It is that time of year, release stops lawsuit against ski club

Masciola, v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313; 628 N.E.2d 1067; 1993 Ill. App. LEXIS 2011; 195 Ill. Dec. 603

Illinois’s decision holds that the release in question covered the issue complained of by the plaintiff who caused his injuries.

The plaintiff in this case was a member of the Chicago Metropolitan Ski Council, a ski club. The plaintiff entered a race put on by the defendant ski council at Indianhead Mountain, Michigan. To enter the race the plaintiff had to sign a release.

While racing the plaintiff hit a compression area in the race course which caused him to be thrown into telephone poles that marked the finish line. The plaintiff’s injuries were never specified in the decision.

The plaintiff alleged the unsafe conditions of the race course were not contemplated by the release, and the parties were acting under a mutual mistake of fact.

Summary of the case

A mutual mistake of fact is usually a way to void a contract. Remember a contract, which a release is, requires a meeting of the minds. Normally, with a release, you write the release so the meeting of the minds is agreed to when the guest signs the agreement.

If the parties do not agree on the specific issues of a contract, the reasons for a contract, then a contract is void. An example would be party A wants to sell his beat up second car. Party A tells party B that his car is for sale. Party B has never seen the second car and assumes party A is selling his good car; the only one party B, thinks party A, owns.

The contract between party A and party B would be void because of mistake of fact. Party A and Party B never had a meeting of the minds on what was being bought/sold so there was no contract.

Under Illinois’s law, like in most states, releases are disfavored, but upheld if there is no fraud, willful and wanton conduct [on the part of the defendant] or legislation prohibiting releases. If those requirements are met the court next looks at the position of the parties to make sure there is no disparity in the bargaining power between the parties. Here because skiing and ski racing is recreational and the plaintiff did not have to race, there was no disparity.

The next requirement is different.

…the question of whether or not an exculpatory clause will be enforced depends upon whether or not defendant’s conduct and the risk of injury inherent in said conduct was of a type intended by the parties to fall within the scope of the clause.

The risk which caused the injury must not be set out specifically in the release; the release must just show that the risk was contemplated by the parties to the release. The court found the release covered the problems the plaintiff claimed injured him.

So Now What?

Simply put make sure your release has a broad description of the risk intended to be covered by the release. First start with the life-changing  events, death, quadriplegia, and work your way done to those things that although not of high severity do occur with high frequency.

If you do keep accident reports (see Why accident reports can come back to haunt you.) go through the reports to identify the risks that should be in your release. Always include the loss of property. Dropped phones while riding a ski lift and lost sunglasses whitewater rafting are probably the number one issue that irritates guests. Cover those issues, other minor issues and major problems in your release.

Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us

Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.

To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.

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