her per quod action must fall in the wake of Mr. Dearnley’s release. See Ryan v. Renny, 203 N.J. 37, 62 n.1 (2011) (noting that “the viability of [that claim] is subject to the survival of [her husband]’s claim” (quoting Sciarrotta v. Global Spectrum, 194 N.J. 345, 350 n.3 (2008)).)