Federal court holds that under Minnesota law, a release signed at a ski area did not violate MN Public PolicyPosted: March 27, 2017
Public policy probably cannot be used to defeat a release used by a ski area, because a ski area does not provide a necessity to the public. Even when a Canadian comes to the US to ski.
State: Minnesota, United States Court of Appeals for the Eighth Circuit
Plaintiff: Douglas R. Myers
Defendant: Lutsen Mountains Corporation
Plaintiff Claims: release is void due to public policy grounds
Defendant Defenses: Release
Holding: for the Defendant
This case arises from a ski accident that occurred Minnesota. The Plaintiff drove two hours from his home in Canada to the defendant ski area. Upon arrival, he signed a release when he purchased a lift ticket. He stated in his deposition that he was an expert skier.
Although he doesn’t remember the facts leading up to his accident, later in the day, he was coming down the hill got air landing in rocks and trees suffering injuries.
The trial court dismissed his claim based on the release, and he appealed to the Eighth Circuit Court of Appeals.
Jurisdiction was achieved because the plaintiff was a resident of Canada, and the ski area was located in Minnesota.
Analysis: making sense of the law based on these facts.
The Basis for the plaintiff’s argument was a violation of public policy should throw out the release because he had to drive so far to be able to go skiing. The Plaintiff argued he had no other choice but skis at the defendant ski area because of the distance he drove.
The court first looked at what was required for a release to be valid under Minnesota law. To be valid, Minnesota courts have held that releases could not be ambiguous, they cannot release intentional or willful or wanton acts, and they could not violate public policy.
Exculpatory clauses are enforceable in Minnesota as long as the clause (1) is not ambiguous, (2) does not release intentional, willful, or wanton acts, and (3) does not violate public policy.
The plaintiff first argument to defeat the release was that the release was ambiguous. The plaintiff argued the language of the release, released the defendant from all types of claims not just negligence. The court simply disagreed and found that the coverage of the release only covered simple negligence and was not ambiguous.
The plaintiff next argued that the release violated public policy. The violation of public policy was based on the fact that he had no bargaining power or there was a disparity bargaining power between himself and ski area. He had no option but to ski at the defendant resort.
The appellate court then looked at Minnesota Supreme Court decisions on public policy and found there was a two-factor test.
The Minnesota Supreme Court considers two factors to determine whether exculpatory agreements violate public policy: (1) whether there was a disparity of bargaining power between the parties (a compulsion to sign the contract with an unacceptable provision and a lack of ability to negotiate the elimination of that provision), and (2) the type of service being offered or provided through the contract (one who provides a public or essential service is less likely to be exempted from liability for harm caused by negligently providing that service).
The disparity in bargaining power argument did not fly with the court because the Supreme Court of Minnesota had held that a disparity bargaining power cannot exist if the offered service was available at some other place.
Regarding the first factor, the Minnesota Supreme Court has explained that a disparity of bargaining power does not exist if the offered service is not necessary or if it could have been obtained elsewhere.
The plaintiff argued a different case decided by the Minnesota Supreme Court earlier. The plaintiff paid several thousand dollars to the defendant as a deposit and then had driven several hours to rent a houseboat. The court held that the houseboat was just not a recreational issue but was also a place of accommodation. Innkeepers have always been included in the class of people who could not use a release because they offer a necessity to the public, a place to stay. Consequently, it has been a violation of public policy for an innkeeper to use a release in most states.
Because the houseboat was both recreational and a place of accommodation, there was a disparity bargaining power which was then emphasized by the distance the plaintiff had to travel. Worse, the fact a release is not offered until after he’d already paid his money and driven distance seemed to make the court a little upset and eagerly void the release.
Yang is instructive on this issue. The Minnesota Supreme Court held the rental company was acting both as a resort and as an innkeeper providing a public service when it offered houseboats for daily and weekly rentals. As a matter of public policy, the company could not circumvent its duty to protect guests by requiring them to release the company from liability for its negligence.
The court suggested there was a disparity in bargaining power because the plaintiff had paid a deposit of “a couple thousand” dollars, had not known about the release until he arrived at the place of business, several hours away from the plaintiff’s home, and the next nearest business providing the same service was over 65 miles away, but the essential nature of the service was the dispositive factor in the court’s conclusion that houseboat rental involves a public interest sufficient to invalidate the exculpatory agreement.
The court then looked to whether the service being offered was a necessity and as such a violation of the public policy doctrine which voids releases. Normally, essential public services are such things as utilities, transportation, or accommodations by an innkeeper, not ski areas.
When considering whether a service is public or essential in this context, “courts consider whether it is the type [of service] generally thought suitable for public regulation. Types of services thought to be subject to public regulation have included common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers and services involving extra-hazardous activities.”
Although the Minnesota Supreme Court had not looked at whether a recreational service could be considered as a necessity, Minnesota appellate courts had found that a recreational opportunity or service was not a necessity and therefore, did not violate public policy. The appellate court in reviewing these decisions held that the Minnesota Supreme Court would rule the same way.
We recognize that skiing is an activity enjoyed by many, but we believe the Minnesota Supreme Court would conclude it is not a necessary or public service and would find the release signed by Myers does not violate public policy.
The Eighth Circuit Court of Appeals upheld the trial court’s dismissal of the plaintiff’s complaint based on the release sign.
So Now What?
Although there is nothing distinctive in this decision, it does help you understand how the estate looks at public policy and relations shipped to a recreational activity. Public policy is an argument constantly being used by plaintiffs now days to argue that a release should be invalid. In some cases, the courts accepted that premise, such as in Oregon. (See Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.) However, those cases are still rare.
To combat this way to fight releases you may want to look at your release and identify in the release issues in your state that might make it subject to a public policy argument. Identify those issues and have the signor agree they do not fall within the definition of public policy. A signor agreeing that the release does not violate public policy may not be conclusive in a court of law but will help a court decide that your release for recreational service and not for a necessity of life.
Always remember, waiting until the last minute to present your release to your guests is a way to void your release. Many states have held this and with the internet such an easy way to show your client the release in advance, this argument will take on more weight as time goes by.
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Myers v. Lutsen Mountains Corporation, 587 F.3d 891; 2009 U.S. App. LEXIS 25825
Douglas R. Myers, Appellant, v. Lutsen Mountains Corporation, Appellee.
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
587 F.3d 891; 2009 U.S. App. LEXIS 25825
October 22, 2009, Submitted
November 25, 2009, Filed
PRIOR HISTORY: [**1]
Appeal from the United States District Court for the District of Minnesota.
PROCEDURAL POSTURE: Plaintiff skier sued defendant ski resort operator, asserting personal injury claims. The United States District Court for the District of Minnesota granted summary judgment in favor of the resort operator based on a release. The skier appealed.
OVERVIEW: The skier purchased a lift ticket at the ski resort and signed a written release of liability waiver. The skier was injured when he lofted into an area containing rocks and small trees. The district court found that the release signed by the skier precluded him from pursuing his claims. The appellate court determined that the release was enforceable under Minnesota law because (1) the language of the release expressly and unambiguously excluded from its coverage claims arising from reckless or intentional acts, (2) the release was not ambiguous, (3) regarding the skier’s argument that the release violated public policy because he had no bargaining power, there was no disparity of bargaining power since the service provided by the resort operator was not necessary and the skier could have gone elsewhere to ski, (4) regarding whether the release violated public policy, the appellate court predicted the Minnesota Supreme Court would hold skiing was not a public or essential service, and (5) the release was not invalidated by Minnesota’s Plain Language Contract Act and Minnesota’s Consumer Credit Sales Act.
COUNSEL: For Douglas R. Myers, Plaintiff – Appellant: James Walter Balmer, Stephanie M. Balmer, FALSANI & BALMER, Duluth, MN.
For Lutsen Mountains Corporation, Defendant – Appellee: Gregory Aaron Bromen, Brian N. Johnson, HALLELAND & LEWIS, Minneapolis, MN.
JUDGES: Before COLLOTON and BENTON, Circuit Judges, and PIERSOL 1, District Judge.
The Honorable Lawrence L. Piersol, United States District Court for the District of South Dakota, sitting by designation.
OPINION BY: Lawrence L. Piersol
[*892] PIERSOL, District Judge.
Douglas R. Myers (“Myers”) appeals an adverse grant of summary judgment. Myers was injured while skiing at Lutsen Mountains, a ski resort operated by Lutsen Mountains Corporation (“Lutsen”). He sued Lutsen, and the district court 2 granted Lutsen’s motion for summary judgment, holding that a release signed by Myers precluded him from pursuing his claims. This appeal followed. For the reasons set forth below, we affirm the judgment of the district court.
2 The Honorable John F. Forster, Jr., United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for decision by consent of the parties pursuant [**2] to 28 U.S.C. § 636(c).
[HN1] We review de novo a district court’s grant or denial of summary judgment. [*893] Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 519 F.3d 466, 471 (8th Cir. 2008). Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P. 56(c).
The facts of this case are essentially undisputed. On December 28, 2006, Myers and two of his friends left their homes in Thunder Bay, Ontario, Canada, and drove approximately two hours to Lutsen, Minnesota. The three friends arrived in time to buy ski tickets before 9:30 a.m., when the ski lifts open at Lutsen. Myers has no memory of that day, but he agrees that he purchased a lift ticket and signed a written release of liability waiver. The release includes the following language:
PLEASE READ CAREFULLY BEFORE SIGNING. THIS IS A RELEASE OF LIABILITY AND WAIVER OF CERTAIN LEGAL RIGHTS.
I understand that skiing in its various forms, including snowboarding, involves risks, dangers and hazards that may cause serious personal injury or death and that injuries [**3] are a common and ordinary occurrence. Risks include, but are not limited to, changes in terrain, weather and snow surfaces, ice, moguls, bare spots, debris, fences, posts, trees, lift equipment and towers, rope tows, light poles, signs, buildings, roads and walkways, ramps, half-pipes, padded and non-padded barriers, jumps and other terrain features, grooming equipment, snowmobiles, collisions with other persons and other natural and man-made hazards. I acknowledge that the risks in the sport of Alpine skiing can be greatly reduced by taking lessons, abiding by the Skier Responsibility Code, (known as Your Responsibility Code), and using common sense.
In consideration of the purchase of a lift ticket for Lutsen Mountains and use of its facilities, I RELEASE AND FULLY DISCHARGE Lutsen Mountains Corporation, its owners, officers, shareholders, agents and employees from any liability resulting from any personal injury to myself, including death, or damage to my property which is caused by the BREACH OF ANY EXPRESS OR IMPLIED WARRANTY or the NEGLIGENT ACT OR OMISSION of Lutsen Mountains Corporation, its owners, officers, shareholders, agents or employees in the design, location, construction, [**4] inspection, maintenance and repair of the conditions on or about the premises or ski area or the operations of the ski area, including but not limited to:
. the design, location, construction, inspection, maintenance and repair of trails, ski runs, slopes, ramps, half-pipes and other terrain features;
. grooming, snow-making, snowmobile operation, ski-lifts, rope tows and ski-lift and rope tow loading and unloading operations;
. padding or non-padding of natural and man-made obstacles and hazards;
. posting or failure to post warnings, signs, fences or other barriers;
. classification and labeling of trails and ski runs; or
. maintaining or modifying variations in the surface, steepness and pitch of trails, ski runs, slopes, ramps and terrain features.
I accept full responsibility for any injuries or damages which may result from the participation in the sport, and it is [*894] my intent to HOLD HARMLESS Lutsen Mountains Corporation, its owners, officers, shareholders, agents or employees for any injury sustained by me, including death, while participating in the sport. I agree not to bring any action or suit against Lutsen Mountains Corporation, its owners, officers, shareholders, agents or employees [**5] for any injury or damage.
In accordance with Minnesota law, nothing in this Release of Liability should be construed as releasing, discharging or waiving any claims I may have for reckless or intentional acts on the part of Lutsen Mountains Corporation, or its owners, officers, shareholders, agents or employees.
I HAVE CAREFULLY READ THIS RELEASE OF LIABILITY AND UNDERSTAND ITS CONTENTS. I AM AWARE THAT BY SIGNING THIS RELEASE OF LIABILITY, I AM WAIVING CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE LUTSEN MOUNTAINS CORPORATION, ITS OWNERS, OFFICERS, SHAREHOLDERS, AGENTS OR EMPLOYEES FOR CERTAIN CLAIMS.
CAUTION: READ BEFORE SIGNING! THIS DOCUMENT AFFECTS YOUR LEGAL RIGHTS AND WILL BAR YOUR RIGHT TO SUE!
At the bottom of the release, Myers printed his name, signed the document, and listed his age as 32.
At approximately 3:30 p.m. on December 28, 2006, Myers, a self-described expert skier at the time of the accident, was on Lutsen’s Lower Meadows trail when he skied over an edge of the course. At oral argument, Myers’ counsel indicated that this is an intermediate slope. Myers apparently lofted into an area containing rocks and small trees, and he was injured. He filed a personal injury [**6] lawsuit against Lutsen in Minnesota district court based on diversity jurisdiction. The parties filed cross-motions for summary judgment. Concluding that the release Myers signed is valid under Minnesota law, the district court granted Lutsen’s motion for summary judgment and dismissed Myers’ complaint with prejudice. On appeal, Myers argues that the district court erred by holding the release is enforceable under Minnesota law.
Minnesota law applies in this diversity case. See Integrity Floorcovering, Inc. v. Broan-Nutone, LLC, 521 F.3d 914, 917 (8th Cir. 2008). [HN2] Exculpatory clauses are enforceable in Minnesota as long as the clause (1) is not ambiguous, (2) does not release intentional, willful, or wanton acts, and (3) does not violate public policy. See Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982).
Myers first argues the release is ambiguous because it could be interpreted as waiving Lutsen’s liability for all types of claims and not just negligence. We disagree. The language of the release expressly and unambiguously excludes from its coverage claims arising from reckless or intentional acts, and the district court correctly found the release is not ambiguous.
Myers [**7] next asserts the release violates public policy because he had no bargaining power; he had to sign the release or not ski at Lutsen. [HN3] The Minnesota Supreme Court considers two factors to determine whether exculpatory agreements violate public policy: (1) whether there was a disparity of bargaining power between the parties (a compulsion to sign the contract with an unacceptable provision [*895] and a lack of ability to negotiate the elimination of that provision), and (2) the type of service being offered or provided through the contract (one who provides a public or essential service is less likely to be exempted from liability for harm caused by negligently providing that service). See Schlobohm, 326 N.W.2d at 923. Regarding the first factor, the Minnesota Supreme Court has explained that a disparity of bargaining power does not exist if the offered service is not necessary or if it could have been obtained elsewhere. See id. at 925. In Schlobohm, the court concluded there was no disparity in bargaining power when Schlobohm voluntarily joined a fitness center and signed a contract containing an exculpatory clause because there was no showing that the center’s services were necessary or that [**8] the services could not have been obtained elsewhere. See id.
Relying primarily on Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783 (Minn. 2005), Myers contends a disparity in bargaining power existed because it would have taken him over two hours to drive from Lutsen to the closest ski hill. In Yang, the Minnesota Supreme Court invalidated an exculpatory clause in the context of a houseboat rental agreement. See id. at 786. The court suggested there was a disparity in bargaining power because the plaintiff had paid a deposit of “a couple thousand” dollars, had not known about the release until he arrived at the place of business, several hours away from the plaintiff’s home, and the next nearest business providing the same services was over 65 miles away, see id. at 789 n. 3, but the essential nature of the service was the dispositive factor in the court’s conclusion that houseboat rental involves a public interest sufficient to invalidate the exculpatory agreement. See id. at 789. Yang lends little support to Myers’ argument that a disparity of bargaining power existed in this case. As did the Minnesota Supreme Court in Schlobohm, we find no disparity of bargaining power because [**9] the service provided by Lutsen is not necessary, and Myers could have gone elsewhere to ski.
This brings us to the second factor considered by Minnesota courts to determine whether a release violates public policy: the type of service provided. Myers does not argue that Lutsen provides a public or essential service, and [HN4] we predict the Minnesota Supreme Court would hold skiing is not a public or essential service. When considering whether a service is public or essential in this context, “courts consider whether it is the type [of service] generally thought suitable for public regulation. Types of services thought to be subject to public regulation have included common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers and services involving extra-hazardous activities.” Schlobohm, 326 N.W.2d at 925. In Schlobohm, the Minnesota Supreme Court held the services furnished by the health club are not the type generally thought suitable for public regulation and do not involve an activity of great importance or of practical necessity. See id. at 925-26.
Yang is instructive on this issue. The Minnesota Supreme Court held the rental company was acting [**10] both as a resort and as an innkeeper providing a public service when it offered houseboats for daily and weekly rentals. See Yang, 701 N.W.2d at 790. As a matter of public policy, the company could not circumvent its duty to protect guests by requiring them to release the company from liability for its negligence. See id. at 791. The court distinguished these types of [HN5] services from those involving recreational activities which courts generally have held “do not [*896] fall within any of the categories where the public interest is involved.” Id. at 789 (quoting Schlobohm, 326 N.W.2d at 925-26). The court specifically rejected the argument that renting houseboats is a purely recreational activity and is not a necessary or public service. See id. at 790.
[HN6] Whether recreational activities involve a public interest is a question the Minnesota Supreme Court has not yet squarely addressed. If the Minnesota Supreme Court has not spoken on an issue, the federal court must determine what decision the state court would make if faced with the same facts and issue. See Kovarik v. American Family Ins. Group, 108 F.3d 962, 964 (8th Cir. 1997). The federal court should consider relevant state court decisions, [**11] “analogous decisions, considered dicta, . . . and any other reliable data.” Id. at 964 (quoting Ventura v. Titan Sports, Inc., 65 F.3d 725, 729 (8th Cir. 1995)). The Minnesota Court of Appeals has upheld liability releases in contracts for various types of recreational activities, finding the activities are not of great importance to the public or of practical necessity to anyone. See, e.g., Beehner v. Cragun Corp., 636 N.W.2d 821, 828 (Minn. App. 2001) (horseback riding); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 731 (Minn. App. 1986) (sky diving). We recognize that skiing is an activity enjoyed by many, but we believe the Minnesota Supreme Court would conclude it is not a necessary or public service and would find the release signed by Myers does not violate public policy.
Finally, we disagree with Myers’ arguments that the release is invalidated by two Minnesota statutes, the Plain Language Contract Act and the Consumer Credit Sales Act.
Myers does not contest that the release, if valid, encompasses his claims against Lutsen. The release is valid under Minnesota law and, thus, we affirm the district court’s summary judgment for Lutsen.