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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.

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.

Rumpf v. Sunlight, Inc., 2016 U.S. Dist. LEXIS 107946

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 

Year: 2016 

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.

WARNING

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.

If you are interested in having me write your release, fill out this Information Form and Contract and send it to me.

What do you think? Leave a comment.

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Rumpf v. Sunlight, Inc., 2016 U.S. Dist. LEXIS 107946

Rumpf v. Sunlight, Inc., 2016 U.S. Dist. LEXIS 107946

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

OPINION

ORDER

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).

III. ANALYSIS

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.

IV. CONCLUSION

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


Lift tickets are not contracts and rarely work as a release in most states

Nor can they be used to prove assumption of the risk. At best, a lift ticket is another sign informing someone of the risk. If you are relying upon a lift ticket to stop lawsuits, get a release.

In most states where a statute requires language on the back of a lift ticket that warns of the risk, the language is simply that, warning language.

Two decisions have held that a lift ticket is valid to stop a claim at a ski area: Oregon and North Carolina.

These decisions have upheld the use of a lift ticket to bar a claim.

Oregon: Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942

North Carolina: Strawbridge v. Sugar Mountain Resort, 320 F. Supp. 2d 425; 2004 U.S. Dist. LEXIS 14, Strawbridge, v. Sugar Mountain Resort, Incorporated, 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459

In most states, the lift ticket is just a warning. To create a contract, a release, the lift ticket would have been a meeting of the minds. The purchaser of the lift ticket would have to understand they are entering a contract and agree to the terms of the contract.

That means the skier or boarder would have to read the back of the lift ticket and say, yes, I agree to the terms of the contract (or “sure.”).

You can’t rely on a lift ticket or any ticket to stop a lawsuit in most states and even in those four states that have held that in these cases, I would not rely on them until additional decisions support the claims.

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Strawbridge, Jr., v. Sugar Mountain Resort, Inc., 328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644

Strawbridge, Jr., v. Sugar Mountain Resort, Inc., 328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644

Vincent F. Strawbridge, Jr., and Rebecca S. Strawbridge, Plaintiffs, vs. Sugar Mountain Resort, Inc.; B. Dale Stancil, Individually; The Sugar Mountain Irrevocable Trust; and The B. Dale Stancil Irrevocable Trust, Defendants.

CIVIL NO. 1:02CV92

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA, ASHEVILLE DIVISION

328 F. Supp. 2d 610; 2004 U.S. Dist. LEXIS 18644

May 28, 2004, Decided

June 28, 2004, Filed

PRIOR HISTORY: Strawbridge v. Sugar Mt. Resort, Inc., 320 F. Supp. 2d 425, 2004 U.S. Dist. LEXIS 14561 (W.D.N.C., 2004)

COUNSEL: For VINCENT F. STRAWBRIDGE, JR., REBECCA S. STRAWBRIDGE, plaintiffs: R. Hayes Hofler, Daniel B. Hill, Hayes, Hofler & Associates, P.A., Durham, NC.

For SUGAR MOUNTAIN RESORT, INC., defendant: Wyatt S. Stevens, Roberts & Stevens, P.A., Robert E. Riddle, Asheville, NC USA.

For B. DALE STANCIL, THE SUGAR MOUNTAIN IRREVOCABLE TRUST, THE B. DALE STANCIL IRREVOCABLE TRUST, defendants: James R. Fox, Jennifer I. Oakes, Bell, Davis & Pitt, P.A., Winston-Salem, NC USA.

JUDGES: LACY H. THORNBURG, UNITED STATES DISTRICT COURT JUDGE.

OPINION BY: LACY H. THORNBURG

OPINION

[*611] ORDER

THIS MATTER is before the Court on motions of Defendant Sugar Mountain, Inc. (“Sugar Mountain”), and Defendants B. Dale Stancil, individually, the Sugar Mountain Irrevocable Trust, and the B. Dale Stancil Irrevocable Trust (“non-resort Defendants”) for reconsideration, the non-resort Defendants’ [**2] request for oral argument, and Plaintiff’s response to these motions.

A. Sugar Mountain’s motion.

Sugar Mountain argues that “there is a difference between contracting against liability for negligence and agreeing to assume certain inherent risks of a particular activity.” Defendant Sugar Mountain Resort, Inc.’s Motion for Reconsideration [Sugar Mountain’s Motion], filed June 9, 2004, at 2. Sugar Mountain further argues that, even if the exculpatory clause Plaintiff signed to rent his ski equipment is unenforceable, he still assumed the risk of suffering an injury caused by a bare spot on the slope. See id., at 4. To support its claim that Plaintiff assumed the risk of falling on a bare spot, Sugar Mountain relies primarily on the statement printed on the back of Plaintiff’s lift ticket warning him of bare spots and other dangers. Sugar Mountain also points to Plaintiff’s extensive skiing experience in support of its claim that he assumed the risk of the injury that he ultimately suffered. See id., at 7.

Sugar Mountain cites some persuasive and some binding authority that appears to support the distinction between agreements to assume inherent [**3] risks and contracts against liability for negligence. Cf., Alston v. Monk, 92 N.C. App 59, 373 S.E.2d 463 (1988) (analyzing the defendants’ assumption of risk claims separately from their waiver claims); Poston v. Skewes, 49 Fed.Appx. 404 (4th Cir. 2002) (explaining that the trial court had properly interpreted Virginia law when it allowed into evidence an “assumption of risk” statement that the plaintiff had signed but redacted language that purported to “release” [*612] the defendants from liability for negligence). The Court will, therefore, assume without deciding that Sugar Mountain’s assumption of risk defense is distinct from the “release” defense the Court has already considered and rejected.

Sugar Mountain concedes that [HN1] the assumption of risk defense “extends only to those risks which are normally incident to the [activity] in which the plaintiff engages.” Sugar Mountain’s Motion, at 5 (citing McWilliams v. Parham, 269 N.C. 162, 166, 152 S.E.2d 117,120 (1967)) (alteration added). Sugar Mountain further concedes that [HN2] “‘extraordinary risks, including additional hazards caused by the negligence of the [contracting [**4] party], or others on the [contracting party’s] premises,’ are not considered assumed risks.” Sugar Mountain’s Motion, at 5 (citing McWilliams, supra, at 166-67, 152 S.E.2d at 120) (alterations in original). [HN3] “Knowledge is the watchword of the defense of assumption of risk; knowledge of the dangers and hazards to be encountered.” Cobia v. Atlantic C.L.R. Co., 188 N.C. 487, 128 S.E. 18, 20 (1924). [HN4] “This doctrine of assumption of risk is based upon knowledge or a fair and reasonable opportunity to know, and usually this knowledge and opportunity must come in time to be of use. Id. (quotations and citations omitted).

Plaintiffs allege that negligence on the part of Sugar Mountain caused their injuries. This Court has held that [HN5] a jury may find negligence from “evidence of a bare spot on a slope, evidence that defendants knew of conditions that may cause bare spots, and evidence that the bare spot was in some way concealed.” Memorandum and Order, filed May 10,2004, at 14. A corollary of that holding is that a jury may find that a concealed bare spot on a ski slope is not a risk that is normally incident to the activity [**5] of skiing when the ski slope operator knows or should have known of the offending spot and is aware of weather conditions that may cause unusual bare spots. Since this Court held that Plaintiffs have forcast evidence of each element listed above, the Court cannot decide, as a matter of law, that the assumption of risk doctrine defeats Plaintiffs’ claims. 1 Quite to the contrary, since Plaintiffs can only prevail if they prove negligence on the part of Sugar Mountain, and since a finding of negligence would mean that Plaintiffs were injured by “additional hazards caused by the negligence of [Sugar Mountain],” the assumption of risk defense cannot aid the Defendants. McWilliams, at 166-67, 152 S.E.2d at 120.

1 The Poston case illustrates this point. There, the Fourth Circuit, in finding that the plaintiff had assumed the risk of an accident, pointed out that the district court found no negligence on the part of the defendants. Poston, supra.

B. The non-resort [**6] Defendants’ motion.

1. B. Dale Stancil.

The non-resort Defendants’ memorandum advances no novel argument for summary judgment as to Stancil. Therefore, for the reasons set forth in the Court’s Memorandum and Order, the Court declines to dismiss Defendant Stancil.

2. The trust entities.

In its Memorandum and Order, the Court found that the evidence would support a finding of derivative liability, but the Court did not specifically examine whether that potential liability extended to the two irrevocable trusts. Now, the Court finds it does not.

As explained in the Memorandum and Order, Stancil and his business partner created the Sugar Mountain Irrevocable Trust in 1979 when they conveyed the land on which the ski resort sits into the trust [*613] for estate planning purposes. The Sugar Mountain Irrevocable Trust has continued to lease the land to Sugar Mountain, Inc., since 1979. The beneficiaries of the Sugar Mountain Irrevocable Trust are the Defendant B. Dale Stancil Irrevocable Trust (“Stancil Trust”), which was established for Stancil’s children, and an irrevocable trust for the children of Stancil’s business partner. Both Defendant trusts are managed by independent trustees. [**7] Memorandum and Order, at 17-18.

Although neither trustee is obligated to give Stancil access to the corpus of the trusts, the Stancil Trust does provide that the Trustee may loan funds to “the Grantor, the Grantor’s affiliated corporations or partnerships, other trusts created by the Grantor, trusts of which this trust is a beneficiary, beneficiaries of this trust or their affiliated corporations or partnerships.” Exhibit 8, B. Dale Stancil Irrevocable Trust (“Stancil Trust”), attached to Brief Opposing Summary Judgment as to Certain Defendants, at 2. The trust further provides that any such loan must be “on an arm’s length basis with good and adequate security and a fair interest rate.” Id. The trustee has, in fact, allowed Stancil to borrow money from the Stancil Trust to finance a real estate investment in Virginia and possibly to invest money in Sugar Mountain, Inc. Stancil makes interest payments to the trust in the sum of roughly $ 100,000 per year but does not make payments on the principal. Exhibit 17, Deposition of B. Dale Stancil, attached to Plaintiff’s Objections to Memorandum and Recommendation, at 44-45, 93-94, 103-04.

Plaintiffs [**8] give two theories on why liability should extend to the trust entities. The first is that, at least with respect to the Sugar Mountain Irrevocable Trust, liability is proper because the trust actually owns the premises on which Plaintiff was injured. However, it is well settled [HN6] in North Carolina that “a landlord who has neither possession nor control of the leased premises is not liable for injuries to third persons.” Vera v. Five Crow Promotions, Inc., 130 N.C. App. 645, 650, 503 S.E.2d 692, 697 (1998) (internal quotations omitted). Plaintiffs state in their objections to the Memorandum and Recommendation that the Sugar Mountain Irrevocable Trust “operated the resort,” but there is no forecast of evidence to support that statement. The original lease, however, states that Sugar Mountain Resort, Inc., agrees “to operate” the resort. Lease Agreement, contained in Appendix to Moving Defendants’ Memorandum in Support of Motion for Summary Judgment, at 4. For that reason, the fact that Sugar Mountain Irrevocable Trust was a landlord to Sugar Mountain, Inc., does not extend the liability of Sugar Mountain, Inc., to either trust entity.

Plaintiffs’ second [**9] argument for holding the trusts liable is that Stancil and the trusts are in an agency relationship. At times, Plaintiffs assert that “Stancil is the agent or servant of the trusts,” and, at other times, Plaintiffs assert that the trusts and the trustees are paid servants of Stancil. Plaintiffs’ Brief Opposing Summary Judgment as to Certain Defendants, at 20-21; Plaintiffs’ Objections to Memorandum and Recommendation, at 57-59. However, neither trust instrument mandates any ongoing obligations between Stancil and the trusts or the trustees. Exhibit 7, Sugar Mountain Irrevocable Trust, attached to Plaintiffs’ Brief Opposing Summary Judgment as to Certain Defendants; Exhibit 8, B. Dale Stancil Irrevocable Trust, supra. Although there is evidence of at least one loan from the Stancil Trust to Stancil, there is no evidence or legal authority to support the finding of an agency relationship, and there is no evidence to support a [*614] finding that the transaction was not performed at arm’s length.

For the reasons discussed above, the Court sees no basis for extending liability to irrevocable trust entities Stancil created over 20 years ago. As such, the two trust Defendants [**10] will be dismissed from this action.

3. Request for oral argument

Because of the extensive briefs filed by the parties, the Court determines there is no need for oral argument.

ORDER

IT IS, THEREFORE, ORDERED that Defendant Sugar Mountain Inc.’s, motion to reconsider is hereby DENIED.

IT IS FURTHER ORDERED that there will be no jury determination of whether Plaintiff Vincent Strawbridge assumed the risk of injury.

IT IS FURTHER ORDERED that the non-resort Defendants’ motion to reconsider is hereby GRANTED IN PART AND DENIED IN PART.

IT IS FURTHER ORDERED that the Plaintiffs’ claims against the B. Dale Stancil Irrevocable Trust and the Sugar Mountain Irrevocable Trust are hereby DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that the non-resort Defendants’ request for oral argument is hereby DENIED.

THIS the 28th day of May, 2004.

LACY H. THORNBURG

UNITED STATES DISTRICT COURT JUDGE

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Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942

Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942

David J. Silva, Plaintiff, v. Mt. Bachelor, Inc., an Oregon corporation, Defendant.

Civ No. 06-6330-AA

United States District Court for the District of Oregon

2008 U.S. Dist. LEXIS 55942

July 21, 2008, Decided

COUNSEL: [*1] For Plaintiffs: David Jensen, Jensen, Elmore & Stupasky, Eugene, OR.

For Defendant: Andrew C. Balyeat, Jeffrey T. Eager, Balyeat & Eager, Bend, OR.

JUDGES: Ann Aiken, United States District Judge.

OPINION BY: Ann Aiken

OPINION

OPINION AND ORDER

AIKEN, Judge:

Plaintiff filed suit alleging premises liability and negligence arising from a skiing accident. Defendant moves for summary judgment on plaintiff’s claims, arguing that they are barred by a valid release from liability agreed to by plaintiff.

FACTS

Plaintiff is a resident of Idaho and an avid skier who has skied at numerous ski resorts throughout the United States. Plaintiff received vouchers for two days of skiing at Mt. Bachelor and two nights at the Inn of the Seventh Mountain.

On April 16, 2005, plaintiff traded his voucher for an all-day ski pass at Mt. Bachelor. At the ticket windows, Mt. Bachelor posts signs stating “YOUR TICKET IS A RELEASE” and advising skiers that their ski pass contains a release of all claims against Mt. Bachelor. The signs read:

The back of your ticket contains a release of all claims against Mt. Bachelor and its employees or agents. Read the back of your ticket before you ski or ride the lift or use any of the facilities of the area. [*2] If you purchase a ticket for someone else, you must provide this ticket release information to that person or person.

Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and agents from all claims for property damage, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.

If you do not agree to be bound by the terms and conditions of the sale of your ticket, please do not purchase the ticket or use the facilities at Mt. Bachelor.

Presentation of this ticket to gain access to the premises and facilities of this area is an acknowledgment of your agreement to the terms and conditions outlined above.

Affidavit of Tom Lomax, Ex. 1.

Additionally, the back of plaintiff’s ski pass stated “READ THIS RELEASE AGREEMENT” and contained the following language:

In consideration for each lift ride, the ticket user releases and agrees to hold harmless and indemnify Mt. Bachelor, Inc., and its employees and agents from all claims for [*3] property damages, injury or death which he/she may suffer or for which he/she may be liable to others, arising out of the use of Mt. Bachelor’s premises, whether such claims are for negligence or any other theory of recovery, except for intentional misconduct.

Affidavit of Andrew C. Balyeat, Ex. 2, p. 2.

As plaintiff skied in an ungroomed area, he fell and injured his knee.

On December 27, 2006, plaintiff filed this lawsuit. Plaintiff alleges that defendant failed to make the ski area reasonably safe and that defendant’s negligence in failing to do so caused his injuries.

STANDARD

Summary judgment is appropriate “if 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 that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The materiality of a fact is determined by the substantive law on the issue. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n., 809 F.2d 626, 630 (9th Cir. 1987). The authenticity of a dispute is determined by whether the evidence is such that a reasonable jury could return a verdict for the nonmoving [*4] party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.

Special rules of construction apply to evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.

DISCUSSION

Defendant moves for summary judgment on grounds that plaintiff agreed to release defendant from all liability for damages arising from the use of its facilities. Defendant maintains that the release agreement is valid and enforceable and bars plaintiff’s claims. See Harmon v. Mt. Hood Meadows, Ltd., 146 Ore. App. 215, 932 P.2d 92 (1997); Mann v. Wetter, 100 Ore. App. 184, 785 P.2d 1064 (1990) .

Plaintiff concedes that one party [*5] may contract to limit another party’s liability for negligence. However, plaintiff disagrees that the release on the Mt. Bachelor ski pass is a valid release of liability. Plaintiff maintains that the release is not enforceable, because the parties were not negotiating at arms length in a commercial setting, the release was not make known to or signed by plaintiff, and the terms of the release are equivocal because it purports to cover all claims under any theory of recovery except intentional misconduct.

Plaintiff’s arguments are unavailing. First, no Oregon court has held that a release from liability in a recreational, as opposed to commercial, context offends public policy and is unenforceable. Harmon, 146 Ore. App. at 219 n. 3, 932 P. 2d 92 (“[W]e assume, without deciding, that a release relieving a ski resort solely from the consequences of its own negligence does not offend Oregon public policy.”). Further, the release from liability is not invalid as a contract of adhesion, because plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services. Mann, 100 Ore. App. at 187-88, 785 P.2d 1064.

Second, although plaintiff testified at [*6] his deposition that he did not read the release on the back of his ski pass or the signs at the ticket window, the pass and signs clearly advise skiers of the significance of the release agreement. Further, plaintiff testified that he knew and expected that his lift ticket would contain a release, based on his extensive skiing experience. Balyeat Aff., Ex. 1, pp. 14-15. Plaintiff also admitted that he understood the terms of the release, and plaintiff cites no case that requires a recreational release agreement to be signed. Id. Ex. 1, p. 15. Therefore, I find no genuine issue of fact exists as to whether the release and its terms were made known plaintiff.

Finally, the Oregon Court of Appeals has specifically held that a plaintiff must establish overbreadth of a release agreement as applied to the specific claim alleged:

Most simply, the party must show that, as applied, the contractual term is unenforceable on grounds of public policy. Here, plaintiff does not contend that Oregon public policy precludes a ski resort from limiting its liability for negligence; thus, regardless of whether defendants’ release might be unenforceable as to other plaintiffs asserting other claims, it is [*7] not unenforceable as applied to plaintiff.

Harmon, 146 Ore. App. at 221-22 (emphasis in original).

Here, plaintiff asserts negligence claims against defendant and concedes that a defendant may limit its liability for negligence. Therefore, the fact that the release agreement purports to cover other theories of liability does not preclude enforcement of the release in this case. As such, plaintiff’s claims are barred.

CONCLUSION

Defendant’s motion for summary judgment (doc. 13) is GRANTED. This case is DISMISSED.

IT IS SO ORDERED.

Dated this 21 day of July, 2008.

/s/ Ann Aiken

Ann Aiken

United States District Judge

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