Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
Posted: November 7, 2014 Filed under: Assumption of the Risk, Legal Case, Pennsylvania, Ski Area, Skiing / Snow Boarding | Tags: Appeal, assumption of the risk, Doctrine of Voluntary Assumption of Risk, Inc., Indemnity, No Duty Rule, Pennsylvania, Pennsylvania Skier's Responsibility Act, Restatement (Second) of Torts, ski area, Ski Shawnee, skiing Leave a commentTo Read an Analysis of this decision see: The harder a court works to justify its decision the more suspect the reasoning. In this case, a ski area is liable for injuries to a spectator no matter what risks she knew and assumed.
Barillari v. Ski Shawnee, Inc., 986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
Colleen Barillari and William Barillari, Plaintiffs, v. Ski Shawnee, Inc., Defendant.
Civ. No. 3:12-CV-00034
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
November 12, 2013, Decided
November 12, 2013, Filed
PRIOR HISTORY: Barillari v. Ski Shawnee, Inc., 2012 U.S. Dist. LEXIS 4998 (M.D. Pa., Jan. 17, 2012)
CORE TERMS: skiing, sport, downhill, skier, spectator, no-duty, summary judgment, ski, hit, ball, SKIER’S RESPONSIBILITY ACT DOES, risk doctrine, foul ball, amusement, matter of law, inherent risks, slope, baseball game, baseball, genuine, snow, ski lift, collision, mountain, ski resorts, risks inherent, nonmoving party, frequent, sporting, player
COUNSEL: [**1] For Colleen Barillari, William Barillari, h/w, Plaintiffs: Edward Shensky, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA.
JUDGES: Matthew W. Brann, United States District Judge.
OPINION BY: Matthew W. Brann
OPINION
[*557] MEMORANDUM
Before the Court is Ski Shawnee, Inc.’s (“Defendant”) motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari (“Plaintiffs”). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant’s alleged negligence. See Pls.’ Compl. 9-13, Jan. 6, 2012, ECF No. 1.
The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs’ claims are barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.’s Br. Supp. Mot. Summ. J. 5-9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.’s Br.]. The Court hereby denies the Defendant’s motion for summary judgment on both theories for the reasons that follow.
I. BACKGROUND
This case arises from [**2] an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.’s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.’s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.’s SOF ¶¶ 3-4; Pls.’ Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.’ SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.’s SOF ¶¶ 6-13.
The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.’s SOF ¶¶ 12-13; Pls.’ SOF ¶¶ 10-11. There was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” Def.’s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.’ SOF ¶ 19.
Mrs. Barillari was generally aware of the risks of collision between skiers. [*558] Def.’s SOF ¶ 7. At the time, however, she was not worried about skiers colliding with her because she believed [**3] that she was close enough to the dividing tape and there were other spectators in the area. Def.’s SOF ¶¶ 15-17; Pls.’ SOF ¶¶ 15-17. Unfortunately for Mrs. Barillari, a skier did collide with her and caused an injury to her left leg. Pls.’ SOF, at 2. The Court considers the legal arguments in light of these facts.
II. DISCUSSION
A. LEGAL STANDARDS
1. Summary Judgment
Summary judgment is appropriate when the court is satisfied 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); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When the court considers the evidence on summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.
The party moving for summary judgment bears the burden of establishing the nonexistence of a “genuine issue” of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (internal quotations and [**4] citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party’s claim, or demonstrating the other party’s evidence is insufficient to establish an essential element of its claim. Id. at 231.
Once the moving party satisfies this initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Moreover, “[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (internal [**5] quotations and citation omitted).
In deciding the merits of a party’s motion for summary judgment, the court’s role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Consequently, summary judgment may be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 54(a).
2. Pennsylvania Law Must Be Applied In This Case
This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New [*559] Jersey, the Defendant is a Pennsylvania corporation with a principal place of business in Pennsylvania, and the amount in controversy is alleged to be over $75,000–consequently, diversity jurisdiction is proper. See 28 U.S.C. § 1332; Pls.’ Compl., ¶¶ 1, 2, 46.
As this is a diversity action and Pennsylvania was the situs of the injury, this Court “must apply Pennsylvania law to the facts of [**6] this case.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).
B. THE PENNSYLVANIA SKIER’S RESPONSIBILITY ACT DOES NOT APPLY TO THIS CASE
The Defendant asserts that the Plaintiffs’ claims are barred by the assumption of the risk doctrine. Def.’s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See 42 Pa. C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier’s Responsibility Act, reads:
(c) Downhill skiing.–
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1). 1
1 As a general rule, subsections (a) and (a.1) [**7] supplant the assumption of the risk doctrine with a system of comparative fault in most negligence cases. Nevertheless, assumption of the risk was expressly preserved for injuries arising from downhill skiing, as noted. See 42 Pa. C.S.A. § 7102; Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341 (2000).
The Restatement (Second) of Torts, § 496A, summarizes the essence of the assumption of the risk doctrine: “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” As the Supreme Court of Pennsylvania elucidated, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2).
Applying those principles to the Skier’s Responsibility Act, that same court “made clear that this ‘no-duty’ rule applies to the operators of ski resorts, so that [**8] ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343-44 (2000)). Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.
[*560] The Supreme Court of Pennsylvania established a two-part analysis to determine whether a plaintiff was subject to the assumption of the risk doctrine adopted in the Skier’s Responsibility Act. See Huges v. Seven Springs Farm, Inc. 762 A.2d at 343-44. “First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . . .” Id. at 344. If both of these prerequisites are met, then summary judgment is appropriate because, as a matter of law, [**9] the Defendant would have had no duty to Mrs. Barillari. See id.
First, the Court considers whether Mrs. Barillari was “engaged in the sport of downhill skiing at the time of her injury.” Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:
the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.
Hughes, 762 A.2d at 344.
In that case, the court held that a plaintiff who was skiing towards the chair lift through an area at the base of the mountain where several trails converged when she was struck from behind by another skier could not recover because the assumption of risk doctrine applied. Hughes, 762 A.2d at 340, 345. Although the plaintiff “was not in the process of skiing downhill, but rather was propelling herself towards the ski lift at the base of the mountain,” the [**10] court found this action was within the scope of engaging “in the sport of downhill skiing.” Id. at 344-45. The court noted that to decide otherwise would “interpret the Act, as well as the sport of downhill skiing, in an extremely narrow, hypertechnical and unrealistic manner.” Id. at 344.
In Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (2010), the Supreme Court of Pennsylvania held that a skier’s negligence action based on her fall from a ski lift was barred by the doctrine of assumption of the risk because she was engaged in the sport of downhill skiing and the fall was an inherent risk of that sport. Chepkevich, 2 A.3d at 1194-95. The court noted that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Id. at 1187-88.
A number of other courts have addressed the scope of the Skier’s Responsibility Act as well. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008) (finding that a skier’s claim based on the lack of safety netting, improper course plotting, or [**11] soft loose snow was barred because those were risks inherent in skiing); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir. 1991) (interpreting Pennsylvania law to find ski resort had no duty of care to injured skier because a “double black diamond” slope with rocks and trees was an obvious inherent danger of skiing); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983) (Aldisert, J.) (finding that a skier’s claim was barred by assumption of the risk when he chose to ski a steep, icy expert slope with unpadded poles for snowmaking equipment); Lin v. Spring Mountain Adventures, Inc., CIV. [*561] A. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010) (holding that the Act barred a skier’s claim because colliding with snow making equipment was an inherent risk); Savarese v. Camelback Ski Corp., 417 F. Supp. 2d 663, (M.D. Pa. 2005) (Caputo, J.) (holding that a skier was barred from recovery where the injury occurred when he attempted to board the ski lift when the bottom of the chair was not folded down for seating); Bell v. Dean, 2010 PA Super 151, 5 A.3d 266 (Pa. Super. Ct. 2010) (finding that a skier assumed the risk of collision with a snowboarder such that the snowboarder could not be found negligent); [**12] Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. Ct. 2005) (holding that the risk of colliding with a drunk underage snowboarder was not a risk inherent in the sport of downhill skiing).
The case before the Court, however, is distinguishable from all of these cases–Mrs. Barillari was not “engaged in the sport of downhill skiing” at the time of her collision, as required by the statute. 2 Hughes, 762 A.2d at 344. Although someone wearing skis and standing in the area of Mrs. Barillari and the other spectators on a momentary pause in their run may well have been “engaged in the sport,” that is an entirely different matter from someone who is purely a spectator. See id. Even though a collision with a skier is a prominent injury considered to be inherent in the sport of skiing as contemplated by the statute and the courts, the fact remains that Mrs. Barillari was merely a spectator not engaged in the sport. See id.
2 The Court recognizes that “engaged” may be defined as “greatly interested,” which could suggest that spectators are “engaged in the sport of downhill skiing.” Merriam-Webster’s New International Dictionary (3d ed. 2013). As is apparent from the context of the [**13] relevant Supreme Court of Pennsylvania decisions, however, this is not the manner in which the court used the term “engaged.” See, e.g., Hughes, 762 A.2d at 344. Rather, the context surrounding the court’s usage of the term indicates a meaning closer to “occupied” or “employed” when using the phrase “engaged in the sport of downhill skiing.” See id.; Merriam-Webster’s New International Dictionary (3d ed. 2013).
If this Court were to include Mrs. Barillari as a person subject to the Skier’s Responsibility Act, it would necessarily extend the confines of Pennsylvania’s law beyond the scope of its current applicability. That is not this Court’s place, and the Court declines to do so. Instead, the Court must apply the law as Pennsylvania’s own Supreme Court has instructed. See, e.g., Hughes, 762 A.2d at 344-45. Consequently, the Court finds that the assumption of the risk doctrine, as articulated in the statue and interpreted by courts, does not apply to bar Mrs. Barillari’s claim, because she was not “engaged in the sport of downhill skiing” at the time of her accident. See Hughes, 762 A.2d at 344-45.
C. TRADITIONAL ASSUMPTION OF THE RISK DOES NOT BAR THE PLAINTIFFS’ CLAIMS
The Defendant [**14] asserts that, in the alternative, the traditional common law defense of assumption of the risk should bar the claim. Def.’s Br., at 6. Although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing. See, e.g., Zinn v. Gichner Systems Grp., 880 F. Supp. 311 (M.D. Pa. 1995) (Caldwell, J.) (holding assumption of the risk barred plaintiff’s claim when he continued to work after landowner refused to cover opening in which he was injured); Howell v. Clyde, [*562] 533 Pa. 151, 620 A.2d 1107 (1993) (finding that the plaintiff guest who helped secure gunpowder for a firework cannon and participate in lighting it assumed the risk of his injury); see also Rutter v. Ne. Beaver Cnty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1212 (1981) (Nix, C.J., dissenting) (“[T]his doctrine constitutes a necessary and viable component of tort law.”).
Borrowing Justice Antonin Scalia’s memorable phrase concerning a similarly limited but resurgent doctrine in another area of law, assumption of the [**15] risk survives “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.
There are four different theoretical species of assumption of the risk–two of which are at issue in this case. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c. One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3.
A second related corollary of the assumption of risk doctrine 3 is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3 [**16] . As both of these manifestations of that intractable doctrine are at issue here, the Court addresses them in turn, first analyzing voluntary assumption of the risk. 4
3 See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 531 (1988) (discussing the discrete conceptual differences between voluntary assumption of the risk as an affirmative defense to a breached duty and the “no-duty” theory with its inherent absence of a duty).
4 The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c, 1, 4.
1. Voluntary Assumption of the Risk Does Not Bar Plaintiff’s Claim in this Case
As Judge A. Richard Caputo articulated when considering a case involving voluntary assumption of the risk: “[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite [**17] the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed.” Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5 (M.D. Pa. Feb. 27, 2012) (Caputo, J.). This assumption of risk defense is established as a matter of law “only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (1996). Moreover, “[t]he mere fact one engages in activity that has some inherent [*563] danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 573 (Pa. Super. Ct. 2000).
The dispositive analytical point in the case before this Court is determining what constitutes a plaintiff’s conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at * 6 (citing Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693 (1990)). Rather, the plaintiff must be [**18] aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Id.
For example, in Bolyard v. Wallenpaupack Law Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6 (M.D. Pa. Feb. 27, 2012), Judge Caputo held, inter alia, that assumption of the risk did not apply to a plaintiff who went snow-tubing on an old ski slope, hit a rut, and crashed into a tree. Judge Caputo recognized that, while the plaintiff “was generally aware that snow tubing on a tree-lined trail was dangerous, there [was] no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *6. This was a material distinction, such that the elements of voluntary assumption of the risk remained unsatisfied–therefore, as a matter of law, the plaintiff did not assume the risk. Id.
Similarly, in Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693, 696 (1990), the court held that assumption of the risk did not apply when a plumbing contractor sustained injuries and died because a trench in which he was laying pipe collapsed. The court noted that the plaintiff was aware of the general [**19] risk of ditch collapses and that the particular job would be delicate. Handschuh, 574 A.2d at 694. Nevertheless, that awareness of the general risks was not sufficient “to compel a finding of a waiver of an individual’s right to complain about a breach of duty of care to the risk taker.” Id. at 696 (original punctuation altered).
In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696; Pls.’ SOF ¶ 5. It is undisputed that Mrs. Barillari was aware of the general risks and dangers inherent in the sport of skiing. She was aware collisions between skiers occurred and she “was worried about [her] children with that.” Def.’s SOF, Oral Dep. Mrs. Barillari 23, Dec. 03, 2012, ECF No. 18, Exh. 5. There is not, however, anything in the record that indicates Mrs. Barillari was specifically aware of the danger that later befell her.
Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [**20] [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.” Id. at 63-64. Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case. See id.
2. The “No-Duty” Rule Does Not Apply
The “no-duty” theory, a corollary species of assumption of the risk discussed [*564] previously in the context of the Skier’s Responsibility Act, applies at common law when: “the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Hughes, 762 A.2d at 341 (citing Restatement (Second) of Torts, §496A, cmt. c, 2). “Again the legal result is that the defendant is relieved of his duty to the plaintiff.” Id.
The no-duty rule applies most prominently in the context of a spectator [**21] at a sporting event, such as a fan hit by a foul ball at a baseball game. See, e.g., Schentzel v. Philadelphia Nat’l League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953). As the Restatement observes, “a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without precautions to protect him from being hit by the ball.” Restatement (Second) of Torts, §496A, cmt. c, 2.
“In Pennsylvania, the law imposes ‘no duty’ to protect spectators from risks that are common, frequent, and expected [in the sport].” Petrongola v. Comcast-Spectacor, L.P., 2001 PA Super 338, 789 A.2d 204, 210 (2001). “However, a facility may be held liable if the design of the facility deviates from the established custom in some relevant way.” Id. “The central question, then, is whether [a plaintiff’s] case is governed by the ‘no-duty’ rule applicable to common, frequent and expected risks of [the sport] or by the ordinary rules applicable to all other risks which may be present [at a sporting facility].” Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 551 (1978).
For example, in Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 186-92, 96 A.2d 181 (1953), [**22] the no-duty rule barred the claim of a plaintiff hit by a foul ball in the stands at a baseball game. The court noted that, even though there was scant evidence the plaintiff knew about the prevalence of foul balls, the defendant owed her no duty because foul balls are an inherent risk of attending a baseball game. Schentzel,173 Pa. Super. at 186-92.
In Loughran v. The Phillies, 2005 PA Super 396, 888 A.2d 872, 876-77 (Pa. Super. Ct. 2005), a majority of the court held that the no-duty rule barred a spectator’s claim for injuries suffered in the stands at a baseball game. There, the center-fielder threw the ball into the stands after catching it for the final out of the inning–as is customarily done to provide souvenirs for fans–when the unsuspecting plaintiff was hit and injured by the ball. Loughran, 888 A.2d at 874. Although this was not the typical foul ball hit into the stands, the majority considered this custom to be inherent in the sport. Id. at 877. They noted that the plaintiff failed to establish the defendants “deviated from the common and expected practices of the game of baseball.” 5 Id.
5 Judge John T. Bender dissented from this majority opinion, writing:
since the act of tossing a ball to fans [**23] as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not “assume the risk” of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the “no duty” rule to this practice. Rather, if a baseball player wants to go beyond the confines of the game . . . he should be charged with the obligation of doing it in a reasonably safe and prudent manner.
Loughran, 888 A.2d at 882.
By contrast, in Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546, 548, 552-553 (1978), the court held that the no-duty rule did not apply because the patron was hit by a ball while using an interior walkway to the concessions [*565] area, rather than while seated in the stands. The court noted that “in a ‘place of amusement’ not every risk is reasonably expected.” Jones, 394 A.2d at 551. That particular injury was due to a failure in the ballpark’s design such that the no-duty rule should not apply. Id. at 551-52.
The Jones court also drew a distinction between risks that are merely inherent in the activity, and those risks that are not only inherent but also necessary to the activity. See id.; [**24] see also Loughran, 888 A.2d at 880 (Bender, J., dissenting) (“A careful reading of Jones, reveals that the no-duty rule applies not just when one’s injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity.”). For example, while foul balls in the stands are an inherent and necessary part of any baseball game, a bat flying into the stands is an inherent risk of baseball but not a necessary component of the game. Jones, 394 A.2d at 551; see also Schentzel, 96 A.2d at 182 (“There is a million foul balls, maybe three or four or five an inning, goes into the stand [sic].”).
The court further illuminated this distinction with analogies, writing that: “[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand.” Id. at 550-51. As Judge John T. Bender poignantly extrapolated in his Loughran dissent:
if movie houses are made to lighten the theatres so that no one trips, the movie-going experience would be greatly diminished if not destroyed. If amusement parks are made to design roller coasters so as to eliminate all jerkiness and smooth out all changes [**25] in direction they would no longer be capable of being classified as “thrill rides” and the word “amusement” might be deleted from the term “amusement parks.” But if baseball players and their employers, are charged with exercising reasonable care in the practice of providing souvenir balls to patrons, the “Fall Classic” will remain a classic sporting contest and all those regular season and playoff games preceding it would still be played in a manner consistent with Abner Doubleday’s original intent.
Loughran, 888 A.2d at 881.
According to the principles discussed in Jones and Loughran, the no-duty rule can be said to apply when, to avoid injury, a “place of amusement” must alter conditions at the facility in such a way that would change the very essence of the activity for which it is made. See Loughran, 888 A.2d at 881; Jones, 394 A.2d at 550-52. This does not affect the duty of sports facilities and places of amusement to protect patrons against foreseeable risks not inherent and necessary such that they are “common, frequent, and expected” in the very essence of that central activity. Jones, 394 A.2d at 551
Applying these principles to the case before the Court, the no-duty rule cannot [**26] protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. See Def.’s Br., at 8-10. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport. See Jones, 394 A.2d at 551-52.
A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands. See Schentzel, 96 A.2d at 182. The Court is not aware of a similar majority that assumes they will see [*566] a number of skiers crash violently into spectators on a day trip to the mountain.
Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. See Loughran, 888 A.2d at 881. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.
Therefore, [**27] the issues in this case do not present an instance where the “no-duty” rule applies. Rather, the existence of any negligence by either or both parties should be submitted to a jury.
III. CONCLUSION
For the foregoing reasons, Ski Shawnee Inc.’s motion for summary judgment is denied.
An appropriate Order follows.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
ORDER
AND NOW, this 12th day of November, 2013, it is hereby ORDERED, in accordance with a Memorandum of this same date, that the Defendant, Ski Shawnee, Inc.’s motion for summary judgment is hereby DENIED.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
Rare issue this case looked at a release signed by a minor that prevented a suit for his injuries after turning age 18
Posted: May 5, 2014 Filed under: Oregon, Ski Area, Skiing / Snow Boarding | Tags: Age of Majority, Air Chamber, Boarder, Boarding, Disaffirm, Inc., Mt. Bachelor, Mt. Bachelor Ski and Summer Resort, Myles A. Bagley, Oregon, Release, ski area, Ski Resort, Snowboarder, snowboarding, Terrain park 2 CommentsThis decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014
The term is disaffirm, the minor must disaffirm the release or contract after reaching age 18 or the release or contract is valid.
Date of the Decision: September 5, 2013
Plaintiff: Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs
Defendant: Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort
Plaintiff Claims: (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable.
Defendant Defenses: Release
Holding: for the defendant. The minor took advantage of the benefits of the contract (release) and did not disaffirm the contract upon reaching the age of majority (18).
This is a rare review of release or contract law because the odds are against it. A contract is voidable by the minor when the minor signs the contract. However, if the contract is in effect when the minor reaches the age of majority, the minor can either disaffirm the contract which puts the parties back in the position before the contract was signed or if he or she fails to do that he or she takes advantages of the benefits of the contract and continues to use it the contract is in force.
To determine the age of majority or the age a minor becomes an adult in each state see The age that minors become adults.
The minor signed a season pass release at the defendant ski area. His father signed a minor release and indemnity agreement. Two weeks later and before the plaintiff had started snowboarding he turned 18. Once he started snowboarding, after reaching age 18, he boarded at the defendant’s resort 26 different days and his pass was scanned 119 times.
Going through the terrain park where he seemed to spend most of his time, the plaintiff was injured on a jump which resulted in permanent paralysis.
The minor and his parents sued the resort. The trial court dismissed his complaints after the defendant filed a motion for summary judgment based on the release the minor had signed.
Summary of the case
The appellate court reviewed the facts and pointed several of the facts out repeatedly.
He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor.
After reaching age 18 the plaintiff used the release 119 times over 26 days during a four month period. Once you affirm a contract, by using it and not disaffirming it, you cannot later disaffirm the contract. A contract is affirmed if the contract is not disaffirmed which requires an act on the part of the plaintiff. Meaning if the minor does not make an affirmative act to disaffirm the release then the release stands.
In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, “[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”).
In this case the only disaffirmance occurred two years later when the plaintiff started his lawsuit.
The plaintiff then argued that because he had no knowledge of the power to disaffirm this release he should not be held to his failure to disaffirm. However the court shot this down with the standard statement. “However, we have previously stated that “[i]gnorance of the law is not a basis for not enforcing a contract.“”
The court then reviewed the requirements for a valid release under Oregon law. “[W]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.”
The public policy argument was also shot down in a very common sense manner.
“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service.
The release was also found to not be unconscionable.
[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness
The court followed up the public policy quote with “…albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive.”
A recreational activity is not subject to public policy arguments because the signer can:
“…simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”
“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”
Because it was the plaintiff’s choice to board at the defendants ski area the release did not violate public policy.
When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away.
The one misstatement in my opinion which the court also pointed out was language that exempted the release for intentional acts. “THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.” The capitalized print made this statement in the release even standout. The court, found this to be curious and probably was thinking the same way I did, why give the plaintiff’s a way out of the release.
The Oregon Court of Appeals upheld the release as a defense to the claims of the plaintiff.
So Now What?
When a guest enters their date of birth in the information form indicating they are under the age of majority, this always creates a problems because minor’s cannot sign releases. However, if the minor can read the release, even the release is voided by the minor, it can still be used to prove assumption of the risk by the minor.
If the minor is turning the age of majority during the term of the release you can have the minor reaffirm the release or sign a new release after his birthday.
The court repeatedly pointed out how many times the plaintiff had used the release, how many releases at this resort and other resorts the plaintiff had signed before and the experience of the plaintiff. Keep track of this information because it will be valuable in any case showing that the release was an accepted contract for the plaintiff.
Never write in your release the ways the plaintiff can sue you. Here the statement in the release that it was not effective for intentional misconduct is the same as telling the plaintiff to write their complaint to couch the injury as an intentional act on the part of the defendant.
On the good side, the ski area had the minor sign the release, even though the release at the time was of no value. A release signed by a minor might have value later as in this case or might be able to prove assumption of the risk.
The Oregon Supreme Court has just accepted this case for review of this decision. So please learn from this article but do not rely upon it yet. (http://rec-law.us/1jaw8g2)
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Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
Posted: May 5, 2014 Filed under: Legal Case, Oregon, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Age of Majority, Air Chamber, Boarder, Boarding, Disaffirm, Inc., Mount Bachelor, Mt. Bachelor, Mt. Bachelor Ski and Summer Resort, Myles A. Bagley, Oregon, Release, ski area, Ski Resort, Snowboard, Snowboarder, snowboarding, Terrain park Leave a commentThis decision was just overturned by the Oregon Supreme Court in Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 on December 18, 20014
Bagley v. Mt. Bachelor, Inc., 258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
Myles A. Bagley, individually, Plaintiff-Appellant, and Al Bagley, individually; and Lauren Bagley, individually, Plaintiffs, v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, Defendant-Respondent, and JOHN DOES 1-10, Defendants.
A148231
COURT OF APPEALS OF OREGON
258 Ore. App. 390; 310 P.3d 692; 2013 Ore. App. LEXIS 1080
September 6, 2012, Argued and Submitted
September 5, 2013, Filed
COUNSEL: Kathryn H. Clarke argued the cause for appellant. On the opening brief were Bryan W. Gruetter and Joseph S. Walsh. With her on the reply brief was Lisa T. Hunt.
Andrew C. Balyeat argued the cause for respondent. With him on the brief was Balyeat & Eager, LLP.
JUDGES: Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
OPINION BY: SERCOMBE
OPINION
[**694] [*392] SERCOMBE, J.
Plaintiff Bagley, after suffering serious injuries while snowboarding over a “jump” in defendant Mt. Bachelor, Inc.’s (Mt. Bachelor) “terrain park,” brought this action alleging negligence in the design, construction, maintenance, or inspection of that jump. 1 The trial court granted Mt. Bachelor’s motion for summary judgment, which was based on the affirmative defense of release, and denied Bagley’s cross-motion for partial summary judgment pertaining to that same issue. Bagley appeals, asserting that the trial court erred in (1) concluding that there was no genuine issue of material fact as to whether Bagley ratified, after reaching the age of majority, a release agreement entered into while he was a minor; (2) concluding that the release agreement was not contrary [***2] to public policy; and (3) concluding that the release agreement was neither substantively nor procedurally unconscionable. For the reasons that follow, we agree with the trial court and, accordingly, affirm.
1 For ease of reading, notwithstanding additional named parties (Bagley’s parents and “John Does 1-10”), we refer throughout this opinion to plaintiff “Bagley” and defendant “Mt. Bachelor.”
[HN1] In reviewing a grant of summary judgment, we view the facts, along with all reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party–here, Bagley on Mt. Bachelor’s motion and Mt. Bachelor on Bagley’s cross-motion. ORCP 47 C; Vaughn v. First Transit, Inc., 346 Ore. 128, 132, 206 P3d 181 (2009). On September 29, 2005, just under two weeks before his 18th birthday, Bagley purchased a “season pass” from Mt. Bachelor. Bagley was a skilled and experienced snowboarder, having purchased season passes from Mt. Bachelor for each of the preceding three years and having classified his skill level as of early 2006, immediately prior to the injury, as “advanced expert.” Upon purchasing the season pass, he executed [**695] a release agreement as required by Mt. Bachelor. That [***3] agreement read, in pertinent part:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, [*393] INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“* * * * *
“THE UNDERSIGNED(S) HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS ON BOTH SIDES OF THIS DOCUMENT. THIS INCLUDES, BUT IS NOT LIMITED TO, THE DUTIES OF SKIERS, SNOWBOARDERS, OR SNOWRIDERS. THE UNDERSIGNED(S) UNDERSTAND THAT THIS DOCUMENT IS AN AGREEMENT OF RELEASE AND INDEMNITY WHICH WILL PREVENT THE UNDERSIGNED(S) OR THE UNDERSIGNEDS’ ESTATE FROM RECOVERING DAMAGES FROM MT. BACHELOR, INC. IN THE EVENT OF DEATH OR INJURY TO PERSON OR PROPERTY. THE UNDERSIGNED(S), NEVERTHELESS, [***4] ENTER INTO THIS AGREEMENT FREELY AND VOLUNTARILY AND AGREE IT IS BINDING ON THE UNDERSIGNED(S) AND THE UNDERSIGNEDS’ HEIRS AND LEGAL REPRESENTATIVES.
“BY MY/OUR SIGNATURE(S) BELOW, I/WE AGREE THAT THIS RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH I/WE RENEW THIS SEASON PASS.
“SEE REVERSE SIDE OF THIS SHEET * * * FOR DUTIES OF SKIERS, SNOWBOARDERS, OR SNOW RIDERS WHICH YOU MUST OBSERVE.”
(Underscoring and capitalization in original; emphases added.) The reverse side of the document detailed the “Duties of Skiers” pursuant to ORS 30.990 and ORS 30.985 and also included printed notification that “Skiers/Snowboarders/Snowriders [*394] Assume Certain Risks” under ORS 30.975–namely, the “inherent risks of skiing.” 2 In addition, because Bagley was not yet 18, his father executed a “minor release and indemnity agreement” (capitalization omitted) that read as follows:
“I HEREBY AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH [***5] THE MINOR(S) NAMED BELOW MAY SUFFER OR FOR WHICH HE OR SHE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY [**696] NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.
“BY MY SIGNATURE BELOW, I AGREE THAT THIS MINOR RELEASE AND INDEMNITY AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT AND I WILL BE BOUND BY ITS TERMS THROUGHOUT THIS SEASON AND ALL SUBSEQUENT SEASONS FOR WHICH THIS SEASON PASS IS RENEWED.
“I HAVE CAREFULLY READ AND UNDERSTAND THIS AGREEMENT AND ALL OF ITS TERMS.”
(Capitalization in original; emphasis added.)
2 Oregon has promulgated statutes specifically pertaining to skiing and ski areas. See ORS 30.970 – 30.990. Those statutes, inter alia, set forth the “duties” of skiers, require that ski area operators inform skiers of those duties, establish notice requirements and a statute of limitations pertaining specifically to injury or death while skiing, and provide that those who engage in the sport of skiing accept and assume the risks inherent in that activity.
Less than two weeks after purchasing the season pass and executing the [***6] above-quoted release agreement, Bagley reached the age of majority–turning 18 on October 12, 2005. Thereafter, on November 18, 2005, Bagley began using the pass, on which the crux of the release agreement was also printed:
[*395] “READ THIS RELEASE AGREEMENT
“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 PROPERTY DAMAGE, INJURY OR DEATH EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”
(Capitalization in original; emphasis added.) Further, the following sign was posted at each of Mt. Bachelor’s ski lift terminals:
“YOUR TICKET IS A RELEASE
“The back of your ticket contains a release of all claims against Mt. Bachelor, Inc. and its employees or agents. Read the back of your ticket before you ride any lifts or use any of the facilities of Mt. Bachelor, Inc. If you purchase a ticket from someone else, you must provide this ticket release information to that person or persons.
“Skiers and lift passengers who use tickets at this resort release and agree to hold harmless and indemnify Mt. Bachelor, Inc., its employees and [***7] 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.”
(Capitalization in original; emphases added.)
Ultimately, beginning on November 18, 2005, after his 18th birthday, Bagley used his season pass to ride Mt. Bachelor’s lifts at least 119 times over the course of 26 days spent snowboarding at the ski area. However, on February 16, 2006, while snowboarding over a manmade jump in Mt. Bachelor’s “air chamber” terrain park, Bagley sustained serious injuries resulting in permanent paralysis.
[*396] On June 16, 2006, approximately four months later, Bagley provided Mt. Bachelor with formal notice of his injury under ORS 30.980(1), which requires [***8] that “[a] ski area operator * * * be notified of any injury to a skier * * * within 180 days after the injury * * *.” Nearly two years after the injury, on February 15, 2008, Bagley brought this action–filing a complaint alleging negligence on Mt. Bachelor’s part in designing, constructing, maintaining, or inspecting the jump on which Bagley was injured. Mt. Bachelor answered, in part, by invoking the affirmative defense of release–pointing to the above-quoted release agreements signed by Bagley and his father prior to the date of injury.
Mt. Bachelor quickly moved for summary judgment on that ground, arguing before the trial court that, by failing to disaffirm the voidable release agreement within a reasonable [**697] period of time after reaching the age of majority, and by accepting the benefits of that agreement and “objectively manifest[ing] his intent to affirm” it (i.e., by riding Mt. Bachelor’s lifts 119 times over 26 days), Bagley had ratified the release and was therefore bound by it. Mt. Bachelor further noted that Bagley “admittedly understood that he [had] entered into a release agreement and was snowboarding under its terms on the date of [the] accident.” Accordingly, Mt. Bachelor [***9] argued, because Bagley had ratified a release agreement that unambiguously disclaimed liability for negligence, there was no material issue of fact as to whether that agreement barred Bagley’s action, and Mt. Bachelor was entitled to judgment as a matter of law. 3
3 Mt. Bachelor additionally argued, as pertinent to this appeal, that the release agreement was neither adhesionary nor contrary to public policy under Oregon law. Specifically, it argued that “skiers and snowboarders voluntarily choose to ski and snowboard and ski resorts do not provide essential public services.”
Bagley then filed a cross-motion for partial summary judgment as to Mt. Bachelor’s affirmative defense of release, arguing that “there [was] no genuine issue of material fact [as to whether] the release [was] void and unenforceable as a matter of law.” Specifically, Bagley argued that he timely disaffirmed the release agreement by (1) notifying Mt. Bachelor of the injury pursuant to ORS 30.980(1), (2) filing his complaint for negligence within the two-year statute of limitations “for injuries to a skier” established by ORS 30.980(3), [*397] and (3) “plead[ing] infancy as a defense to [Mt. Bachelor’s] First Affirmative Defense [***10] on the release executed by [Bagley] while an infant.” Additionally, in response to Mt. Bachelor’s motion, Bagley alternatively argued that “whether [he] disaffirmed the Release within a reasonable time should be determined by the jury as a question of fact” because a material issue of fact existed as to Bagley’s knowledge of both the scope of the release (namely, whether it covered claims for negligence) and “of his right to disaffirm” it (i.e., whether it was voidable). He further argued that the release was contrary to public policy and “both substantively and procedurally unconscionable.”
The trial court agreed with Mt. Bachelor, reasoning that Bagley’s “use of the pass following his eighteenth birthday constitute[d] an affirmation of the contract and release agreement each time the pass was used, a total of 119 times over a period of 26 different days, up to February 16, 2006[,]” and noting that, “[o]nce there [was] an affirmation, [Bagley could] no longer disaffirm the contract.” The court rejected Bagley’s public policy and unconscionability arguments, reasoning that “[s]now riding is not such an essential service which requires someone such as [Bagley] to be forced to sign a [***11] release in order to obtain the service.” Accordingly, having determined that Bagley ratified the release agreement after reaching the age of majority and that “there [was] no basis by which [it could] find the release invalid[,]” the trial court granted summary judgment in Mt. Bachelor’s favor and denied Bagley’s cross-motion for partial summary judgment. Bagley now appeals, reprising his arguments below.
[HN2] On appeal, we review the trial court’s ruling on summary judgment to determine whether we agree “that there is no genuine issue as to any material fact and that the moving party is entitled to prevail as a matter of law.” ORCP 47 C; see O’Dee v. Tri-County Metropolitan Trans. Dist., 212 Ore. App. 456, 460, 157 P3d 1272 (2007). [HN3] No genuine issue of material fact exists if, “based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” ORCP 47 C.
[*398] In his first assignment of error, Bagley asserts that “[t]here is a genuine factual dispute as to whether [his] actions or omissions after reaching the age of majority [***12] were enough to disaffirm or affirm the contract he entered with [Mt. Bachelor] when he was a minor.” More specifically, Bagley argues that “[a] jury could reasonably infer from the facts that merely turning 18 years old and continuing to snowboard was not conclusive evidence of [his] intent to affirm the release [**698] and agree to waive all prospective claims for [Mt. Bachelor’s] negligence.” He argues that a jury “could just as easily find that he promptly disaffirmed the contract” by notifying Mt. Bachelor of the injury approximately four months after it occurred as required by ORS 30.980(1), by filing suit for negligence within the applicable statute of limitations, or by pleading infancy in response to Mt. Bachelor’s affirmative defense of release. 4
4 Bagley alternatively argues that, “even if there is no genuine dispute of material fact, the inferences arising from the facts in this case are susceptible to more than one reasonable conclusion precluding summary judgment.” However, Bagley does not identify any facts that purportedly give rise to inferences susceptible to more than one reasonable conclusion, and, ultimately, his generalized argument to that effect is not materially different [***13] from his argument in support of his first assignment of error. Accordingly, we reject that alternative argument without further discussion.
Mt. Bachelor likewise reprises its arguments below, asserting that Bagley admittedly knew that he was snowboarding under the terms of a release agreement, was aware of the inherent risks of snowboarding (particularly given his advanced, aerial style of snowboarding), and, “[u]nderstanding those risks,” made “an informed decision to execute the release agreement” and “an informed decision to honor the agreement after reaching the age of majority because he wanted to snowboard.” As noted, Mt. Bachelor points to Bagley’s use of the pass after reaching the age of majority–arguing that Bagley ratified the release agreement by riding the lifts “no less than 119 times on 26 days before the subject accident.”
[HN4] In Oregon, a former minor may disaffirm a contract within a “reasonable time” after reaching the age of majority, see Highland v. Tollisen, 75 Ore. 578, 587, 147 P 558 (1915), or, conversely, may ratify a contract after reaching the age of majority by manifesting an intent to let the contract stand, [*399] see Haldeman v. Weeks, 90 Ore. 201, 205, 175 P 445 (1918); [***14] see also Richard A. Lord, 5 Williston on Contracts § 9:17, 166-70 (4th ed 2009) (“[I]f an infant after reaching the age of majority engages in any conduct that objectively manifests an intent to regard the bargain as binding, the former minor will be held as a matter of law to have ratified the contract.”). Further, as particularly relevant here, although what constitutes a reasonable period of time after reaching the age of majority varies widely depending on the circumstances, it is well established that [HN5] ratification of a voidable contract abolishes a party’s power to later disaffirm it. See Brown et ux v. Hassenstab et ux, 212 Ore. 246, 256, 319 P2d 929 (1957) (“The two courses of action are inconsistent and the taking of one will preclude the other.”); Snyder v. Rhoads, 47 Ore. App 545, 553-54, 615 P2d 1058, rev den, 290 Ore. 157 (1980) (similar).
Applying those principles to these facts, we agree with Mt. Bachelor and conclude that no objectively reasonable juror could find that Bagley disaffirmed the release agreement within a reasonable time after turning 18. Rather, the record gives rise to only one reasonable conclusion: By using the season pass at least 119 times over the course [***15] of 26 days between November 18, 2005 and February 16, 2006, Bagley objectively manifested his intent to let the release stand–affirmatively electing to ride the lifts and snowboard under the terms of the agreement (i.e., to accept the benefits of the agreement). His actions after the date of injury–at which time the release had already been ratified and Bagley’s power to disaffirm it thereby defeated–are immaterial. Cf. Highland, 75 Ore. at 587 (former minor’s disaffirmance held valid under circumstances where she had neither taken any affirmative action on the contract nor received any benefit from it); see also Restatement (Second) of Contracts § 85 comment b (1981) (power of disaffirmance may be lost, inter alia, “by exercise of dominion over things received”); Lord, 5 Williston on Contracts § 9:17 at 170 ( [HN6] “[I]f the infant after attaining majority voluntarily receives performance in whole or in part from the other party to the contract, this will amount to a ratification.”). 5
5 Although existing Oregon case law on point is limited, several other states have similarly reasoned that a former minor’s acceptance of the benefits of a contract may constitute a ratification. See, e.g., Jones v. Dressel, 623 P2d 370, 372-74 (Colo 1981) [***16] (holding that a former minor, who had signed a release at age 17 in order to skydive, “ratified the contract, as a matter of law, by accepting the benefits of the contract when he used [the defendant’s] facilities” and further stating that the question whether that former minor’s subsequent actions constituted disaffirmance of the contract was “not relevant” because the former minor had already ratified the contract); Parsons ex rel Cabaniss v. American Family Insurance Co., 2007 WI App 211, 305 Wis 2d 630, 639, 740 NW2d 399, 403 (Wis Ct App 2007), rev den, 2008 WI 19, 307 Wis. 2d 294, 746 N.W.2d 811 (Wis 2008) (former minor ratified release agreement in connection with settlement by retaining funds given as consideration for that release).
[*400] [**699] In reaching that conclusion, we emphasize that Bagley was less than two weeks short of the age of majority when he signed the release agreement and did not begin snowboarding under its terms until well over a month after turning 18. He was also an experienced snowboarder, had signed release agreements at other ski resorts in the past, and had purchased a season pass and signed a release agreement for each of the preceding three years that he spent snowboarding at Mt. Bachelor. See [***17] Haldeman, 90 Ore. at 205 (considering former minor’s maturity and life experience in determining whether contract had been ratified). Moreover, the language of the release was unambiguous, as discussed further below, and that language was both heavily emphasized and omnipresent–having been reproduced on the back of the physical season pass that Bagley was required to carry at all times and in large part on signage at each of the lift terminals to which Bagley was exposed at least 119 times. Indeed, given the exculpatory language on Bagley’s pass and the signage directing his attention to it, it is not implausible that Bagley released Mt. Bachelor from liability for negligence each time that he rode one of the lifts.
Nevertheless, Bagley affirmatively chose to accept the benefits of the agreement after reaching the age of majority and, as noted, continued to do so until the date of injury notwithstanding the pass’s and signage’s continuing reminders of the existence of the agreement and provision of ample exposure to its terms. The following exchange, which occurred during Bagley’s deposition, is particularly illustrative:
“[Mt. Bachelor’s Counsel]: The reason you didn’t go to Mt. Bachelor [***18] and tell them ‘You know what, I signed this agreement when I was 17, now I’m 18, I want to void it, I don’t want to be subject to it,’ what I’m asking you to [*401] acknowledge is the reason you didn’t do that is because you wanted [to] continue [to snowboard] and did continue [to snowboard] under the terms of the season pass agreement.
“[Bagley]: Yes.”
Thus, as the trial court correctly reasoned, when Bagley used the season pass 119 times to gain access to Mt. Bachelor’s lifts, he objectively manifested his intent to regard the release agreement as binding in order to reap its benefits–thereby ratifying it.
However, although he concedes that he was “aware of the release” and “aware of the inherent risks of his sport[,]” Bagley further argues that he did not know that the agreement released Mt. Bachelor from claims related to its own negligence. Nor, he argues, did he know that he had the power to disaffirm the contract upon turning 18. We conclude that such knowledge was not a necessary prerequisite to ratification and, therefore, that Bagley’s arguments as to his subjective understanding of both the release agreement and the law do not affect our determination that “no objectively reasonable [***19] juror could [have] return[ed] a verdict for” Bagley on the issue of ratification. ORCP 47 C.
Oregon subscribes to the “objective theory of contracts.” Kabil Developments Corp. v. Mignot, 279 Ore. 151, 156-57, 566 P2d 505 (1977) (citation omitted); Newton/Boldt v. Newton, 192 Ore. App. 386, 392, 86 P3d 49, rev den, 337 Ore. 84, 93 P.3d 72 (2004), cert den, 543 U.S. 1173, 125 S. Ct. 1365, 161 L. Ed. 2d 153 (2005). Accordingly, although there is undisputed evidence in the record showing that, after reaching the age of majority, Bagley was exposed to language expressly disclaiming liability for negligence on the part of Mt. Bachelor, 6 his subjective understanding [*402] [**700] of that language and the terms of the release agreement is not relevant to the question of whether he ratified that agreement such that it could be enforced against him. See, e.g., NW Pac. Indem. v. Junction City Water Dist., 295 Ore. 553, 557 n 4, 668 P2d 1206 (1983), modified on other grounds, 296 Ore. 365, 677 P2d 671 (1984) ( [HN7] “[F]ailure to read an instrument is not a defense to enforcement.”).
6 For instance, as noted, the season pass that he was required to carry with him at all times expressly disclaimed liability for negligence and drew his attention to that language with the following [***20] heading: “READ THIS RELEASE AGREEMENT[.]” (Capitalization in original.) Further, during his deposition testimony, Bagley confirmed that he had read signage posted prominently on the mountain that stated, as pertinent here, that
“[s]kiers 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.”
(Emphasis added.)
We similarly reject Bagley’s argument regarding his lack of knowledge of the power to disaffirm the release agreement upon reaching the age of majority. In raising that issue, Bagley notes that, “[i]n some states, the former infant’s knowledge, or lack thereof, of his right to disaffirm a contract may be taken into consideration” in assessing whether there has been a ratification or disaffirmance. (Emphases added.) However, we have previously stated that [HN8] “[i]gnorance of [***21] the law is not a basis for not enforcing a contract.” Shea v. Begley, 94 Ore. App. 554, 558 n 3, 766 P2d 418 (1988), rev den, 307 Ore. 514, 770 P.2d 595 (1989) (citation omitted; emphasis added); see also Walcutt v. Inform Graphics, Inc., 109 Ore. App. 148, 152, 817 P2d 1353 (1991), rev den, 312 Ore. 589, 824 P.2d 418 (1992) (the plaintiff was not entitled to avoid contract due to her and her counsel’s “failure to take reasonable measures to inform themselves about her affairs”). Moreover, as Mt. Bachelor correctly points out, Bagley’s argument is drawn from the minority view among other jurisdictions. See Lord, 5 Williston on Contracts § 9:17 at 175-77 (former minor’s ignorance of legal defense of infancy treated as irrelevant in a majority of those jurisdictions that have considered the issue). As aptly stated by the Pennsylvania Supreme Court,
“[t]o require that one must have knowledge of a right to disaffirm in order to make an effective ratification of a voidable contract made in infancy would be inconsistent with the well-established rule that failure to disaffirm such contract within a reasonable time after coming of age terminates the privilege of disaffirmance.”
Campbell v. Sears, Roebuck & Co., 307 Pa 365, 371, 161 A 310, 312 (1932).
In [***22] short, both of Bagley’s ancillary arguments are inconsistent with the objective theory of contracts to which Oregon adheres; we look to the parties’ objective conduct, [*403] and, here, after reaching the age of majority, Bagley objectively manifested his intent to let the contract stand because he “wanted to snowboard[.]”
As noted, in his second assignment of error, Bagley asserts that the release agreement was void as contrary to public policy–focusing primarily on the respective bargaining power of the parties and an asserted “public interest [in] protecting a large number of business invitees, including [Bagley], from the negligence of ski area operators.” 7 (Some capitalization omitted.) [HN9] In evaluating whether a contract disclaiming liability for negligence is contrary to public policy, we assess the language of the agreement under the circumstances in order to determine whether it violates public policy “as applied” to the facts of the particular case. Harmon v. Mt. Hood Meadows Ltd., 146 Ore. App. 215, 217-18, 222-24, 932 P2d 92 (1997) (upholding release agreement disclaiming “any and all liability (including claims based upon negligence) for damage or injury” because the plaintiff’s action [***23] pertained only to ordinary negligence and therefore did not implicate the release’s potential coverage of recklessness or intentional misconduct [**701] (capitalization and boldface omitted)). Specifically, we stated in Harmon that
[HN10] “[t]he question of whether a contract provision is unenforceable as against some general, uncodified public policy must be determined on an ‘as applied’ basis. * * * [A] party seeking to avoid contractual responsibility must demonstrate that enforcement of the contractual provision as to him or her will offend public policy. That is so regardless of whether enforcement of the same contractual provision against other parties in other circumstances would violate public policy.”
Id. at 222 (emphases added); see generally Young v. Mobil Oil Corp., 85 Ore. App. 64, 69, 735 P2d 654 (1987) ( [HN11] “Oregon requires that a public policy be clear and ‘overpowering’ before a court will interfere with the parties’ freedom to contract on the ground of public policy.” (Citation omitted.)).
7 We assume without deciding that the “void as contrary to public policy” doctrine pertaining to this type of case has not been superseded by later-evolved principles concerning substantive unconscionability. [***24] See Restatement at § 208 comment a (unconscionability analysis generally “overlaps” with public-policy analysis).
[*404] Again, the release agreement provided, as pertinent here:
“RELEASE AND INDEMNITY AGREEMENT
“IN CONSIDERATION OF THE USE OF A MT. BACHELOR PASS AND/OR MT. BACHELOR’S PREMISES, I/WE AGREE TO RELEASE AND INDEMNIFY MT. BACHELOR, INC., ITS OFFICERS AND DIRECTORS, OWNERS, AGENTS, LANDOWNERS, AFFILIATED COMPANIES, AND EMPLOYEES (HEREINAFTER ‘MT. BACHELOR, INC.’) FROM ANY AND ALL CLAIMS FOR PROPERTY DAMAGE, INJURY, OR DEATH WHICH I/WE MAY SUFFER OR FOR WHICH I/WE MAY BE LIABLE TO OTHERS, IN ANY WAY CONNECTED WITH SKIING, SNOWBOARDING, OR SNOWRIDING. THIS RELEASE AND INDEMNITY AGREEMENT SHALL APPLY TO ANY CLAIM EVEN IF CAUSED BY NEGLIGENCE. THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT.”
(Underscoring and capitalization in original; emphasis added.) Although that exculpatory language expressly excludes intentional misconduct from its purview, the same cannot be said with respect to gross negligence or recklessness. However, applying Harmon, because Bagley alleges only ordinary negligence, the failure to expressly exclude gross negligence or recklessness does [***25] not render the agreement contrary to public policy “as applied” to the negligence claim in this case. 146 Ore. App at 222.
Further, in assessing the language of the agreement, our decision in Steele v. Mt. Hood Meadows Oregon, Ltd., 159 Ore. App. 272, 974 P2d 794, rev den, 329 Ore. 10, 994 P.2d 119 (1999), provides substantial guidance. There, the plaintiff in a wrongful death action brought against a ski resort argued that the trial court had erred in granting summary judgment for the ski resort in part because “the terms of the release [were] ambiguous.” Id. at 276. We concluded that the agreement was ambiguous and stated that, [HN12] “[w]hen one party seeks to contract away liability for its own negligence in advance of any harm, the intent to do so must be ‘clearly and unequivocally expressed.'” Id. (quoting Estey v. MacKenzie Engineering Inc., 324 Ore. 372, 376, 927 P2d 86 (1996)). We further elaborated:
[*405] “In determining whether a contract provision meets that standard, the court has considered both the language of the contract and the possibility of a harsh or inequitable result that would fall on one party if the other were immunized from the consequences of its own negligence. The latter inquiry turns on the [***26] nature of the parties’ obligations and the expectations under the contract.”
Id. (citations and internal quotation marks omitted; emphasis added).
We conclude that the release agreement’s language “clearly and unequivocally” expressed Mt. Bachelor’s intent to disclaim liability for negligence. In reaching that conclusion, considering “the nature of the parties’ obligations and the expectations under the contract[,]” id., we note that Bagley admittedly understood that he was engaged in an inherently dangerous activity and that the agreement not only disclaimed liability [**702] for negligence but specifically stated that the “only” claims not released were those for intentional misconduct. Unlike the ambiguous release agreement in Steele, the above-quoted language expressly referred to negligence and was positioned prominently at the beginning of the release agreement; it was not obscured by unrelated provisions. See id. at 274-75 (exculpatory provision obscured by, inter alia, provision addressing skier’s duty to report injuries to the ski resort’s medical clinic). Indeed, we are hard-pressed to envision a more unambiguous expression of “the expectations under the contract”–namely, that in exchange [***27] for the right to use Mt. Bachelor’s facilities to participate in an inherently dangerous activity, Bagley was to release Mt. Bachelor from all claims related to anything other than intentional misconduct (including, of course, negligence).
Moreover, we have previously emphasized that [HN13] a release agreement disclaiming liability for negligence does not necessarily offend public policy where it pertains exclusively to “recreational activities,” and, most prominently, where the business seeking to relieve itself of such liability does “not provide an essential public service[.]” Mann v. Wetter, 100 Ore. App. 184, 187, 187 n 1, 785 P2d 1064, rev den, 309 Ore. 645, 789 P.2d 1387 (1990) (“[T]here are no public policy considerations that prevent a diving school from limiting liability for its own negligence. The diving school does not provide an [*406] essential public service[.]”). A ski resort, like a diving school, primarily offers “recreational activities” (with possible exceptions that do not apply here, e.g., training for search-and-rescue personnel) and does not provide an “essential public service[.]” Id.
Thus, bearing in mind the principles set forth in Mann and the recreational context of this particular case, [***28] 8 because the release agreement “clearly and unequivocally” disclaimed liability for negligence, and because Bagley’s claims relate only to ordinary negligence, under Oregon law the agreement was not contrary to public policy “as applied” to Bagley’s action. Steele, 159 Ore. App. at 276; Harmon, 146 Ore. App. at 222.
8 Regarding that recreational context, we further note that the legislature has enacted statutes indemnifying landowners from liability in connection with “use of the land for recreational purposes[.]” ORS 105.682; see ORS 105.672 – 105.696. Accordingly, we add that, as a general matter, it would be counterintuitive to hold that a contract with the same operative effect as that statutory scheme is void as contrary to public policy.
Finally, we reject Bagley’s third assignment of error, in which, as noted, he asserts that the release agreement was both procedurally and substantively unconscionable. At the outset, we emphasize the substantive rigor historically applied by Oregon courts in assessing claims of unconscionability:
[HN14] “‘[T]he doctrine of unconscionability does not relieve parties from all unfavorable terms that result from the parties’ respective bargaining positions; it [***29] relieves them from terms that are unreasonably favorable to the party with greater bargaining power. Oregon courts have been reluctant to disturb agreements between parties on the basis of unconscionability, even when those parties do not come to the bargaining table with equal power. In those rare instances in which our courts have declared contractual provisions unconscionable, there existed serious procedural and substantive unfairness.'”
Hatkoff v. Portland Adventist Medical Center, 252 Ore. App. 210, 217, 287 P3d 1113 (2012) (quoting Motsinger v. Lithia Rose-FT, Inc., 211 Ore. App. 610, 626-27, 156 P3d 156 (2007)) (emphasis in Motsinger). Further, “each case is decided on its own unique facts[,]” Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Ore. App. 553, 567, 152 P3d 940 (2007), taking into account both the terms of the contract and the circumstances existing when the contract was signed.
[HN15] [*407] In assessing Bagley’s claim of procedural unconscionability, we focus on “the conditions of contract formation” and look to “two factors: oppression and surprise.” Id. at 566-67 (citation and internal quotation marks omitted). More specifically, “[o]ppression arises from an inequality of bargaining power [***30] which results in no real negotiation and an absence of meaningful [**703] choice. Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the terms.” Id. at 566 (citation and internal quotation marks omitted). Bagley addresses only the former, advancing a generalized argument that the agreement “was a contract of adhesion and there was a disparity in bargaining power.” (Some capitalization omitted.)
As noted, we do not find the release agreement procedurally unconscionable under these circumstances. Although the parties indeed came to the bargaining table with unequal power insofar as Mt. Bachelor required that the release be signed in order to allow Bagley to purchase a season pass, we have, albeit in dictum and in the context of addressing public-policy arguments, suggested that standard-form release agreements in the context of recreational activities are not impermissibly adhesive. See Harmon, 146 Ore. App. at 219 n 4 (citing cases from other jurisdictions and noting their holdings “that exculpatory provisions in ski-related form agreements were not impermissibly adhesive”); Mann, 100 Ore. App. at 187-88 [***31] (noting that “customers have a multitude of alternatives” in dealing with providers of “non-essential service[s,]” even where such providers hold an “economic advantage”). 9 Although we limit our holding to these “unique facts,” we rely in part on those principles in addressing both “oppression” and “surprise” (as well as substantive unconscionability, as set forth below).
9 Many other states, as well as federal courts, have, as Mt. Bachelor points out, “reached the same conclusion.” See, e.g., Chepkevich v. Hidden Valley Resort, L. P., 607 Pa 1, 29, 2 A3d 1174, 1191 (2010) (noting that, in the recreational context, “[t]he signer is a free agent who can simply walk away without signing the release and participating in the activity, and thus the contract signed under such circumstances is not unconscionable”); Silva v. Mt. Bachelor, Inc., No CV 06-6330-AA, *2, 2008 U.S. Dist. LEXIS 55942 (D Or July 21, 2008) (“[T]he release from liability is not invalid as a contract of adhesion, because [the] plaintiff voluntarily chose to ski at Mt. Bachelor and the ski resort does not provide essential public services.”); Grbac v. Reading Fair Co., Inc., 521 F Supp 1351, 1355 (WD Pa 1981), aff’d, 688 F2d 215 (3d Cir 1982) (stock-car [***32] racing company’s standard-form release provision not adhesionary).
[*408] Here, with respect to “oppression,” Bagley was free to choose not to snowboard at Mt. Bachelor, was less than two weeks short of the age of majority when he signed the agreement, was an experienced snowboarder who had previously signed release agreements required by at least two other ski resorts, had signed a release agreement in obtaining a season pass at Mt. Bachelor during each of the preceding three years, and was accompanied by his father (who, as noted, signed a nearly identical agreement disclaiming liability for negligence). Each of those facts contributes to our conclusion that, notwithstanding the parties’ unequal bargaining power, the circumstances of contract formation were not impermissibly oppressive. Bagley and his father were presented with a “meaningful choice[,]” Vasquez-Lopez, 210 Ore. App. at 566, particularly given that, as noted, snowboarding is a recreational activity and Bagley could have simply declined to sign the release without being denied access to an essential public service.
With respect to “surprise,” as evidenced by the unambiguous language of the release agreement, and particularly given [***33] its additional clarification after disclaiming liability for negligence (“THE ONLY CLAIMS NOT RELEASED ARE THOSE BASED UPON INTENTIONAL MISCONDUCT”), this was not a situation where the “terms of the bargain [were] hidden” by Mt. Bachelor. Id. To the contrary, the above quoted paragraph pertaining to the skier’s release of claims, including claims for negligence, appeared at the beginning of the release agreement and was highlighted by a centered and underlined introductory heading drawing the skier’s attention to the fact that he or she was signing a release (“RELEASE AND INDEMNITY AGREEMENT”). On those facts, we find no indication of surprise and, coupled with our conclusion above as to oppression, cannot say that the release agreement was procedurally unconscionable.
In further arguing that the release agreement was substantively unconscionable, Bagley asserts that “[t]he Release term of the contract in question is unreasonably [**704] favorable to [Mt. Bachelor], the drafter of the contract and more powerful party.” Further, Bagley argues, the terms of the release “unconscionably shift[ ] the burden to protect [skiers] from [Mt. Bachelor’s] negligent behavior to the public that it invites [***34] upon its premises, including [Bagley].” [HN16] [*409] In assessing a contract for substantive unconscionability, we focus on the terms of the contract itself in light of the circumstances of its formation; ultimately, “[t]he substantive fairness of the challenged terms” is the “essential issue.” Carey v. Lincoln Loan Co., 203 Ore. App. 399, 423, 125 P3d 814 (2005), aff’d on other grounds, 342 Ore. 530, 157 P3d 775 (2007); see Vasquez Lopez, 210 Ore. App. at 566-69.
On these facts, the provision in the release agreement disclaiming liability for negligence was not “unreasonably” favorable to Mt. Bachelor. Carey, 203 Ore. App. at 422. Indeed, the principal Oregon case touching on the issue upheld a provision–albeit on an “as applied” basis in the context of that particular plaintiff’s public-policy argument–that not only disclaimed liability for negligence in connection with skiing but for “any and all liability” (presumably including liability related to gross negligence or intentional misconduct on the part of the ski resort). Harmon, 146 Ore. App. at 217-22 (emphasis added). Moreover, as noted, in Harmon we specifically cited cases from other jurisdictions “holding that exculpatory provisions in ski-related form [***35] agreements were not impermissibly adhesive.” Id. at 219 n 4. Returning to the overarching notion that the terms at issue must be read in light of their recreational context, in one of those cases, the New Jersey Superior Court aptly reasoned as follows:
“When an individual enters a ski shop to buy ski equipment, s/he does not have a need for those goods and services, merely a desire. Should the seller demand exculpation as a condition for the sale of the equipment, the purchaser is free to walk away. This is not so with the consumer of automobile insurance, or the individual who cannot find a place to live during a housing shortage. Unlike the skier, these individuals must face an inability to use their automobile, or the prospect of becoming homeless, if they are not willing to sign on the dotted line and exculpate the provider. The skier merely faces the prospect of a ski-less weekend.”
McBride v. Minstar, Inc., 283 NJ Super 471, 491, 662 A2d 592, 602 (NJ Super Ct Law Div 1994), aff’d sub nom McBride v. Raichle Molitor, USA, 283 NJ Super 422, 662 A2d 567 (NJ Super Ct App Div), rev den, 143 N.J. 319, 670 A.2d 1061 (1995) (emphasis in original). As noted, similar release agreements [*410] in the [***36] context of recreational activities have been upheld (including against claims of unconscionability) in a number of other jurisdictions. See Or App at n 9 (slip op at 20 n 9). Finally, [HN17] ORS 105.682 establishes a public policy in favor of indemnification of landowners where the land is used for, inter alia, recreational purposes. We fail to see how a private contract to the same effect is substantively unfair as a matter of law.
Accordingly, given existing case law and the aforementioned substantive rigor that we apply in assessing claims of unconscionability, see Hatkoff, 252 Ore. App. at 217, we conclude that the terms of Mt. Bachelor’s release were not substantively unconscionable under these circumstances. That is, the inclusion of the release provision did not constitute one of “those rare instances” where the terms of the contract were so “unreasonably favorable” to Mt. Bachelor that they were unconscionable. Id. (emphasis in original); see also Restatement at § 208 comment b (a contract has traditionally been held unconscionable only where “it was such as no man in his senses and not under delusion would make” (citations and internal quotation marks omitted)).
In sum, we conclude [***37] that Bagley ratified the release agreement prior to the date of injury, nullifying his power to later disaffirm it (whether by notice, filing suit, or pleading infancy), and that the agreement–coupled with the language printed on the season pass and signage at the lift terminals–was sufficiently clear as to its application to claims for negligence. We further conclude that Bagley’s lack of knowledge regarding the scope of the unambiguous agreement did not preclude [**705] summary judgment, nor did his lack of knowledge of the power to disaffirm it upon reaching the age of majority. As to whether the release agreement was valid in the first instance, we conclude that, as applied, the release agreement was not contrary to public policy. Nor was the agreement substantively or procedurally unconscionable. Accordingly, no genuine issue of material fact exists as to Mt. Bachelor’s affirmative defense of release, and the trial court did not err in granting summary judgment for Mt. Bachelor and denying partial summary judgment to Bagley on that basis.
Affirmed.
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2013-2014 In bound ski/board fatalities
Posted: April 30, 2014 Filed under: Ski Area | Tags: Aspen, Crystal Mountain Resort, fatality, Heavenly Resort, Killington, Mount Bachelor, Mount Charleston, Norwood, Resort, Ski, Ski Apache, ski area, Ski Bluewood, Ski Resort, Skier, Snowboard, Snowboarder, Sports, Stratton Mountain Resort, Sugarbush Ski Resort, Sugarloaf, Telluride, United States, Whitefish Mountain Resort, Winter Park, Winter sport, winter sports Leave a commentIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of March 10, 2014. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Are non-skiing/boarding fatalities that occurred inbounds on the slopes
Fatality while sledding at the Resort is in Green
2013 – 2014 Ski Season Fatalities
| Date | State | Resort | Where | Trail Difficulty | How | Cause | Ski/ Board | Age | Sex | Home | Helmet | Ref | Ref |
| 12/11 | CO | Telluride | Pick’NGad | struck a tree | 60 | M | Norwood CO | No | http://rec-law.us/190al75 | http://rec-law.us/1fchteM | |||
| 12/12 | VT | Killington | Great Northern Trail | Found | 21 | F | PA | No | http://rec-law.us/1csgWCg | ||||
| 12/16 | WA | Crystal Mountain Resort | Tinkerbell | Beginner | Lost control and veered off the trail | Blunt Force Trauma | F | Yes | http://rec-law.us/Jc4MX3 | ||||
| 1/1 | WV | skiing into a tree | M | Opp, AL | http://rec-law.us/1a6nAkQ | ||||||||
| 12/19 | CO | Winter Park | Butch’s Breezeway | Beginner | blunt force injury to the head | 19 | M | Yes | http://rec-law.us/1f3ekSy | ||||
| 12/21 | CA | Heavenly Resort | colliding with a snowboarder and being knocked into a tree | 56 | F | NV | No | http://rec-law.us/JRiP4c | http://rec-law.us/1a7REMW | ||||
| 1/11 | CO | Aspen | Belisimo | Intermediate | hitting a tree | Skier | 56 | M | CO | Yes | http://rec-law.us/1hNbHoz | http://rec-law.us/JTr7sY | |
| 1/11 | MT | Whitefish Mountain Resort | Gray Wolf and Bighorn | Found in a tree well | Skier | 54 | M | CA | http://rec-law.us/1kx1deP | ||||
| 1/11 | VT | Stratton Mountain Resort | Lower Tamarac | Sledding | Sledding | 45 | M | NJ | No | http://rec-law.us/19x4mXb | http://rec-law.us/1aRlxS5 | ||
| 1/14 | NV | Mount Charlteston | Terrain Park | Fall in Terrain Park | Blunt Force Trauma | Boarder | 20 | M | NV | No | http://rec-law.us/1dsDW8B | http://rec-law.us/1dyT1Hc | |
| 1/17 | VT | Killington | Mouse Trap Trail | Striking a tree | Boarder | 23 | M | NY | http://rec-law.us/1dFfY9j | http://rec-law.us/1dKUf0v | |||
| 1/25 | NM | Ski Apache | Intermediate | Struck a Tree | Skier | 23 | F | TX | http://rec-law.us/1n3PCCM | http://rec-law.us/M5qA85 | |||
| 1/25 | WA | Ski Bluewood | Country Road run | Beginner | Found at top of trail | blunt force abdominal injury | Skier | 14 | M | WA | No | http://rec-law.us/1eaGBUM | http://rec-law.us/1b4oewr |
| 1/28 | UT | Deer Valley | Keno Ski Run | Intermediate | hit a tree | Skier | 65 | M | FL | Yes | http://rec-law.us/1eg70Ax | http://rec-law.us/1hRbIVm | |
| 2/1 | VT | Sugarbush Ski Resort | Lower Rim Run and Lower FIS trails | went off the trail and hit a trail sign | broken neck | Skier | 19 | F | http://rec-law.us/1aeVJ3V | http://rec-law.us/1j4jIpF | |||
| 2/4 | ME | Sugarloaf resort | Hayburner | Expert | skiing off a trail into trees | Skier | 21 | M | NY | Yes | http://rec-law.us/1fQtrMz | http://rec-law.us/1b1OkG0 | |
| 2/4 | CA | Heavenly Ski resort | upper Nevada Woods | Expert | Closed area | blunt force trauma | Boarder | 18 | M | Kings Beach, CA | Yes | http://rec-law.us/1byr68d | http://rec-law.us/1b5exDA |
| 2/7 | CO | Beaver Creek | lower section of Beaver Creek | suffered trauma injuries | Skier | 64 | M | St Louis, Mo | http://rec-law.us/1ns4Hvu | ||||
| 2/8 | CO | Keystone Ski Area | Porcupine and Bighorn | Intermediate | crashed into a tree | blunt-force trauma | Skier | 46 | M | Yes | http://rec-law.us/Nph8Oa | ||
| 2/16 | MT | Whitefish Mtn Resort | between Hollwood & Silvertip | fell into treewell | Skier | 48 | M | Calgary, Alberta | http://rec-law.us/1nKj8eh | http://rec-law.us/1clTCu3 | |||
| 2/17 | WA | Stevens Pass | Corona Bowl | Expert | hit head on rock | major trauma | Boarder | 31 | M | No | http://rec-law.us/O48FQH | http://rec-law.us/1oRNQFT | |
| 2/18 | VT | Stowe | Upper Gondolier | hit another skier before sliding into trail sign | Skier | 30 | M | Brooklyn, NY | Yes | http://rec-law.us/1fkn5pt | |||
| 2/19 | WA | Crystal Mountain | Found in tree well | Boarder | 35 | M | Seattle, WA | http://rec-law.us/1ffs2kY | |||||
| 3/5 | PA | Heavenly Valley | collided with a tree | internal bleeding from blunt-force trauma | Boarder | 21 | M | Warren, PA | Yes | http://rec-law.us/PRTn2a | http://rec-law.us/1k4m72J | ||
| 3/10 | CO | Copper Mountain | Vein Glory | Beginner | striking a tree | Boarder | 22 | M | Denver, CO | No | http://rec-law.us/1kJvtTc | ||
| 3/16 | NY | Whiteface Mountain | trail and hit a tree | Boarder | 22 | M | Hemlock, NY | http://rec-law.us/1gFq34F | http://rec-law.us/1mfoli0 | ||||
| 3/18 | CO | Snowmass | Gunner’s View trail | intermediate | collided with a tree | hemorrhagic shock due to pelvic trauma | Boarder | 54 | M | Germany | Yes | http://rec-law.us/OAM3Hn | |
| 3/21 | WA | Mission Ridge Ski & Board Resort | Kiwa run | ski dislodged from its binding | Ski | 47 | M | Seattle, WA | http://rec-law.us/1jreZv1 | ||||
| 3/22 | VT | Stratton Mountain Ski Resort | 91 Trail | Veered off the trial & crashed into a sign | boarding | 16 | M | Boston, MA | http://rec-law.us/1jBxxIX | http://rec-law.us/1oZzuSX | |||
| 3/27 | CO | Keystone Resort | intermediate | lost control & hit a tree | blunt force trauma | Skier | 60 | M | Charlotte, NC | Yes | http://rec-law.us/1dV5lgV | http://rec-law.us/O6FJ9R | |
| 3/28 | CO | Snowmass | Elk Camp Chairlift at the top of Sandy Park | collision with another skier that led to Cohen hitting a tree | multiple injuries | Skier | 45 | M | Cincinnati, OH | Yes | http://rec-law.us/1dHi0co | http://rec-law.us/1dHi0co | |
| 4/1 | WY | Jackson Hole | Pair-a-Chutes ( The Parachutes) | collided with a tree | significant body trauma | Skier | 31 | M | Jackson Hole, WY & PA | http://rec-law.us/1dN158G | http://rec-law.us/1ebWibv | ||
| 4/3 | CO | Snowmass | Cirque Headwall | multiple chest injuries | Skier | 47 | M | Yes | http://rec-law.us/PyekPa | http://rec-law.us/1lA1H1g | |||
| 4/6 | CA | Northstar | Rail Splitter | Advanced | crashing into a tree | Skier | 67 | M | Van Nuys, CA | Yes | http://rec-law.us/1fWUnLK | ||
| 4/6 | NY | Lake Placid | Excelsior | lost control and struck a tree | Boarder | 22 | M | Canandaigua, NY | No | http://rec-law.us/PG1Hls | http://rec-law.us/1mUlNpW |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
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Yauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022
Posted: April 14, 2014 Filed under: Legal Case, Minors, Youth, Children, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding, Wisconsin | Tags: fatality, Minor, parent, Season Pass, ski area, Summary judgment, Yauger 1 CommentYauger v. Skiing Enterprises, Inc., 196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022
Michael Yauger and Brenda Yauger, Plaintiffs-Appellants, v. Skiing Enterprises, Inc., d/b/a Hidden Valley Ski Area, a Wisconsin corporation, and Investors Insurance Company of America, a foreign corporation, Defendants-Respondents.
No. 94-2683
COURT OF APPEALS OF WISCONSIN
196 Wis. 2d 485; 538 N.W.2d 834; 1995 Wisc. App. LEXIS 1022
July 12, 1995, Oral Argument
August 23, 1995, Opinion Released
August 23, 1995, Opinion Filed
PRIOR HISTORY: [***1] APPEAL from a judgment of the circuit court for Manitowoc County: ALLAN J. DEEHR, Judge.
DISPOSITION: Affirmed.
COUNSEL: On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Gary L. Bendix and John M. Bruce of Savage, Gregorski, Webster, Stangel & Bendix, S.C. of Manitowoc. There was oral argument by John M. Bruce.
On behalf of the defendants-respondents, there was a brief and oral argument by Thomas B. Hartley of Guttormsen, Hartley & Guttormsen of Kenosha.
JUDGES: Before Anderson, P.J., Brown and Snyder, JJ.
OPINION BY: BROWN
OPINION
[**836] [*490] BROWN, J. We are asked to gauge whether the exculpatory contract in this case is void as against public policy. Here, Brenda and Michael Yauger brought a wrongful death action against Hidden Valley Ski Area after their eleven-year-old daughter, Tara, was killed when she struck the concrete base of a ski lift tower. The trial court dismissed the claim finding that the [*491] Yaugers’ contract with Hidden Valley for a season pass contained a valid exculpatory clause. The Yaugers now reassert their challenge that [***2] it is void.
The following facts were taken from the appellate record consisting of the pleadings, affidavits and depositions. On October 8, 1992, Michael Yauger submitted an application for a family season pass at Hidden Valley. This form is reproduced at the end of the opinion. The pass cost roughly $ 720. Although only Michael signed the application, his wife and two daughters (then ages ten and eight) were named on the form. Depositions reveal that Michael submitted the application in person at the Hidden Valley Ski Shop.
The Yauger family was familiar with Hidden Valley. Michael had skied there approximately sixty times in the three seasons prior to the accident, and Tara had skied there about fifty times prior to her accident. The record also shows that the Yauger family had a season pass at the resort the prior year.
On March 7, 1993, Tara suffered her fatal accident. The exact facts surrounding her death are unsettled, but the record currently suggests that she struck the side of a concrete base of a ski lift tower. The Yaugers sued Hidden Valley that October, claiming that this support was not adequately padded.
After limited discovery, Hidden Valley and its insurer [***3] sought summary judgment on grounds that the exculpatory release within the Yaugers’ contract for a season pass barred them from bringing this claim since it arose out of the “certain inherent risks in skiing.” The Yaugers responded that the clause was invalid as against public policy because it was not knowingly entered into by each of the Yaugers, was ambiguous and overbroad and also attempted to encompass protections provided under Wisconsin’s safe-place law.
[*492] The trial court granted Hidden Valley’s motion. It focused its analysis on the phrase “certain inherent risks in skiing” and reasoned that it covered the type of injury that killed Tara, namely, the risk that a skier will collide with a stationary object. It also rejected the Yaugers’ argument that Brenda Yauger was not bound by the exculpatory clause, finding that her express endorsement was not necessary since she received the benefit of the season pass.
We are reviewing a grant of summary judgment; thus, § 802.08(2), STATS., governs [**837] the analysis. See Decade’s Monthly Income and Appreciation Fund v. Whyte & Hirschboeck, S.C., 164 Wis. 2d 227, 230, 474 N.W.2d 766, 767 (Ct. App. 1991), aff’d, 173 Wis.2d 665, [***4] 495 N.W.2d 335 (1993). [HN1] Summary judgment is appropriate when there are no material issues of fact and the moving party is entitled to judgment as a matter of law. Id. Moreover, this appeal concerns the interpretation of a contract which appellate courts address de novo. Id. at 230-31, 474 N.W.2d at 767. Therefore, to defeat Hidden Valley’s motion for summary judgment the Yaugers must show that material facts are in dispute, or that the trial court erred in its analysis of the exculpatory clause. See id. at 230-31, 474 N.W.2d at 767.
We first turn to the analysis of the season pass and its exculpatory clause. Wisconsin law does not favor these agreements and courts therefore examine with care the facts of each case to ascertain whether enforcement will contravene public policy. See Merten v. Nathan, 108 Wis. 2d 205, 210-11, 321 N.W.2d 173, 176 (1982). The goal is to strike a balance between conflicting principles of contract and tort law. See id. at 211, 321 N.W.2d at 177. [HN2] Freedom of contract suggests that [*493] courts should abstain from interfering in people’s relationships and personal affairs. See id. On [***5] the other hand, tort law recognizes that those responsible for causing harm through negligence should bear the cost of the harm and should not be allowed to circumvent this duty through contract. See id. at 211-12, 321 N.W.2d at 177.
A review of the recent supreme court cases on this issue indicates that there are two aspects to the question of whether an exculpatory contract violates public policy. In Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991), the court cited with approval § 195 of the RESTATEMENT (SECOND) OF CONTRACTS (1979), which sets out a series of situations in which an exculpatory contract would violate public policy. Id. at 515-16, 468 N.W.2d at 658-59 (citing Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 210-11, 330 N.W.2d 773, 777 (1983)). The first element tests the effect of the exculpatory clause, e.g., does it exempt an employer from suits by an employee. See id. 1
1 This two-prong analysis was also discussed in Discount Fabric House v. Wisconsin Telephone Co., 117 Wis. 2d 587, 602, 345 N.W.2d 417, 424-25 (1984), where the court faced a challenge to an exculpatory release that served to cover any errors in telephone directory advertising. The court explained that the analysis of such contracts involves an assessment of the “commercial reasonableness” of the terms (substantive) and the relationship between the parties during negotiations (procedural). Id.
[***6] The Yaugers’ assertion that the exculpatory clause in Hidden Valley’s season pass application contravenes the safe-place statute, § 101.11, STATS., fits this line of analysis. In further support of this argument they cite Meyer v. Val-Lo-Will Farms, Inc., 14 Wis. 2d 616, 111 [*494] N.W.2d 500 (1961), for the proposition that a for-profit winter sports park was subject to the safe-place law. In substance, they argue that the exculpatory clause violates public policy because it seeks to relieve Hidden Valley of the duty imposed by the statute. See RESTATEMENT (SECOND) OF CONTRACTS § 195(2)(c). 2 The trial court rejected this argument, reasoning that the safe-place statute did not create a special cause of action, but established a higher duty of care for what would ordinarily be addressed through common law negligence.
2 The applicability of the safe-place statute, § 101.11, STATS., in situations where frequenters challenge exculpatory contracts was raised, but left unanswered, in Kellar v. Lloyd, 180 Wis. 2d 162, 178-81, 509 N.W.2d 87, 93-94 (Ct. App. 1993).
[***7] While we agree with the trial court’s result, a different analysis is appropriate. Moreover, we need not decide the issue of whether the safe-place law imposed a special statutory duty on Hidden Valley. We hold that even if the statute does apply, a potential defendant may still bargain for an exclusion.
As noted above, the supreme court has endorsed § 195 of the RESTATEMENT (SECOND) OF CONTRACTS. See Merten, 108 Wis. 2d at 212-13, 321 N.W.2d at 177-78. 3 [*495] The [**838] official comment to this section, however, suggests that the enumerated standards are not a litmus test for these agreements; it states: “the rigor of this rule may, however, be mitigated by a fairly bargained for agreement to limit liability to a reasonable agreed value in return for a lower rate.” RESTATEMENT (SECOND) OF CONTRACTS § 195 cmt. a.
3 We recognize that the exact status of RESTATEMENT (SECOND) OF CONTRACTS § 195 (1979), is somewhat clouded. In Dobratz v. Thomson, 161 Wis. 2d 502, 515-16, 468 N.W.2d 654, 658-59 (1991), the court expressly quoted all the subsections after noting that it had originally “referred with approval” to them in Arnold v. Shawano County Agric. Soc’y, 111 Wis. 2d 203, 210-11, 330 N.W.2d 773, 777 (1983). When one examines the Arnold opinion, however, it includes only a general reference to the RESTATEMENT. Indeed, the rule in § 195(2)(c), which provides the basis for the Yaugers’ argument, was not referred to in the discussion. See Arnold, 111 Wis. 2d at 210-11, 330 N.W.2d at 777. Moreover, in the supreme court’s most recent exploration of these issues, the majority opinion made no reference to § 195, although it did reaffirm its confidence in the Dobratz decision. Richards v. Richards, 181 Wis. 2d 1007, 1014, 513 N.W.2d 118, 121 (1994). We have located a federal district court case in which the various subsections of § 195 were found to be a component of Wisconsin law and formed the basis for voiding an exculpatory contract. See RepublicBank Dallas, N.A. v. First Wisconsin Nat’l Bank, 636 F. Supp. 1470, 1473 (E.D. Wis. 1986) (voiding clause exempting liability for harm arising out of reckless or intentional acts). We thus find that § 195 continues to be a valid component of Wisconsin common law.
[***8] The process envisioned by the drafters of this comment aptly describes the transaction between the Yaugers and Hidden Valley. The Yaugers wanted a discount on their skiing. The resort was a willing supplier, but recognized that the increase in days skied would directly increase the risk of an accident and the potential for a damages claim. Hidden Valley therefore sought a release from liability. Gauging the deal at the time when the parties entered into the contract, we cannot say that the exchange was totally unreasonable. The Yaugers obtained their discount, but lost the right to bring a claim arising out of an accident which may never have occurred. Here, freedom of contract requires that we not delve deeper into the merits of this agreement. [*496] See Merten, 108 Wis. 2d at 211, 321 N.W.2d at 177. 4
4 Of course the above analysis certainly does not summarize all the concerns of the bargaining parties. The Yaugers and Hidden Valley were also making allowances for the risk that there would be no snow that season. The key to understanding our analysis, however, is to recognize that courts rarely are able to do a better job of writing contracts than the parties themselves.
[***9] The second prong of the public policy question entails examining the circumstances surrounding the bargaining process. See Dobratz, 161 Wis. 2d at 516 n.2, 468 N.W.2d at 659. For example, in Richards v. Richards, 181 Wis. 2d 1007, 1010, 513 N.W.2d 118, 119 (1994), 5 the supreme court was asked to review an exculpatory contract signed by a passenger in a commercial, long-haul truck. The plaintiff was married to a driver employed by the defendant and was asked to sign a “passenger authorization” before joining her husband on the road. Id. at 1012, 513 N.W.2d at 119. Within the form was a clause releasing the defendant from liability for any harm that might occur during her travels. Id. Still, the wife brought suit after she and her husband were involved in an accident. The lower courts found that the release was valid and granted summary [*497] judgment for the defendant. Id. at 1010, 513 N.W.2d at 119.
5 We discuss Richards in detail because it represents the supreme court’s most recent analysis of how flaws in the specific terms of an agreement, or the circumstances of the bargaining process, may serve as grounds for voiding an exculpatory agreement. For other examples, see Merten v. Nathan, 108 Wis. 2d 205, 214-15, 321 N.W.2d 173, 178 (1982) (release invalidated because defendant misrepresented a fact during the negotiation process), and Eder v. Lake Geneva Raceway, 187 Wis. 2d 596, 610-11, 523 N.W.2d 429, 434 (Ct. App. 1994) (release clause found to be ambiguous).
[***10] After its review of the contract, however, the supreme court found it to be void as contrary to public policy. Id. at 1011, 513 N.W.2d at 119. The majority pointed to three aspects of the agreement, which together led to this conclusion. First, the contract served two purposes. The court emphasized that the exculpatory clause was not distinguishable from other components of the document. It reasoned that highlighting the release provision would have provided greater protection for the signing party. See id. at 1017, 513 N.W.2d at 122.
Next, the court found that the contract was over-inclusive. It applied not only to the [**839] defendant, but also to all of its affiliates. Moreover, it did not delineate the nature of claims that would be excluded, such as those arising from negligence but not from intentional acts. Also, the time period through which the exclusion would apply was not limited. The majority found that the contract was lopsided in favor of the defendant and should therefore be construed against the company. See id. at 1017-18, 513 N.W.2d at 122.
Finally, the court noted that the release was embodied in a standard form contract, and the defendant [***11] did not inform the plaintiff of the purpose and effect of the authorization. This suggested that there was little or no opportunity to dicker about the terms. Id. at 1019, 513 N.W.2d at 123.
The Yaugers cite Richards and raise a number of arguments, each suggesting that they and Hidden Valley were not on equal footing when they entered into this agreement. The many issues they raise can be distilled into three central points. First, the Yaugers contend that the release clause, which was a single [*498] term in the season pass application, was never pointed out to Michael before he completed and signed the form. See Richards, 181 Wis. 2d at 1019, 513 N.W.2d at 123. They further assert that summary judgment was inappropriate because Hidden Valley presented no evidence on this issue.
We are not persuaded. This agreement was signed in October, at least one month prior to the skiing season. There was no sense of urgency. Michael could have taken the form home for further consideration. In addition, the Yaugers had purchased a season pass for the prior year. Therefore, Michael had a source of knowledge from which to draw comparisons. Compare Eder v. Lake [***12] Geneva Raceway, 187 Wis. 2d 596, 609, 523 N.W.2d 429, 433 (Ct. App. 1994)(noting that parties signing the release were not allowed onto the racetrack grounds until they signed the release form).
Next, the Yaugers assert that the language within the exculpatory clause is ambiguous. It specifically addressed “certain inherent risks in skiing.” They question what constitutes these “inherent risks” and whether the clause only applies to a “certain” number of these dangers. In addition, they note that Hidden Valley did not provide any evidence which would identify these risks. The Yaugers also raise concerns that the clause (which is composed of a single sentence) reads to limit Hidden Valley’s liability for any injury occurring on the premises. They stress that this could be reasonably interpreted as an attempt to limit the resort’s liability for any accident on the premises, such as a slip and fall in the restaurant. See Richards, 181 Wis. 2d at 1017-18, 513 N.W.2d at 122.
The trial court concluded that the terminology covered the obvious dangers in skiing, viz, falling down or [*499] colliding with another skier or a fixed object, and that the “any injury” language was limited [***13] to those harms arising out of these risks. We agree.
[HN3] Whether a contract is ambiguous is a question of law. Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990). We test whether the term is reasonable or fairly susceptible of more than one construction. Id. [HN4] A clause is not ambiguous, however, merely because its language is general or broad. See Wilke v. First Federal Savs. & Loan Ass’n, 108 Wis. 2d 650, 654, 323 N.W.2d 179, 181 (Ct. App. 1982).
This was a contract between Hidden Valley and a season pass holder. The contracting skier, therefore, could reasonably be expected to have some knowledge about the sport. The Yaugers’ interest in skiing is further demonstrated by their willingness to commit over seven hundred dollars to skiing that season. 6 The record also reveals that the Yaugers had a similar pass at the resort the prior year. We are thus hesitant to accept their arguments that such language would lead to confusion among parties executing these agreements. The language is plain and simple. It aptly describes the risks that [**840] arise whenever one’s skis are in contact with the slope. 7
6 The season pass was not refundable.
[***14]
7 Very similar language can be found in Wisconsin’s recreational responsibility law. See § 895.525(3), STATS. (“A participant in a recreational activity … accepts the risks inherent in the recreational activity ….”) (emphasis added). Moreover, several states have adopted specific skier responsibility laws which codify these terms. For example, Colorado law provides, in part:
“Inherent dangers and risks of skiing” means those dangers or conditions which are an integral part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.
COLO. REV. STAT. ANN. § 33-44-103(10) (West Supp. 1994) (emphasis added).
Further discussion of these laws, and judicial efforts in providing interpretation, are set forth in Arthur N. Frakt and Janna S. Rankin, Surveying the Slippery Slope: The Questionable Value of Legislation to Limit Ski Area Liability, 28 IDAHO L. REV. 227 (1991-92).
[***15] [*500] Finally, the Yaugers argue that the exculpatory clause should be held void because it was “not clearly identified or distinguished.” See Richards, 181 Wis. 2d at 1017, 513 N.W.2d at 122.
The trial court noted that although the exculpatory language was not highlighted, there was no indication that it was disguised and therefore did not provide grounds for rendering the agreement void. Indeed, the clause is set out in a separate paragraph.
Any break in text requires the reader to pause and thus provides a moment for reflection.
The face of the application does not otherwise suggest that Hidden Valley was trying to trick season pass holders into signing away their rights. It was an application form. Not only did the applicants have to sign the agreement, but they had to furnish information [*501] such as their address, age, other family member names, etc. In sum, the form and application process provided ample opportunity for Michael to consider the terms of the agreement.
We have addressed a variety of concerns about the exculpatory clause of the season pass contract. Although no single point is troublesome enough to render the clause void, Richards suggests that [***16] courts may consider all these aspects together when making a determination about the effects of public policy. See id. at 1011, 513 N.W.2d at 119. But even the totality of the circumstances presented here does not warrant that this contract be set aside. The contracting process simply does not raise any concern of overreaching by the party seeking to be released from liability. 8
8 The Yaugers raised one other challenge to the exculpatory clause relating to the contract language. They assert that under Hortman v. Otis Erecting Co., 108 Wis. 2d 456, 463, 322 N.W.2d 482, 485-86 (Ct. App. 1982), an agreement which indemnifies a party for its own negligence must specifically include the term “negligence.” As the defendants contend, however, this specific argument was not presented to the trial court and is therefore waived on appeal. See, e.g., Bank One, Appleton, N.A. v. Reynolds, 176 Wis. 2d 218, 222, 500 N.W.2d 337, 339 (Ct. App. 1993).
We now turn to the second issue presented. [***17] Although we have found that the exculpatory clause serves as a bar to the Yaugers’ claim, Brenda nonetheless asserts that it should not run against her individually since she did not expressly acknowledge these terms, nor did she authorize her husband to execute a contract releasing these claims. In support of her argument, she draws an analogy to Arnold v. Shawano County Agri. Soc’y, 111 Wis. 2d 203, 214-15, 330 N.W.2d 773, 779 (1983), where the court held that a [*502] spouse’s claim for consortium rights is not defeated by a valid exculpatory contract running against the deceased.
In dismissing this claim the trial court distinguished Arnold, stating:
In this case the plaintiff Brenda Yauger did not sign the application, but the application was made on her behalf and for her [**841] benefit, which is not the factual situation in Arnold. And she is specifically identified and money is specifically paid for her membership, for her use, and the use of her daughter ….
Although we agree in substance with the trial court’s analysis, we feel it necessary to elaborate further. We add that Brenda’s claim is barred by the exculpatory clause because it is so intertwined [***18] with that of her husband, and thus it was reasonable for Hidden Valley to assume that Michael was acting on her behalf when he executed the agreement.
The Yaugers’ claim has three components: loss of consortium, Tara’s medical expenses and the cost of her funeral. See § 895.04(4), STATS. The right to pursue a claim for these losses accrues to Michael and Brenda as the “parents of the deceased.” See id. This is not a situation in which one parent’s recovery is limited or barred by his or her negligence. See § 895.04(7). This distinction recently was addressed in Chang v. State Farm Mut. Auto. Ins. Co., 182 Wis. 2d 549, 561, 514 N.W.2d 399, 403 (1994), where the court noted: “the right to sue and recover damages under the wrongful death statute must be distinguished from the ownership and allocation of the recovery itself.”
Brenda alleges that she never authorized her husband to enter into this exculpatory clause (and bargain [*503] away her right to pursue a potential claim), nor was she aware of its effects. Nevertheless, she shared equally in the benefits that arose to her family, and the face of the application form would suggest that all [***19] named parties are bound by its terms.
Although there is little case law applying the principles of agency in transactions between married persons and third parties, Smart v. Estate of Ford, 23 Wis. 2d 60, 65-66, 126 N.W.2d 573, 576 (1964), summarized the Wisconsin rule that third parties may reasonably believe that one spouse had authority to act on behalf of the other. Here, we are dealing with the Yaugers’ joint interest in the companionship of their beloved daughter. Michael completed the season pass application on behalf of his whole family and paid the appropriate sum. Absent any evidence that Brenda informed Hidden Valley that she was not bound by this agreement, the Yaugers should both be held by the terms of the application.
By the Court.–Judgment affirmed.
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An attempt to divert criminal prosecution or is there something to gluing cameras on helmets weakening the helmet.
Posted: March 4, 2014 Filed under: Skiing / Snow Boarding | Tags: Europe, helmet, Helmet Camera, HelmetCam, Michael Schumacher, Off-Piste, Race Car Driver, ski area, skiing, Video Camera Leave a commentAn attempt to divert criminal prosecution or is there something to gluing cameras on helmets weakening the helmet.
Remember Europe has a different system of enforcement of laws to keep people safe than the US. Where we would sue, Europe regulates and if you violate the regulation you are criminally charged.
The article states that the head injuries to Michael Schumacher the famous race car driver might have been caused by his camera changing the effectiveness of his helmet.
Investigators are exploring the theory that Michael Schumacher’s helmet camera could have caused the helmet to shatter, leading to serious head injuries
Schumacher, an experienced skier, was travelling at a moderate speed when he fell and hit a rock. His skis were new; his bindings have been subsequently tested and were not at fault; he was fully in control of his movements as he left the marked pistes and traversed the patch of snow in-between two groomed runs in Meribel.
But now investigators believe that they may have found a reason for the seriousness of the crash. They think that his helmet camera could have actually worsened the blown, and caused the helmet to shatter into pieces.
Experts from ENSA, the world-renowned ski and climbing academy in the French ski resort of Chamonix, have conducted tests to determine whether the presence of a solid object between a helmet colliding with a rock would weaken the structure.
The helmet smashed – but the camera he had attached to it, in order to record him and his son skiing, was undamaged. The footage, audio and visual, has provided police with crucial information about the crash.
“The helmet completely broke. It was in at least two parts. ENSA analysed the piece of the helmet to check the material, and all was OK,” said a source close to the investigation.
“But why did it explode on impact? Here the camera comes into question. The laboratory has been testing to see if the camera weakened the structure.”
The following, however, maybe the real reason for the statements.
Lawyers had argued that managers of the ski resort might face up to three years in prison because the dangers lurking within the off-piste section were not properly marked.
Off-piste, usually meaning out of bounds or off trail here sections of the ski area where Mr. Schumacher fell might not have met the necessary requirements.
Do Something
Think. Although it is not outside the realm of possibility, it is hard to determine why a camera mounted on a helmet would affect the helmet’s performance. On top of that, ski helmets are designed to break. In fact most helmets only are effective once they break.
Believe me, as you know helmets are a real issue in my opinion. But to blame the injury on the helmet or the camera I think is just a way to dodge a criminal charge or change public opinion about the incident.
SeeMichael Schumacher skiing crash: did helmet camera cause head injuries?
To further understand the difference between the US and Europe see:
Another Litigation versus Criminal example
Criminal Charges brought against Everest Guide in the UK
Death of young climber leads to criminal charges in Italy
Forgetting your beacon is manslaughter in Europe….if you wife dies in an Avalanche
The legal relationship created between manufactures and US consumers
What do you think? Leave a comment.
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2013-2014 In bound ski/board fatalities
Posted: February 12, 2014 Filed under: Avalanche, Ski Area, Skiing / Snow Boarding | Tags: Aspen, Blunt trauma, Crystal Mountain Resort, fatality, Heavenly Resort, Killington, Mount Charleston, Opp Alabama, Resort, Ski, Ski Apache, ski area, Ski Bluewood, Skier, Sledding, Snowboard, Snowboarder, Stratton Mountain Resort, Sugarloaf, Telluride, Whitefish Mountain Resort, Winter Park Leave a commentIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of February 10, 2014. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Are non-skiing/boarding fatalities that occurred inbounds on the slopes
Fatality while sledding at the Resort is in Green
2013 – 2014 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
Ref # 2 |
|
1 |
12/11 | CO | Telluride | Pick’N Gad | Left the ski run, struck a tree and suffered fatal injuries | 60 | M | Norwood, CO | No | http://rec-law.us/190al75 | http://rec-law.us/1fchteM | |||
|
2 |
12/12 | VT | Killington | Great Northern Trail | Found | 21 | F | PA | No | http://rec-law.us/1csgWCg | ||||
|
3 |
12/16 | WA | Crystal Mountain Resort | Tinkerbell | Beginner | Lost control and veered off the trail | Blunt Force Trauma | F | Yes | http://rec-law.us/Jc4MX3 | ||||
| 4 | 1/1/14 | WV | skiing into a tree | M | Opp, AL | http://rec-law.us/1a6nAkQ | ||||||||
| 5 | 12/21 | CA | Heavenly Resort | colliding with a snowboarder and being knocked into a tree | 56 | F | NV | No | http://rec-law.us/JRiP4c | http://rec-law.us/1a7REMW | ||||
| 6 | 12/19 | CO | Winter Park | Butch’s Breezeway | Beginner | blunt force injury to the head | 19 | M | Yes | http://rec-law.us/1f3ekSy | ||||
| 7 | 1/11 | CO | Aspen | Bellisimo | Inter | hitting a tree | Ski | 56 | M | CO | Yes | http://rec-law.us/1hNbHoz | http://rec-law.us/JTr7sY | |
| 8 | 1/11 | MT | Whitefish Mountain Resort | Gray Wolf and Bighorn | Found in a tree well | Ski | 54 | M | CA | http://rec-law.us/1kx1deP | ||||
| 9 | 1/11 | VT | Stratton Mountain Resort | Lower Tamarac | Sledding | Sledding | 45 | M | NJ | No | http://rec-law.us/19x4mXb | http://rec-law.us/1aRlxS5 | ||
| 10 | 1/14 | NV | Mount Charleston | Terrain Park | Fall in terrain park | blunt-force trauma | Boarder | 20 | M | NV | No | http://rec-law.us/1dsDW8B | http://rec-law.us/1dyT1Hc | |
| 11 | 1/17 | VT | Killington | Mouse Trap Trail | striking a tree | Boarder | 23 | M | NY | http://rec-law.us/1dFfY9j | http://rec-law.us/1dKUf0v | |||
| 12 | 1/25 | NM | Ski Apache | Inter | struck a tree | Skier | 23 | F | TX | http://rec-law.us/1n3PCCM | http://rec-law.us/M5qA85 | |||
| 13 | 1/25 | WA | Ski Bluewood | Country Road run | Beginner | Found at top of trail | blunt force abdominal injury | Skier | 14 | M | WA | No | http://rec-law.us/1eaGBUM | http://rec-law.us/1b4oewr |
| 14 | 1/28 | UT | Deer Valley | Keno ski run | Inter | hit a tree | Skier | 65 | M | FL | Yes | http://rec-law.us/1eg70Ax | http://rec-law.us/1hRbIVm | |
| 15 | 2/1 | VT | Sugarbush Ski Resort | Lower Rim Run and Lower FIS trails | went off the trail and hit a trail sign | broken neck | Skier | 19 | F | Newport, RI | http://rec-law.us/1aeVJ3V | http://rec-law.us/1j4jIpF | ||
| 16 | 2/4 | ME | Sugarloaf resort | Hayburner | Expert | skiing off a trail into trees | Skier | 21 | M | Hoosick Falls, NY | No | http://rec-law.us/1fQtrMz | http://rec-law.us/1b1OkG0 | |
| 17 | 2/4 | CA | Heavenly Ski Resort | upper Nevada Woods | Expert | Closed area | blunt force trauma | Boarder | 18 | M | Kings Beach, CA | Yes | http://rec-law.us/1byr68d | http://rec-law.us/1b5exDA |
| 18 | 2/8 | CO | Keystone Resort | Porcupine and Bighorn | Intermediate | crashed into a tree | blunt-force trauma | Skier | 46 | M | Yes | http://rec-law.us/Nph8Oa | ||
| 19 | 1/31 | PA | Seven Springs Mountain Resort | hit a fence | closed-head injury and a cervical spine fracture | Skier | 52 | F | Westmoreland County, PA | http://rec-law.us/1lWLt5C | http://rec-law.us/1h4zhOc | |||
| 20 | 2/7 | CO | Beaver Creek | lower section of Beaver Creek | suffered trauma injuries | Skier | 64 | M | St. Louis, Mo | http://rec-law.us/1ns4Hvu |
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
If you are unable to view the entire table Email me at Jim@Rec-law.us and put Ski Area Fatality Chart in the subject line. I’ll reply with a PDF of the chart.
What do you think? Leave a comment.
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Copyright 2014 Recreation Law (720) Edit Law
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First of a kind! A release written so badly the assumption of risk language stopped the release from working for one defendant and did not cover the minors because the release did not name them.
Posted: February 10, 2014 Filed under: Indiana, Release (pre-injury contract not to sue), Ski Area, Snow Tubing | Tags: Inc., Indiana, Inner Tube, James Stephen Sauter, Magic Carpet, Medical Authorization, minors, Perfect North Slope, Perfect North Slopes, Piper Sauter, ski area, Sliding, Snow Tubing, Tubing Leave a commentHow many times do I have to repeat this, hire an attorney to write your release? Hire an attorney that understands your activity and your guests. These releases (yes two of them) are truly ridiculous. The release attempted to cover skiing, snowboarding, “sliding,” (whatever that is) and the tubing hill. On top of that the skier responsibility code or “your responsibility code” was included in the release for tubing. Two different releases were signed for the same activity. Finally the language in the release was just plain wrong and the court pointed it out.
Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468
Plaintiff: James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor
Defendant: Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr,
Plaintiff Claims: negligence
Defendant Defenses: release, assumption of risk, no duty owed
Holding: For the defendant snowtubers who hit the plaintiff’s and for the plaintiff’s against the ski area because the release failed.
The case is about facts that probably occur every day on a tubing hill. One group of three tubers, plaintiffs, veered into another lane in the run out. As the second group of tubers, defendant tubers, came down they hit the plaintiffs. The parents of the injured tubers filed suit against the ski area owner of the tubing hill Perfect North Slope, and the defendant tubers that hit the kids.
As luck would have it or actually extremely poor management of the legal issues and documents of the defendants; plaintiff’s signed one release to go tubing, and the defendant tubers signed a different release. The director of Snowsport’s Operations stated:
…testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms.
Both groups of defendants filed motions for summary judgment leading to this decision.
Summary of the case
The court first looked at the claims against the defendant tubers. The plaintiff’s brought the defendant tubers into the case arguing the tubers assumed a duty of care to the plaintiff’s by signing the release. The plaintiff’s quote language in the release and specifically in the “Your Responsibility Code” in the release which they argued created liability on the part of the defendant tubers.
The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.”
Your responsibility control was based on skiers and boarders on ski slopes. It is based on the simple premise that skier and boarders can turn and stop, that you can ski and board under control. In tubing, the only control, you have is to hold on or not. “Your Responsibility Code” has no bearing on tubing and in this case gave the plaintiffs away to drag in other guests of the ski area.
Under Indiana law a contract that creates a duty can create negligence. That means you sign an agreement that says you will act or not act in a certain way. You breach that duty which causes injury to the other party to the contract, under Indiana law you could be liable. The contract created the standard of care you breached.
Generally, only the parties to the contract can create the duty which can create liability. Third parties, those not identified in the contract or signors to the contract are not part or have benefits or duties from the contract. It is difficult to bring third parties into a contract unless the contract is made to benefit the third party or contemplates the third party in the contract.
Here the court agreed with the defendant tubers that the contract they signed with the defendant ski area did not create a duty of care owed to the plaintiffs. However, that conclusion was based on a very thorough and intense review of the “release” the defendant tuber’s signed. There were several sentences in the agreement that caused the court’s concern.
The signor of the agreement which contained the skier responsibility code agreed to abide by the code. The release also stated, “…as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” The plaintiff argued that those statements created an affirmative duty of care on the part of one group of tubers to another.
The ski area testified that the skier responsibility code had nothing to do with tubing. In fact, much of the deposition testimony incorporated into the decision concerning the intent of the ski area with the release was about the defendant tubers. The judge concluded: “It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other patrons, while other snow tubers did not.” The third party defendants were dismissed from the case.
Defendant Ski Areas arguments
The same confusion that led to the release from the suit of the defendant tubers worked against the ski area. There is an axiom in the law that states a contract will be construed against the person who drafted it. This means if there is a section of the contract that could be interpreted either for or against the drafter; it will be interpreted against the drafter. This applies to all releases because releases are presented to the guests on a take it or leave it basis. As the drafter, the court figures they had the best chance to write the release correctly and thus wrote the release to help the other party if the release is confusing.
Badly written releases are legally termed ambiguous. Here the court held the release was ambiguous.
“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence, and its construction is a matter for the fact-finder. An ambiguity exists where a provision is susceptible to more than one interpretation, and reasonable persons would differ as to its meaning.
A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.
Ambiguous contracts or releases cannot be upheld.
In reading the release signed by the plaintiff the court looked at whether it was intended to apply to the minor children. The first part of the release was written to prevent suits by the “signor.” In this case, the signor was the parents of the injured minors.
Only in the second part of the release, the medical authorization was there a mention to other parties, children or minors.
Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.”
Reading the contract as a whole, the court found the only part of the release that applied to the children was the medical authorization. The release part of the release only applied to the person who signed it.
The ski area was not released from the lawsuit.
So Now What?
When you have a new release, you shred, recycle, and throw out the old release. You don’t keep them around to save money or paper. The amount of paper you save is just a small percentage of what the parties will go through in a trial.
Make sure that your release does not create duties of care or promises that create liability for you or for third parties. You cannot disclaim liability for future injuries and promise not to injure a guest in the same document.
Don’t put anything in your release that could confuse or compromise the release. Here the skier responsibility code had no application to tubing and could have created liability for third parties. Why waste the space to complicate your document.
Never write, or use, a release that is confusing. Here the interpretation of several confusing sections led to the decision that could have gone either direction to some extent. Your release must be clear and distinctly understandable showing that the parties intend the document will prevent future litigation for any injuries.
The court never considered if the release covered minors. Here was a perfect opportunity for the court to hold that releases stopped suits by minors. However, the release was written so badly the court never even got to that issue.
How hard is it to include a simple phrase into a release so that other tubers are not drawn into a lawsuit? Do you think the defendant tubers are going to go tubing for a while, or for that matter, any other sport with other people they do not know? Instead of marketing and keeping people safe, the release at issue here probably helped keep people from the sport.
This contract was written to cover everything and effectively covered nothing. It just does not work to write releases to cover the world if your operation is that big. Your release must be written for the law of the state where you are operating or based and must be written to cover the activities your client’s are engaged in. Here the release was written to cover everything, written badly and ended up covering nothing.
The release in this case was a disaster. The new release was equally bad. Both were written badly and included language that made them ineffective at best and increased liability to a greater extent. It is difficult to write a release where the language voids it because you describe the risks improperly, however, this release did.
Other Tubing Cases
Tubing brings in a lot of money for a small space, and a well-written release keeps the money flowing http://rec-law.us/So8QS8
Bad release and prepped plaintiff defeat motion for summary judgment filed by ski areahttp://rec-law.us/12mE4O1
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Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468
Posted: February 10, 2014 Filed under: Indiana, Legal Case, Release (pre-injury contract not to sue), Ski Area, Snow Tubing | Tags: Inc., Indiana, Inner Tube, James Stephen Sauter, Magic Carpet, Medical Authorization, minors, Perfect North Slope, Perfect North Slopes, Piper Sauter, ski area, Sliding, Snow Tubing, Tubing Leave a commentSauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468
James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor, Plaintiffs, v. Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr, Defendants.
Case No. 4:12-cv-00027-TWP-WGH
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, NEW ALBANY DIVISION
2014 U.S. Dist. LEXIS 468
January 3, 2014, Decided
January 3, 2014, Filed
PRIOR HISTORY: Sauter v. Perfect North Slopes, Inc., 2012 U.S. Dist. LEXIS 95882 (S.D. Ind., July 11, 2012)
CORE TERMS: snow, slope, tube, tubing, lane, summary judgment, patrons, ambiguity, skiing, signor, duty of care, snowboarding, tuber, ski, affirmatively, ambiguous, signing, safely, trail, authorization, extrinsic, collision, skier, sport, seal, language used, patent, release form, ride, top
COUNSEL: [*1] For JAMES STEPHEN SAUTER, Individually and as Natural Guardian of M.S., a Minor, PIPER SAUTER, Individually and as Natural Guardians of M.S., a Minor, Plaintiffs: Louise M Roselle, Paul M. De Marco, MARKOVITS, STOCK & DEMARCO, LLC, Cincinnati, OH; Wilmer E. Goering, II, ALCORN GOERING & SAGE, LLP, Madison, IN.
For PERFECT NORTH SLOPES, INC., Defendant: Michael C. Peek, CHRISTOPHER & TAYLOR, Indianapolis, IN.
JUDGES: Hon. Tanya Walton Pratt, United States District Judge.
OPINION BY: Tanya Walton Pratt
OPINION
ENTRY ON SUMMARY JUDGMENT
Following a tragic accident which occurred at Defendant Perfect North Slopes, Inc. (“Perfect North Slopes”) on January 30, 2011, Plaintiffs James Stephen Sauter (“Mr. Sauter”) and Piper Sauter (“Mrs. Sauter”) (collectively, “the Sauters”) filed this negligence action. Perfect North Slopes is a ski resort which among other activities, offers snow tubing, a recreational activity that involves sitting on an inner tube and sliding down a hill. The Sauters were at Perfect North Slopes with their three children, T.S. age 8, J.S., and M.S. age 10 (collectively, “the Sauter children”), on January 30, 2011, for a Boy Scouts event. While snow tubing, the Sauter children veered into Defendants’, [*2] Andrew Broaddus, Stephanie Daniel,1 Christopher Daniel, Jenny Warr, and Anthony Warr (collectively, “Snow Tube Defendants”), snow tube lane, after which the Snow Tube Defendants collided into the Sauter children. As a result of the collision, M.S. suffered a brain injury.
1 The Court notes that the Complaint and CM/ECF caption use this spelling for Stephanie Daniel’s name. However, Snow Tube Defendants’ briefing uses the spelling, “Stephany Daniel.” If “Stephanie” is incorrect, the parties are ordered to file a motion to correct the error.
The Sauters filed suit against both Perfect North Slopes and the Snow Tube Defendants for negligence. Before the Court are the Defendants’ separate Motions for Summary Judgment. The issue of Perfect North Slopes’ alleged negligence has not been briefed, and the sole issue before the Court regarding Perfect North Slopes is the validity and applicability of the release form signed by Mrs. Sauter. For the reasons set forth below, Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED and the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED.
I. BACKGROUND
A. Snow Tubing and Perfect North Slopes
Perfect North Slopes is a [*3] ski resort located in Lawrenceburg, Indiana. It has terrain parks, ski slopes, and a snow tubing hill. Snow tubing involves sitting or lying inside a round inner tube and riding at a quick speed down a snow-covered slope. To reach the top of the snow tubing hill, patrons at Perfect North Slopes ride a moving walkway called the “magic carpet” up to the top of the hill. The snow tube hill is divided into multiple lanes separated by packed snow barriers approximately one foot high. On January 30, 2011, there were nine express lanes, nine regular lanes, and four super lanes on the snow tubing hill. Express lanes were longer than regular lanes and the super lanes were wider than regular lanes. The snow tubing hill flattens into a gravel lot called the “run-out” area, which is approximately 180 feet long. Snow tubers can average between 20 and 40 miles per hour down the hill.
Perfect North Slopes employees are located at the top of the snow tubing hill to direct the flow of patrons down the hill. The employees specifically determine when it is safe for patrons to proceed down the hill and they assist the patrons’ start by pushing or pulling the tubes into the designated lane. Perfect North [*4] Slopes also has employees located at the bottom of the hill to assist patrons exiting the snow tube area.
On January 30, 2011, Perfect North Slopes had rules and regulations governing use of the snow tubing hill. The rules and regulations were posted throughout the park, as well as broadcast on a loud speaker system. Only one rider was allowed per tube. Linking — allowing a number of tubers going at one time in one lane — was allowed as conditions warranted. Linking was to be single file and “[w]hen linking, tubers must hold on to each other’s short tube handles the entire time.” Dkt. 85-23 at 2. Perfect North Slopes’ website FAQs stated that, “[o]n the main hill, as many as three tubes can ‘link’ together.” Dkt. 129-10 at 2. Perfect North Slopes also recommended that parents supervise their children at all times.
B. The Releases
Before participating in snow tubing, all patrons were required to sign a release form prepared by Perfect North Slopes. On January 30, 2011, Perfect North Slopes provided the Snow Tube Defendants with a release titled “Skiing/Snowboarding/Tubing Waiver”. Mrs. Sauter was provided a release titled “Snow Tubing Release of Liability”. The [*5] two forms differed in language.
The Skiing/Snowboarding/Tubing Waiver included the following language in its “YOUR RESPONSIBILITY CODE”:
A. Always stay in control, and be able to stop or avoid other people or objects.
B. People ahead of you have the right of way. It is your responsibility to avoid them.
C. You must not stop where you will obstruct a trail, or are not visible from above.
D. Whenever starting downhill or merging into a trail, look uphill and yield to others.
E. Always use devices to help prevent runaway equipment.
F. Observe all posted signs and warnings. Keep off closed trails and out of closed areas.
G. Prior to using any lift, you must have knowledge and ability to load and unload safely.
This is a partial list. Be safety conscious.
Dkt. 85-21 at 1. This waiver also states that, “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. Each of the five Snow Tube Defendants signed this release.
Conversely, the Snow Tubing Release of Liability form did not have a personal responsibility code. It included language releasing Perfect North Slopes of liability for claims of personal injury, death and/or property [*6] damage. Dkt. 85-20 at 1 (under seal). It acknowledged acceptance of risk of snow tubing as a hazardous activity and risk of injury. It specifically stated, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). It further stated:
I, the undersigned, acknowledge that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself. I understand that my signature below expressly waives any rights I may have to sue Perfect North Slopes, Inc. for injuries and damages.
Dkt. 85-20 at 1 (under seal). Mrs. Sauter filled in the names of her three children and signed and dated this release.
C. The Collision
After Mrs. Sauter signed the release, Mr. Sauter took their three children to the “magic carpet,” where he escorted the children in line and then left. The Sauter children and Snow Tube Defendants each made their way to the top of the snow tubing hill. The Sauter children went to Express Lane 7 and the Snow Tube [*7] Defendants went to Express Lane 8. The Sauter children linked their tubes and were pushed down the lane by Perfect North Slopes employee Kelsi Carlson (“Ms. Carlson”). Unfortunately, at some point during their ride, the Sauter children veered out of their lane into Express Lane 8 and came to a stop before the end of the lane 8. Two of the Sauter children got out of their tubes and were pulling the third child in his or her tube toward the “magic carpet”. The Snow Tube Defendants had linked their five tubes and were pushed down lane 8 by Ms. Carlson. Stephanie Daniel went down the hill backwards in her tube and could not see where the tube was going. The Snow Tube Defendants collided with the Sauter children in Express Lane 8, approximately 25 feet short of the end of the snow tube slope. The Snow Tube Defendants’ tubes continued down Express Lane 8 after the collision and came to a stop in the gravel run-out area. Both Stephanie Daniel and Christopher Daniel suffered minor injuries from the collision. M.S. was knocked unconscious by the collision and was seriously injured.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, [*8] 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.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Finally, “neither the mere existence [*9] of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
III. DISCUSSION
As previously discussed, the Sauters’ Complaint alleges both Perfect North Slopes and the Snow Tube Defendants were negligent. Perfect North Slopes filed a motion for summary judgment based on the Snow Tubing Release of Liability and the Snow Tube Defendants move for summary judgment on the bases that they acted reasonably at all times and owed no duty to the Sauter Children. The motion’s are addressed in turn.
A. Snow Tube Defendants’ Motion for Summary Judgment
The Court must first address whether the Snow Tube Defendants owed a duty of care to M.S., because in the absence of duty a claim of negligence necessarily fails. See Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). The Snow Tube Defendants contend they had no duty of care toward the Sauter children, and thus should be dismissed from the suit. The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing [*10] Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.” Dkt. 85-21 at 1.
In Indiana, “[i]f a contract affirmatively evinces an intent to assume a duty of care, actionable negligence may be predicated upon the contractual duty.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1268 (Ind. Ct. App. 2002). To make this determination, “it is the court’s duty to ascertain the intent of the parties at the time the contract was executed as disclosed by the language used to express their rights and duties.” Walker v. Martin, 887 N.E.2d 125, 135 (Ind. Ct. App. 2008). “Generally, only parties to a contract or those in privity with the parties have rights under a contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-15 (Ind. 1996). The Indiana Supreme Court has stated that:
One not a party to an agreement may nonetheless enforce it by demonstrating that the parties intended to protect him under the agreement by the imposition of a duty in his favor. To be enforceable, it must clearly appear that it was the purpose or a purpose of the contract [*11] to impose an obligation on one of the contracting parties in favor of the third party. It is not enough that performance of the contract would be of benefit to the third party. It must appear that it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.
Id. at 1315 (quoting Kirtley v. McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App. 1990)).
The Snow Tube Defendants argue that the Skiing/Snowboarding/Tubing Waiver does not affirmatively create a duty of care of the signor of the waiver to other patrons at Perfect North Slopes. The Court agrees. The waiver included the following general language:
A. Always stay in control, and be able to stop or avoid other people or objects.
B. People ahead of you have the right of way. It is your responsibility to avoid them.
C. You must not stop where you will obstruct a trail, or are not visible from above.
D. Whenever starting downhill or merging into a trail, look uphill and yield to others.
E. Always use devices to help prevent runaway equipment.
F. Observe all posted signs and warnings. Keep [*12] off closed trails and out of closed areas.
G. Prior to using any lift, you must have knowledge and ability to load and unload safely.
This is a partial list. Be safety conscious.
Dkt. 85-21 at 1. This list of responsibilities appears at the beginning of the waiver and by signing the waiver, a signor attests that he or she is “familiar with and will adhere to” the responsibilities. The waiver also states: “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. This statement appears within the first full paragraph of the waiver, in which the signor also acknowledges the risks of the snow sports offered at Perfect North Slopes, Perfect North Slopes’ lack of duty to warn of dangers, and that participating in snow sports is voluntary with knowledge of the aforesaid risks.
The Court is not persuaded by the Sauters’ argument that the recitation of these responsibilities, even with the acknowledgment of the signor to adhere to them, represents an affirmative assumption of a duty of care. First, the “Your Responsibility Code” includes basic safety instructions and concludes with the words, “This is a partial list. Be [*13] safety conscious.” This implies not that the list imposes affirmative duties that are actionable if ignored, but that it is a general guideline. Second, the statement that the signor will tube safely and in control is included as one of many acknowledgments in a paragraph that ends with the statement, “I . . . hereby expressly agree to accept and assume all such risks of [in]jury or death associated with the sport of snow skiing/boarding/tubing.” Dkt. 85-2 at 1. This affirmative assumption of the risks does not mention the responsibilities listed within the same paragraph. Instead, the language regarding the responsibilities includes the words “recognize,” “familiar,” and “agree.” However, it does not affirmatively state the signor “assumes” those responsibilities.
Especially considering that the Sauters are third parties to the contract between the Snow Tube Defendants and Perfect North Slopes, there is no evidence that “it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.” OEC-Diasonics, Inc., 674 N.E.2d at 1315. [*14] While performance of the responsibilities listed certainly would benefit third parties like the Sauters and M.S., there is no evidence of clear intent as required.
Further, to the extent the contract language is ambiguous regarding the assumption of a duty of care, the extrinsic evidence of record supports the Snow Tube Defendants’ position. The Director of Snow Sports Operations at Perfect North Slopes, Mike Mettler (“Mr. Mettler”), explained during his deposition that the “Your Responsibility Code” section of the Skiing/Snowboarding/Tubing Waiver was derived from the “Skier’s Responsibility Code” developed by the National Ski Areas Association as a standard code for all skiers and snowboarders. Dkt. 85-7 at 5, 111:14-20. Mr. Mettler testified that there are not standard rules for snow tubing, the “Your Responsibility Code” did not apply to snow tubing, and that snow tubing is inherently distinct from skiing or snowboarding, particularly because a snow tuber lacks the ability to steer and control the tube. Dkt. 85-7 at 5, 111:22-25; Dkt. 85-8 at 51-53, 214:22-216:21; Dkt. 85-8 at 51, 214:6-21. Perhaps also telling, the Snow Tubing Release of Liability signed by Mrs. Sauter did not [*15] include a “Your Responsibility Code” section or any similar language. Mr. Mettler testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms. He further stated that there were no distinction between the forms in terms of responsibilities while snow tubing. Dkt. 85-8 at 50, 213:7-17.
Mr. Mettler’s explanations support the conclusion that the Snow Tube Defendants did not assume a specific duty of care to other patrons. First, Perfect North Slopes did not expect or intend for snow tubers to have the exact abilities and safety responsibilities as skiers and snow boarders given the differences between the sport activities. Second, Perfect North Slopes was phasing out use of the Skiing/Snowboarding/Tubing Waiver for snow tubing, and the new form, the Snow Tubing Release of Liability, did not include any mention of responsibilities to stop and give right of way to other patrons. It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other [*16] patrons, while other snow tubers did not. The random nature of who signed which form is evidence that Perfect North Slopes considered the two forms to contain the same obligations and releases.
Accordingly, the Court finds that the Sauters have not established as a matter of law that the Snow Tube Defendants affirmatively assumed a duty of care to the Sauter children. Nor have the Sauters established a common law duty existed. Therefore, the Snow Tube Defendants’ motion is GRANTED and they will be dismissed from the suit.
B. Perfect North Slopes’ Motion for Summary Judgment
At first glance, Perfect North Slopes’ motion is seemingly straightforward, as it contends that the Sauters released all claims for liability when Mrs. Sauter signed the Snow Tubing Release of Liability form on behalf of her children. The Sauters respond with two arguments in the alternative. First, they ask the Court to invalidate the release on public policy grounds, an issue on which the Indiana Supreme Court has not spoken. Second, the Sauters contend the language of the release does not contain a waiver of claims on behalf of minors. Because the Court finds that the release is ambiguous and thus does not bar the [*17] Sauters’ claim against Perfect North Slopes, the Court will not speculate on the public policy issue raised by the Sauters.
The Sauters contend that the Snow Tubing Release of Liability does not waive a minor’s possible negligence claims against Perfect North Slopes. The Indiana standard of review for contract interpretation is as follows:
“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002). If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. City of Indianapolis v. Kahlo, 938 N.E.2d 734, 744 (Ind. Ct. App. 2010), trans. denied. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence and its construction is a matter for the fact-finder. Kahlo, 938 N.E.2d at 744. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind. Ct. App. 2004). But the fact that the parties disagree over the meaning of the contract does not, in and of itself, establish an ambiguity. [*18] Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008, 1013 (Ind. 2010) (citation omitted).
When interpreting a written contract, the court should attempt to determine the parties’ intent at the time the contract was made, which is ascertained by the language used to express their rights and duties. Kahlo, 938 N.E.2d at 744. A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Hammerstone v. Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind. Ct. App. 2013).
Claire’s Boutiques, Inc. v. Brownsburg Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013). Furthermore, an ambiguity may be patent or latent:
A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.
Weinreb v. Fannie Mae, 993 N.E.2d 223, 232 (Ind. Ct. App. 2013) [*19] (internal citations omitted). If an ambiguity arises by reason of the language used, construction of the ambiguous contract is a question of law for the court. Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 80 (Ind. Ct. App. 2010).
The Sauters present the release form as a dual-purpose document; a medical authorization on one hand, and a release of liability on the other. They argue that nowhere does the release explicitly release the claims of minors, and the only reference to minors is in regard to medical authorization. The Court agrees that at best, the release is ambiguous regarding whether a minor’s claims against Perfect North Slopes are waived.
Specifically, the release is written from the viewpoint of an adult signor. Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). In the seventh and final paragraph the release also states, “I, the undersigned, acknowledge [*20] that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself.” Dkt. 85-20 at 1 (under seal). Perfect North Slopes argues this final statement applies to the entirety of the agreement, while the Sauters argue it applies only to the medical authorization.
Contract interpretation requires “the contract to be read as a whole, and the language construed so as not to render any words, phrases, or terms ineffective or meaningless.” Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 56 (Ind. Ct. App. 2009). Here, the release inserts a specific reference to minors only regarding medical authorization. It does not reference minors regarding acceptance of risk, awareness that tubing is a hazardous activity, or releasing Perfect North Slopes from damage resulting from negligence, or any other clause. This disparity creates a susceptibility of more than one interpretation of the release’s provisions. However, if Perfect North Slopes’ interpretation that the final statement applies to the entire release was accepted, the specific [*21] reference to minors regarding medical authorization would be rendered redundant or unnecessary. Rather, it is reasonable to interpret the release as referencing minors when the release specifically applies to them, which is reiterated at the conclusion of the release. Thus, the Court finds the contract ambiguous. The ambiguity is a patent one, as it is inherent in the language of the document. In this circumstance, extrinsic evidence is not admissible or necessary to the Court’s determination. The release does not include a clear, unambiguous waiver of M.S.’s claims against Perfect North Slopes for its alleged negligence. Therefore, Perfect North Slopes’ motion is DENIED.
IV. CONCLUSION
For the reasons set forth above, the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED. The Sauters’ claims against the Snow Tube Defendants are DISMISSED with prejudice. Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED. The Sauters’ negligence claim may proceed. No final judgment will issue for the Snow Tube Defendants until the remaining claims against Perfect North Slopes are resolved.
SO ORDERED.
Date: 01/03/2014
/s/ Tanya Walton Pratt
Hon. Tanya Walton Pratt, [*22] Judge
United States District Court
Southern District of Indiana
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2013-2014 In bound ski/board fatalities
Posted: January 29, 2014 Filed under: Ski Area, Skiing / Snow Boarding | Tags: Aspen, Crystal Mountain Resort, fatality, Heavenly Resort, Killington, Mount Charleston, Resort, Ski Apache, ski area, Ski Bluewood, Ski Resort, Skier, skiing, Snowboarder, Sport, Stratton Mountain Resort, Telluride, Whitefish Mountain Resort, Winter Park, Winter sport Leave a commentIt is depressing to start working on this every year. I hope it at some point in time can provide answers rather than news.
This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.
If this information is incorrect or incomplete please let me know. This is up to date as of January 13, 2014. Thanks.
Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.
Are non-skiing/boarding fatalities that occurred inbounds on the slopes
Fatality while sledding at the Resort is in Green
2013 – 2014 Ski Season Fatalities
|
# |
Date |
State |
Resort |
Where |
Trail Difficulty |
How |
Cause |
Ski/ Board |
Age |
Sex |
Home town |
Helmet |
Reference |
|
|
|
1 |
12/11 |
CO |
Telluride |
Pick’N Gad |
|
Left the ski run, struck a tree and suffered fatal injuries |
|
|
60 |
M |
Norwood, CO |
No |
|
||
|
2 |
12/12 |
VT |
Killington |
Great Northern Trail |
|
Found |
|
|
21 |
F |
PA |
No |
|
|
|
|
3 |
12/16 |
WA |
Crystal Mountain Resort |
Tinkerbell |
Beginner |
Lost control and veered off the trail |
Blunt Force Trauma |
|
|
F |
|
Yes |
|
|
|
|
4 |
1/1/14 |
WV |
|
|
|
skiing into a tree |
|
|
|
M |
Opp, AL |
|
|
|
|
|
5 |
12/21 |
CA |
Heavenly Resort |
|
|
colliding with a snowboarder and being knocked into a tree |
|
|
56 |
F |
NV |
No |
|
||
|
6 |
12/19 |
CO |
Winter Park |
Butch’s Breezeway |
Beginner |
|
blunt force injury to the head |
|
19 |
M |
|
Yes |
|
|
|
|
7 |
1/11 |
CO |
Aspen |
Bellisimo |
Inter |
hitting a tree |
|
Ski |
56 |
M |
CO |
Yes |
|
||
|
8 |
1/11 |
MT |
Whitefish Mountain Resort |
Gray Wolf and Bigho |
|
Found in a tree well |
|
Ski |
54 |
M |
CA |
|
|
|
|
|
9 |
1/11 |
VT |
Stratton Mountain Resort |
Lower Tamarac |
|
Sledding |
|
Sledding |
45 |
M |
NJ |
No |
|
||
|
10 |
1/14 |
NV |
Mount Charleston |
|
Terrain Park |
Fall in terrain park |
blunt-force trauma |
Boarder |
20 |
M |
NV |
No |
|
||
|
11 |
1/17 |
VT |
Kilington |
Mouse Trap Trail |
|
striking a tree |
|
Boarder |
23 |
M |
NY |
|
|
||
|
12 |
1/25 |
NM |
Ski Apache |
|
Inter |
struck a tree |
|
Skier |
23 |
F |
TX |
|
|
||
|
13 |
1/25 |
WA |
Ski Bluewood |
Country Road run |
Beginner |
Found at top of trail |
|
Skier |
14 |
M |
WA |
No |
http://rec-law.us/1b4oewr |
|
Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the areas who have to deal with these tragedies.
What do you think? Leave a comment.
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Copyright 2013 Recreation Law (720) Edit Law
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#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Skier, Snowboarder, Ski Area, Fatality, Telluride, Killington, Crystal Mountain Resort, Heavenly Resort, Winter Park, Aspen, Whitefish Mountain Resort, Stratton Mountain Resort, Mount Charleston, Killington, Ski Apache, Ski Bluewood,
WordPress Tags: news,information,references,Thank,January,Thanks,kitchen,bathroom,Resort,Season,Fatalities,Date,State,Where,Trail,Cause,Board,Home,Helmet,Reference,Telluride,Pick,Left,tree,injuries,Norwood,Killington,Great,Northern,Found,Crystal,Mountain,Tinkerbell,Beginner,Lost,Blunt,Force,Trauma,Winter,Park,Butch,Breezeway,injury,Aspen,Bellisimo,Inter,Whitefish,Gray,Wolf,Bigho,Stratton,Lower,Tamarac,Mount,Charleston,Terrain,Fall,Boarder,Kilington,Mouse,Trap,Apache,Skier,Bluewood,Country,Road,condolences,families,areas,tragedies,Leave,Twitter,LinkedIn,Recreation,Edit,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Attorney,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,Colorado,managers,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Snowboarder,Area
New Mexico interpretation of the New Mexico Ski Safety Act for injuries a beginner received leaving a ski lesson
Posted: January 27, 2014 Filed under: Assumption of the Risk, New Mexico, Ski Area, Skiing / Snow Boarding | Tags: American Home Assurance Corporation, Assumption of risk, George Philippi, Inc., James Booth, Lawrence Gottschau, New Mexico, New Mexico Ski Safety Act, Olive Bolander, Sipapu, Sipapu Recreation Development Corporation, ski area, ski lesson, Ski Resort, skiing, United States district court 1 CommentI’m not sure why everyone needs to test skier safety acts. Here, the plaintiff admitted he could not ski, left the ski lesson and skied down the hill injuring him. So he sues the ski area?
Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973
Plaintiff: George Philippi
Defendants: Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation
Plaintiff Claims: negligence and violation of the New Mexico Ski Safety Act
Defendant Defenses: New Mexico Ski Safety Act and statutory assumption of the risk
Holding: for the defendants
This is a pretty simply case. The plaintiff is a body builder. He took a ski lesson from the defendants and was not good at skiing. He was unable to master turning or other maneuvers and fell repeatedly during the lesson. The plaintiff told his instructors to stop the lesson because he was frustrated and tired. Allegedly following the instructor’s suggestions he skied down the hill into a funnel where he fell and was injured his right leg and knee.
The plaintiff sued in Federal District Court, and his claims were dismissed based on a motion for summary judgment. He appealed to the Tenth Circuit Court of Appeals. New Mexico is part of the Tenth Circuit, one of the appellate courts in the federal system based in Colorado. Consequently, this court is familiar with skiing.
Summary of the case
The plaintiff argued two issues on his appeal. First, the lower court misconstrued and misapplied the doctrine of primary assumption of the risk as set forth in the New Mexico Ski Safety Act. His second argument was the act incorporates comparative negligence principles, and thus the act cannot act as a complete bar to his recovery.
The court looked at the first claim and held the New Mexico Ski Safety Act imposes no duty on part of the ski area to protect the plaintiff, a novice skier, from the “inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope.”
The New Mexico Ski Safety Act states that a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The skier assumes the risk of skiing and the legal responsibility of any injury to person or property from skiing. The act then lists the risks the skier assumes, as most acts do.
§ 24-15-10. Duties of the skiers
B. A person who takes part in the sport of skiing accepts as a matter of law the dangers inherent in that sport, insofar as they are obvious and necessary. Each skier expressly assumes the risk of and legal responsibility for any injury to person or property, which results from participation in the sport of skiing, in the skiing area, including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 NMSA 1978; except for any injuries to persons or property resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 NMSA 1978. Therefore, each skier shall have the sole individual responsibility for knowing the range of his own ability to negotiate any slope or trail, and it shall be the duty of each skier to ski within the limits of the skier’s own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner, which may cause or contribute to the injury of anyone.
The plaintiff argued the risks he encountered were not obvious to him because he was a novice skier.
Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope.
The plaintiff argued the ski area had a duty to warn him of obstacles in the lower portion of the slope. The plaintiff argued the obstacles were not plainly visible to him as a novice skier and created hazards to him and the skiing public. The Act imposes an affirmative duty on ski areas to warn or “correct particular hazards or dangers known to the operator where feasible to do so.”
However, the court found that allegations alone are not enough to proceed with his argument. “The party resisting [summary judgment] may not rest on the bare allegations or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.”
However, allegations alone are not enough to sustain an argument and a motion for summary judgment. The plaintiff must have more. Here the court said he needed to identify particular hazards or dangers which the defendant knew about and failed to warn the plaintiff about.
The second issue was the statute incorporated the comparative negligence statute of New Mexico and therefore, could not act as a complete bar to the plaintiff. If you remember comparative negligence, it states that the defense of assumption of the risk is gone. Instead of a plaintiff assuming the risk and his claims being barred, the jury determines how much of the plaintiff’s acts caused his injuries and assigns a percentage of fault to the plaintiff and the defendant. If the defendant’s degree of fault is greater than the plaintiff’s that percentage of fault is applied to the total damages, and the plaintiff takes that percentage of the money as a judgment.
By arguing comparative negligence applies here; the plaintiff is arguing that his case must, by law be heard by a jury to apply the percentage of fault. However, the court found that the statute did not require the use of comparative negligence because the statute protected the ski area from liability. The plaintiff could still assume the risk of his injuries and thus be barred from suing.
So Now What?
The plaintiff argued that the ski area “ski instructor’s manual” failed to point out the need to warn students of dangers and alert them to safety issues. It is interesting to use a ski area manual to try an argument from the lack of a point to train in the ski area manuals.
This argument in the case is what caught my attention. In many cases, we write manuals to help instruct employees to work and keep our guests safe. Here, that information in the manual might have changed the outcome of this case.
If the point had been in the manual, then would the ski area been liable if they had not pointed out the “hazards” on the slope to the plaintiff?
However, you need to think about that issue. How big would a manual need to be to instruct your employees to point out the hazards of the sport or the slope? What about the hazards of any outdoor recreation program or business. Would you have to identify every root crossing a trail or all the branches that may hang low for your taller guests?
The New Mexico Ski Safety Act is well-written and specifically lists the risk a skier assumes. It does not require a balancing test, only one answer. Did the injury the plaintiff receives occur because of the risks the plaintiff assumed stated in the act? In this case, he did. Nor did the statute require the ski area to do any more than identify or correct those risks that could not be seen by a skier of average ability and skill.
For more on comparative negligence see You have to be prepared way before trial, and you have to win at trial, because judges are given wide discretion in controlling your chances on appeal and Sometimes you want too much, sometimes you are greedy: WI plaintiff’s lawyers are killing their income source.
What do you think? Leave a comment.
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Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973
Posted: January 27, 2014 Filed under: Assumption of the Risk, Legal Case, New Mexico, Skiing / Snow Boarding | Tags: American Home Assurance Corporation, Assumption of risk, George Philippi, Inc., James Booth, Lawrence Gottschau, New Mexico, New Mexico Ski Safety Act, Olive Bolander, Sipapu, Sipapu Recreation Development Corporation, ski area, ski lesson, skiing, Summary judgment Leave a commentPhilippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973
George Philippi, Plaintiff-Appellant, v. Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation, a New York corporation, Defendants-Appellees.
No. 91-2253
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
961 F.2d 1492; 1992 U.S. App. LEXIS 6973
April 17, 1992, Filed
PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-90-1178-JC). D.C. Judge JOHN E. CONWAY
DISPOSITION: DENIED. AFFIRMED
COUNSEL: Submitted on the briefs.
Patrick A. Casey and David C. Ruyle, Patrick A. Casey, P.A., Santa Fe, New Mexico, for the Plaintiff-Appellant.
Joe L. McClaugherty and Cameron Peters, McClaugherty, Silver & Downs, P.C., Santa Fe, New Mexico, for the Defendants-Appellees.
JUDGES: Before MOORE, TACHA, and BRORBY, Circuit Judges.
OPINION BY: TACHA
OPINION
[*1493] TACHA, Circuit Judge.
Plaintiff, George Philippi, appeals a district court order granting summary judgment to the defendants. 1 Philippi argues that the district court erred in granting the defendants summary judgment on Philippi’s negligence action. Philippi also argues that two unresolved issues of New Mexico law may be determinative in this case and urges this court to certify these issues to the Supreme Court of the State of New Mexico. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.
1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
[**2] In January of 1984, Philippi suffered a physical injury during the course of a skiing lesson at Sipapu Ski Area in New Mexico. Philippi, a body builder, injured his right leg and knee while attempting to negotiate the “Lower Bambi” run at Sipapu. Philippi brought this action against the defendants claiming, among other things, that the defendants acted negligently in violation of the New Mexico Ski Safety Act, N.M. Stat. Ann. 24-15-1 to 24-15-14 (hereinafter referred to as “the Act” or “the Ski Safety Act”).
In their motion for summary judgment, the defendants argued that they were entitled to judgment as a matter of law because the Ski Safety Act is Philippi’s only remedy and because Philippi’s claim is barred by his statutory assumption of the risks of skiing and his own breaches of duty under the Act. As an alternative basis for summary judgment, the defendants argued that they did not breach any of their duties under the Act. Without stating the basis of its ruling, the district court found that the motion for summary judgment was “well taken and should be granted.”
Philippi raises two claims on appeal. First, he argues that the district court misconstrued and misapplied the doctrine [**3] of primary and secondary assumption of the risk, as embodied in the Ski Safety Act. Second, Philippi argues that even if his conduct constitutes secondary assumption of the risk, the Act embodies comparative negligence principles, and his conduct, therefore, cannot totally bar his recovery under the Act. Philippi urges us to certify both of these issues to the New Mexico Supreme Court.
Although the basis of the district court’s ruling is not evident, [HN1] “we may affirm the granting of summary judgment if any proper ground exists to support the district court’s ruling.” McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988). We find it unnecessary to reach the merits of Philippi’s arguments on appeal because both arguments presuppose that, but for the district court’s alleged errors in applying the doctrines of assumption of the risk and comparative negligence, the district court would have concluded that the defendants owed a duty to Philippi. Viewing the facts alleged in the complaint and in opposition [*1494] to the summary judgment motion in the light most favorable to Philippi, we hold as a matter of law that the defendants owed no duty to protect Philippi from the harm [**4] he allegedly sustained. Because Philippi cannot demonstrate a duty owed by the defendants, we find certification of the issues on appeal inappropriate, as these issues are not determinative of this action.
This case requires us to determine whether the Ski Safety Act imposes a duty on a ski area operator to warn, or in some way protect, a novice skier from the inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope. Philippi’s injury occurred during a skiing lesson. According to the amended complaint, Philippi fell repeatedly during the lesson and, despite the ski instructors’ demonstrations and instructions, he was unable to master turning and other skiing maneuvers. Philippi allegedly informed the instructors that he wanted to stop the lesson because he was frustrated and tired. The instructors encouraged Philippi to continue skiing to the end of the run because the remaining terrain was “relatively easy,” and there was “no place to stop or stand.” The complaint alleges that “following the instructions of one of the individual Defendants, Plaintiff entered onto a narrow, steep, ungroomed slope which required numerous turns to navigate. Plaintiff [**5] could not see obstacles on this slope until he was upon them and too late to avoid them. During this portion of the instruction Plaintiff fell and severely injured his right leg and knee. . . .”
[HN2] Under section 24-15-10(B) of the Ski Safety Act, a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The Act goes on to state that a skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing areas, including any injury caused by . . . variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees or other forms of forest growth or debris . . . .
[HN3] The Act specifically excludes from the scope of a skier’s assumption of risk “any injuries . . . resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 [of the Act].” Id.
Philippi maintains that even though he assumed the obvious and necessary risks associated with skiing, including any injury caused by variations in terrain, the risks he encountered were not “obvious and necessary” [**6] to him as a novice skier. The Act imposes an affirmative duty on ski area operators “to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Id. 24-15-7(I). Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope. Thus, Philippi alleges that under section 24-15-7(I) of the Act, the defendants had a duty to warn him of the obstacles of the lower portion of the ski slope — obstacles “which were not plainly visible and which created an immediate hazard to [Philippi] and the skiing public.”
In response to the defendants’ argument in support of summary judgment that the defendants owed no duty to Philippi, Philippi bore the burden of making a showing sufficient to establish the existence of the defendants’ duty. See High Plains Natural Gas v. Warren Petroleum Co., 875 F.2d 284, 290-91 (10th Cir. 1989). [HN4] “The party resisting [summary judgment] may not rest on the bare allegations [**7] or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.” Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir. 1989).
Philippi claims that the deposition testimony and affidavits, along with facts alleged in his complaint, demonstrate a genuine issue of material fact concerning the defendants’ violation of section 24-15-7(I) of the Act. Philippi points out that, despite the instructors’ awareness of Philippi’s inability [*1495] to master even the simplest skiing maneuvers, the instructors “failed to help” and “failed to warn” Philippi of the risks of the lower portion of the Bambi trail. Further, Philippi made some showing that the defendants were aware that novice skiers had “problems” on the portion of the trail on which Philippi’s injury occurred. In addition, Philippi points to the failure of the Sipapu ski instructor’s manual to advise the instructors of the need to warn students of dangers and alert them to safety considerations. Philippi argues that reasonable minds could differ on whether these circumstances give rise to a duty on behalf of the defendants and, therefore, that the issue should [**8] be left to the finder of fact.
[HN5] Under New Mexico law, however, the question of whether a defendant owes a duty to a particular plaintiff is a question of law to be determined by the court. Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36, 39 (N.M. 1990); Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728, 729 (N.M. 1984). Under section 24-15-7(I) of the Ski Safety Act, the defendants only have the duty to warn of or correct “particular hazards or dangers.” Philippi cannot rest on the bare allegation in his amended complaint that the defendants were aware of and failed to warn of “particular hazards or dangers.” Nothing in Philippi’s amended complaint, deposition or affidavits identifies any “particular hazard or danger” known to the defendants. Philippi merely asserts that his injury was caused by the defendants’ failure to warn him individually of the general conditions of the terrain on the lower portion of the beginner slope. Allegations of “thin and bare” terrain on a “narrow, steep and ungroomed” slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi. Likewise, allegations of the defendants’ knowledge of injuries [**9] to novice skiers on that same portion of the slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi.
The purpose of the Ski Safety Act is to define “those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier expressly assumes and for which there can be no recovery.” N.M. Stat. Ann. 24-15-2. Philippi assumed the risk for variations in terrain, id. 24-15-10, and Philippi had the duty to ski within the limits of his own ability. Id. Section 24-15-13 of the Act clearly states that a skier cannot recover for injuries or damages resulting from the skier’s own violation of his duties, as set forth in section 24-15-10. In our view, the Act allocates to the skier the risks for the type of injury Philippi alleges. In light of the language and purpose of the New Mexico Ski Safety Act, we conclude as a matter of law that [HN6] the scope of the duty imposed on ski operators in section 24-15-7(I) of the Act is not broad enough to encompass the duty to provide a general warning to a novice skier that, because of the skier’s limited abilities, portions of a beginner [**10] slope may be dangerous.
The motion to certify questions of state law is DENIED and the order of the district court is AFFIRMED.
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Plaintiff tries to hold ski area liable for exceeding the state ski statute, however the court sees the flaws in the argument.
Posted: January 20, 2014 Filed under: Assumption of the Risk, New Hampshire, Ski Area, Skiing / Snow Boarding | Tags: Defendant, Eileen Gwyn, Estate of Howard Gwyn, increased risk of harm, Loon Mountain Corporation, Loon Mountain Ski Area, Margaret Do, Negligence, New Hampshire, ski area, Ski Resort, Ski Safety Act, skiing, Summary judgment, voluntarily assumed duty negligently performed 1 CommentThe New Hampshire Ski Area Safety Act only requires a ski area to post as a sign to close a run. The plaintiff tried to claim that a rope closing the run created greater liability rather more protection for skiers and boarders. A voluntarily assumed duty negligently performed is something always created in many outdoor recreation programs or businesses. However, it is not the change that is the legal issue. It is whether or not you increase the risk of harm to your guests that is controlling.
Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995
Plaintiff: Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do
Defendant: Loon Mountain Corporation, d/b/a Loon Mountain Ski Area
Plaintiff Claims: violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
Defendant Defenses: New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act
Holding: for the defendant’s ski area
In this case, two people died and one person was injured on an icy ski slope. The first victim standing above the closed trail slipped and slid under the rope 900 feet to his death. The next two victims took off their skis and tried to hike down to the first victim. Both eventually fell sliding down the slope.
The survivors and the estates sued claiming violation of the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act and common law negligence claims. The lower court dismissed all but two of the claims on the defendant’s motion to dismiss. Those two claims were eventually dismissed after discovery had occurred, and the defendant filed a motion for summary judgment.
The plaintiff’s appealed the dismissal.
Summary of the case
The trail the plaintiffs fell down had been closed because it was icy. The New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act required that a notice be placed on signs at the base of the lift, on trail-boards, and a sign posted at designated access points.
The plaintiff argued that the trail had to be closed not only at the main access point to the trail but all possible access points to the closed trail from another trail. The court looked at a trail map of the area and realized that the signage alone to mark a trail closed would be enormous.
The second argument was the most disturbing. The statute did not require that a rope be used to close a trail. Only a sign was needed to close a trail. By placing the rope across the trail the rope “could lure a skier closer to the icy entrance than one would go otherwise.” The plaintiff then argued that by a duty, voluntarily assumed but negligently performed was not protected by the ski statute.
There are situations where a voluntary act increases the risk of harm to someone creating negligence.
…but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care.
The district court rejected this argument.
[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.
Because the first person to fall slipped on an ice patch, which was an inherent risk assumed by the skier under the statute, the plaintiff could not argue the risk was increased. The risk was there, and the rope did not change or increase the risk.
The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.
The next two plaintiffs obviously assumed the risk and by taking off their skis, probably increased the risks themselves.
The remaining claims of the plaintiff were dealt with quickly. The first was the New Hampshire Skiers, Ski Area and Passenger Tramway Safety Act violated the New Hampshire Constitution. However, the New Hampshire Supreme Court had already ruled it did not. The final two were procedural in nature. Whether the question on appeal had been certified and whether the plaintiff’s request to amend their complaint had been improperly denied.
So Now What?
Cases like this scare outdoor recreation programs into not doing the next thing to make a program better because of fear of creating more problems. Do not allow the threat of a lawsuit to make your program better or safer.
Do make your changes or upgrades such that the changes do not place your guests in a place of increased risk or such that you have placed your guests in a position where they may be confused.
Any risk can be assumed by your guests, clients, or skiers. You need to make sure that any changes in your program, operation or business result in a change in the information and education your clients receive about the risk.
Here the risk had not changed to the plaintiff so that the change, the actions above those required by the statute, did not increase the risk to the plaintiffs. The icy spot was there whether or not the rope was placed closing the trail or where the rope was placed.
Do the right thing and continue with an education of your guests to make sure they know what you are doing and why and what those risks are.
 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufactures and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
Jim is the author or co-author of six books about the legal issues in the outdoor recreation world; the latest is Outdoor Recreation Insurance, Risk Management and Law.
Outdoor Recreation Insurance, Risk Management, and Law
To see Jim’s complete bio go here and to see his CV you can find it here. To find out the purpose of this website go here.
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Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995
Posted: January 20, 2014 Filed under: Assumption of the Risk, Legal Case, New Hampshire, Ski Area, Skiing / Snow Boarding | Tags: Eileen Gwyn, Estate of Howard Gwyn, increased risk of harm, Loon Mountain, Loon Mountain Corporation, Loon Mountain Ski Area, Margaret Do, New Hampshire, ski area, Ski Safety Act, voluntarily assumed duty negligently performed Leave a commentTo Read an Analysis of this decision see: Plaintiff tries to hold ski area liable for exceeding the state ski statute, however, the court sees the flaws in the argument.
Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995
Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do, Plaintiffs, Appellants, v. Loon Mountain Corporation, d/b/a Loon Mountain Ski Area, Defendant, Appellee.
No. 03-1047
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
350 F.3d 212; 2003 U.S. App. LEXIS 23995
November 25, 2003, Decided
SUBSEQUENT HISTORY: As Amended December 2, 3003.
PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Paul J. Barbadoro, U.S. District Judge.
Gwyn v. Loon Mt. Corp., 2002 U.S. Dist. LEXIS 9092 (D.N.H., 2002)
Gwyn v. Loon Mt. Corp., 2002 U.S. Dist. LEXIS 24625 (D.N.H., 2002)
DISPOSITION: Affirmed.
COUNSEL: Kevin M. Leach with whom Nixon, Raiche, Manning, Casinghino & Leach, P.C. was on brief for appellants.
Thomas Quarles, Jr. with whom Margaret O’Brien, Matthew R. Johnson and Devine, Millimet & Branch, P.A. were on brief for appellee.
JUDGES: Before Boudin, Chief Judge, Siler, * Senior Circuit Judge, and Lynch, Circuit Judge.
* Of the Sixth Circuit, sitting by designation.
OPINION BY: BOUDIN
OPINION
[*214] BOUDIN, Chief Judge. In this tragic case, two individuals were killed and a third badly injured in a skiing accident in New Hampshire. The details are set forth in two very able opinions by the district court. Thus, we confine ourselves to an abbreviated description focused on the two primary issues raised on this appeal: one is an important question of statutory construction and the other a narrower issue turning upon the pleadings.
Howard and Eileen Gwyn, their daughter Margaret Do, and Margaret’s fiance Mark Goss went on a ski vacation in Lincoln, New Hampshire. On January 25, 1999, they spent the morning together skiing down [**2] easy trails at Loon Mountain Ski Area (“Loon”). Shortly before lunch, Howard, Margaret, and Mark–all very experienced skiers–left Eileen and rode the chairlift up to the Summit Lodge to ski down some more difficult trails. Unbeknownst to them, Loon had closed one of the trails (named “Triple Trouble”) the night before because of icy conditions, a closure noted on the trail board at the bottom of the mountain.
[*215] From the summit, it was possible to ski directly down a trail named Big Dipper from which, part way down, Triple Trouble branched off to the skier’s right. Or, from the summit, one could head right on a trail called Haulback, then take a left fork onto Cant Dog, and enter Big Dipper just above the point where Triple Trouble branched off to the right. At this branching off point from Big Dipper to Triple Trouble, Loon had posted a sign warning that Triple Trouble was closed. It had also placed a rope across the entrance to Triple Trouble.
From the summit, Howard led the group to the right down Haulback and then took a left turn onto Cant Dog. At the intersection of Cant Dog and Big Dipper–right above the closed Triple Trouble trail–Howard slipped on ice, slid under the rope [**3] blocking off Triple Trouble, and tumbled nine hundred feet down the icy slope. He suffered severe injuries resulting in his death a few days later. Margaret Do and Mark Goss saw Howard Gwyn fall, removed their skis, and attempted to walk down the closed trail to rescue him. Both fell, sliding hundreds of feet down Triple Trouble trail. Goss died. Margaret Do suffered severe injuries and frostbite but was rescued several hours later. In this diversity suit, Margaret Do and Eileen Gwyn (as executrix of Howard Gwyn’s estate and on her own behalf) sued Loon for breach of multiple common law and statutory duties. The district court granted Loon’s motion to dismiss the majority of claims under New Hampshire’s “Skiers, Ski Area, and Passenger Tramway Safety Act,” N.H. Rev. Stat. Ann § 225-A:23 (2002) (“ski statute”). Two claims survived the motion to dismiss, but after discovery the district court granted summary judgment to Loon on both counts. Plaintiffs appealed, focusing attention on one statutory claim and one claim of common law negligence.
At the crux of this appeal is New Hampshire’s ski statute, N.H. Rev. Stat. Ann § 225-A. In this [**4] statute several duties are placed on ski operators–maintaining trail boards, marking the difficulty of various slopes, making trail maps available to all skiers–and operators can be sued for violations of these statutory duties. § 225-A:23; Nutbrown v. Mt. Cranmore, Inc., 140 N.H. 675, 671 A.2d 548, 553 (N.H. 1996). At the same time, the statute places the risk of injury from dangers inherent in the sport of skiing on the skiers themselves, and bars all actions against ski operators for injuries caused by these dangers. 1 § 225-A:24; Nutbrown, 671 A.2d at 553. New Hampshire case law is slowly filling in the gaps but uncertainties remain.
1 [HN1] The statute provides that “each person who participates in the sport of skiing accepts as a matter of law[] the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards.” § 225-A:24; see also Nutbrown, 671 A.2d at 553 (“By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.”).
[**5] Here, most of the counts and theories pressed by plaintiffs at the start are no longer in issue, but two major claims remain open on this appeal. The first is that Loon did not comply with a statutory duty relating to marking closed trails. Under the ski statute, operators are not required to close a trail because of hazardous conditions, but if they do close a trail they must mark “the beginning of, and designated access points to” the closed trail with a sign, § 225-A:23 (III)(b), and note the closure on a permanent trail board at the base of the mountain, § 225-A:23 (II)(a). Here, it is undisputed that Loon properly [*216] noted the closure on the trail board and properly marked “the beginning” of Triple Trouble at the point that it branched off Big Dipper.
Nevertheless, the plaintiffs say that a closed sign for Triple Trouble was also required by the statute at the uphill juncture where Cant Dog forked off Haulback–a point where a sign pointed the way to Big Dipper and Triple Trouble. This, they say, was itself an “access point” to Triple Trouble. Their causation theory is less clear: the implication is that such an early warning of a closed trail further downhill might have made [**6] Howard Gwyn decide to lead the group straight down Haulback instead of taking Cant Dog so they could avoid the entire region around the closed trail.
The district court ruled as a matter of law that “access points” as used in the New Hampshire statute referred to points of direct entry onto a trail, and did not include points above the start of the closed trail. Thus, the start of Cant Dog might conceivably be treated as an access point to Big Dipper since the former merged into the latter; once on Cant Dog, entry onto Big Dipper was inevitable. By contrast, nothing compelled one who took the fork to Big Dipper necessarily to take the fork from Big Dipper onto Triple Trouble.
We agree readily with the district court’s reading of the statute. True, as a matter of dictionary definition a remote fork to an intermediate trail that can lead eventually to the closed trail could be described as a way to “access” the later trail; but on this theory the summit itself would be an access point to every connected trail on the mountain below. Indeed, on plaintiffs’ reading, warning signs might have to be posted at a variety of different points wherever existing trail signs indicated that [**7] the closed trail could be reached somewhere downhill. Conceivably, plaintiffs’ position could also require ski operators to construct such directional signs even if they did not already exist in order to mark every downhill closure.
It would not be literally impossible to comply with such requirements–apparently some ski slopes do so mark their closed trails, at least where existing signs mention the trails–but it could involve fairly complex compliance measures. In fact, the Loon trail map indicates that from some trails one could reach nearly 30 different trails below–some of them through open intermediate trails branching off into other open forks. The simplicity of the statute’s requirements argues against an interpretation requiring ski operators to mark every one of those possibilities, and this interpretation is unnecessary to carry out what we perceive to be the rationale of the warning requirement.
In our view, the statute aims to give the skier warning of a trail closure at any point where the skier might otherwise commit himself to traverse the closed trail. This is a complete scheme of protection giving the skier both a comprehensive overview of all closures on the [**8] base trailboard, and specific notice of each closure at any point on the mountain where the skier has a last chance to avoid the closed trail.
This reading may leave some open issues, but it forecloses plaintiffs’ central claim in this case. Here, the plaintiffs argue that a sign should have been placed at the Haulback-Cant Dog junction, since Cant Dog led onto Big Dipper which in turn led onto Triple Trouble. But a skier does not commit himself to taking Triple Trouble merely by turning left onto Cant Dog. Big Dipper was an open trail which a skier could continue down without branching off onto Triple Trouble, so no warning sign as to Triple Trouble was required by [*217] the statute at the Haulback- Cant Dog fork, even though one could have been voluntarily provided.
The second claim on appeal is that the district court should not have rejected an alternative theory of the plaintiffs having nothing to do with notice. The plaintiffs said that the defendant had placed the rope across Triple Trouble somewhat below the entrance itself and that the placement was negligent because it could lure a skier closer to the icy entrance than one would go otherwise. Admittedly, there was no duty to [**9] use any closing rope at all (the statute made the signs sufficient) but the plaintiffs argue that a voluntarily assumed duty negligently performed is not immunized by the statute.
There are obvious risks in penalizing efforts to provide help or care beyond an existing duty, but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care. Restatement (Second) of Torts § 323 (1965); see also Prosser & Keaton on Torts 378-82 (5th ed. 1984). The New Hampshire Supreme Court has not decided how far this doctrine may apply in the face of the state statute providing protection to ski operators. See Rayeski v. Gunstock Area/Gunstock Area Comm’n, 146 N.H. 495, 776 A.2d 1265, 1269 (N.H. 2001).
The district court did not attempt to answer this question. It rested its rejection of such a claim in this case on the fact that the plaintiffs had not articulated any plausible causal connection between the placement of the rope and Howard Gwyn’s fall. As the district court [**10] said:
[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.
We have read the plaintiffs’ appellate briefs with care and no persuasive answer to this summary appears.
The problem for the plaintiffs is that Howard Gwyn evidently slipped on an ice patch on Big Dipper, and [HN2] an icy and dangerous open slope is an inherent risk of skiing that the plaintiffs assumed as a matter of law. N.H. Rev. Stat. Ann § 225-A:24(I); Nutbrown, 671 A.2d at 553-54 (citing Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 1995 Mass. App. Div. LEXIS 30, No. 94WAD16, 1995 WL 263916, at *2 (Mass. Dist. Ct. May 1, 1995) (slipping on ice is an inherent risk of skiing)). The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than [**11] they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.
Three remaining claims can be dealt with more swiftly. First, plaintiffs say that as read by the district court (and now by this court), the New Hampshire statute violates two provisions of the New Hampshire Constitution: the right to a remedy and the equal protection of the laws. N.H. Const. part I, arts. 2, 12, 14. The claim is that the district court’s interpretation deprives the plaintiffs of their constitutionally guaranteed rights without giving them a sufficient quid pro quo of a prior warning of the danger. This argument may be forfeited since not raised [*218] below. Brigham v. Sun Life of Canada, 317 F.3d 72, 85 (1st Cir. 2003).
In any event the New Hampshire Supreme Court has already concluded that the obligations that the ski statute places on ski operators provide a sufficient quid pro quo for the statutory restriction on skiers’ legal remedies. Nutbrown, 671 A.2d at 552. While the “access points” issue was not considered in Nutbrown, this slight wrinkle would [**12] not be likely to alter the New Hampshire Supreme Court’s assessment. No further argument based on New Hampshire constitutional law is sufficiently developed to merit consideration. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 43 (1st Cir. 1998).
Second, plaintiffs say that the statutory reading of the access points language and the voluntary assumption issue present open questions of New Hampshire law that should be certified to the state court. No such request was made in the district court, which is ordinarily conclusive save in rare circumstances such as public policy concerns, e.g., Pyle v. S. Hadley Sch. Comm., 55 F.3d 20, 22 (1st Cir. 1995). In any event, the access points issue is too straightforward to deserve certification and the voluntary assumption claim has been resolved not on the basis of statutory preemption but simply on the pleadings and facts of this case.
Third, plaintiffs say that the district court erred by denying them the chance to amend their complaint for the second time (one earlier amendment had been made) two months after the deadline set by the district court’s scheduling order. The motion [**13] to amend was denied by the district court for failure to make any effort to satisfy the good cause requirement for amendments after the scheduling order deadline, Fed. R. Civ. P. 16(b)(1), and also the disregard of Local Rule 15.1’s further requirements (e.g., attaching all relevant documents and explaining why the change had not been made before). D.N.H. R. 15.1.
On appeal, the plaintiffs say only that the district court erred by applying federal standards for amending pleadings instead of the supposedly more liberal amendment rules applicable in New Hampshire state courts. [HN3] But if anything comprises “procedural” rules exempt from the Erie doctrine, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), it is the standards for such routine issues as the granting or denial of extensions of time, leave to amend, and similar housekeeping concerns. [HN4] The outcome determinative test relied upon by plaintiffs has been limited, see Hanna v. Plumer, 380 U.S. 460, 471, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965), and has no application to a clearly procedural matter governed by explicit federal procedural rules.
[**14] This is a sad case but, despite the ingenuity and energy of plaintiffs’ counsel, it is not a close one, given the limitations imposed by state policy. It was handled with care and competence by the district court, and we might have said less but for a desire to make clear that plaintiffs’ arguments have been considered with respect.
Affirmed.
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Lift tickets are not contracts and rarely work as a release in most states
Posted: December 16, 2013 Filed under: Contract, Ski Area, Skiing / Snow Boarding | Tags: Contract, Lift Ticket, Release, ski area, skiing, snowboarding 2 CommentsNor 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.
What do you think? Leave a comment.
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Silva v. Mt. Bachelor, Inc., 2008 U.S. Dist. LEXIS 55942
Posted: December 16, 2013 Filed under: Oregon, Ski Area | Tags: Lift Ticket, ski area, skiing, snowboarding Leave a commentSilva 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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State Ski Safe Acts
Posted: November 6, 2013 Filed under: Ski Area, Skiing / Snow Boarding | Tags: ski area, Ski Law, Ski Safety Act, skiing, snowboarding, statute, Winter Sports Act Leave a comment30 States have created statutes that affect regulate skiing. Two states have recreational statutes that apply to skiing.
Those state statutes are listed below along with significant portions of the act.
|
State |
Statute |
Ski Area Defined |
Lists Inherent Risks of Skiing |
Misc. |
|
AK |
Alaska Ski Safety Act of 1994, Alaska Stat. §§ 05.45.010 et seq. |
“ski area” means all downhill ski slopes or trails and other places under the control of a downhill ski area operator; “ski area” does not include a cross-country ski trail; |
changing weather conditions; snow conditions as they exist or may change, including ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions including bare spots, forest growth, rocks, stumps, streams, streambeds, and trees, or other natural objects, and collisions with natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, other man-made structures, and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including roads and catwalks or other terrain modifications; collision with other skiers; and the failure of skiers to ski within their own abilities |
Sec. 05.45.120. Use of liability releases Releases are void A ski area operator shall prepare a plan of operation for each ski season and shall implement the plan throughout the ski season. A plan of operation must include written provisions for ski patrol, avalanche control, avalanche rescue, grooming procedures, tramway evacuation, hazard marking, missing person procedures, and first aid. |
|
AZ |
“Ski area” means all ski slopes and trails or other places within the boundary of a ski area operator’s property, administered as a single enterprise in this state. |
(a) Changing weather conditions. (b) Existing and changing snow surface conditions, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up and machine-made snow. (c) Surface or subsurface conditions, whether marked or unmarked, such as bare spots, forest growth, rocks, stumps, streambeds, trees or other natural objects. (d) Impacts with lift towers, signs, posts, fences or other enclosures, hydrants, water pipes or other man-made structures and their components, whether marked or unmarked. (e) Variations in steepness or terrain, including roads, catwalks and other terrain modifications, whether natural or as a result of slope design, snowmaking or grooming operations. (f) Collisions with other skiers. (g) The failure of skiers to ski within their own abilities. |
§ 5-706. Release of liability In any action brought by a skier against a ski area operator, if the ski area operator proves that the skier signed a valid release, the ski area operator’s liability shall be determined by the terms of the release. |
|
|
CO |
“Ski area” means all ski slopes or trails and all other places within the ski area boundary, marked in accordance with section 33-44-107 (6), under the control of a ski area operator and administered as a single enterprise within this state. |
“Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. |
Notwithstanding any provision of law or statute to the contrary, the risk of a skier/skier collision is neither an inherent risk nor a risk assumed by a skier in an action by one skier against another. |
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CT |
“Ski area operator” means a person who owns or controls the operation of a ski area and such person’s agents and employees. |
(1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211 or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously placed or, if not so placed, conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing. |
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GA |
(7) “Ski area” means all snow ski slopes or trails and other places under the control of a ski area operator at a defined business location within this state. (8) “Ski area operator” means an individual, partnership, corporation, or other commercial entity who owns, manages, or otherwise directs or has operational responsibility for any ski area. (9) “Ski slopes or trails” means those areas open to the skiing public and designated by the ski area operator to be used by a skier. The designation may be generally set forth on trail maps and further designated by signage posted to indicate to the skiing public the intent that the areas be used by the skier for the purpose of skiing. Nothing in this paragraph implies that ski slopes or trails may not be restricted for use at the discretion of the ski area operator. |
(A) Changing weather conditions; (B) Surface and subsurface snow or ice conditions as they may exist or change from time to time, including variable conditions such as hard packed powder, packed powder, wind-blown snow, wind-packed snow, corn snow, crust slush, snow modified by skier use, or cut up snow; surface or subsurface snow or ice conditions as they exist or may change as the result of weather changes or skier use; snow created by or resulting from snow making or snow grooming operations; or collisions or falls resulting from such conditions; (C) Surface or subsurface conditions other than those specified in subparagraph (B) of this paragraph, including dirt, grass, rocks, trees, stumps, other forms of forest or vegetative growth, stream beds, or other natural objects or debris; or collisions or falls resulting from such conditions; (D) Collisions with: lift towers; components of lift towers; signs, posts, fences, mazes, or other enclosure devices; hydrants, pipes, or any other portions of snow making or snow delivery systems; snow grooming equipment or other over-snow vehicles marked or lighted as required by this chapter; or collisions with or falls resulting from any such structures or any other manmade structures or their components; (E) Variations in surface, contour, or steepness of terrain, including, but not limited to, moguls, ski jumps, roads, depressions, water bars, and cat walks; other terrain changes or modifications which occur naturally or result from slope design or construction, snow making, snow grooming, maintenance operations, or skier use; or collisions with or falls resulting from such variations; and (F) Collisions with other skiers unless such collisions are caused by the failure on the part of other skiers to conduct themselves in accordance with the provisions of this chapter. |
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ID |
(3) “Ski area” means the property owned or leased and under the control of the ski area operator within the state of Idaho. (4) “Ski area operator” means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, who has operational responsibility for any ski area or aerial passenger tramway. (5) “Skiing area” means all designated slopes and trails but excludes any aerial passenger tramway. |
variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof; utility poles, and snowmaking and snowgrooming equipment which is plainly visible or plainly marked in accordance with the provisions of section 6-1103, Idaho Code. |
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ME |
§ 15202. Definitions 15. SKI AREA. “Ski area” means the ski slopes and trails, adjoining skiable terrain, areas designated by the ski area operator to be used for skiing as defined by section 15217, subsection 1, paragraph B and passenger tramways administered or operated as a single enterprise within this State. |
§ 15217. (1)(A)…existing and changing weather conditions; existing and changing snow conditions, such as ice, hardpack, powder, packed powder, slush and granular, corn, crust, cut-up and machine-made snow; surface or subsurface conditions, such as dirt, grass, bare spots, forest growth, rocks, stumps, trees and other natural objects and collisions with or falls resulting from such natural objects; lift towers, lights, signs, posts, fences, mazes or enclosures, hydrants, water or air pipes, snowmaking and snow-grooming equipment, marked or lit trail maintenance vehicles and snowmobiles, and other man-made structures or objects and their components, and collisions with or falls resulting from such man-made objects; variations in steepness or terrain, whether natural or as a result of slope design; snowmaking or snow-grooming operations, including, but not limited to, freestyle terrain, jumps, roads and catwalks or other terrain modifications; the presence of and collisions with other skiers; and the failure of skiers to ski safely, in control or within their own abilities. |
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MA |
“Ski area”, all of the slopes and trails under the control of the ski area operator, including cross-country ski areas, slopes and trails, and any recreational tramway in operation on any such slopes or trails administered or operated as a single enterprise but shall not include base lodges, motor vehicle parking lots and other portions of ski areas used by skiers when not actually engaged in the sport of skiing. |
…know of the existence of certain unavoidable risks inherent in the sport of skiing, which shall include, but not be limited to, variations in terrain, surface or subsurface snow, ice conditions or bare spots |
No action shall be maintained against a ski area operator for injury to a skier unless as a condition precedent thereof the person so injured shall, within ninety days of the incident, give to such ski area operator notice, by registered mail, of the name and address of the person injured, the time, place and cause of the injury. |
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MI |
Ski Area Safety Act of 1962, Mich. Comp. Laws Ann. §§ 408.321 to 408.344 |
“Ski area” means an area used for skiing and served by 1 or more ski lifts. |
…terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees, and other forms of natural growth or debris; collisions with ski lift towers and their components, with other skiers, or with properly marked or plainly visible snow-making or snow-grooming equipment. |
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MT |
“Ski slopes and trails” means those areas designated by the ski area operator to be used by skiers for skiing. |
(2) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including: (a) changing weather conditions; (b) snow conditions as they exist or as they may change, including ice, hardpack, powder, packed powder, wind pack, corn snow, crust, slush, cut-up snow, and machine-made snow; (c) avalanches, except on open, designated ski trails; (d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects; (e) collisions with lift towers, signs, posts, fences, enclosures, hydrants, water pipes, or other artificial structures and their components; (f) variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks, and other terrain modifications; (g) collisions with clearly visible or plainly marked equipment, including but not limited to lift equipment, snowmaking equipment, snow grooming equipment, trail maintenance equipment, and snowmobiles, whether or not the equipment is moving; (h) collisions with other skiers; (i) the failure of a skier to ski within that skier’s ability; (j) skiing in a closed area or skiing outside the ski area boundary as designated on the ski area trail map; and (k) restricted visibility caused by snow, wind, fog, sun, or darkness. |
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NC |
All winter sports slopes, alpine and Nordic ski trails, freestyle terrain and passenger tramways, that are administered or operated as a ski area enterprise within this State. |
variations in terrain, snow, or ice conditions, bare spots and rocks, trees and other forms of forest growth or forest debris; |
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ND |
Skiing Responsibility Act N.D. Cent. Code §§ 53-09-01 to 53-09-10 |
3. “Ski area” means property owned or leased and under the control of the ski area operator and administered as a single enterprise within the state of North Dakota. |
Each skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing including any injury caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, or other forms of forest growth or debris, lift towers and components thereof; pole lines; and snowmaking equipment which are plainly visible or are plainly marked in accordance with the provisions of section 53-09-03. |
53-09-10. Effect of modified comparative fault. Notwithstanding section 32-03.2-02, any person is, consistent with the provisions of this chapter, barred from recovery for loss or damage resulting from a risk inherent in the sport of skiing and like-wise is so barred when it is established that a person has knowingly exposed oneself to the real or po-tential hazards of a situation. |
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NH |
“Ski areas” means all passenger tramways and all designated alpine and nordic trails, slopes, freestyle terrain, tubing terrain, and nordic ski jumps under the control of the alpine and nordic ski area operator and any other areas under the operator’s control open to the public for winter sports recreation or competition. |
variations in terrain, surface or subsurface snow or ice conditions; bare spots; rocks, trees, stumps and other forms of forest growth or debris; terrain, lift towers, and components thereof (all of the foregoing whether above or below snow surface); pole lines and plainly marked or visible snow making equipment; collisions with other skiers or other persons or with any of the categories included in this paragraph. |
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NJ |
“Ski area” includes all of the real and personal property, under the control of the operator or on the premises of the operator which are being occupied, by license, lease, fee simple or otherwise, including but not limited to all passenger tramways, designated trails, slopes and other areas utilized for skiing, operating toboggans, sleds, or similar vehicles during the skiing season. |
A skier is deemed to have knowledge of and to assume the inherent risks of skiing, operating toboggans, sleds or similar vehicles created by weather conditions, conditions of snow, trails, slopes, other skiers, and all other inherent conditions. |
As a precondition to bringing any suit in connection with a skiing injury against an operator, a skier shall report in writing to the ski area operator all the details of any accident as soon as possible, but in no event longer than 90 days from the time of the incident giving rise to the suit. |
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NM |
“ski area” means the property owned, permitted, leased or under the control of the ski area operator and administered as a single enterprise within the state; |
variations in terrain; surface or subsurface snow or ice conditions; bare spots; rocks, trees or other forms of forest growth or debris; lift towers and components thereof, pole lines and snow-making equipment which are plainly visible or are plainly marked in accordance with the provisions of Section 24-15-7 |
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NV |
Ski Safety Act, Nev. Rev. Stat. Ann. §§ 455A.060 to 455A.190 |
“Snow recreation area” means the slopes, trails, runs and other areas under the control of an operator that are intended to be used for skiing, snowboarding or for the observation of the sports. |
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28-2-702 Contracts that violate policy of law — exemption from responsibility. |
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NY |
4. “Ski area” means all ski slopes, ski trails and passenger tramways administered as a single enterprise within this state. |
(1) that downhill skiing, like many other sports, contains inherent risks including, but not limited to, the risks of personal injury or death or property damage, which may be caused by variations in terrain or weather conditions; surface or subsurface snow, ice, bare spots or areas of thin cover, moguls, ruts, bumps; other persons using the facilities; and rocks, forest growth, debris, branches, trees, roots, stumps or other natural objects or man-made objects that are incidental to the provision or maintenance of a ski facility in New York state; |
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OH |
(D) “Ski area” means all the ski slopes, ski trails, and passenger tramways that are administered or operated as a single enterprise within this state. |
(A) (1) The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing, which include, but are not limited to, injury, death, or loss to person or property caused by changing weather conditions; surface or subsurface snow or ice conditions; hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; bare spots, rocks, trees, stumps, and other forms of forest growth or debris; lift towers or other forms of towers and their components, either above or below the snow surface; variations in steepness or terrain, whether natural or as the result of snowmaking, slope design, freestyle terrain, jumps, catwalks, or other terrain modifi-cations; any other objects and structures, including, but not limited to, passenger tramways and related structures and equipment, competition equipment, utility poles, fences, posts, ski equipment, slalom poles, ropes, out-of-bounds barriers and their supports, signs, ski racks, walls, buildings, and sheds; and plainly marked or otherwise visible snowmaking and snow-grooming equipment, snowmobiles, snow cats, and over-snow vehicles. |
(5) If the skier is utilizing a tubing park, to assume the risk of collision with others on the course. |
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OR |
(4) “Ski area” means any area designated and maintained by a ski area operator for skiing. |
“Inherent risks of skiing” includes, but is not limited to, those dangers or conditions which are an integral part of the sport, such as changing weather conditions, variations or steepness in terrain, snow or ice conditions, surface or subsurface conditions, bare spots, creeks and gullies, forest growth, rocks, stumps, lift towers and other structures and their components, collisions with other skiers and a skier’s failure to ski within the skier’s own ability. |
(1) A ski area operator shall be notified of any injury to a skier by registered or certified mail within 180 days after the injury or within 180 days after the skier discovers, or reasonably should have discovered, such injury. |
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PA |
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RI |
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TN |
Ski Area Safety & Liability Act, Tenn. Code Ann. §§ 68-114-101 et seq. |
(4) “Ski area” means all the ski slopes and ski trails and passenger tramways administered or op-erated as a single enterprise within this state; |
Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to the skier’s or passenger’s person or property arising out of the skier’s or passenger’s participation in Alpine or downhill skiing or the use of any passenger tramways associated with Alpine or downhill skiing. |
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UT |
Utah Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to 78-27-54 |
(4) “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, free-style, or other type of ski jumping, and snowboarding. |
…certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks. (1) “Inherent risks of skiing” means those dangers or conditions which are an integral part of the sport of recreational, competitive, or professional skiing, including, but not limited to: (a) changing weather conditions; (b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow; (c) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects; (d) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain; (e) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes; (f) collisions with other skiers; (g) participation in, or practicing or training for, competitions or special events; and (h) the failure of a skier to ski within the skier’s own ability. |
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VA |
Va. Code Ann. § 8.01-227.11 (2013) |
“Winter sports area” means all the real and personal property under control of the operator or on the premises of such property that is being occupied by the operator by fee simple, lease, license, easement, permission, or otherwise, including but not limited to any and all trails, freestyle terrain, competition terrain, passenger tramways, or other areas of real property. “Winter sports area” does not include a tubing park except for any passenger tramway serving a tubing park and the immediate vicinity of such a passenger tramway in which individuals embark upon or disembark from the passenger tramway. |
1. Existing and changing weather conditions and visibility; 2. Hazards associated with varying surface or subsurface conditions on a single trail or from one trail to another, including but not limited to hazards such as participant use, snow in any condition and changing snow conditions, man-made snow, synthetic snow, ice, synthetic ice, snow or ice falling from a tree or natural or man-made structure, crust, slush, soft spots, ridges, rollers, knobs, holes, grooves, tracks from winter sports area vehicles, bare spots, rocks, boulders, stumps, logs, and brush or other forest growth or debris, or piles thereof; 3. Variations in difficulty of terrain, whether natural or as a result of slope use, slope design, or both; 4. Trails that have, or fall away or drop off toward, natural or man-made obstacles or hazards, including but not limited to sharp corners, ridges, jumps, bumps, rollers, moguls, valleys, dips, compressions, cliffs, ravines, drop-offs, streams, rivers, ponds, lakes, stream beds, open water or water with thin ice, holes, steep, flat, and uphill sections, and all variants and combinations thereof; 5. The potential for collision with other participants or other individuals, including with winter sports area personnel, whether or not those personnel are on duty or off duty; with wild or domestic animals; or with equipment or objects such as winter sports area infrastructure, snowmaking equipment, buildings and posts, and stationary and moving lit or flagged winter sports area vehicles; 6. The potential for a participant to act in a negligent or reckless manner that may cause or contribute to the injury or death of the participant or other individuals or damage to property; 7. The location, construction, design, layout, configuration, and condition of trails, freestyle terrain, and competition terrain; 8. The fact that use of trails, freestyle terrain, and competition terrain and participation in or being near races or other competitions or events, including but not limited to as a participant, employee at a winter sports area, spectator, or observer, involves the risk of serious injury or death or damage to property; 9. The fact that a helmet may not afford protection in all instances and that failure to wear a helmet that is properly sized, fitted, and secured may increase the risk of injury or death or the risk of more severe injury; and 10. The fact that the use of passenger tramways may be hazardous to passengers, including but not limited to risks resulting from loading or unloading a tramway and the potential for a passenger to fall from a tramway. |
Each operator, upon request, shall provide to a participant a trail map of all trails located in the operator’s winter sports area. The maps shall be available at each ticket sales office and at other locations at the winter sports area such that the maps are easily accessible to participants. All trail maps shall indicate the skill-level designation for each trail at the winter sports area as designated in subsection C of § 8.01-227.12. Each winter sports participant, or the parent or legal guardian of, or adult acting in a supervisory position over, a participant under the age of 18, shall be responsible for determining whether the participant will wear a helmet and whether the helmet is sufficiently protective and properly sized, fitted, and secured. Nothing herein shall prevent a participant or passenger from offering evidence that he did not know the particular inherent risk of winter sports that proximately caused the injury or death or damage to property at issue, did not fully appreciate the nature and extent of such risk, or did not voluntarily expose himself to such risk. |
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Notwithstanding the provisions of section 1036 of this title, a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary. |
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WA |
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WV |
Skiing Responsibility Act, W. Va. Code Ann. §§ 20-3A-1 to 20-3A-8 |
“Ski area” means any property owned or leased and under the control of the ski area operator or operators within West Virginia. |
Variations in terrain including freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with section three [§ 20-3A-3] of this article. |
When no certified ambulance service is available in the vicinity, have on duty at or near the skiing area, during all times that skiing areas are open for skiing, at least one trained and currently certified emergency medical technician. |
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WY |
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Recreational Statutes that Include Skiing
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State |
Statute |
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WI |
Wis. Stat. Ann. § 895.525 |
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WY |
Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 |
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Always contact local legal counsel to determine the latest version of any state statute affecting your business.
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Customer Service means the Buck Stops where the customer is, not where the boss is
Posted: October 22, 2013 Filed under: Uncategorized | Tags: #GuestService, #SkiArea, #Uniform, Customer service, CustomerService, Guest Service, ski area Leave a commentTeach and empower your staff to deal with problems immediately rather than passing the problem to someone else.
This article is great. The title is 5 Words That Customers Absolutely Hate. Those five words are “That is not my responsibility.” Customers don’t know that your uniform does not cover that area of responsibility. Ski areas are a classic example of sending customers to someone else to solve a problem.
Everyone at a ski resort wears a uniform. However, the only thing that guests know is one uniform has a white cross on their back, and that is the best one. Every other uniform means something to the ski area staff, but nothing to the guests. Guests only know that you have a uniform or name tag, and that should be enough.
On top of that, why take a problem and intensify it. A customer has a problem. Instead of using a radio at a ski area or a phone, you send the customer to someone else.
Do Something
Train your entire staff to deal with all the customer problems. Sending a customer to someone else just magnifies the problem, it does not solve it. It increases the staff time spent on the problem; it does not save time. It makes customers mad; it does not solve problems.
See 5 Words That Customers Absolutely Hate
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Attorney Client Privilege is not under control of the defendant
Posted: October 21, 2013 Filed under: Ohio, Ski Area | Tags: Attorney Client Privilege, Boston Mills Brandywine Ski Resort, Bullwheel, Lift Accident, Megan Nageotte, Privilege, Rope Tow, ski area, Witness Statement Leave a commentFor the protection of privilege to be applicable, the document or communication must be prepared for the attorney, not just given to the attorney
Plaintiff: Megan Nageotte
Defendant: Boston Mills Brandywine Ski Resort, et al., Raymond Conde, John Doe employees 1-5, John Doe individuals 1-5, and John Doe entities 1-5,
Plaintiff Claims: Negligence
Defendant Defenses: Documents were protected by Attorney Client Privilege
Holding: For the Plaintiff. No privilege applied to ski area witness statements
There is a misunderstanding about what attorney-client privilege is and how it works. Simply, a communication, of any type, prepared for an attorney during or in anticipation of litigation is protected because of attorney-client privilege. That means that no one can be told of or about or see the communication.
In this case, the plaintiff was injured when she did not let go or could not let go of a rope tow at the defendant ski area. She went around the bullwheel causing her injuries to her hand. She sued claiming the ski area and known, and unknown employees (John Does) were negligent.
During the discovery phase of the litigation, the plaintiff requested copies or to see the witness statements taken by an employee at the time of the accident. The ski area refused to provide them saying the witness statements were protected by attorney-client privilege, so she could not have them.
Ms. Nageotte [plaintiff] sought the witness statements of Mr. Conde [ski area employee and defendant] because Mr. Conde was working at the top of the slope where Ms. Nageotte was injured. Further, Ms. Nageotte believes that Mr. Conde failed to press an emergency stop button or otherwise prevent Ms. Nageotte’s injuries.
The plaintiff filed a motion to get the statements which was granted by the trial court. The defendant appealed the trial court’s motion to the appellate court.
Summary of the case
The issue before the appellate court was simple. Was the witness statements taken at the time of the accident by an employee of the ski area were protected by attorney-client privilege.
The burden to prove a document is protected is on the person attempting to protect the document. Consequently, the burden to prove the witness statements should not be provided to the plaintiff was on the ski area. The ski area’s argument was because the witness statements were provided to the attorney providing the defense to the ski area, the documents were protected.
Brandywine and Mr. Conde assert that Mr. Conde’s witness statements are protected by the attorney-client privilege because the statements were at some point provided to Brandywine’s and Mr. Conde’s attorney. Brandywine and Mr. Conde submitted the affidavit of their attorney, who averred that he is the attorney representing the defendant in the action and that Brandywine and its liability insurer provided him with Mr. Conde’s witness statements “for the purpose of defending this action.”
The lift supervisor of the defendant ski area testified about the witness statements and why they were taken.
Mr. March testified that: (1) the ski patrol, an all-volunteer organization, typically obtains witness statements; (2) Mr. March typically reviews those witness statements; (3) the witness statements are obtained and preserved as a part of Brandywine’s insurance program; (4) the statements are turned over to the insurance carrier if there is a claim made; and (5) the witness statements are turned over to counsel if necessary to defend against any litigation.
None of the reasons for the statements or timing of the statements would support an argument that the statements were privileged.
In order for a document to constitute a privileged communication, it is essential that it be brought into being primarily as a communication to the attorney.” (Emphasis added.) In re Klemann, 132 Ohio St. 187, 192, 5 N.E.2d 492 (1936). “A document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.”
That means that if the documents were to be privileged, when the witnesses were preparing the statements, they had to be done so knowing they were for the attorney, handed or mailed to the attorney and not seen by anyone other than the attorney for the ski area.
Just turning something over to an attorney does not make it privileged.
The documents were not made in anticipation of litigation because at the time of the accident, there was no litigation and the ski area had not been informed of litigation.
The people preparing the statements, the witnesses, were not preparing those statements for an attorney. They were preparing them for the ski area. There was probably nothing on the paper or form it indicating that the statements were for an attorney, probably only the name of the ski area.
Shortly after the incident, Mr. March began to take witness statements. He agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim. Moreover, he agreed that, at the time the witness statements were made, he did not know a claim or lawsuit was coming. Further, it is unclear when the statements were handed over to the insurance company and the attorney.
So Now What?
Simply put, for a statement to be protected, it must be made for and given to an attorney. No one else can see the document. The person making the communication must know about the litigation and know they are making the communication for the attorney.
The person making the communication must know that attorney-client privilege is going to apply to the communication when the document is being made for privilege to apply.
If you have an incident where you have a belief that (1) litigation is going to occur and (2) there is information your attorney may need and (3) you don’t want anyone else to know you must contact your attorney immediately. Your attorney must direct the creation of and transmittal of the communications.
In most states, documents prepared for insurance companies, even after litigation has started are not protected by attorney-client privilege.
Attorney-client privilege is a basic right that has an unbelievable power to protect. However, to fall within that protection each step must be met. Courts today, in order to facilitate discovery, will rule against protecting a document. If you want to protect a document, you must work with your attorney before the communication is prepared.
If you have a disaster, call your attorney first and then call your insurance company. Only communicate to anyone other than your attorney, only what your attorney tells you to communicate. Communicate everything to your attorney.
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Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)
Posted: October 21, 2013 Filed under: Legal Case, Ohio, Ski Area | Tags: Attorney Client Privilege, Boston Mills Brandywine Ski Resort, Bullwheel, Lift Accident, Megan Nageotte, Privilege, Rope Tow, ski area, Witness Statement Leave a commentNageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)
Megan Nageotte, Appellee v. Boston Mills Brandywine Ski Resort, et al., Appellants
C.A. No. 26563
COURT OF APPEALS OF OHIO, NINTH JUDICIAL DISTRICT, SUMMIT COUNTY
2012 Ohio 6102; 2012 Ohio App. LEXIS 5266
December 26, 2012, Decided
SUBSEQUENT HISTORY: Discretionary appeal not allowed by Nageotte v. Boston Mills Brandywine Ski Resort, 2013–Ohio–1622, 2013 Ohio LEXIS 1085 (Ohio, Apr. 24, 2013)
PRIOR HISTORY: [**1]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO. CASE No. CV 2012 01 0175.
DISPOSITION: Judgment affirmed.
COUNSEL: JEFREY M. ELZEER, Attorney at Law, for Appellants.
MARK J. OBRAL and THOMAS J. SILK, Attorneys at Law, for Appellee.
JUDGES: EVE V. BELFANCE, Judge. MOORE, P. J. DICKINSON, J. CONCUR.
OPINION BY: EVE V. BELFANCE
OPINION
DECISION AND JOURNAL ENTRY
BELFANCE, Judge.
[*P1] Defendants-Appellants Brandywine Ski Resort, Inc. (“Brandywine”) and Raymond Conde appeal from the order of the Summit County Court of Common Pleas which directed Brandywine and Mr. Conde to produce the witness statements of Mr. Conde. For the reasons set forth below, we affirm.
I.
[*P2] On January 15, 2010, Plaintiff-Appellee Megan Nageotte went to Brandywine to go skiing. As she was “utilizing a tramway tow-rope, attempting to disembark, * * * her hand was caused to be pulled into the tramway tow-rope wheel [(bullwheel),] lifting her off of the ground and propelling her around the entire length of the tow-rope wheel, * * * causing serious and lasting personal injuries * * * .” On January 10, 2012, Ms. Nageotte filed a multi-count complaint against Boston Mills Brandywine Ski Resort, Brandywine Ski Resort, Boston Mills Ski Resort, Boston [**2] Mills Ski Resort, Inc., Mr. Conde, in his capacity as an employee, John Doe employees 1-5, John Doe individuals 1-5, and John Doe entities 1-5, which included several counts alleging negligence of the Defendants. Subsequently, Ms. Nageotte sought leave to file an amended complaint, which was unopposed, to consolidate the ski-resort defendants to a single defendant: Brandywine Ski Resort, Inc. Her motion was ultimately granted.
[*P3] The matter proceeded to discovery, at which point the Defendants refused to produce witness statements of Mr. Conde, asserting both attorney-client privilege and the work-product doctrine. Ms. Nageotte filed a motion to compel and/or request for an in-camera inspection and extensive briefing by both sides followed. No hearing was held on the issue. The trial court concluded that neither the work-product doctrine nor the attorney-client privilege applied and granted the motion to compel.
[*P4] Brandywine and Mr. Conde have appealed the trial court’s ruling with respect to the issue of attorney-client privilege but not the application of the work-product doctrine. Ms. Nageotte filed a motion to dismiss this appeal, asserting that this Court lacked jurisdiction; however, [**3] we subsequently denied her motion and see no reason to revisit that ruling.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S MOTION TO COMPEL THE PRODUCTION OF STATEMENTS OF DEFENDANT-APPELLANT, RAYMOND CONDE, AS THE ATTORNEY-CLIENT PRIVILEGE PROTECTS THE DISCLOSURE OF THESE STATEMENTS.
[*P5] Brandywine and Mr. Conde assert in their sole assignment of error that the trial court erred in concluding that the attorney-client privilege did not apply to protect disclosure of Mr. Conde’s witness statements. Because we conclude that the trial court did not err in determining that Brandywine and Mr. Conde failed to meet their burden, we affirm its ruling.
[*P6] [HN1] “Although, generally, discovery orders are reviewed under an abuse-of-discretion standard, the Supreme Court of Ohio has concluded that the issue of whether the information sought is confidential and privileged from disclosure is a question of law that should be reviewed de novo.” Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859, ¶ 11, 920 N.E.2d 421 (9th Dist.). [HN2] “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * .” Civ.R. 26(B)(1).
[*P7] [**4] [HN3] “In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law.” (Internal quotations and citations omitted.) State ex. rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port. Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 24, 905 N.E.2d 1221.
R.C. 2317.02(A), by its very terms, is a mere testimonial privilege precluding an attorney from testifying about confidential communications. The common-law attorney-client privilege, however, reaches far beyond a proscription against testimonial speech. The privilege protects against any dissemination of information obtained in the confidential relationship.
(Internal quotations and citations omitted.) Id.
[*P8] Thus, as Ms. Nageotte seeks discovery of Mr. Conde’s witness statements, the question is whether the common-law attorney-client privilege applies. [HN4] “[T]he party seeking protection under the privilege carries the burden of establishing the existence of that privilege.” Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003 Ohio 3358, ¶ 12, 790 N.E.2d 817 (8th Dist.); see also Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, ¶ 19, 912 N.E.2d 608 (1st Dist.), citing Lemley v. Kaiser, 6 Ohio St.3d 258, 263-264, 6 Ohio B. 324, 452 N.E.2d 1304 (1983). [**5] At issue in this case is whether appellants met their burden to establish the existence of the privilege.
[HN5] The common-law attorney-client privilege applies (1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.
(Internal quotations and citations omitted.) Grace at ¶ 19; Perfection Corp. at ¶ 12.
[*P9] Ms. Nageotte sought the witness statements of Mr. Conde because Mr. Conde was working at the top of the slope where Ms. Nageotte was injured. Further, Ms. Nageotte believes that Mr. Conde failed to press an emergency stop button or otherwise prevent Ms. Nageotte’s injuries. Brandywine and Mr. Conde assert that Mr. Conde’s witness statements are protected by the attorney-client privilege because the statements were at some point provided to Brandywine’s and Mr. Conde’s attorney. Brandywine and Mr. Conde submitted the affidavit of their attorney, who averred that he is the attorney representing the defendant in the [**6] action and that Brandywine and its liability insurer provided him with Mr. Conde’s witness statements “for the purpose of defending this action.” In addition, Brandywine and Mr. Conde relied on portions of the deposition of Michael March, who is the supervisor of the lifts at Brandywine Ski Resort. A large portion of Mr. March’s deposition was filed in this case, including some portions filed with Ms. Nageotte’s motion to compel.
[*P10] Mr. March testified that: (1) the ski patrol, an all-volunteer organization, typically obtains witness statements; (2) Mr. March typically reviews those witness statements; (3) the witness statements are obtained and preserved as a part of Brandywine’s insurance program; (4) the statements are turned over to the insurance carrier if there is a claim made; and (5) the witness statements are turned over to counsel if necessary to defend against any litigation. Mr. March agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim.
[*P11] [HN6] “In order for a document to constitute a privileged [**7] communication, it is essential that it be brought into being primarily as a communication to the attorney.” (Emphasis added.) In re Klemann, 132 Ohio St. 187, 192, 5 N.E.2d 492 (1936). “A document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.” (Emphasis omitted.) (Internal quotations and citations omitted.) Id. See also In re Story, 159 Ohio St. 144, 147, 111 N.E.2d 385 (1953) (noting that, in some instances, reports and records, which according to custom are turned over and remain in possession of attorney, are privileged communications); In re Keough, 151 Ohio St. 307, 85 N.E.2d 550 (1949), paragraph two of the syllabus.
[*P12] In addition, [HN7] “[o]therwise discoverable information cannot be made privileged by merely turning it over to an attorney.” Harpster v. Advanced Elastomer Sys., L.P., 9th Dist. No. 22684, 2005-Ohio-6919, ¶ 14. There is evidence in the record that indicates the statements at issue were not brought into being primarily as a communication to the parties’ attorney and that the document [**8] existed before it was communicated to the attorney and was not prepared at the direction of the attorney. See id. Shortly after the incident, Mr. March began to take witness statements. He agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim. Moreover, he agreed that, at the time the witness statements were made, he did not know a claim or lawsuit was coming. Further, it is unclear when the statements were handed over to the insurance company and the attorney.
[*P13] Moreover, we cannot say that the trial court erred in concluding that Brandywine failed to meet its burden. It is not clear whether the witness statements at issue were in fact confidential. See Grace, 182 Ohio App.3d 243, 2007-Ohio-3942, at ¶ 19, 912 N.E.2d 608. It is not evident from the materials provided what the circumstances were under which Mr. Conde’s witness statements were taken, how many witness statements were taken, or who in fact took the statements.1 For instance, it is unclear whether Mr. Conde gave his statement with just Mr. March present [**9] or in the presence of other people. Thus, the trial court was not presented with evidence that the witness statements at issue were confidential. If the statements were not confidential, the attorney-client privilege would not apply. See Grace at ¶ 19; Perfection Corp., 153 Ohio App.3d 28, 2003-Ohio-3358, at ¶ 12.
1 Mr. March’s deposition seems to indicate that he took at least one of Mr. Conde’s witness statements; however, Mr. March’s testimony also evidences that ski patrol is typically responsible for taking witness statements.
[*P14] Accordingly, we conclude the trial court did not err in concluding that the witness statements were not protected from discovery by the attorney-client privilege in light of the evidence presented by Brandywine and Mr. Conde. Brandywine’s and Mr. Conde’s assignment of error is overruled.
III.
[*P15] In light of the foregoing, the judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall [**10] constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellants.
EVE V. BELFANCE
FOR THE COURT
MOORE, P. J.
DICKINSON, J.
CONCUR.
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Skiing accident suit pleads negligent first aid based on actions of the ski patrol
Posted: October 14, 2013 Filed under: California, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Fisher, Inc., National Ski Patrol, NSP, Sierra Summit, ski area, Ski Patrol, Ski Resort, Ski Summit 2 CommentsRelease and statute protecting pre-hospital care provider’s defeats plaintiff’s claims
Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185
Plaintiff: John G. Fisher
Defendant: Sierra Summit, Inc. et al.,
Plaintiff Claims: (1) negligence in the defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in the defendants’ provision of ski equipment to Fisher; and (3) negligence in the defendants’ provision of first aid at the scene of the accident.
Defendant Defenses: Release, Assumption of the Risk, Health and Safety Code section 1799.102 and Health and Safety Code section 1799.108
Holding: for the Defendant Ski area
The plaintiff in this case was injured when he skied into a “hole in the snow” at the ski area. He also claimed the ski patrol “contributed to his injuries by providing first aid negligently.” The plaintiff’s injuries rendered him a quadriplegic.
The defendants filed a motion for summary judgment. The lower court throughout the plaintiff’s claim based on a release he signed when he rented his skis and that the plaintiff’s negligent first aid claim was barred by the California Good Samaritan Act.
The plaintiff pleaded:
The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident.
The second claim relating to the equipment was voluntarily dismissed by the plaintiff.
The defendants argued that the release signed by the plaintiff was a voluntary assumption of the risk. They supported this assertion by a statement that the area had been previously inspected by the defendant and did not find any conditions that needed corrections in the slope.
The defendants then placed the following information in their motion concerning the negligent first aid allegations.
Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop.
The defendant’s argument was fairly simple. The plaintiff stated he was paralyzed during the crash. Therefore, the ski patrol did not create his injuries. The defendants then argued that because the ski patrol did not receive compensation from the plaintiff, they were protected by the Good Samaritan Act. The case does not state whether the ski patrollers who responded were volunteers or paid.
The defendant also argued that the ski patrollers had all been properly trained, and the plaintiff had presented no evidence that the ski patrol acted in bad faith or grossly negligent. In general, Good Samaritan acts do not provide protection for gross negligence or bad faith.
The plaintiff appealed.
Summary of the case
The court quickly agreed that the release stopped the plaintiff’s claims about the conditions on the slope.
The purpose of releases like the one signed by Fisher is to make skiing facilities available to the public by removing liability exposure that would make the operation of those facilities economically infeasible.
The plaintiff also argued the release violated public policy because the release was not clear on what it covered. The plaintiff argued the release only covered the rental of the equipment while the court decided the release covered his accident also.
…Fisher argues that public policy was violated because defendants obtained releases only from those renting equipment but did not “make it unquestionably clear” that it was doing so. There is no public policy that requires this be done. A release must be clear about what is being released, and the release at issue here satisfied that requirement, as we have said.
The main issue and one of interest in this case is the court’s analysis of the negligent first aid claim.
The plaintiff argued that the release did not apply to the negligent first aid allegations. The plaintiff argued:
… because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter.
The court decided not to debate the arguments made by the parties at the trial court level that the ski patrollers were protected by the Good Samaritan law because of the compensation issue. The court decided the ski patrollers were immune under another California law Health and Safety Code §1799.108 “which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith.”
The statute states:
“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”
The court first described the burden the plaintiff had to meet to prove his case.
He only claims there is a triable issue about whether they were grossly negligent or acted in bad faith. Defendants sustained their burden of producing evidence making a prima facie showing that there is no triable issue on the element of gross negligence or bad faith.
The court then looked at the allegations made by the plaintiff failed to meet the burden.
Fisher presented no evidence to sustain his burden of making a prima facie showing that a triable issue exists on the element of gross negligence or bad faith. Defendants have sustained their ultimate burden of persuasion that Fisher cannot prove an essential element of this cause of action.
Since the plaintiff did not allege that the action of the patrollers was grossly negligent or done in bad faith, nor did he plead any allegations that could be interpreted as such, the court held the patrollers were immune from litigation under the statute.
So Now What?
One of the major issues for the ski industry that this court could find a way around was that releases used by the rental shops only cover the rental of the equipment under most state laws. It does not take much to have your attorney write your equipment rental release to also cover ski school classes, or season passes, and any other activity at the resort.
If third-party ski rental shops are also selling your lift tickets as part of the lift ticket package pay to have the third-party rental shops release cover your ski area also.
Physicians have argued for a decade that they should be protected by a Good Samaritan act because they were not paid by the patient, but paid by the hospital where the patient was at the time of the alleged injury. This argument has failed repeatedly for physicians. The court in skipping this argument in this case probably saved itself from the numerous court cases with this type of holding.
The court found another statute to protect the patrollers was valuable. The statute is rare and not found in many other states. However, it could be applicable in all types of outdoor recreation businesses and programs in providing liability protection in California.
The first step in meeting the protections provided by Health and Safety Code §1799.108 would be to find the list of first aid “certificate[s] issued pursuant to this division” and make sure your guides, instructors, and patrollers all have the required first aid training and certificate. I would collect the certificates each year and keep their copies in a file to make sure they were always easily found. After that, the application of the law should be fairly consistent based on this case.
However, the court stated the law had been changed since the accident and used the older version of the law, as appropriate. The new law states:
1799.108. Emergency field care treatment by certificate holder
Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.
California Health and Safety Code §1799.102 states:
§ 1799.102. Emergency care at scene of emergency; Liability
(a) No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision applies only to the medical, law enforcement, and emergency personnel specified in this chapter.
(b)
(1) It is the intent of the Legislature to encourage other individuals to volunteer, without compensation, to assist others in need during an emergency, while ensuring that those volunteers who provide care or assistance act responsibly.
(2) Except for those persons specified in subdivision (a), no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered. This subdivision shall not be construed to alter existing protections from liability for licensed medical or other personnel specified in subdivision (a) or any other law.
(c) Nothing in this section shall be construed to change any existing legal duties or obligations, nor does anything in this section in any way affect the provisions in Section 1714.5 of the Civil Code, as proposed to be amended by Senate Bill 39 of the 2009-10 Regular Session of the Legislature.
(d) The amendments to this section made by the act adding subdivisions (b) and (c) shall apply exclusively to any legal action filed on or after the effective date of that act.
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 James H. “Jim” Moss |
Jim Moss is an attorney specializing in the legal issues of the outdoor recreation community. He represents guides, guide services, and outfitters both as businesses and individuals and the products they use for their business. He has defended Mt. Everest guide services, summer camps, climbing rope manufacturers; avalanche beacon manufacturers, and many more manufacturers and outdoor industries. Contact Jim at Jim@Rec-Law.us |
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Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185
Posted: October 14, 2013 Filed under: California, Legal Case, Release (pre-injury contract not to sue), Ski Area, Skiing / Snow Boarding | Tags: Fisher, Inc., National Ski Patrol, Sierra Summit, ski area, Ski Patrol, Ski Resort, skiing Leave a commentTo Read an Analysis of this decision see
Skiing accident suit pleads negligent first aid based on actions of the ski patrol
Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185
John G. Fisher, Plaintiff and Appellant, v. Sierra Summit, Inc. et al., Defendants and Respondents.
F058735
COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT
2011 Cal. App. Unpub. LEXIS 185
January 11, 2011, Filed
NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 08CECG00198. Donald S. Black, Judge.
CORE TERMS: ski, patrollers, summary judgment, skiing, user, hole, rented, slope, emergency, snow-sliding, negligently, ambiguous, patrol, bad faith, bleachers, triable, skied, scene, crash, skier, snow, grossly negligent, triable issue, gross negligence, public policy, groomed, manufacturers, distributors, customer, arms
COUNSEL: Lang, Richert & Patch, Robert L. Patch II, David T. Richards, and Ana de Alba for Plaintiff and Appellant.
Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Steven R. Parminter, and Kathleen M. Bragg for Defendants and Respondents.
JUDGES: Wiseman, Acting P.J.; Kane, J., Poochigian, J. concurred.
OPINION BY: Wiseman
OPINION
Plaintiff John G. Fisher was severely injured when he crashed while skiing at the Sierra Summit ski resort. He sued defendants Sierra Summit, Inc., and Snow Summit Ski Corporation, contending he crashed because he skied into a hole in the snow that was present because of their negligence. He also claimed that ski patrol personnel at Sierra Summit contributed to his injuries by providing first aid negligently.
The trial court granted defendants’ motion for summary judgment. The court ruled that Fisher’s claim that he was injured by a dangerous condition negligently allowed to exist on the property was barred by a release he signed when he rented his skis, a release in which he expressly assumed the risk of being injured while skiing. It ruled that his claim of negligent first [*2] aid was barred by Health and Safety Code section 1799.102, 1 a Good Samaritan statute that immunizes from tort liability those who, at the scene of an emergency, render emergency care in good faith and not for compensation.
1 Subsequent statutory references are to the Health and Safety Code unless otherwise noted.
We affirm the judgment. We agree with the trial court’s conclusion that the risks Fisher expressly assumed when he signed the release included the risk of the accident he suffered. On the ski patrol issue, however, we will not reach the issue of whether section 1799.102 applies. This would require us to decide whether “for compensation” in that statute means for any compensation or for compensation specifically by the injured person–a question which, under the circumstances, it is unnecessary to decide. Instead, we hold that the claim of negligent first aid by the ski patrollers is barred by section 1799.108, which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith. There is no triable issue of fact regarding whether the ski patrollers were grossly [*3] negligent or acted in bad faith, so summary judgment on this claim properly was granted.
FACTUAL AND PROCEDURAL HISTORIES
Fisher filed his complaint on January 17, 2008. It alleged that on January 20, 2007, “while skiing at a safe speed and in-bounds [on] a properly marked ski slope, [Fisher] encountered a large hole in the snow which was not naturally occurring or obvious.” He crashed. When ski patrol personnel came to the scene, they allegedly failed to provide proper assistance. The accident resulted in Fisher’s quadriplegia. The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident. Fisher voluntarily dismissed the second cause of action, pertaining to equipment, on March 19, 2009.
Defendants filed a motion for summary judgment. With it, they submitted a copy of a release Fisher signed when he rented his skis at the ski shop at Sierra Summit on the day of the accident. The document, a single sheet of 8-by-14-inch paper, printed in four columns [*4] going down the narrow axis of the paper, sets out two distinct agreements, with two separate places for the customer’s signature. The first agreement, occupying the first column, pertains exclusively to equipment. It reads:
“PLEASE READ CAREFULLY BEFORE SIGNING EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY DO NOT SIGN UNTIL YOU HAVE RECEIVED YOUR EQUIPMENT
“I understand how this ski (snowboard, skiboard) boot-binding system works and I have been fully instructed in its proper use. Any questions I have had about this equipment have been satisfactorily answered. I agree that the binding release/retention setting numbers appearing in the visual indicator windows on the binding correspond to those recorded on this form (Alpine only).
“I agree to have user check this equipment before each use, including the binding anti-friction device (Alpine only), and that I will not use this equipment or if I am not the user permit the user to use this equipment if any parts are worn, damaged, or missing. If I am not the user I will provide all of this information to the user.
“I understand that I may return at any time to have this equipment examined, replaced or repaired.
“X
“USER’S SIGNATURE
DATE”
Fisher’s [*5] signature appears on the line. The second column is filled with a box for the customer’s name, address, shoe size, and other information necessary for providing equipment. Fisher filled out this box.
The second agreement occupies the third and fourth columns. It refers to equipment as well, but also contains a more general release of liability. It reads:
“RELEASE OF LIABILITY “1) READ CONTRACT COMPLETELY, SIGN/INITIAL “2) PROCEED TO CASHIER, HAVE DRIVER’S LICENSE/I.D. READY.
“1. I will read the EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY of this agreement, and will be responsible for obtaining all of the information required by that section and will provide a copy of same to the user of this agreement. I will make no misrepresentations to the ski shop regarding the user’s height, weight, and age or skier type.
“2. I understand that ALL FORMS OF SNOW-SLIDING, including skiing and snowboarding, are HAZARDOUS activities. I also understand that all forms of snow-sliding have inherent and other RISKS OF INJURY, INCLUDING DEATH, that reasonable care, caution, instruction and expertise cannot eliminate. I further understand that injuries are common and ordinary occurrences during these [*6] activities. I hereby agree to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any part of the user’s body while engaging in any form of snow-sliding.
“(Please Initial )
“3. I understand that the Alpine ski equipment being furnished by Snow Summit, Inc., and/or by Sierra Summit, Inc., and/or by Bear Mountain, Inc., any of their respective agents, employees, or affiliated corporations (hereinafter collectively referred to as “Summit”), forms all or part of a ski-boot-binding system which will NOT RELEASE OR RETAIN AT ALL TIMES OR UNDER ALL CIRCUMSTANCES. I further agree and understand that any ski-boot-binding system does NOT ELIMINATE THE RISK of injuries to any part of the user’s body. If SkiBoard or Snowboard or any other equipment is being furnished, I understand that these systems are designed to NOT RELEASE and do NOT PROTECT against injuries to any part of this user’s body.
“(Please Initial )
“4. I hereby FOREVER RELEASE SUMMIT, as well as the equipment manufacturers and distributors from, and agree to indemnify them and hold them harmless for, any and all responsibility or legal liability for any injuries or damages to any user of any equipment [*7] rented with this form, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT. I agree NOT to make a claim against or sue Summit, or any of the equipment manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment. I accept full responsibility for any and all such injuries and damages.
“(Please Initial )
“5. Summit provides NO WARRANTIES, express or implied. This equipment is accepted “AS IS.” I will accept full responsibility for the care of the listed equipment. I agree to return all rented equipment by the agreed date to avoid additional charges.
“(Please Initial )
“6. I have read this agreement and understand its terms. I am aware that this is a binding contract which provides a comprehensive release of liability. However, it is not intended to assert any claims or defenses that are prohibited by law. I agree that the foregoing agreement is intended to be as broad and inclusive as is permitted by law and that if any portion or paragraph is held invalid, the balance shall continue in full legal force and effect.
“X
“USER’S SIGNATURE
DATE”
Fisher [*8] signed at the bottom and initialed in each place indicated.
Defendants argued that this release constituted Fisher’s express assumption of the risk of having the accident he had and that it formed the basis of a complete defense to all Fisher’s claims. Defendants argued that, apart from the release, all Fisher’s claims were also barred by the common-law doctrine of primary assumption of the risk, set out in Knight v. Jewett (1992) 3 Cal.4th 296 and its progeny. They further contended that Fisher could not produce evidence to support his claims that they were negligent in maintaining the property or providing first aid.
To support the contention that Fisher could not prove negligent maintenance of the property, defendants produced evidence that their personnel had inspected the area where Fisher crashed a number of times the day before and the day of the accident and did not find any condition requiring marking or correction. Defendants also pointed to Fisher’s deposition testimony, implying that he was not on a groomed ski run when he crashed: “And when I skied from one run to the next, I encountered a hole that seemed to be between the two runs.”
To support the contention that Fisher [*9] could not prove negligent first aid, defendants produced evidence that Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop. Defendants argued that these facts showed Fisher had already become paralyzed in the crash and that his injuries could not have been caused by anything done by the ski patrollers. Defendants also argued that there was no evidence of any act or omission by the ski patrollers that would have caused additional injury to Fisher.
On the claim of negligent first aid alone, defendants also relied on section 1799.102. At the time, 2 that section provided:
“No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.”
Defendants argued that their ski patrollers were immunized by this statute because they did not receive any compensation [*10] from Fisher. They acknowledged that no published California case has interpreted the phrase “not for compensation” in this statute; they relied on out-of-state cases applying other states’ similar statutes.
2 Section 1799.102 was amended effective August 6, 2009. (Stats. 2009, ch. 77, § 1.) The former version applies to this case.
Defendants additionally relied on section 1799.108, which provides:
“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”
Defendants presented evidence that all the ski patrollers involved had the certification required by this section. They argued that Fisher could present no evidence that the patrollers who assisted him acted in bad faith or with gross negligence.
In opposing the motion for summary judgment, Fisher argued that the release did not apply to his accident because it only released defendants’ liability for injuries arising from problems with the rented [*11] equipment. The court could not grant summary judgment based on the release, he argued, because this was a reasonable interpretation of an ambiguous contract. It was patently ambiguous, he argued, because a reasonable person could interpret its terms to mean that liability was released only for injuries related to equipment failures. It was latently ambiguous because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter. Even if the release did relate to liability for accidents resulting from the condition of the slopes, Fisher argued, it would not bar an action for a dangerous condition that existed because of defendants’ negligence. In addition, even if the release covered defendants’ negligence, it did not cover the particular kind of negligence that caused Fisher’s injuries because releasing liability for injuries caused by falling in an artificially created hole was not reasonably related to the parties’ purpose in entering into the release.
Responding to defendants’ argument that there was no evidence to support his claim that [*12] the accident resulted from their negligent maintenance of the slopes, Fisher submitted evidence intended to show that the hole was on a groomed slope, meant to be skied on by defendants’ patrons, and was not naturally occurring. He cited his own deposition in which he testified that he did not ski on any ungroomed areas. He further testified that there was a wall of ice on the far side of the hole as he skied into it and that the wall of ice “seemed to have a groomed edge on the top of it ….” Fisher also submitted a declaration asserting that the hole was “manmade.” The declaration does not, however, explain how Fisher knew it was manmade. In addition, Fisher pointed to deposition testimony by Sierra Summit personnel acknowledging that holes or walls in the snow can inadvertently be created by snow grooming equipment.
In response to defendants’ claim that Fisher could not produce evidence of negligent first aid, Fisher argued that if he could sit up and wave his arms at the time when the ski patrollers found him, that could mean the patrollers added to his injuries through their first aid. He also claimed the defense was not entitled to summary judgment on the claim unless it offered [*13] expert medical testimony that the ski patrollers acted reasonably.
Fisher argued that the doctrine of primary assumption of the risk does not apply to this case. He said the doctrine applies only to risks inherent in the risky activity, and the risk of an accident like his is not inherent in skiing if the hole was artificial and was present because of defendants’ negligence.
On the ski patrol claim, Fisher contended that section 1799.102 was inapplicable because the ski patrollers were compensated by defendants. He argued that the statute requires simply that aid be given “not for compensation”; that defendants’ view would read words into the statute that are not there; and that this would be improper, regardless of what out-of-state cases interpreting other statutes might say. Fisher also argued that summary judgment could not be granted based on section 1799.108 because of the facts that he was combative and tried to sit up while he was being aided, combined with defendants’ failure to produce an expert opinion. Fisher did not explicitly say how these points helped him, but presumably he meant they showed there was a triable issue of whether the ski patrollers were grossly negligent. [*14] Fisher also did not explicitly say why his ski patrol claim fell outside the release or outside the doctrine of primary assumption of the risk, but his arguments on those topics implied that neither defense would apply because the risk of negligent first aid was not related to equipment failure and not an inherent risk of skiing.
The trial court granted the motion for summary judgment, basing its ruling on the release and on section 1799.102. It held that the release barred Fisher’s claim that his crash was caused by a hole negligently allowed to exist on a slope because the release “clearly and unambiguously releases defendant from liability for injuries or damages caused by defendant’s negligence and which occur to any user of rented equipment, a status which plaintiff indisputably occupied.” It stressed that the release “clearly expresses plaintiff’s agreement not to sue defendant and to accept full responsibility for all injuries and damages relating to or arising from … ‘any snow-sliding activities ….'” The court rejected Fisher’s contention that the release was ambiguous: “[B]y its express terms [it] is not limited to damages or injuries caused by the equipment, but extends to [*15] any claims relating to or arising from snow-sliding activities.” In applying section 1799.102 to the negligent first-aid claim, the court acknowledged that no California cases have interpreted the phrase “not for compensation.” It agreed with defendants’ view that the phrase means not for compensation by the injured party.
DISCUSSION
We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The trial court must grant the motion if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) We view the facts in the light most favorable to the nonmoving party and assume [*16] that, for purposes of our analysis, his version of all disputed facts is correct. (Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 Cal.App.4th 153, 159.) A moving defendant can establish its entitlement to summary judgment by either (1) demonstrating that an essential element of the plaintiff’s case cannot be established, or (2) establishing a complete defense. (Code Civ. Proc., § 437c, subd. (o).)
I. Dangerous condition of property claim
Fisher contends that the trial court erred in applying the release of liability he signed to bar his claim that defendants caused his injuries by negligently allowing the existence of the hole into which he skied. We disagree.
A contract in which a party expressly assumes a risk of injury is, if applicable, a complete bar to a negligence action. (Knight v. Jewett, supra, 3 Cal.4th 296, 308, fn. 4; Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372.)
“In order for a release of liability to be held enforceable against a plaintiff, it ‘must be clear, unambiguous and explicit in expressing the intent of the parties’ [citation]; the act of negligence that results in injury to the releasee must be reasonably related to the object [*17] or purpose for which the release is given [citation]; and the release cannot contravene public policy [citation]. A release need not be perfect to be enforceable. [Citation.]” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-1305 (Sweat).)
We address each requirement in turn.
A. The release is clear, unambiguous, and explicit in expressing the intent of the parties
We agree with the trial court’s conclusion that the release Fisher signed applied unambiguously to injuries arising from skiing accidents, including the injuries Fisher suffered, even if caused by defendants’ negligence. The release stated that Fisher “agree[d] to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any party of the user’s body while engaging in any form of snow-sliding.” He agreed to “FOREVER RELEASE SUMMIT,” as well as the equipment manufacturers and distributors, from “any and all responsibility or legal liability for any injuries or damages to any user of any equipment rented with this forms, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT.” He also agreed “NOT to make a claim against or sue Summit, or any of the equipment [*18] manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment.” He accepted “full responsibility for any and all such injuries and damages” and stated that he was “aware that this is a binding contract which provides a comprehensive release of liability” and “is intended to be as broad and inclusive as is permitted by law ….” This language applies to personal injuries sustained by a skier who crashes while skiing at the resort, even if the crash is caused by a defect in the snow or ground surface caused by defendants’ negligent maintenance of the property. Fisher’s argument that the agreement is patently ambiguous because it contains references to the rented equipment and the equipment manufacturers and distributors is not persuasive. The agreement plainly states that Fisher releases the ski resort and the equipment manufacturers and distributors from liability for injuries caused by skiing as well as those caused by equipment problems.
The release also is not latently ambiguous. The parties disagree about whether extrinsic evidence should be considered to determine [*19] whether the release is latently ambiguous, but we need not resolve that debate because no latent ambiguity appears even if the extrinsic evidence Fisher relies on is considered. Fisher relies on evidence that the release is given to customers when they rent equipment; that neither it nor any other release is obtained from customers who ski without renting equipment; and that because of these circumstances he assumed, without reading the release, that it applied only to injuries caused by problems with the rented equipment. None of this detracts from the clarity of the release’s language or renders reasonable an interpretation according to which the release applies only to injuries arising from the rented equipment.
B. The alleged negligence that resulted in the injury was reasonably related to the purpose for which the release was given
The purpose of releases like the one signed by Fisher is to make skiing facilities available to the public by removing liability exposure that would make the operation of those facilities economically infeasible. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938 [if releases of liability in cases [*20] arising from hazardous recreational pursuits are not enforced, “many popular and lawful recreational activities are destined for extinction”].) The alleged negligence in maintenance of the property that Fisher says caused his injuries has a reasonable relationship with this purpose.
Fisher argues that the release’s purpose is not reasonably related to the conditions that caused his accident because the release only applies to accidents caused by equipment problems and was only given to customers renting equipment. We have already explained why the release cannot reasonably be understood as applying only to accidents caused by equipment problems. The fact that the resort gave the release only to skiers who rented equipment does not show that its purpose is limited to accidents arising from equipment, for its plain meaning is to the contrary. It may be that the release fails fully to achieve its economic purpose if the resort does not obtain it from all skiers, but that does not prove it has a different purpose.
Fisher also argues that the release’s purpose is not reasonably related to the conditions that caused his accident because the risk of skiing into an artificially created hole [*21] in a groomed part of a slope is not a reasonably foreseeable risk, and there is at least a triable question of whether the hole he skied into was artificially created and in a groomed part of a slope. He cites Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1490-1491 (Bennett), which reversed summary judgment against the signer of an agreement releasing the defendants from liability for injuries, including injuries caused by the defendants’ negligence, sustained by the signer in a bicycle race. The court held that there was a triable question of whether the accident–a collision with a car on a race course that was closed to traffic–was reasonably foreseeable.
The Bennett court did not cite any authority directly supporting the proposition that an agreement releasing liability for negligence applies only to harms arising from reasonably foreseeable negligence. It relied instead on quotations from the Restatement Second of Torts and the treatise of Prosser and Keeton to the effect that releases apply only to harm-causing conduct of the defendant that was within the contemplation of the parties. (Bennett, supra, 193 Cal.App.3d at p. 1490.) It is not by any means [*22] clear to us that, as a general proposition, parties who enter into a release of liability for negligent conduct related to a hazardous recreational activity intend the release to apply only to negligent conduct that the parties can reasonably be expected to think of in advance. This is especially implausible where, as here, the release explicitly applies to all skiing-related injuries even if caused by defendants’ negligence. To the extent that Bennett is in conflict with these views, we decline to follow it. Further, even if we were applying the holding of Bennett, we would not conclude that it stands in the way of summary judgment here. Even assuming there are triable questions of whether the hole was artificial and whether it was on a groomed portion of the slope, Fisher has suggested no persuasive reasons why a crash caused by negligently maintained slope conditions would not be reasonably foreseeable. What sort of negligence would be more likely to cause a skiing accident than negligence in failing to keep the slopes in good condition?
Fisher relies also on Sweat, supra, 117 Cal.App.4th 1301, in which we held that a release did not apply because the defendant’s negligence was not [*23] reasonably related to the purpose of the release. In that case, the plaintiff attended an auto race where, if an audience member sat in the bleachers in the pit area, the track owners required him or her to sign a release of liability for any claim of injury arising while the audience member was in that area, even if caused by the owners’ negligence. The plaintiff signed the release, sat in the pit area bleachers, and was injured when the bleachers collapsed. After a bench trial, the court found this release was a complete defense. We reversed (id. at p. 1303), concluding that the release was ambiguous; that extrinsic evidence was necessary to resolve the ambiguity; and that, in light of that evidence, the release’s only purpose was to allow audience members to observe the race from the pit area. The collapse of the bleachers had no causal relation to dangers arising from the race, so the release was not applicable to liability for injuries resulting from that collapse. (Id. at pp. 1305-1308.)
Sweat is distinguishable from this case. Here we have an unambiguous release barring negligence liability for any injury resulting from skiing, among other activities. A skiing accident caused [*24] by a negligently maintained ski trail falls within the scope of the release.
The final paragraph of our analysis in Sweat is instructive:
“Here, appellant’s express assumption of risk would cover all hazards related to the automobile race and its observation. As appellant points out, those might include a tire separating from a car and hitting someone, a car leaving the track and striking a spectator, or someone being burned by a crash. This is not an exhaustive list. One can even anticipate the flying tire, the errantly driven car, or the flames from the crash causing the collapse of bleachers. The race activity might lead to less dramatic accidents: a person slipping on automotive grease in the pit area, or even a race observer slipping on spilled soda while keenly watching the race as he or she steps through the bleachers. The release agreement here does not, however, contractually charge appellant with assuming the risk of injury from defectively constructed or maintained bleachers, should a full trial on the merits establish such facts.” (Sweat, supra, 117 Cal.App.4th at p. 1308.)
The accident in Sweat fell outside the release because it was causally unrelated to the race, to allow [*25] the observation of which was the purpose of the release. An accident unrelated to skiing, such as a fall inside a ski lodge caused by a defect in the floor unreasonably allowed to be present, would be comparable to the accident in Sweat and would fall outside the release, for it would be causally unrelated to skiing or any of the other activities mentioned in the release. Here, however, if the skiing accident were caused by defendant’s negligent maintenance of the slopes, as Fisher claims, it would be comparable to an accident caused by something negligently allowed to remain on the floor in the race-observation area–grease or soda–by the track owners in Sweat. That cause is reasonably related to skiing and consequently to the purpose of the release.
C. The release is not against public policy
Fisher argues that there is a public policy of “fundamental fairness,” and that the release violates this policy because it “appears, on its face, to only relate to the rental equipment ….” As we have said, this is not the case. Fisher also repeats here the argument that, because the release was obtained only from skiers who rented equipment, it is only applicable to accidents caused by the equipment. [*26] Again, this circumstance does not negate the explicit statements in the agreement releasing defendants from liability for any injuries sustained while the customer engages in snow-sliding activities.
Fisher also argues that the release violates public policy because it allows defendants to be negligent in maintaining their ski slopes without incurring liability. As we have seen, however, the law allows releases of liability for injuries caused by negligence during hazardous recreational activities, and does so in order to prevent exposure to liability from making those activities economically infeasible. Finally, Fisher argues that public policy was violated because defendants obtained releases only from those renting equipment but did not “make it unquestionably clear” that it was doing so. There is no public policy that requires this be done. A release must be clear about what is being released, and the release at issue here satisfied that requirement, as we have said.
The parties have extensively briefed the subject of primary assumption of the risk, but our holding on the release makes it unnecessary for us to address that issue.
II. Negligent first-aid claim
Fisher argues that the [*27] trial court erred when it held that section 1799.102 barred his claim of negligent first aid by the ski patrollers. He says summary judgment could not properly be granted on this basis because there was evidence that the ski patrollers received compensation for performing their duties. We need not break ground in this unsettled area because an alternative basis for the judgment–a basis raised by defendants in the trial court–is available. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22 [appellate court may affirm summary judgment on any correct legal theory raised by parties in trial court].)
This basis is section 1799.108, which immunizes certified first-aid providers except in cases of gross negligence or actions not taken in good faith. In support of their motion, defendants submitted evidence that all the ski patrollers who aided Fisher were properly certified. They also submitted evidence of the aid the patrollers gave, arguing that nothing in their actions or the surrounding circumstances gave any support to a claim of gross negligence or bad faith. This evidence included Fisher’s own statement in his deposition that the only thing he remembered about [*28] the people who aided him was that they insisted he lie still. It also included declarations by three patrollers who assisted Fisher: Mary Warner, Russ Bassett, and Richard Bailey. According to these declarations, a guest was helping Fisher when the ski patrollers first arrived. The guest said he was an EMT. The patrollers brought a toboggan, a backboard, a cervical collar, splints, and oxygen. Fisher was on the ground and the guest was correctly supporting his cervical spine, according to one of the patrollers. Fisher repeatedly yelled that his arms, legs, and back were broken and that he was going into shock. When one of the patrollers pinched Fisher’s leg and determined that he had no feeling in it, Fisher said he was paralyzed and became agitated. He swung his arms and tried to sit up until the patrollers calmed him and persuaded him to be still. The patrollers used the toboggan and backboard to bring Fisher to the first-aid patrol room, where his care was taken over by paramedics. The paramedics decided to transport Fisher to the hospital by ambulance.
In his opposition to the motion, Fisher presented no additional evidence. He only pointed to the evidence that he waved his arms [*29] and tried to sit up. Presumably his point was that, in the end, his injuries were too severe to allow this and therefore the patrollers might have made the injuries worse. He did not say so explicitly, however, and presented no supporting evidence. He also pointed out that defendants did not present an expert’s opinion that the patrollers did not act negligently.
A defendant moving for summary judgment has, at all stages, the burden of persuading the court that the plaintiff cannot establish an essential element of his cause of action. The defendant need not conclusively negate an element of the cause of action, however. Rather, the defendant must first bear a burden of producing evidence making a prima facie showing of the nonexistence of a triable issue of material fact. The burden of production then shifts to the nonmoving plaintiff, who must produce evidence making a prima facie showing that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851, 853-855.)
In this case, Fisher does not claim there is a triable issue about whether the ski patrollers were certified. 3 He only claims there is a triable issue about whether they were [*30] grossly negligent or acted in bad faith. Defendants sustained their burden of producing evidence making a prima facie showing that there is no triable issue on the element of gross negligence or bad faith. As described in the ski patrollers’ declarations, the first aid they gave included nothing upon which a claim of gross negligence or bad faith could be founded. The fact that Fisher sat up and waved his arms, or attempted to do so, does not show that the ski patrollers made his injuries worse. There was no evidence that the sitting and waving or attempted sitting and waving were actions that later became impossible for Fisher, and no evidence that even if they did, this was because of anything done or omitted by the ski patrollers. Contrary to Fisher’s argument, there is no authority for the view that summary judgment can be obtained by a defendant on a claim of grossly negligent first aid only if the defendant presents an expert opinion that there was no gross negligence. Fisher presented no evidence to sustain his burden of making a prima facie showing that a triable issue exists on the element of gross negligence or bad faith. Defendants have sustained their ultimate burden of [*31] persuasion that Fisher cannot prove an essential element of this cause of action.
3 At oral argument, Fisher claimed, for the first time, that “some” of the ski patrollers were not certified. This claim does not appear in his discussion of this issue in his opening brief or his reply brief. It did not appear in his memorandum of points and authorities in opposition to the motion for summary judgment or the errata he filed to that memorandum. In their statement of undisputed facts, defendants stated that responders Russ Bassett, Richard Bailey, Marc Smith, Tim Crosby, and Mary Warner were qualified in first aid through, or were first-aid instructors for, the American Red Cross or the National Ski Patrol. Fisher agreed that these facts were undisputed. He did not argue that these credentials did not amount to certification within the meaning of section 1799.108. His separate statement of disputed facts did not state any contrary evidence or assert that any uncertified patrollers administered first aid. A factually unsupported claim made for the first time at oral argument on appeal is not grounds for reversing summary judgment.
Defendants argue that the release, the doctrine of primary [*32] assumption of the risk, and section 1799.102 all also support the court’s decision. We need not address these additional theories. 4
4 In their appellate brief, defendants assert that the trial court “implicitly determined the Release did not apply to the actions of the ski patrol” because it granted summary judgment on that claim on a different basis. This is not correct. A court does not implicitly reject a theory merely by basing a decision on another theory. “[A]n opinion is not authority for a proposition not therein considered.” (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2.)
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal.
Wiseman, Acting P.J.
WE CONCUR:
Kane, J.
Poochigian, J.
G-YQ06K3L262
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Colorado Inaugurates 2013-14 Ski Season
Posted: October 13, 2013 Filed under: Colorado, Ski Area, Skiing / Snow Boarding | Tags: A Basin, Arapahoe Basin, Colorado, ski area, skiing, snowboarding 1 CommentResort Opening Dates Available.
Arapahoe Basin First Ski Resort in the Nation to Open for the Season
Colorado’s 2013/14 ski season is underway today as Arapahoe Basin opened its chair lift to crowds of animated skiers and snowboarders. At 8:30a.m., with an 18-inch base and lifts running, Arapahoe Basin became the first resort in North America to open for the 2013/14 ski season. Arapahoe Basin’s opening, along with recently announced pass deals and new improvements at Colorado resorts, has skiers and riders eager for the season ahead.
Several resorts in Colorado have taken advantage of cold nighttime temperatures and ideal humidity conditions over the past several weeks. Arapahoe Basin and Loveland Ski Area began making snow on the evening of Friday, September 27, and have made snow or received natural snow most days since then. New snowmaking equipment upgrades, ideal snowmaking conditions, and recent natural snowfall have added to Arapahoe Basin’s base accumulation resulting in the resort’s current packed powder conditions. Today skiers and riders accessed the Black Mountain Express lift and enjoyed skiing on intermediate run High Noon.
For Colorado Ski Country USA (CSCUSA), today’s exciting opening brings optimism for the season ahead. “Seeing skiers and snowboarders taking their first turns of the season is one of the highlights of the year,” said Colorado Ski Country USA President and CEO, Melanie Mills. “Since the first high country snowstorms several weeks ago, we’ve seen the enthusiasm in skiers and snowboarders building towards this day. Thanks to helpful weather patterns and the hard work of Snowmakers and groomers, all of Colorado’s resorts will open with top notch products our guests will enjoy.”
The recent autumn snow storms and early winter season conditions brought a robust crowd to Arapahoe Basin today, signifying skiers and riders are more than ready to enjoy Colorado’s signature winter sports. “Resorts continue to focus on the guest experience, with everything from safety to service,” continued Mills. “Whether the emphasis is on families, learning or value, visitors can expect the same qualities from resorts this year that keep them coming back to Colorado season after season.”
Amid all of the Opening Day celebrations, Colorado’s Governor, John Hickenlooper, congratulated Arapahoe Basin on being first to open saying, “It’s still fall but the 2013/14 ski and snowboard season is open for business in Colorado.” He continued, “Tourism and recreation are some of our most visible and important industries in Colorado, not to mention key economic drivers, and with today’s grand opening we are looking forward to a fun-filled and snowy year on the slopes.”
The race to host Opening Day is one of the highlights of the ski season, a title often held by Colorado’s Arapahoe Basin or Loveland. Both resorts are perched atop the Continental Divide giving them higher elevations, earlier frosts and colder temperatures. This also allows them to stay open long into the spring giving Colorado one of the longest ski seasons in the country.
Below is a current list of scheduled opening dates for CSCUSA member resorts*.
Resort Opening (and closing) Dates
Arapahoe Basin: October 13, 2013 – Early June 2014
Aspen Highlands: December 14, 2013 – April 13, 2014
Aspen Mountain: November 28, 2013 – April 20, 2014
Buttermilk: December 14, 2013 – April 6, 2014
Copper Mountain: November 1, 2013 – April 13, 2014
Crested Butte: November 27, 2013 – April 6, 2014
Eldora: November 22, 2013 – April 13, 2014
Howelsen Hill: November 30, 2013 – March 16, 2014
Loveland: Mid October 2013 – Early May 2014
Monarch Mountain: Mid November 2013 – April 13, 2014
Powderhorn: December 12, 2013 – March 30, 2014
Purgatory: November 29, 2013 – March 30, 2014
Silverton: December 21, 2013 – April 13, 2014
Ski Cooper: December 14, 2013 – April 6, 2014
Ski Granby Ranch: December 11, 2013 – April 6, 2014
Snowmass: November 28, 2013 – April 20, 2014
Steamboat: November 27, 2013 – April 13, 2014
Sunlight: December 6, 2013 – March 30, 2014
Telluride: November 28, 2013 – April 6, 2014
Winter Park: November 13, 2013 – April 20, 2014
Wolf Creek: November 8, 2013 – April 6, 2014
*Dates are subject to change.
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Ohio Ski Area Statutes
Posted: October 12, 2013 Filed under: Ohio, Skiing / Snow Boarding | Tags: #OH, Ohio, Ohio Ski Area Statutes, Ohio Ski Statutes, ski area, skiing, snowboarding Leave a commentTITLE 41. LABOR AND INDUSTRY
CHAPTER 4169. SKI TRAMWAY BOARD
ORC Ann. 4169.10 (2007)
§ 4169.01. Definitions
As used in this chapter:
(A)“Skier” means any person who is using the facilities of a ski area, including, but not limited to, the ski slopes and ski trails, for the purpose of skiing, which includes, without limitation, sliding or jumping on snow or ice on skis, a snowboard, sled, tube, snowbike, toboggan, or any other device.
(B)“Passenger” means any person who is being transported or conveyed by a passenger tramway.
(C)“Ski slopes” or “ski trails” means those sites that are reserved or maintained and are open for use, as designated by a ski area operator.
(D)“Ski area” means all the ski slopes, ski trails, and passenger tramways that are administered or operated as a single enterprise within this state.
(E)“Ski area operator” means a person or organization that is responsible for the operation of a ski area, including an agency of this state or of a political subdivision thereof.
(F)“Passenger tramway” means a device used to transport passengers uphill, whether on skis or other devices or without skis or other devices, or in cars on tracks or suspended in the air, by the use of steel cables, chains, or belts or by ropes, and that is usually supported by trestles or towers with one or more spans. “Passenger tramway” includes all of the following:
(1)Aerial passenger tramway, a device used to transport passengers in several open or enclosed cars attached to and suspended from a moving wire rope or attached to a moving wire rope and supported on a standing wire rope, or similar devices;
(2)Skimobile, a device in which a passenger car running on steel or wooden tracks is attached to and pulled by a steel cable, or similar devices;
(3)Chair lift, a device on which passengers are carried on chairs suspended in the air and attached to a moving cable, chain, or link belt supported by trestles or towers with one or more spans, or similar devices. Chair lifts need not include foot-rests or passenger restraint devices.
(4)J bar, T bar, or platter pull, devices that pull skiers riding on skis or other devices by means of an attachment to a main overhead cable supported by trestles or towers with one or more spans, or similar devices;
(5)Rope tow, a device with one span and no intermediate towers that pulls skiers riding on skis or other devices as they grasp a rope manually, or similar devices;
(6)Wire rope tow, a device with one span and no intermediate towers by which skiers are pulled on skis or other devices while manually grasping a bar attached to a wire hauling cable.
(7)Conveyor, a flexible moving element, including a belt, that transports passengers on one path and returns underneath the uphill portion.
The operation of a passenger tramway shall not constitute the operation of a common carrier.
(G)“Competitor” means a skier actually engaged in competition, a special event, or training or practicing for competition or a special event in any portion of the area made available by the ski area operator.
(H)“Freestyler” means a skier utilizing freestyle terrain marked with signage approved by the national ski areas association.
(I) “Freestyle terrain” means, but is not limited to, terrain parks and terrain park features, such as jumps, rails, fun boxes, other constructed or natural features, half-pipes, quarter-pipes, and freestyle-bump terrain.
(J) “Tubing park” means a ski slope designated and maintained for the exclusive use of skiers utilizing tubes to slide to the bottom of the course and serviced by a dedicated passenger tramway.
§ 4169.02. Ski tramway board established
(A)For the purposes of regulating the construction, maintenance, mechanical operation, and inspection of passenger tramways that are associated with ski areas and of registering operators of passenger tramways in this state, there is hereby established in the division of industrial compliance in the department of commerce a ski tramway board to be appointed by the governor, with the advice and consent of the senate. The board shall consist of three members, one of whom shall be a public member who is an experienced skier and familiar with ski areas in this state, one of whom shall be a ski area operator actively engaged in the business of recreational skiing in this state, and one of whom shall be a professional engineer who is knowledgeable in the design or operation of passenger tramways.
Of the initial appointments, one member shall be appointed for a term of one year, one for a term of two years, and one for a term of three years. The member appointed to the term beginning on July 1, 1996, shall be appointed to a term ending on June 30, 1997; the member appointed to a term beginning on July 1, 1997, shall be appointed to a term ending on June 30, 1999; and the member appointed to a term beginning on July 1, 1998, shall be appointed to a term ending on June 30, 2001. Thereafter, each of the members shall be appointed for a term of six years. Each member shall hold office from the date of appointment until the end of the term for which the member was appointed. In the event of a vacancy, the governor, with the advice and consent of the senate, shall appoint a successor who shall hold office for the remainder of the term for which the successor’s predecessor was appointed. A member shall continue in office subsequent to the expiration date of the member’s term until the member’s successor takes office or until a period of sixty days has elapsed, whichever occurs first. The board shall elect a chairperson from its members.
The governor may remove any member of the board at any time for misfeasance, nonfeasance, or malfeasance in office after giving the member a copy of the charges against the member and an opportunity to be heard publicly in person or by counsel in the member’s defense. Any such act of removal by the governor is final. A statement of the findings of the governor, the reason for the governor’s action, and the answer, if any, of the member shall be filed by the governor with the secretary of state and shall be open to public inspection.
Members of the board shall be paid two hundred fifty dollars for each meeting that the member attends, except that no member shall be paid or receive more than seven hundred fifty dollars for attending meetings during any calendar year. Each member shall be reimbursed for the member’s actual and necessary expenses incurred in the performance of official board duties. The chairperson shall be paid two hundred fifty dollars annually in addition to any compensation the chairperson receives under this division for attending meetings and any other compensation the chairperson receives for serving on the board.
The division shall provide the board with such offices and such clerical, professional, and other assistance as may be reasonably necessary for the board to carry on its work. The division shall maintain accurate copies of the board’s rules as promulgated in accordance with division (B) of this section and shall keep all of the board’s records, including business records, and inspection reports as well as its own records and reports. The cost of administering the board and conducting inspections shall be included in the budget of the division based on revenues generated by the registration fees established under section 4169.03 of the Revised Code.
(B)In accordance with Chapter 119. of the Revised Code, the board shall adopt and may amend or rescind rules relating to public safety in the construction, maintenance, mechanical operation, and inspection of passenger tramways. The rules shall be in accordance with established standards in the business of ski area operation, if any, and shall not discriminate in their application to ski area operators.
No person shall violate the rules of the board.
(C)The authority of the board shall not extend to any matter relative to the operation of a ski area other than the construction, maintenance, mechanical operation, and inspection of passenger tramways.
(D)A majority of the board constitutes a quorum and may perform and exercise all the duties and powers devolving upon the board.
§ 4169.03. Registration of passenger tramway operators
(A)Before a passenger tramway operator may operate any passenger tramway in the state, the operator shall apply to the ski tramway board, on forms prepared by it, for registration by the board. The application shall contain an inventory of the passenger tramways that the applicant intends to operate and other information as the board may reasonably require and shall be accompanied by the following annual fees:
(1)Each aerial passenger tramway, five hundred dollars;
(2)Each skimobile, two hundred dollars;
(3)Each chair lift, two hundred dollars;
(4)Each J bar, T bar, or platter pull, one hundred dollars;
(5)Each rope tow, fifty dollars;
(6)Each wire rope tow, seventy-five dollars;
(7)Each conveyor, one hundred dollars.
When an operator operates an aerial passenger tramway, a skimobile, or a chair lift during both a winter and summer season, the annual fee shall be one and one-half the above amount for the respective passenger tramway.
(B)Upon payment of the appropriate annual fees in accordance with division (A) of this section, the board shall issue a registration certificate to the operator. Each certificate shall remain in force until the thirtieth day of September next ensuing. The board shall renew an operator’s certificate in accordance with the standard renewal procedure in Chapter 4745. of the Revised Code upon payment of the appropriate annual fees.
(C)Money received from the registration fees and from the fines collected pursuant to section 4169.99 of the Revised Code shall be paid into the state treasury to the credit of the industrial compliance operating fund created in section 121.084 [121.08.4] of the Revised Code.
(D)No person shall operate a passenger tramway in this state unless the person has been registered by the board.
§ 4169.04. Inspections; report of violation
(A)The division of industrial compliance in the department of commerce shall make such inspection of the construction, maintenance, and mechanical operation of passenger tramways as the ski tramway board may reasonably require. The division may contract with other qualified engineers to make such inspection or may accept the inspection report by any qualified inspector of an insurance company authorized to insure passenger tramways in this state.
(B)If, as the result of an inspection, an employee of the division or other agent with whom the division has contracted finds that a violation of the board’s rules exists or a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, the employee or agent shall make an immediate report to the board for appropriate investigation and order.
§ 4169.05. Written complaint alleging violation
Any person may make a written complaint to the ski tramway board setting forth an alleged violation of the board’s rules by a registered passenger tramway operator or a condition in passenger tramway construction, maintenance, or mechanical operation that allegedly endangers public safety. The board shall forward a copy of the complaint to the operator named in it and may accompany it with an order that requires the operator to answer the complaint in writing within a specified period of time. The board may investigate the complaint if it determines that there are reasonable grounds for such an investigation.
§ 4169.06. Emergency order; investigation and order; suspension of certificate
(A)When facts are presented to any member of the ski tramway board that indicate that immediate danger exists in the continued operation of a passenger tramway, any member of the board, after such verification of the facts as is practical under the circumstances and consistent with immediate public safety, may by an emergency written order require the operator of the tramway to cease using the tramway immediately for the transportation of passengers. Any person may serve notice on the operator or the operator’s agent who is in immediate control of the tramway by delivering a true and attested copy of the order, and the operator or the operator’s agent shall furnish proof of receipt of such notice by signing an affidavit on the back of the copy of the order. The emergency order shall be effective for a period not to exceed forty-eight hours from the time of notification.
(B)Immediately after the issuance of an emergency order pursuant to this section, the board shall investigate the facts of the case. If the board finds that a violation of any of its rules exists or that a condition in passenger tramway construction, maintenance, or mechanical operation exists that endangers public safety, it shall issue a written order setting forth its findings and the corrective action to be taken and fixing a reasonable time for compliance.
(C)After an investigation pursuant to division (B) of this section, if the board determines that danger to public safety exists in the continued operation of a passenger tramway, it shall so state in the order, describe in detail the basis for its findings, and in the order may require the operator not to operate the tramway until the operator has taken the corrective action ordered pursuant to this section. If the operator continues to use the tramway following receipt of such order, the board may request the court of common pleas having jurisdiction in the county where the tramway is located to issue an injunction forbidding operation of the tramway.
(D)An operator of a passenger tramway may request a hearing by the board on any order issued pursuant to this chapter and may appeal the results of such a hearing in accordance with Chapter 119. of the Revised Code. An operator may appeal an order suspending the operation of the operator’s tramway without first requesting a hearing.
(E)If an operator fails to comply with an order of the board issued pursuant to this chapter within the specified time, the board may suspend the registration certificate of the operator for such time as it considers necessary to gain compliance with its order.
No operator shall operate a passenger tramway while the operator’s registration certificate is under suspension by the board.
§ 4169.07. Responsibilities of ski area operator and tramway passengers
(A)A ski area operator shall be responsible for any construction that the operator actually performs or has actually performed and for the maintenance and operation of any passenger tramway in the operator’s ski area.
(B)A passenger shall be responsible for: not embarking upon or disembarking from a passenger tramway except at an area that is designated for such purpose; not throwing or expelling any object from a passenger tramway; not performing any action that interferes with the running or operation of a passenger tramway; learning how to use a passenger tramway safely before the time that the passenger desires to embark upon it; not using such a tramway unless the passenger has the ability to use it safely without any on-the-spot instruction from the ski area operator; not engaging willfully or negligently in any type of conduct that contributes to or causes injury to another person; and not embarking upon a passenger tramway without the authority of the ski area operator.
§ 4169.08. Risks assumed by skier; responsibilities of operator and skier
(A)(1) The general assembly recognizes that skiing as a recreational sport is hazardous to skiers regardless of all feasible safety measures that can be taken. It further recognizes that a skier expressly assumes the risk of and legal responsibility for injury, death, or loss to person or property that results from the inherent risks of skiing, which include, but are not limited to, injury, death, or loss to person or property caused by changing weather conditions; surface or subsurface snow or ice conditions; hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; bare spots, rocks, trees, stumps, and other forms of forest growth or debris; lift towers or other forms of towers and their components, either above or below the snow surface; variations in steepness or terrain, whether natural or as the result of snowmaking, slope design, freestyle terrain, jumps, catwalks, or other terrain modifications; any other objects and structures, including, but not limited to, passenger tramways and related structures and equipment, competition equipment, utility poles, fences, posts, ski equipment, slalom poles, ropes, out-of-bounds barriers and their supports, signs, ski racks, walls, buildings, and sheds; and plainly marked or otherwise visible snowmaking and snow-grooming equipment, snowmobiles, snow cats, and over-snow vehicles.
(2)Provided that the ski area operator complies with division (B)(4) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any competitor or freestyler using a freestyle terrain, which injury, death, or loss to person or property is caused by course, venue, or area conditions that visual inspection should have revealed or by collision with a spectator, competition official, ski area personnel, or another competitor or freestyler.
(3)Provided the ski area operator complies with division (B)(5) of this section, no liability shall attach to a ski area operator for injury, death, or loss to person or property suffered by any skier using a tubing park, which injury, death, or loss to person or property is caused by course design or maintenance or conditions that visual inspection should have revealed or by collision with another skier.
(B)The legal responsibilities of a ski area operator to a skier with respect to any injury, death, or loss to person or property resulting in any way from an inherent risk of the sport shall not be those of the common law duty of premises owners to business invitees. A ski area operator shall have, however, the following responsibilities:
(1)To mark all trail maintenance vehicles and to furnish such vehicles with flashing or rotating lights that shall be in operation whenever the vehicles are working or are moving in the ski area;
(2)To mark with a visible sign or other warning implement the location of any hydrant or similar equipment that is used in snowmaking operations and located anywhere in the ski area;
(3)To mark, at the base of a slope or hill where skiers embark on a passenger tramway serving the slope or hill or at the top of a trail or slope, such slopes, trails, and hills with signs indicating their relative degree of difficulty. The signs must be the type that have been approved by the national ski areas association and are in current use by the industry;
(4)Prior to the use of any portion of a freestyle terrain area made available by the ski area operator, to allow each freestyler or competitor a reasonable opportunity to visually inspect the course, venue, or area of the freestyle terrain;
(5)To allow skiers using a tubing park visible access to the course.
(C)A skier shall have the following responsibilities:
(1)To know the range of the skier’s ability to negotiate any slope or trail or to use any passenger tramway that is associated with a slope or trail, to ski within the limits of the skier’s ability, to ski only on designated slopes and trails, to maintain control of speed and course at all times while skiing, to heed all posted warnings, and to not cross the track of a passenger tramway except at a designated area;
(2)To refrain from acting in a manner that may cause or contribute to the injury of another person, to refrain from causing collision with any person or object while skiing, and to not place any object in a ski area that may cause another skier or a passenger to fall;
(3)When involved in a skiing accident in which another person is involved who needs medical or other assistance, to obtain assistance for the person, to notify the proper authorities, and to not depart from the scene of the accident without leaving personal identification;
(4)If the skier is a competitor, freestyler, or user of freestyle terrain, to assume the risk of all course, venue, or area conditions, including, but not limited to, weather and snow conditions; obstacles; course or feature location, construction, or layout; freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used;
(5)If the skier is utilizing a tubing park, to assume the risk of collision with others on the course.
§ 4169.09. Liability of operator, tramway passenger, freestyler, competitor, or skier
A ski area operator, a tramway passenger, freestyler, competitor, or skier is liable for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not liable for injury, death, or loss to person or property caused by another’s failure to fulfill any of the responsibilities required of another by this chapter. A ski area operator, a tramway passenger, freestyler, competitor, or skier is not entitled to recover for injury, death, or loss to person or property caused by the operator’s, passenger’s, freestyler’s, competitor’s, or skier’s failure to fulfill any of the responsibilities required by this chapter.
§ 4169.10. Operator’s liability to violators of theft statute
A ski area operator is not liable for any losses or damages suffered by a person who was in violation of section 2913.02 of the Revised Code at the time that the losses or damages occurred.
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