Indemnification between businesses requires a contract outlining the type of indemnification and a certificate of insurance from one party to the other so the insurance company knows it is on the hook.Posted: May 30, 2016
Because no certificate of insurance was issued by the third-party insurance company, company, the contract requiring indemnification between the ski area and the manufacturer failed.
State: Massachusetts, United States District Court for the District of Massachusetts
Plaintiff: Jiminy Peak Mountain Report, LLC
Defendant: Wiegand Sports, LLC, and, Navigators Specialty Insurance, CO.
Plaintiff Claims: Indemnification
Defendant Defenses: No contract
Holding: for the Defense
Obviously, this is not your normal injured guest case. This case looks at the relationship between a resort and a manufacturer who installed a ride at the resort.
In 2006 the defendant Wiegand built an Alpine Coaster for the plaintiff ski area Jiminy Peak Mountain Resort, LLC. The construction/purchase agreement (Consulting, Purchase, Delivery, Assembly and Inspection Contract) also contained language requiring the manufacturer to defend any claims that were brought against the plaintiff for injuries after the ride was built.
The construction agreement required Jiminy Peak to pay part of the premiums for the insurance policy. However, the policy was only in the name of the defendant Wiegand, and did not list Jiminy Peak as an additional insured or co-insured.
Section 8 of the Contract, titled “Rights and Obligations of [Jiminy]” included in its final subsection, 8(j), language stating that Wiegand would purchase product liability insurance for the Coaster, but that Jiminy was required to pay a portion of the premium, the amount of which would be determined based on the purchase price of the Coaster, and Jiminy would then be listed as an additional insured.
The agreement also stated that Wiegand would defend and pay for any claim that Jiminy Peak received.
…in the event of a product liability suit against [Wiegand], [Wiegand] “shall, at its own expense, defend any suit or proceeding brought against [Jiminy] and shall fully protect and indemnify [Jiminy] against any and all losses, liability, cost, recovery, or other expense in or resulting from such . . . suit (provided, however, [Jiminy] has fully performed all ongoing maintenance obligations).
In 2012, two minors were seriously injured riding the coaster. Wiegand had a commercial liability policy with the defendant Navigators Insurance Company. However, Navigators did not issue a certificate of insurance covering Jiminy Peak. The parents of the injured minors filed suit against Jiminy Peak and Wiegand. Jiminy Peak sued Wiegand and Navigator seeking a declaratory judgment requiring Wiegand and Navigator to pay the cost of defending those suits.
A declaratory judgment is a quick request for a court to issue an order. Jiminy and Wiegand dismissed their claims against each other and just were fighting the lawsuit against them. The case between Jiminy and Navigator then is the subject of this decision.
Analysis: making sense of the law based on these facts.
Navigator argued that there was a duty to defend someone who was not a named insured. Jiminy Peak was not listed on the policy as an insured, co-insured or additional insured. Navigator also argued that it had no legal relationship with Jiminy Peak; therefore, it owed Jiminy Peak no money.
Navigators argues that as an insurer it owes a duty to defend its insured, Wiegand, but it does not owe a direct duty to defend Jiminy because Jiminy is not an additional insured under the Policy. Further, the duty Navigators has under the Policy to pay defense costs to a non-insured party pursuant to a contractual liability of its insured only requires it to make payments to the insured, and only when the insured has actually requested payment. In this case, Navigators asserts that even if Wiegand is found to owe Jiminy its defense costs, it will be up to Wiegand to determine whether it wishes to pay the amount or to make a claim to Navigators. Since Navigators owes no duty directly to Jiminy and it would be up to Wiegand to determine whether to make a claim in the event judgment is entered against it with respect to Jiminy’s defense costs…
Jiminy Peak responded by arguing the contract between it, and Wiegand was enough to force Navigator to pay. (You and I go to dinner and try to convince the waiter that your friend who is not at the table should pay for our meal.)
The court looked into the requirements for an insurance company to defend under Massachusetts law.
The court begins its analysis by considering whether Massachusetts law allows Jiminy to compel payment from Navigators based on Navigators’ obligations to its insured, Wiegand. Massachusetts law imposes on insurers a “broad duty to defend its insured against any claims that create a potential for indemnity.” This duty is broad and attaches whenever the claims in the complaint match up with the language in the policy.
However, the broad language of the policy only applies to the companies named in the policy as an insured. Jiminy Peak was not named in any way under the policy.
The Contract also included provisions regarding both additional insureds and “insured contracts,” suggesting that Jiminy, like Navigators and Wiegand, understood that Wiegand’s promise to pay Jiminy’s defense costs would not grant Jiminy the status of an “additional insured” with respect to Navigators.
If Jiminy Peak had been named in the policy or listed as an additional insured, then coverage would have been provided under Navigator’s policy issued to Wiegand.
In the absence of a contractual relationship between Navigators and Jiminy, the court finds no legal basis for ordering Navigators to pay Jiminy’s defense costs directly. Any obligation upon Navigators to pay such costs will arise only after an insured, in this case Wiegand, makes a claim for payment and then its only obligation will be to Wiegand.
Jiminy Peak may still be indemnified by Navigator’s policy. However, to be covered Wiegand will have to make a claim under the policy and if Wiegand was negligent and did something defined under the policy as an insured, then coverage will be provided.
However, I doubt any coverage will be provided unless Jiminy Peak can prove that Wiegand was negligent in its relationship. The contract only applies to product liability or negligence claims of the insured, Wiegand.
So Now What?
Insurance policies are written so the language is clear. The insured or persons covered by the policy are listed on the first page, the declaration page, or as additional insured on the policy. The coverage provided by a policy is broader than the language usually required by state law. However, the broad coverage is only extended to the people listed in the policy.
If you name is not on a piece of paper issued by the insurance company you are not covered under the policy.
A certificate of insurance request by Jiminy Peak would have solved the problem.
However, requesting a certificate of insurance does not solve all problems, in fact it only solves very limited problems. For a simple certificate of insurance to provide protection, the named insured must have done something to create liability for the insured under the certificate of insurance.
Just requesting a certificate of insurance without an agreement outlining what is to be covered is worthless.
Every day I see situations were one company requests a certificate of insurance believing that provides coverage. It does not. To be effective a certificate of insurance should be issued based on a contract which outlines what is to be covered under the certificate of insurance. The certificate of insurance must confirm to the contract between the parties.
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MA Ski Safety Act and a release prevent the plaintiff’s suit.
As the court said, this is a sad case; the plaintiff was a student ski racer. She hit a lift tower during a race and became a paraplegic. She sued the ski area, Jimmy Peak Mountain Resort, Williams College, its coaches and several other officials of the race.
The race was part of a weekend Williams Winter Carnival. The carnival was at Jimmy Peak and included ski races. The plaintiff examined the Giant Slalom course. She exited the course during a run and struck an unprotected lift tower. The factual issues resolved around whether the tower was supposed to be protected by B-Netting (the red netting you see on the sides of ski races) or padding.
The race was on a homologated hill (a slope that met FIS regulations). The race organizers prepared a plan for the netting on the course which showed the netting in the area where the plaintiff left the course. When the plaintiff left the course, there was no netting to slow her down or stop her.
The plaintiff argued the “plan” was a requirement to run the race as required by FIS. The defendants argued the plan was where safety equipment might need to be necessary. The B-netting was not set up according to the plan.
Summary of the case
The plaintiff claimed the defendant ski area was liable for “…negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).”
The court fist looked at the definition of Negligence and what the plaintiff must prove under Massachusetts law:
To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this damage.
The court reading the MSSA found the act served two “somewhat contradictory purposes “(1), to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety.”
Reading the act the court found the duty that caused the plaintiff’s injuries was on the plaintiff, not the ski area. The lift tower was off the ski trail and therefore, under the MSSA the ski area had no duty to set up netting or pad it. If the netting had been set up voluntarily, then the court found there would still be no liability because negligence in a voluntary act does not create liability under the MSSA.
Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features.
The court then looked at the plaintiff’s claims that the agreements of the college to use the ski area which was enveloped in two contracts created contractual duties that the defendant ski area breached. Under Massachusetts law, a tort can be created from a contractual relationship. (This is a minority view in most states.) However, the court could not find language in the contracts that created a duty to undertake steps to keep the competition safe as possible.
The court found that the defendant ski area had not been negligent and had not violated a duty to the plaintiff and dismissed the defendant Jimmy Peak Ski Area.
The court then looked at the remaining defendants, the colleges and the race officials, most of whom were employees of the colleges. These defendants relied upon the release as their defense. The release was required by the USSA (United States Ski and Snowboard Association) to race in USSA events, which this race was. The release had a venue clause that required Colorado law be applied to interpret the release. Choice of law provisions (jurisdiction and venue clauses) absent substantial Massachusetts public policy reasons are upheld in Massachusetts.
The court then examined the release under Colorado law and found the release to be enforceable. The plaintiff argued the release was ambiguous. The waiver was clear to the signor that signing the release waived all claims against the USSA. The USSA waiver listed every possible person to be protected by the release.
United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.”
Consequently, the waiver protected the remaining defendants. The third party defendants were also released by the waiver because their liability was contingent on the liability of the first party defendants. If the first party defendants were not liable, the third party defendants could not be liable.
The final argument the court reviewed was the claim the actions of the defendants amounted to gross negligence. Under Colorado law a waiver does not protect against gross negligence.
…under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence.
The court defined gross negligence as “Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than willful, wanton and reckless conduct.”
The court found the defendants had not acted in a way that was gross negligence, and no jury could find gross negligence on the part of any defendants.
There is no evidence in the record, and indeed, no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most, there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
So Now What?
The first issue was what was the plan? Actually, a point that was not addressed in the decision which should be addressed here was why was there a plan?
How can you create a plan, call it a safety plan and not execute it 100%? If it just a draft, or if it is just ideas, you better label it that way. You cannot create documents like that, that are not going to come back and fry you.
Paperwork is the easiest way for a plaintiff to find something to prove you did something wrong. If your paperwork says you will do something that you did not do, or not do something that you did, the plaintiff will work hard to connect it to the injury. You set your own standards, defined your duty to the customers and/or guests (future plaintiffs) and then violated, breached those duties you created.
The choice of laws clause, jurisdiction and venue clause, did not work as it normally would have in this case. The case was brought in federal court because there were parties to the suit from two different states (called diversity jurisdiction cases). No one seemed to want to argue the jurisdiction and venue clause in the release should be enforced. That is difficult to do in some diversity jurisdiction cases in federal court; however, it is not impossible. The case would have had the same outcome under Colorado law, whether or not it would have been filed at all in Colorado after being dismissed in Massachusetts is the question.
Another flaw in how the defendants could have provided more protection is there was not a separate release for the event or the race. Between the Williams College Outing Club, the ski area and the college, someone should have required the participants to sign a release for the event. It could have been based on the course, not all possible courses in the US. It could have named the colleges and their employees to provide better protection. It could have been based on the facts and law of Massachusetts.
It is sad when a young woman has her life upended and changed. However, the law is the law. As the court stated:
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
Plaintiff: Kelly Brush
Defendant: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race referee for a race
Plaintiff Claims: negligence or gross negligence, negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III).
Defendant Defenses: Massachusetts Ski Safety Act and Release
Holding: For all Defendants
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Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204Posted: March 25, 2013
Brush, v. Jiminy Peak Mountain Resort, Inc., Et Al, 626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
Kelly Brush, Plaintiff v. Jiminy Peak Mountain Resort, Inc., Et Al, Defendants and st. Lawrence university, Defendant/Third-Party Plaintiff v. Middlebury College, Et Al, Third-Party Defendants
C.A. No. 07-10244-MAP
626 F. Supp. 2d 139; 2009 U.S. Dist. LEXIS 52204
June 11, 2009, Decided
COUNSEL: [**1] For Jeffrey Pier, ThirdParty Plaintiff: Michael H. Burke, LEAD ATTORNEY, George W. Marion, Bulkley, Richardson & Gelinas, Springfield, MA.
For Barry Bryant, Defendant: John B. Connarton, Jr., LEAD ATTORNEY, Luke R. Conrad, Donovan Hatem, LLP, Boston, MA.
For Williams College, Defendant: William J. Dailey, Jr., Brian H. Sullivan, LEAD ATTORNEYS, Sloane & Walsh, LLP, Boston, MA.
For St. Lawrence University, ThirdParty Plaintiff: Thomas E. Day, Edward J. McDonough, Jr., LEAD ATTORNEY, Flanagan & Cohen, PC, Springfield, MA.
For Kelly Brush, Plaintiff: Walter E. Judge, Jr., LEAD ATTORNEY, Downs, Rachlin & Martin, Burlington, VT; Robert B. Luce, LEAD ATTORNEY, Downs, Rachlin & Martin PLLC, Burlington, VT.
For Williams College, Defendant: Lawrence J. Kenney, Jr., Sloane & Walsh, Boston, MA.
For Forest Carey, ThirdParty Defendant: Gerald F. Lucey, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
For Jiminy Peak Mountain Resort, Inc., Defendant: David B. Mongue, LEAD ATTORNEY, Donovan & O’Connor, LLP, North Adams, MA.
For Middlebury College Middlebury, VT 05753, ThirdParty Defendant: Robert B. Smith, Nelson, Kinder, Mosseau & Saturley, P.C., Boston, MA.
JUDGES: MICHAEL A. PONSOR, United States District [**2] Judge.
OPINION BY: MICHAEL A. PONSOR
[*143] MEMORANDUM AND ORDER REGARDING CROSS MOTIONS FOR SUMMARY JUDGMENT
(Dkt. Nos. 135, 137, 138, 139, 140, 143, 157)
This case stems from a tragic skiing accident that left the plaintiff, Kelly Brush, permanently disabled. The accident occurred during a collegiate ski race on February 18, 2006 when Brush lost control and crashed into a ski lift stanchion just off the trail. In her six-count amended complaint Brush alleges that the severity of her injuries was the result of negligence or gross negligence on the part of the following defendants: Jiminy Peak, Inc., the operator of the ski area where the accident occurred; Williams College and two of its ski coaches, Edward Grees and Oyestein Bakken, who organized the competition; St. Lawrence University and its ski coach, Jeffrey Pier, who was the referee of the race during which Brush was injured; and Barry Bryant, who served as the competition’s Technical Delegate from the Federation Internationale de Ski (“FIS”). Pier and St. Lawrence University have also filed a third-party complaint seeking contribution from Brush’s school, Middlebury College, and its ski coach Forest Carey, who was a race [**3] referee for a race on the same trail the day before Brush’s accident. Before the court are motions for summary judgment from all of the parties.
Jiminy Peak argues that pursuant to the Massachusetts Ski Safety Act (“MSSA”) it, as the ski area operator, has no liability because Plaintiff’s injuries were caused by her collision with an object off the trail. The other Defendants assert that Plaintiff cannot recover from them because she executed a liability waiver that covered Defendants and their alleged negligence when she registered with the United States Ski and Snowboard Association (“USSA”). The Third-Party Defendants argue that as a matter of law they have no obligation to contribute even if Third-Party Plaintiffs Pier and St. Lawrence are liable to Plaintiff. Plaintiff asks the court to rule that the MSSA does not bar her claims against Jiminy Peak and the USSA liability waiver is not applicable to bar the claims of the other Defendants. Finally she asserts that the facts are sufficient to permit this case to go to trial on a theory of gross negligence, even if the USSA waiver is valid.
For the reasons set forth below, the court will allow all Defendants’ motions for [*144] summary judgment, [**4] deny Plaintiff’s motion, and order entry of judgment for Defendants.
The facts are largely undisputed. Where disputes exist, the court has viewed the facts in the light most favorable to Plaintiff.
A. The Accident.
Brush was injured while competing in the Williams Winter Carnival, a two-day event at the Jiminy Peak ski area in Hancock, Massachusetts hosted by the Williams College Outing Club in association with the Williams College ski team. The Winter Carnival is part of the regular season of the Eastern Intercollegiate Ski Association (EISA), one conference within the ski program of the National Collegiate Athletic Association (NCAA). The competition was also held under the auspices of the USSA and the FIS, which in the United States operates through the USSA. As a result of the USSA/FIS affiliation, all competitors in the Winter Carnival had to be USSA members, though not all had to be NCAA athletes. The USSA/FIS designation meant that skiers could earn “points” to improve their international, individual standing by competing in the Winter Carnival events.
The particular event during which Plaintiff was injured was the Giant Slalom, which took place on the second day of [**5] the Winter Carnival. This event requires skiers to pass through “gates” set along the trail as they descend the slope as quickly as possible. Skiers are ranked based on their best time through the course and are not penalized for any runs they fail to finish, due for example to a fall. Technological changes in the past decade have increased the sport’s risks. New ski designs allow skiers to reach speeds of forty miles per hour. At the same time it has become harder to predict how skiers will fall if they lose control. Some courses now are set with gates at the edges of the trail to maximize the distance skiers must travel from one side of the trail to another in order to slow skiers down. Persons involved with competitive skiing are aware that technical changes have increased the importance of proper placement of safety equipment during competitions.
Under NCAA and USSA rules, members of the “competition jury” have a responsibility to inspect the layout of a trail prior to its use during a competition. The competition jury for the race during which Brush was injured included the “Chief of the Race,” Defendant Edward Grees, the head ski coach at Williams; the “Chief of the Course,” Defendant [**6] Oyestein Bakken, an assistant ski coach at Williams; the “Race Referee,” Jeffrey Pier, a ski coach at St. Lawrence University; and the “Technical Delegate,” Defendant Barry Bryant. Third-party Defendant Forest Carey, the Middlebury coach, was the “Race Referee” for a race that used the same trail the previous day.
The USSA requires that trails used in competitions be “homologated,” which means that the trail has been confirmed to meet the relevant FIS regulations. The USSA also mandates that trails be prepared in keeping with homologation requirements. The parties disagree about whether all members of the jury were responsible for confirming that the trail was set consistent with the homologation report, but for purposes of this memorandum the court will assume they were. Additionally, there is a dispute as to whether the trail was, in fact, prepared as set out in a homologation report drafted in keeping with FIS requirements. Again, for purposes of its rulings here, the court will [*145] assume that the trail was not prepared as the homologation report contemplated.
Plaintiff asserts that the relevant homologation report required that “B-netting,” a type of netting used to slow errant skiers [**7] before they collide with objects, be placed along the edge of the trail starting uphill from any lift tower and continuing downhill some distance past the lift tower. The homologation report, completed in 2002 by Defendant Grees and an FIS representative for the area where Plaintiff was hurt, included a diagram showing such B-netting. While at least some of the defendants assert the report merely displays safety equipment that might be necessary, rather than the minimal required safety equipment, the court will, again, assume for the current purposes that the report indicated that B-netting should have been installed above and below lift towers. The parties do agree that B-netting was not set up according to the diagram on the day Plaintiff was hurt.
At the time of Plaintiff’s accident there was B-netting along the left edge of the trail, stopping at a point approximately even with the gate where Brush lost control and somewhat uphill from a lift tower. No other netting was placed between the trail and the tower, so that the area directly in front of the tower lacked any protection. In prior years B-netting was placed in accordance with a diagram in the homologation report, extending [**8] past the lift tower above and below.
Not only was there less B-netting on February 18, 2006 than there was in the past, there were no triangular nets set around the lift tower itself. Triangular nets are another available type of safety netting used to deflect a skier from a particular hazard. Additionally, neither the tower nor its support stanchion was equipped with a type of padding known as Willy Bags, though such padding is regularly used in speed events.
After the Giant Slalom course was set, Plaintiff had an opportunity to ski down the slope to assess the course, and she did so. Later, during one of her timed runs, Plaintiff caught an edge of one of her skis and lost control. As a result she left the trail and struck the unprotected lift tower support stanchion. The collision caused life-altering injuries to Plaintiff, including paraplegia.
B. Relevant Agreements.
1. USSA Waiver.
At the time of her accident Plaintiff was a member of the USSA and the FIS. During the summer of 2005 registration forms for both organizations were completed on her behalf. 1 The FIS waiver included language acknowledging the risks of skiing competitively. Additionally, it stated that national or club organizations [**9] in the United States may require a skier to waive any liability claims in order to participate in their activities.
1 The parties agree that Plaintiff’s mother signed the relevant USSA Release and FIS Registration with Plaintiff’s full consent and authorization. They further agree that the weight given to those documents should be the same as it would be if Plaintiff had signed them herself. (Dkt. No. 162, Pl.’s Resp. to Defs.’ Joint Statement of Undisputed Material Facts at 18.)
Those completing the USSA registration form had to sign a clearly-labeled liability release. (Dkt. No. 142, Ex. 9.) Pursuant to that release a USSA member
unconditionally WAIVES AND RELEASES ANY AND ALL CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member or his/her property, [*146] or to any other person or property, for any loss, damage, expense, or injury (including DEATH), suffered by any person from or in connection with Member’s participation in any Activities in which USSA is involved in any way, due to any cause whatsoever INCLUDING NEGLIGENCE and/or breach of express or implied warranty on the part of USSA.
As used in the release “USSA” referred to the [**10] United States Ski and Snowboard Association and “its subsidiaries, affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives, local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators.” Id. The term “Activities” included “skiing and snowboarding in their various forms, as well as preparation for participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics.” Id.
2. Agreements Between Defendants.
The Williams College ski team utilized the Jiminy Peak ski area for its Winter Carnival and for practice sessions pursuant to a written agreement between the parties. (Dkt. No. 158, Tab 18, Jiminy Peak/Williams College Contract.) That five-paragraph agreement gave Williams and members of its community various types of access to the ski area in exchange for a single annual payment. Jiminy Peak agreed to have its mountain manager work with the Williams alpine coach to determine safe conditions for ski team training and to make and groom snow for the trails that were used during the annual winter carnival.
Jiminy Peak and Williams [**11] College were also parties to an Alpine Schedule Agreement with the USSA. Pursuant to that agreement the competition was listed on the USSA’s official schedule; all competitors had to be members of the USSA; competitors, as noted, were able to earn “points;” competition organizers had to agree to allow some non-collegiate USSA members to compete; and members of the competition jury had to be members of USSA. Additionally, the agreement required that facilities “to be used in the actual competition events . . . conform with applicable rules and with requirements of the [Technical Delegate] and competition jury.” (Dkt. No. 158, Tab 8, Alpine Schedule Agreement 2, P 8.) The competition organizer, the Williams College Outing Club, was responsible for “working with” Jiminy Peak, the USSA, and the competition jury to select facilities and ensure that they were prepared in accordance with “such rules or requirements, and homologation or facility approval requirements according to discipline and type of competition.” Id.
“Summary judgment is appropriate where ‘there is no genuine issue as to any material fact and  the moving party is entitled to judgment as a matter of law.'” [**12] Coffin v. Bowater, Inc., 501 F.3d 80, 85 (1st Cir. 2007) (citing Fed. R. Civ. P. 56(c)). “[C]ourts are required to view the facts and draw reasonable inferences ‘in the light most favorable to the party opposing the [summary judgment] motion.'” Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L. Ed. 2d 176 (1962)). “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.” Adria Int’l Group, Inc. [*147] v. Ferre Dev., Inc., 241 F.3d 103, 107 (1st Cir. 2001).
A. Claims Against Jiminy Peak.
Plaintiff asserts three claims against Jiminy Peak: negligent operation of a ski area in violation of the MSSA (Count I); negligent failure to undertake duties assumed under a contract with Williams (Count II); and negligent inspection (Count III). [HN1] “To prevail in a negligence action under Massachusetts law, a plaintiff must prove that (1) the defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached this duty; (3) damage to the plaintiff resulted; and (4) the breach of the duty caused this [**13] damage.” Brown v. United States, 557 F.3fd 1, 3 (1st Cir. 2009) (quoting Jupin v. Kask, 447 Mass. 141, 849 N.E.2d 829, 835 (Mass. 2006)). Jiminy Peak asserts that under the MSSA it did not owe Plaintiff any duty to use reasonable care to prevent her collision with an object off the ski trail. Plaintiff argues that Jiminy Peak had a duty to her pursuant to the MSSA and its agreements with Williams College and the USSA.
1. Statutory Duty.
[HN2] The MSSA serves two somewhat contradictory purposes, (1) to limit the liability of ski operators in order to ensure their economic survival and (2) to ensure skier safety. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 27 (Mass. 1996). Pursuant to the MSSA a ski area operator has a general duty to operate the “ski areas under its control in a reasonably safe manner.” Mass. Gen. Laws ch. 143, § 71N(6) (2008).
However, this duty is sharply limited by other provisions of the act. Of particular relevance in this case is that the MSSA places “the duty to avoid any collision with any . . . object on the hill below” solely on the skier, so long as the object was not improperly marked. Id. at § 71O. The MSSA does shift the duty to avoid collisions back to the ski area operator [**14] when the ski operator has not marked the obstruction “pursuant to the regulations promulgated by the [recreational tramway] board” or “as otherwise provided” in the statute. Id.; see also Eipp v. Jiminy Peak, Inc., 154 F. Supp. 2d 110, 116 (D. Mass. 2001) (declining to enter summary judgment for the ski area operator where skier was injured after striking “a snowgun in the middle of a ski trail”). At the time of Plaintiff’s accident the only active regulations, at 526 C.M.R. § 10, did not address signage requirements.
The other requirements established by the MSSA require ski area operators to (1) mark maintenance and snow-making equipment that is in use (Id. at § 71N(1)), (2) mark with flashing lights trail maintenance and emergency vehicles in use in a ski area (Id. at § 71N(2)), and (3) mark the location of snow-making hydrants “within or upon a slope or trail” § 71N(4)).
[HN3] Under the MSSA, skiers are also solely responsible for any injuries resulting from skiing anywhere other than on an open slope or trail. 2 Id. at § 71O; Spinale v. Pam F., Inc., 1995 Mass. App. Div. 140, 142 (Mass. App. Div. 1995) (“[Section] 71O expressly imposes responsibility for injuries sustained while ‘skiing [**15] on other than an open slope or trail within the ski area’ on the skier, and thereby exempts the ski area operator from liability for the [*148] same.”). The ski area operator has no duty to provide netting or padding around obstacles off the trail. Walsh v. Jiminy Peak, Inc., No. 02-11890-MAP, 2005 U.S. Dist. LEXIS 18463 at *12-13 (D. Mass. Aug. 29, 2005). Nor does it assume such a duty by padding some obstacles. Id. Indeed, this court has previously noted that “imposing liability on ski area operators for duties voluntarily assumed but negligently performed would undercut a key goal of the MSSA,” because it would discourage ski area operators from adding safety features. 2005 U.S. Dist. LEXIS 18463 at *16.
2 [HN4] A “[s]ki slope or trail” is limited to the “area designed by the person or organization having operational responsibility for the ski area as herein defined, including a cross-country ski area, for use by the public in furtherance of the sport of skiing . . . .” Mass. Gen. Laws ch. 143, § 71I.
The parties agree that the lift tower stanchion 3 Plaintiff struck was “off the course and off the trail.” (Dkt. No. 162 at 23.) Given these facts, the MSSA placed the duty to avoid collisions on Plaintiff alone. 4
3 Plaintiff [**16] separately argues that Jiminy Peak had a specific duty to protect skiers from collisions with ski lift stanchions pursuant to 526 C.M.R. 10.09(4)(b). That regulation specifies that ski area operators are to fence or barricade any area of the tramway that could cause injury to a person. However, that requirement appears within a section entitled “Protection Against moving parts or Other Hazards and Clearance Envelopes.” Id. at 10.09(4). Given that context, it is clear that this fencing requirement is only intended to keep members of the public from getting too close to moving parts of a tramway system which might cause injury and does not apply to nonmoving elements like stanchions and support towers.
4 Ski area operators’ liability is also limited such that they “shall not be liable for damages to persons or property, while skiing, which arise out of the risks inherent in the sport of skiing.” Mass. Gen. Laws ch. 143, § 71N(6). The parties disagree about the applicability of this limitation to this case. Jiminy Peak argues that collisions with off-trail objects, regardless of their cause, are a risk inherent in the sport of skiing. Plaintiff notes that the “inherent risks” enumerated [**17] in the statute are natural conditions that can cause a skier to lose control, not dangers that result from such a loss of control. Id. at § 71O (enumerating the “risks inherent in the sport of skiing” as including “variations in terrain, surface or subsurface snow, ice conditions or bare spots”). Plaintiff appears to have the stronger argument that off-trail collisions, though not unexpected, are in a different category than the inherent risks identified in § 71O. As neither party suggests that Plaintiff’s crash resulted from an encounter with a natural condition like those listed in the statute, the limitation on ski area operator liability related to inherent risks of skiing is irrelevant. The determinative fact in this case, undisputed on the record, is that Plaintiff lost control and struck a stationary object, the stanchion, off the trail. The MSSA shields Jiminy Peak from liability in this situation. There is no need for an “inherent risk” analysis.
Plaintiff argues that Jiminy Peak’s duty to her was not fully circumscribed by the MSSA because her injury occurred during the course of a race. Ski racing is certainly dangerous, perhaps more dangerous than ordinary recreational skiing [**18] because speed is pursued sometimes to the limit of a skier’s competence, and beyond. Jiminy Peak undoubtedly was aware of the dangers associated with ski racing and took some steps, together with the race organizers, to try to reduce those dangers. However, no authority suggests that Jiminy Peak or any other ski operator in Massachusetts owes a greater duty to racing skiers than to other, perhaps less experienced, recreational skiers.
Plaintiff asserts that Jiminy Peak assumed a greater duty to racing skiers, similar to the heightened duty one Massachusetts trial court determined ski area operators owed to a minor child enrolled in an instructional program. Sanchez-Souquet v. Jiminy Peak, Inc., 1997 MBAR-094, 1997 Mass. Super. LEXIS 198 (Mass. Super. Ct. 1997). In Sanchez-Souquet, the state court concluded that it was unfair to require “a ski student to ‘assume the risk’ for his injury” [*149] because ski area operators knew that such skiers lacked experience and judgment and were relying on their instructors to keep them safe. 1997 Mass. Super. LEXIS 198 at *9. Plaintiff urges this court to conclude that racing skiers also should be held to a lower standard than regular recreational skiers because, like students [**19] learning to ski, competitive skiers ski at the edge of their ability. Even if the court was persuaded that the court reached the correct outcome in Sanchez-Souquet (a decision the court need not, and does not, reach) it would not be inclined to carve out a further exception for competitive skiers. While it may be unreasonable to presume that a child learning to ski “know[s] the range of his own ability to ski on any slope, trail or area,” a similar presumption cannot be applied to collegiate competitive skiers. Mass. Gen Laws ch. 143, § 71O.
More importantly, [HN5] the MSSA applies to all skiers, a group which includes “any person utilizing the ski area under control of a ski area operator for the purpose of skiing . . . .” Id. at § 71I; Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 56 (Mass. App. Div. 1995) (“The definition of skier in G.L.c. 143 includes any person utilizing the ski area.”). Competitive skiers thus have the same responsibility to avoid collisions with objects off the trail as other skiers. Ski area operators simply have no duty under the statute to prevent the injuries suffered by a skier who collides with an off-course obstacle. Without such a duty, [**20] Jiminy Peak’s alleged negligence cannot give rise to liability. McHerron v. Jiminy Peak, Inc., 422 Mass. 678, 665 N.E.2d 26, 28 (Mass. 1996) (“As the defendant had no duty to remedy a statutorily defined unavoidable risk inherent in the sport of skiing, the defendant’s alleged negligence in failing to eliminate the [risk] does not create liability.”).
2. Contractual Duty.
Plaintiff asserts that even if Jiminy Peak did not have a duty to her pursuant to the MSSA or through its voluntary safety efforts, it did have a contractual duty to undertake specific steps to ensure the competition would be as safe as possible. Failing to take those steps, Plaintiff asserts, constituted a breach of a separate, non-statutory duty. Massachusetts recognizes that “a claim in tort may arise from a contractual relationship . . . and may be available to persons who are not parties to the contract.” Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 556 N.E.2d 1009, 1012 (Mass. 1990). However, Jiminy Peak did not obligate itself to provide particular safety measures, such as netting or padding, in either of the two contracts relied on by Plaintiff. Pursuant to its agreement with Williams College, Jiminy Peak agreed to consult [**21] about safe training conditions for Williams skiers and to permit use of several trails for the Winter Carnival competition. Under the Alpine Schedule Agreement, the competition organizers are responsible for “working with” the ski area operator to ensure that ski facilities were prepared in accordance with all USSA rules, regulations, and applicable homologation requirements. The ski area operator, Jiminy Peak, did not itself undertake that responsibility and therefore any failure to ensure that applicable safety requirements were met did not give rise to tort liability.
B. Claims Against Competition Organizers and Officials.
1. The USSA Waiver.
Defendants collectively argue that Plaintiff’s various negligence claims are precluded by the liability waiver executed when her USSA membership was renewed the summer before her accident. Plaintiff [*150] asserts that the waiver does not bar her claims because its language was ambiguous as to the persons and entities it covered. In resolving this question the court applies Colorado law, as urged by Plaintiff and agreed to by Defendants. The waiver includes a choice of law provision selecting Colorado law and [HN6] in the absence of a “substantial Massachusetts [**22] public policy reason,” Massachusetts law honors choice of law provisions in contracts. Jacobson v. Mailboxes Etc. U.S.A., 419 Mass. 572, 646 N.E.2d 741, 744 (Mass. 1995).
[HN7] Under Colorado law “[e]xculpatory agreements are disfavored and, therefore, they are strictly construed against the party seeking to limit its liability.” Del Bosco v. United States Ski Ass’n, 839 F. Supp. 1470, 1473 (D. Colo. 1993). Under Colorado law the applicability of a liability waiver is a legal question to be resolved by the court after consideration of four factors: “(1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.” Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (citations omitted). Plaintiffs urge the court to rule that the waiver invoked by Defendants is inapplicable under the third and fourth factors.
As to the third factor, Plaintiff argues that the USSA waiver was a contract of adhesion because the USSA’s dominance over amateur ski racing in this country prevented her from being able to negotiate less onerous contract terms with the USSA. [HN8] “Colorado [**23] 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.'” Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D. Colo. 1992) (citing Jones v. Dressel, 623 P.2d 370, 374 (Colo. 1981)).
On the undisputed facts of this case, Plaintiff’s “adhesion” argument must fail, because under Colorado law recreational activities and services are not essential. Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 898 (D. Colo. 1998) (holding that waiver was not fairly entered because skier was skiing “as a part of work, not as a part of recreation”); Bauer, 788 F. Supp. at 475 (enforcing waiver executed as part of ski rental, even though all ski rental outlets used similar waivers, because such services were recreational, not essential). Plaintiff completed the USSA waiver in order to engage in a recreational activity. The nature of the activity is not changed by its competitive nature, its subjective importance in Plaintiff’s life, or the fact that a single entity controlled virtually all opportunities to engage in the recreational activity. But see O’Connor v. United States Fencing Ass’n, 260 F. Supp. 2d 545, 552 (E.D.N.Y. 2003) [**24] (concluding that a liability waiver was not binding under Colorado law because the waiver’s author so controlled the sport of fencing that an athlete wishing to compete had no choice but to agree to the terms in the waiver).
Finally, Plaintiff argues that the waiver did not express the parties’ intentions in clear and unambiguous language. Having reviewed the waiver, the court concludes that the language of the waiver was clear and unambiguous. Clear language indicates that the signer is waiving all claims against the USSA including those based on negligence, as indicated in bold, italic, capital letters. See Jones, 623 P.2d at 378. The waiver defined USSA quite expansively to encompass a host of individuals and groups including all affiliates, volunteers, competition organizers, sponsors, coaches, and representatives. It is clear that the list was meant to encompass any [*151] one involved in running a competition sanctioned by the USSA. Finally, it is undisputed that skiers, including Plaintiff, participating in the Williams Winter Carnival knew the event was sanctioned by the FIS through the USSA because they knew they were competing, in part, for FIS points.
2. Gross Negligence.
Plaintiff [**25] asserts that even if the USSA waiver is valid, she should be able to proceed against these Defendants on a theory of gross negligence. The argument is colorable but ultimately unpersuasive.
It is true that [HN9] under Colorado law an exculpatory agreement cannot “provide a shield against a claim for willful and wanton negligence.” Id. at 376. In Colorado an individual who “purposefully committed an affirmative act which he knew was dangerous to another’s person and which he performed heedlessly, without regard to the consequences or rights and safety of another’s person” can be found to have acted with willful and wanton negligence. Barker v. Colorado Region–Sports Car Club, Inc., 35 Colo. App. 73, 532 P.2d 372, 379 (Colo. Ct. App. 1974). In Massachusetts, waivers may only release a defendant from ordinary negligence. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 687 N.E.2d 1263, 1265 (Mass. App. Ct. 1997).
Plaintiff has alleged in her complaint that Defendants were grossly negligent. [HN10] Gross negligence involves “materially more want of care than constitutes simple inadvertence,” though “it is something less than  willful, wanton and reckless conduct.” Altman v. Aronson, 231 Mass. 588, 121 N.E. 505, 506 (Mass. 1919). Despite [**26] the severity of Plaintiff’s injuries, the conduct alleged by Plaintiff is simple inadvertence. There is no evidence in the record, and indeed no allegation, that any of the Defendants, or anyone at the competition, became aware that there was an area of the trail without netting where netting was normally placed and declined to remedy the situation. At most there was a collective failure to take a step that might have lessened the injuries suffered by Plaintiff. No reasonable jury could find that this simple inadvertence, no matter how tragic its consequences, constituted gross negligence.
C. Third-Party Claims.
Having concluded that all Defendants, including the Third-Party Plaintiffs, are entitled to summary judgment, the court necessarily grants Third-Party Defendants’ motion for summary judgment on the third-party contribution claims asserted against them. Any negligence on the part of Forest Carey, whether in his capacity as a race official or as Plaintiff’s coach is expressly covered by the USSA waiver. Even if the court had concluded that the waiver was inapplicable, Third-Party Defendants would be entitled to summary judgment because Carey simply did not breach any duty he owed [**27] to Plaintiff. His role as a race official concluded the day before Plaintiff’s accident. As a competitor on the following day, Plaintiff was outside the group of people likely to be injured by his acts or omissions as a referee. Therefore he had no duty with respect to her safety. See Matteo v. Livingstone, 40 Mass. App. Ct. 658, 666 N.E.2d 1309, 1312 (Mass. App. Ct. 1996) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928)). The risk which caused Plaintiff harm, improper safety fencing, was similarly not reasonably foreseeable to Carey in his capacity as her coach. See Moose v. Mass. Inst. of Tech., 43 Mass. App. Ct. 420, 683 N.E.2d 706, 710 (Mass. App. Ct. 1997) (upholding a jury’s finding that a coach was negligent where the risk which caused a student-athlete’s [*152] injury was reasonably foreseeable). Third-party Defendants would thus be entitled to summary judgment even absent the USSA waiver.
This is a terribly sad case. A young woman has been tragically, permanently injured. Putting aside considerations of legal liability, somebody connected with the 2006 Winter Carnival should, as a matter of conscience and professionalism, have noticed the unprotected ski tower and made sure that appropriate netting [**28] was installed to provide a greater degree of protection to the competitors.
It would, however, be false compassion now to ignore the undisputed facts and the unavoidable law. The Massachusetts Ski Safety Act, in the case of Jiminy Peak, and the USSA waiver, in the case of the other Defendants, forecloses any possibility of liability for payment of damages to Plaintiff in these circumstances. To encourage pursuit of a lawsuit lacking a legal basis would only serve to compound the tragedy.
For the reasons set forth above, Defendants’ Motions for Summary Judgment (Dkt. Nos. 135, 137, 138, 139, 140) are hereby ALLOWED, Third-Party Defendants’ Motion for Summary Judgment (Dkt. No. 143) is hereby ALLOWED, and Plaintiff’s Motion for Partial Summary Judgment (Dkt. No. 157) is hereby DENIED. The trial scheduled for September 28, 2009 will obviously not go forward.
The Clerk is ordered to enter judgment for Defendants; the case may now be closed.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge