Negligent supervision is not covered under most state skier safety acts.
Rice, Et Als, vs. American Skiing Company, Et Als, 2000 Me. Super. LEXIS 90
When reading a case, there are usually some tell-tale signs on how a decision will head. One indication is a misunderstanding of how the sport works by the court. In this decision, it is clear the court probably has never skied or been to a ski area.
The court commented on the fact that the ski area did not require skiers to take a class. The court used the term “hockey stop” to describe a way that a skier stopped. Finally, the court identified each time the plaintiff fell skiing, like it was something new or different.
Facts of this case are the mother of the injured skier signed her son up for skiing lessons. In the process of signing up for the lessons, the mother signed a release.
During the lesson, the son lost control of his skis and skied into a tree suffering injury.
The plaintiffs, mother and son, sued on a claim of negligent supervision of the injured son and for lost wages of the mother. The defendant ski area argued the Maine’s Skiers’ and Tramway Passengers’ Responsibilities Act (Skier Act), 32 M.R.S.A. § 15217 and the release signed by the mother prevented their claims.
The court found the Skier Act protected the ski area from the inherent risks of skiing. The Skier Act also prevents suits for negligent operation of the ski area. The court found that negligent supervision was not an inherent risk found in the Skier Act nor was it part of the operation of the ski area.
The court then looked at the release and the two claims the defendant argued were prevented by the release. The first was the minor’s claim for his injuries.
The court found under Maine law that a release must “must spell out ‘with greatest particularity’ the intention of the parties contractually to extinguish negligence liability.” A release in Maine, as in most states, is strictly construed. This means the language of the release must be close to perfect to be upheld. The court found the release was not ambiguous (another possible defense) and the terms were clear in its intent.
The court then looked at whether Maine allowed a release to stop claims by minors and found it did not. A release under Maine law does not stop claims by a minor. This is in line with the law in more than 40 states.
The mother’s claims were based on the minor’s claims. This means for the mother to recover the minor’s claims had to be legally valid and not subject to a defense. Since the minor’s claims were valid, then the mother’s claims could proceed.
The mother’s claims are derivative claims. They derive from the main claim and are subject to all of the defenses of the main claim and any defenses of the derivative claim itself. If the main claim fails then the derivative claim also fails. Derivative claims are any claims that are created because of the main claim. Claims of spouses when another spouse is injured are derivative as is the claim of a parent when a child is injured.
The next issue was whether the ski area had a separate defense to the mother’s claims which it did. The claims of the mother were stopped under Maine law because the mother signed the release.
The final defense brought by the ski area was the indemnification language in the release. Indemnification language faces three battles in the courts.
1. Courts hate indemnification language in these situations.
2. Courts hate indemnification where the person who is injured is indemnifying against his own injuries.
3. Courts require indemnification language to be exact and the language is always strictly construed.
Here the court found that Maine law allows indemnification if the “indemnification agreement that expressly indemnifies the indemnitee against its own negligence in a manner that clearly reflects the mutual intent of the parties.” Here the court found the indemnification language in the release was ambiguous and was not conforming to the language required under Maine law. Therefor the court did not require indemnification by the parents for the son’s injuries.
This decision with a similar set of facts is probably close to how the majority of state courts will rule.
The skier safety act does not cover negligent supervision.
A release does not stop a claim by a minor.
A release will probably stop a claim by an adult.
The indemnification language in a release will probably not support a counterclaim for indemnification by the defendant against the person who signed it.
Of course there are exceptions to the above statements. Some state skier safety acts would include operations of the ski school within the risks of skiing. Three or four states allow a parent to sign away a minor’s right to sue.
Very few if any courts will uphold indemnification language in a release. If you want to have an enforceable indemnification clause you probably will have to have a separate agreement with specific and exact indemnification language in the agreement.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreaton.Law@Gmail.com
© 2010 James H. Moss
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