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Colorado Federal District Court judge references a ski area lift ticket in support of decision granting the ski area’s motion for summary judgment and dismissing the lawsuit.

The Federal District Court in this case used the language of the lift ticket to support the defendant ski area’s motion for summary judgment. The decision  also says the release is valid for lift accidents in Colorado closing one of the last gaps in suits against ski areas in Colorado.

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

State: Colorado, United States District Court for the District of Colorado

Plaintiff: Sally Rumpf & Louis Rumpf

Defendant: Sunlight, Inc.

Plaintiff Claims: negligence, negligence per se, and loss of consortium

Defendant Defenses: (1) they are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket; (2) they fail for a lack of expert testimony; and (3) that Sally Rumpf
was negligent per se under the Ski Safety Act. 

Holding: for the Defendant 

Year: 2016 

The plaintiff traveled to Glenwood Springs, Colorado to visit family and ski. She rented equipment from the
defendant ski area, Ski Sunlight and purchased a lift ticket. As required to rent the ski equipment, the plaintiff signed a release. 

While attempting to board a chair lift, the plaintiff injured her shoulder. The defendant filed a motion for summary judgment which the court granted with this decision. 

Analysis: making sense of the law based on these facts. 

In the statement of the facts, the court quoted from the language on the lift ticket.

Holder understands that he/she is responsible for using the ski area safely and for having the physical dexterity to safely load, ride and unload the lifts. Holder agrees to read and understand all signage and instructions and agrees to comply with them. Holder understands that he/she must control his/her speed and course at all times and maintain a proper lookout. Holder understands that snowmobiles, snowcats, and snowmaking may be encountered at any time. In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property. Holder agrees that any and all disputes between Holder and the Ski Area regarding an alleged incident shall be governed by COLORADO LAW  and EXCLUSIVE JURISDICTION shall be in the State or Federal Courts of the State of Colorado.

What is interesting is the Colorado Skier Safety Act, C.R.S. §§ 33-44-107(8)(b) requires specific language to be on the lift ticket.

WARNING

Under Colorado law, a skier assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of skiing and may not recover from any ski area operator for any injury resulting from any of the inherent dangers and risks of skiing, including: Changing weather conditions; existing and changing snow conditions; bare spots; rocks; stumps; trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.

It is unclear from the decision, and I do not have a copy of the Ski Sunlight lift ticket, to know if the required language is on the lift ticket. However, the language that was on the lift ticket was important and used by the court to make its decision.

The language required by the Colorado Skier Safety Act speaks to the risks assumed by a skier while skiing and does not speak to any risks of a chair lift. This creates an obvious conflict in the law for a ski area. Do you use the language required by the statute or use different language that a federal judge has said was  instructive in stopping the claims of a plaintiff. 

The court found the plaintiff had read and understood the release and knew she was bound by it. The plaintiff’s argument centered on the theory that the release did not cover lift accidents based on a prior case, Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (1998). That case held that a ski area owes the highest degree of care to skiers on the lift. 

Plaintiffs further argue that the exculpatory language at issue is “only applicable to ski cases when the accident or injury occurs while the plaintiff is skiing or snowboarding on the slopes,” and not when loading the ski lift. 

The Bayer decision changed the liability issues for Colorado Ski Areas. It also created the only gap in  protection for Colorado Ski Areas between the Colorado Skier Safety Act and release law. However, this was significantly modified by Brigance v. Vail Summit Resorts, Inc., 2016 U.S. Dist. LEXIS 31662, reviewed in Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard?

The court then reviewed the requirements under Colorado law for releases to be valid. 

Exculpatory agreements, which attempt to insulate a party from liability for its own negligence, are generally recognized under Colorado law, but are construed narrowly and “closely scrutinized” to ensure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Additionally, the  terms of exculpatory agreements must be strictly construed against the drafter. 

The court reiterated several times that it was the intent of the parties within the language of the release that was the important aspect of the release, more than the specific language of the release. This intent was  supported by the language on the lift ticket. Colorado has a 4 factor test to determine the validity of a release. 

…in determining the validity of an exculpatory agreement, the Court must consider the following factors: (1) whether the service provided involves a duty to the public; (2) the nature of the service provided; (3) whether the agreement was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. 

Skiing in Colorado is recreational and not a service, so there is no public duty that would void a release. Because it is a service, and the plaintiff is free to go ski else where there is no adhesion so the agreement was entered into by the parties fairly. 

Adhesion was defined by the court in Colorado as:

…Colorado defines an adhesion contract as “generally not bargained for, but imposed on the public for a necessary  service on a take it or leave it basis.” However, printed form contracts offered on a take it or leave it basis, alone, do not render the agreement an adhesion contract.

For the plaintiff to win her argument, the plaintiff must show “, “that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that [the] services could not be obtained elsewhere.”

The court then applied contract law to determine if the agreement was ambiguous.

“Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Under Colorado law, I must examine the actual language of the agreements for legal jargon, length and complication, and any likelihood of confusion or failure of a party to recognize the full extent of the release provisions.

The court in reviewing the release found the release to clearly and unambiguously set forth the party’s intent to release the ski area from liability.

The court again backed up its decision by referring to the language on the lift ticket. 

Furthermore, the ski lift ticket specifically references safely loading, riding and unloading Sunlight’s ski lifts and provides that the “Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property.” 

As such the release was valid and stopped the claims of the plaintiff and her spouse.

So Now What?

Although the basics of the decision are familiar under Colorado law, the court’s reference to the language on the lift ticket is a departure from Colorado law and the law of most other states. See Lift tickets are not contracts and rarely work as a release in most states

Whether or not a lift ticket standing by itself is enough to stop a claim is still in the air and probably will be. The language on this lift ticket may have been different than the language required by law, which basically states the skier assumes the risk of skiing. The required statutory language does not cover any issues with loading, unloading or riding chair lifts. 

This creates a major conflict for ski areas. What do you put on the lift ticket. The statute requires specific language; however, there are no penalties for failing to put the language on the lift ticket. However, it is negligence to violate any part of the statute, if that negligence caused an injury. 

C.R.S. §§ 33-44-104. Negligence – civil actions.

(1) A violation of any requirement of this article shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of the person violating such requirement.

(2) A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-704 (1) (a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.

Failing to put the language on the lift ticket by itself could not cause an injury. The language required on the lift ticket is the same language required to be posted where ever lift tickets are sold and posted at the bottom of all base area lifts. Base area lifts are the lifts used to get up the mountain. Lifts that start further up the mountain, which require a lift right to reach don’t need the warning signs. 

My advice is to include the statutory language and much of the language of this decision on lift tickets. You just don’t want to walk into a courtroom and be accused of failing to follow the law. You might be right, but you will look bad and looking bad is the first step in writing a check. The biggest limitation is going to be the size of the lift ticket and print size.

This case, although decided before Question answered; Colorado Premises Liability Act supersedes Colorado Ski Area Safety act. Standard of care owed skiers on chairlift’s reasonable man standard? and was quoted in this decision, it adds another block into what is now an almost impregnable wall against claims from skiers in Colorado.

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

What do you think? Leave a comment.

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

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

Sally Rumpf & Louis Rumpf, Plaintiffs, v. Sunlight, Inc., Defendant.

Civil Action No. 14-cv-03328-WYD-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 3, 2016, Decided

August 3, 2016, Filed

CORE TERMS: exculpatory, ski lift, rental agreement, lift tickets, ski, summary judgment, sports, recreational, snow, service provided, ski area, loading, skiing, language contained, unambiguous language, adhesion contract, unambiguously, exculpation, bargaining, equipment rental, loss of consortium, negligence claims, collectively, safely, riding, Ski Safety Act, question of law, ski resort, standard of care, moving party

COUNSEL: [*1] For Sally Rumpf, Louis Rumpf, Plaintiffs: Michael Graves Brownlee, Brownlee & Associates, LLC, Denver, CO USA.

For Sunlight, Inc., Defendant: Jacqueline Ventre Roeder, Jordan Lee Lipp, Davis Graham & Stubbs, LLP-Denver, Denver, CO USA.

JUDGES: Wiley Y. Daniel, Senior United States District Judge.

OPINION BY: Wiley Y. Daniel

OPINION

ORDER

I. INTRODUCTION AND RELEVANT FACTUAL BACKGROUND

This matter is before the Court on the Defendant’s Motion for Summary Judgment (ECF No. 39) and the response and reply to the motion. For the reasons stated below, Defendant’s motion is granted.

I have reviewed the record and the parties’ respective submissions, and I find the following facts to be undisputed, or if disputed, I resolve them in the light most favorable to the Plaintiffs.

On December 24, 2012, Plaintiffs Sally Rumpf and her husband Louis Rumpf traveled to Glenwood Springs, Colorado to visit family and go skiing. On December 27, 2012, Plaintiffs went to Sunlight, a ski resort near Glenwood Springs. Prior to skiing, Plaintiffs rented ski equipment from Sunlight. As part of the ski rental, the Plaintiffs each executed a release, which provides in pertinent part:

I understand that the sports of skiing, snowboarding, skiboarding, [*2] snowshoeing and other sports (collectively “RECREATIONAL SNOW SPORTS”) involve inherent and other risks of INJURY and DEATH. I voluntarily agree to expressly assume all risks of injury or death that may result from these RECREATIONAL SNOW SPORTS, or which relate in any way to the use of this equipment.

* * *

I AGREE TO RELEASE AND HOLD HARMLESS the equipment rental facility, its employees, owners, affiliates, agents, officers, directors, and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury, death, property loss and damage which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.

I further agree to defend and indemnify PROVIDERS for any loss or damage, including any that results from claims or lawsuits for personal injury, death, and property loss and damage related in any way to the use of this equipment.

This agreement is governed by the applicable law of this state or province. [*3] If any provision of this agreement is determined to be unenforceable, all other provisions shall be given full force and effect.

I THE UNDERSIGNED, HAVE READ AND UNDERSTAND THIS EQUIPMENT RENTAL & LIABILITY RELEASE AGREEMENT.

(ECF No. 39, Ex. 2) (emphasis in original).

The Plaintiffs also purchased lift tickets from Sunlight, which included the following release language:

Holder understands that he/she is responsible for using the ski area safely and for having the physical dexterity to safely load, ride and unload the lifts. Holder agrees to read and understand all signage and instructions and agrees to comply with them. Holder understands that he/she must control his/her speed and course at all times and maintain a proper lookout. Holder understands that snowmobiles, snowcats, and snowmaking may be encountered at any time. In consideration of using the premises, Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property. Holder agrees that any and all disputes between Holder and the Ski Area regarding an alleged incident shall be governed by COLORADO LAW and EXCLUSIVE JURISDICTION [*4] shall be in the State or Federal Courts of the State of Colorado. …

(ECF No. 39, Ex. 4) (emphasis in original).

Plaintiff Sally Rumpf injured her shoulder when she attempted to board the Segundo chairlift at Sunlight. Plaintiffs Sally and Louis Rumpf bring this action against Defendant Sunlight alleging claims of negligence, negligence per se, and loss of consortium. (Compl. ¶¶ 21-35).1

1 Plaintiff Sally Rumpf asserts the two negligence claims while Plaintiff Louis Rumpf asserts the loss of consortium claim.

The Defendant moves for summary judgment on all three claims, arguing that (1) they are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket; (2) they fail for a lack of expert testimony; and (3) that Sally Rumpf was negligent per se under the Ski Safety Act.

II. STANDARD OF REVIEW

Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the … moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000). “When applying this standard, the court must ‘view [*5] the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.'” Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000) (quotation omitted). “‘Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.'” Id. (quotation omitted). Summary judgment may be granted only where there is no doubt from the evidence, with all inferences drawn in favor of the nonmoving party, that no genuine issue of material fact remains for trial and that the moving party is entitled to judgment as a matter of law. Bee v. Greaves, 744 F.2d 1387 (10th Cir. 1984).

III. ANALYSIS

I first address Defendant’s argument that it is entitled to summary judgment on Plaintiffs’ three claims for relief based on the exculpatory agreements contained in both the ski rental agreement and the lift ticket. It is undisputed that Plaintiff Sally Rumpf read and understood that she was bound by the release language on both the rental agreement and the lift ticket. (Sally Rumpf Dep. at 72:17-23, 97-8-17, 99:2-25, 101:11-25, 102:1-21, 106:6-25, 107:1-25, 108:1-25, and 109:1-7).2

2 The evidence reveals that Plaintiff Louis Rumpf also understood and agreed to the release language on both the [*6] rental agreement and the lift ticket.

Defendant argues that the exculpatory language is valid and enforceable under the four-factor test set forth in Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981). The determination of the sufficiency and validity of an exculpatory agreement is a question of law for the Court. Jones, 623 P.2d at 376. Exculpatory agreements, which attempt to insulate a party from liability for its own negligence, are generally recognized under Colorado law, but are construed narrowly and “closely scrutinized” to ensure that the agreement was fairly entered into and that the intention of the parties is expressed in clear and unambiguous language. Id. Additionally, the terms of exculpatory agreements must be strictly construed against the drafter. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 784 (Colo. 1990). Pursuant to Jones, in determining the validity of an exculpatory agreement, the Court must consider the following factors: (1) whether the service provided involves a duty to the public; (2) the nature of the service provided; (3) whether the agreement was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones, 623 P.2d at 376; Heil Valley Ranch, 784 P.2d at 784, see Robinette v. Aspen Skiing Co., L.L.C., No. 08-cv-00052-MSK-MJW, 2009 U.S. Dist. LEXIS 34873, 2009 WL 1108093 at *2 (D. Colo. April 23, 2009).

Based on the Plaintiffs’ response, it does not appear that they [*7] are contesting that the exculpatory language contained in the rental agreement or the lift ticket satisfies the above-mentioned Jones criteria, arguing instead that because “this case arises from a ski lift attendant’s negligence, the exculpatory release language is inapplicable and irrelevant.” (Resp. at 1). Citing Bayer v. Crested Butte Mountain Resort, Inc., 960 P.2d 70 (1998), Plaintiffs claim that Colorado law “specifically provides negligence causes of action for skiers injured getting on and getting off ski lifts.” (Resp. at 10).

In Bayer, the plaintiff was injured when he attempted to board a ski lift at Crested Butte ski resort. After the Tenth Circuit Court of Appeals certified various questions to the Colorado Supreme Court, the Colorado Supreme Court held that “the standard of care applicable to ski lift operators in Colorado for the design, construction, maintenance, operation, and inspection of a ski lift, is the highest degree of care commensurate with the practical operation of the lift. Neither the Tramway Act nor the Ski Safety Act preempt or otherwise supersede this standard of care, whatever the season of operation.” Id. at 80. I agree with Defendant, however, that Bayer is not controlling here because the question of the applicability [*8] of exculpatory language was not presented.

Plaintiffs further argue that the exculpatory language at issue is “only applicable to ski cases when the accident or injury occurs while the plaintiff is skiing or snowboarding on the slopes,” and not when loading the ski lift. (Resp. at 11).

I now analyze the exculpatory language at issue using the four Jones factors mentioned above. In Jones, the court instructed that for an exculpatory agreement to fail, the party seeking exculpation must be engaged in providing a service of great importance to the public, which is often a matter of practical necessity to some members of the public. Jones, 623 P.2d at 376-77. Here, the service provided is recreational and not an essential service that gives the party seeking exculpation an unfair bargaining advantage. Thus, there is no public duty that prevents enforcement of either the ski rental agreement or the exculpatory language included in Sunlight’s lift ticket.

To the extent that Plaintiffs contend that the exculpatory language at issue was “adhesive,” I note that Colorado defines an adhesion contract as “generally not bargained for, but imposed on the public for a necessary service on a take it or leave it basis.” Id. at 374. However, [*9] printed form contracts offered on a take it or leave it basis, alone, do not render the agreement an adhesion contract. Clinic Masters v. District Court, 192 Colo. 120, 556 P.2d 473 (1976). Rather, “[t]here must a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that [the] services could not be obtained elsewhere.” Id. In Jones, the court held that the agreement was not an adhesion contract and the party seeking exculpation did not possess a decisive bargaining advantage “because the service provided … was not an essential service.” Jones, 623 P.2d at 377-78. Thus, here, I find that the exculpatory agreements were fairly entered into and are not adhesion contracts.

Finally, I examine whether the exculpatory agreements express the parties’ intent in clear and unambiguous language. Plaintiffs argue that loading or riding a ski lift is outside the scope of the exculpatory language set forth in both the ski rental agreement and the lift ticket.

“Interpretation of a written contract and the determination of whether a provision in the contract is ambiguous are questions of law.” Dorman v. Petrol Aspen, Inc., 914 P.2d 909, 912 (Colo. 1996). Under Colorado law, I must examine the actual language of the agreements for legal jargon, length and complication, and any likelihood of [*10] confusion or failure of a party to recognize the full extent of the release provisions. See Heil Valley Ranch 784 P.2d at 785; Chadwick v. Colt Ross Outfitters, Inc., 100 P.3d 465, 467 (Colo. 2004). Specific terms such as “negligence” or “breach of warranty” are not required to shield a party from liability. What matters is whether the intent of the parties to extinguish liability was clearly and unambiguously expressed. Heil Valley Ranch, 784 P.2d at 785.

After carefully reviewing the relevant language set forth in both the ski rental agreement and the lift ticket, I find that both agreements clearly and unambiguously express the parties’ intent to release Sunlight from liability for certain claims. When Plaintiffs executed the ski rental agreement, they agreed to

RELEASE AND HOLD HARMLESS the equipment rental facility [Sunlight], its employees, owners, affiliates, agents, officers, directors, and the equipment manufacturers and distributors and their successors in interest (collectively “PROVIDERS”), from all liability for injury … which results from the equipment user’s participation in the RECREATIONAL SNOW SPORTS for which the equipment is provided, or which is related in any way to the use of this equipment, including all liability which results from the NEGLIGENCE of PROVIDERS, or any other person or cause.

(ECF [*11] No. 39, Ex. 2) (emphasis in original). I find that this language unambiguously encompasses the use of Sunlight’s ski lifts. Furthermore, the ski lift ticket specifically references safely loading, riding and unloading Sunlight’s ski lifts and provides that the “Holder agrees to ASSUME ALL RISKS associated with the activities and to HOLD HARMLESS the Ski Area and its representatives for all claims for injury to person or property.” (ECF No. 39, Ex. 4) (emphasis in original). I find that the language at issue is neither long nor complicated and clearly expresses the intent to bar negligence claims against Sunlight arising from the participation in recreational snow sports, which includes loading or riding ski lifts. Accordingly, Plaintiffs’ negligence claims and loss of consortium claim are barred by the exculpatory language contained in both the ski rental agreement and the lift ticket. Defendant’s motion for summary judgment is granted.3

3 In light of my findings in this Order, I need not address Defendant’s additional, independent arguments in support of summary judgment.

IV. CONCLUSION

Accordingly, it is

ORDERED that Defendant’s Motion for Summary Judgment (ECF No. 39) is GRANTED. This [*12] case is DISMISSED WITH PREJUDICE, and Judgment shall enter in favor of Defendant against the Plaintiffs. It is

FURTHER ORDERED that the Defendant is awarded its costs, to be taxed by the Clerk of the Court under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.

Dated: August 3, 2016

BY THE COURT:

/s/ Wiley Y. Daniel

Wiley Y. Daniel

Senior United States District Judge


Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427

Lizzol v. Brothers Property Management Corporation, Et. Al., 2016 DNH 199; 2016 U.S. Dist. LEXIS 150427

Jennifer Lizzol, Michael Lizzol, and T.G., Plaintiffs v. Brothers Property Management Corporation, Out Back Kayak, Inc., and Martin Welch, Defendants

Case No. 15-cv-100-SM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

2016 DNH 199; 2016 U.S. Dist. LEXIS 150427

October 31, 2016, Decided

October 31, 2016, Filed

PRIOR HISTORY: Lizzol v. Bros. Prop. Mgmt. Corp., 2016 U.S. Dist. LEXIS 16863 (D.N.H., 2016)

COUNSEL:  [*1] For Jennifer Lizzol, Michael Lizzol, T. G., Plaintiffs: Philip R. Waystack, Jr., Sandra L. Cabrera, LEAD ATTORNEYS, Waystack Frizzell, Colebrook, NH.

 

For Brothers Property Management Corporation, Out Back Kayak, Inc. OBK, Defendants: Paul B. Kleinman, Bouchard Kleinman & Wright PA (M), Manchester, NH.

For Martin Welch, Defendant: Paul B. Kleinman, LEAD ATTORNEY, Bouchard Kleinman & Wright PA (M), Manchester, NH.

JUDGES: Steven J. McAuliffe, United States District Judge.

OPINION BY: Steven J. McAuliffe

OPINION

ORDER

Jennifer Lizzol, her husband Michael, and their son, T.G., filed suit to recover damages for injuries sustained as a result of a snow machine accident that occurred during a winter vacation at the Mountain View Grand Resort & Spa, in Whitefield, New Hampshire (“Mountain View Grand”). Defendants move for summary judgment based upon a liability release and covenant not to sue executed by Jennifer and Michael before the accident. Defendants also move for summary judgment on Michael Lizzol’s and T.G’s bystander liability claim. For the reasons discussed, defendants’ motion is granted.

Standard of Review

When ruling on a motion for summary judgment, the court must “constru[e] the record in the light most favorable to the [*2]  nonmoving party and resolv[e] all reasonable inferences in that party’s favor.” Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014). Summary judgment is appropriate when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this context, “a fact is ‘material’ if it potentially affects the outcome of the suit and a dispute over it is ‘genuine’ if the parties’ positions on the issue are supported by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted). See also Nolan v. CN8, 656 F.3d 71, 76 (1st Cir. 2011). Nevertheless, if the nonmoving party’s “evidence is merely colorable, or is not significantly probative,” no genuine dispute as to a material fact has been proved, and “summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citations omitted).

Background

Construing the record in the light most favorable to plaintiffs, and resolving all reasonable inferences in their favor, the controlling facts appear to be as follows.

The Lizzols travelled to the Mountain View Grand from Long Island, New York, on January 27, 2013, arriving in the afternoon. Prior to their arrival, Jennifer had scheduled a snowmobile lesson and tour for herself, her husband, and her son, as well as for a few of their friends, through the Mountain View Grand’s website. [*3]  Defs.’ Mot. for Summary Judgment, Exh. C at p. 2. The lessons and guided tour were provided by Out Back Kayak, Inc. (“OBK”). Upon arrival at the resort, the Lizzols quickly put their luggage in their rooms, and then left to participate in the snowmobile activity, including a lesson and tour. Id.

The Lizzols were directed by the hotel activities desk to a small building on the grounds, where they met a Mountain View Grand employee, who told them to quickly pick out helmets and sign a two-page document that bore the following heading:

Snow Machine Tour

ACKNOWLEDGEMENT OF RISKS AND HAZARDS

COVENANT NOT TO SUE

WAIVER AND RELEASE OF LIABILITY

(the “Release”). The Lizzols felt rushed during the process, see, e.g., Defs.’ Mot. for Summary Judgment, Exh. C. at p. 3, but both Jennifer and Michael had an opportunity to review the Release, and each signed and initialed it. (Jennifer executed the release on behalf of her minor son, T.G.). The Release includes the following language:

I . . . hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, [*4]  agents, officers and employees from any and all claims, actions or losses for bodily injury, property damage, wrongful death or injury, loss of services or otherwise which may arise out of my use of eques[trian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions presently or in the future for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.

Defs.’ Mot. for Summary Judgment, Exh. A, p. 1. The Release includes five lettered paragraphs that provide tour participants with a designated space in which to place his or her initials, thereby confirming that he or she understands and acknowledges the following:

(A) that he or she is physically fit to participate in the activity;

(B) that participation in the activity may result in “bodily injury, disease, strains, fractures, partial and/or total paralysis, eye injury, dental injury, blindness, . . . cold weather injuries, heart attack, asthma, vehicle injuries, mental duress, death or other ailments that could cause serious disability;”

(C) that “[t]hese risks and dangers [*5]  [of bodily injury] may be caused by the negligence of the owners, employees, officers or agents of the Mountain View Grand and/or the negligence of the participants . . . ;”

(D) that by participating “in these activities and/or use of equipment, [the participant] . . . assume[s] all risks and dangers and all responsibility for any loss and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, designees, employees of BPMC, or by any other person[;]” and

(E) that the participant “understand[s] that [he or she is] undertaking this snowmobiling activity at [his or her] own risk, freely and voluntarily without any inducement[.]”

Id. Jennifer did not initial Paragraph B or Paragraph D, and Michael did not initial Paragraph B.

After signing the Release and obtaining their helmets, the Lizzols met their tour instructor, OBK employee Martin Welch, and his assistant, Jennifer Welch. The Lizzols had no snow machine experience. Welch provided a very brief introduction to and instruction regarding operation of the snow machines. He explained how to accelerate, brake, and turn. He told them that the tour would never travel faster than 20 miles per hour. Welch then [*6]  assisted the tour members with their snowmobile selections, and the tour began.

Jennifer and Michael rode on a two-person snow machine, with Jennifer operating the vehicle. They were directly behind Welch in the line of snowmobiles. Their son, T.G., rode by himself and was farther back in the line. Welch drove rather quickly during the tour, and far exceeded the self-imposed 20 miles per hour speed limitation he had announced earlier. Jennifer did not keep pace, and, as Welch increased his speed during the second half of the tour, Jennifer lost sight of him. Jennifer attempted to follow Welch’s tracks in the snow, but, in doing so, lost control of the snowmobile, which left the path and flipped over. Jennifer, Michael, and the snow machine fell down a steep embankment that was approximately seventy-five feet high.

Both Jennifer and Michael suffered physical injuries, but Jennifer’s were particularly severe. She lost consciousness, had collapsed lungs, 10 broken ribs, and multiple injuries to her spine and back.

The plaintiffs later learned that other customers may have complained that Welch drove too quickly during earlier snow machine tours. After the accident, Mountain View Grand manager, [*7]  Chris Diego, asked Michael if Welch had been “going too fast again.” Pls.’ Opp. to Summary Judgment, Exh. 4, p. 6.

Jennifer, Michael, and their son brought suit against Brothers Property Management Corporation (which owns and operates the Mountain View Grand), OBK, and Martin Welch, asserting claims for negligence, including negligent training and supervision, vicarious liability, bystander liability, and loss of consortium. The defendants move for summary judgment, arguing that the contractual Release is both valid and enforceable.

Discussion

Defendants argue that the scope of the Release plainly encompasses the claims at issue here because the complaint alleges that, as a result of the defendants’ negligence, they were injured while participating in the snow machine lesson and tour activity. Plaintiffs disagree.

New Hampshire law generally prohibits exculpatory contracts. McGrath v. SNH Development, Inc., 158 N.H. 540, 542, 969 A.2d 392 (2009). But, there are exceptions. Exculpatory contracts are enforceable if: “(1) they do not violate public policy; (2) the plaintiff understood the import of the agreement or a reasonable person in [plaintiff’s] position would have understood the import of the agreement; and (3) the plaintiff’s claims fall within the contemplation [*8]  of the parties when they executed the contract.” Id. at 542 (quoting Dean v. MacDonald, 147 N.H. 263, 266-67, 786 A.2d 834 (2008)).

A. The Scope of the Release

Plaintiffs argue that the Release is not enforceable because they did not understand it to encompass claims for negligent instruction, or negligent guidance on the snow machine tour, and a reasonable person in their position would not understand the Release to bar such claims. They say that the content, structure, and organization of the Release – which plaintiffs contend is verbose, employs obfuscating language, and uses confusing sentence structure – disguised any intent to relieve the defendants of liability for their own negligence related to instruction or guidance along the trail. They point out that the words “instruction,” “lesson” and “guide” are terms that do not appear in the Release. Rather, the Release focuses on terms like “services,” “use of equipment,” and “participation in activities.” Altogether, they say, the impression is given that the Release applies only to injuries inherent to snow machine activity and the use of snow machine equipment, but not to harm resulting from an instructor’s or guide’s failure to act with reasonable care.

The parties’ differing subjective understandings [*9]  of the Release’s intent is of limited relevance to the controlling analysis, however, since courts must “judge the intent of the parties by objective criteria rather than the unmanifested states of mind of the parties.” Dean, 147 N.H. at 267 (citing Lake v. Sullivan, 145 N.H. 713, 715, 766 A.2d 708 (2001) and Barnes v. New Hampshire Karting Ass’n, Inc., 128 N.H. 102, 107, 509 A.2d 151 (1986)). Under applicable New Hampshire law, courts examine the language of a release and “give the language used by the parties its common meaning and give the contract itself the meaning that would be attached to it by a reasonable person.” McGrath, 158 N.H. at 545 (internal quotations omitted) (quoting Dean, 147 N.H. at 267). “As long as the language of the release clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence, the agreement will be upheld.” Id. (internal quotations omitted) (quoting Dean, 147 N.H. at 267). However, a defendant “will not be released from liability when the language of the contract raises any doubt as to whether the plaintiff has agreed to assume the risk of a defendant’s negligence.” Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 414, 807 A.2d 1274 (2002) (citations omitted).

The language used in the Release at issue here is broad in reach, detailed, and clear. A reasonable person would be hard pressed to avoid recognizing the significance and effect of the words used. The Release [*10]  plainly purports to release Mountain View Grand employees and agents of all liability for their own negligence, or the negligence of others (e.g. other snowmobile activity participants), related to the snow machine instruction and tour (equipment and services). The Release repeatedly references waiving the negligence of MVG’s employees, officers and agents. For example, after warning the signatory of the serious risks of injury associated with participation in the snow machine tour, including bodily injury and death, the Release explains that those risks could be caused by “the negligence of the owners, employees or agents of the Mountain View Grand.” Defs.’ Mot. for Summary Judgment, Exh. A. The Release then states that the signatory agrees to “assume all risks and dangers and all responsibility for any loss and/or damages whether caused in whole or in part by the negligence . . . of the owners, agents, officers, designees, employees of BPMC.” Id. The Release further provides: “I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or other conduct by the owners, agents, officers, [*11]  designees or employees of BPMC.” Id.

The language of the Release unarguably applies to claims or suits based on the negligence of Mountain View Grand owners, employees, officers or agents. The Release does not qualify or limit the “negligence” being released in any way, nor is the Release ambiguous in that regard. References in the Release to “participation in [the] activity” also make clear that claims arising from the releasees’ negligence associated with the described activity are being waived.

The Lizzols participated in an activity that consisted of a snow machine lesson and a snow machine tour. Plaintiffs’ claim that they were injured because defendants negligently conducted both the snow machine lesson and the tour. Their negligence claims, then, necessarily arise directly from their participation in the activity (the snow machine lesson and tour). That the Release does not include terms like “instruction,” “lesson” or “guide” is not dispositive: “[T]he parties need not have contemplated the precise occurrence that resulted in the plaintiff’s injuries, and may adopt language that covers a broad range of accidents.” McGrath, 158 N.H. at 545 (internal citations omitted) (citing Barnes, 128 N.H. at 107). So, attempting to carve out [*12]  discrete acts of negligence from the Release is futile if, as here, those discrete acts are associated with the conduct of the snow machine instruction and tour activity.

A reasonable person “would have contemplated that the agreements released the defendants from any negligence, not just from negligence inherent” in snowmobiling. McGrath, 158 N.H. at 547.

B. The Release encompasses the negligence claims against OBK

Plaintiffs further argue that the Release failed to place them on notice that they were releasing OBK from liability, since OBK is not a named party to the exculpatory contract, and is not mentioned by name. Relying on Porter v. Dartmouth College, No. 07-cv-28-PB, 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831 (D.N.H. Sept. 30, 2009), plaintiffs note that the Release repeatedly makes reference to the Mountain View Grand and its equipment, but does not mention OBK or its instructors. Therefore, they say, a reasonable person would not understand that the Release also purported to absolve OBK from liability for its own negligence.

“An exculpatory contract need not specifically identify the defendant by name.” Porter, 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831, at *3 (citing Dean, 147 N.H. at 270). “However, the contract must at least provide a functional identification of the parties being released.” Id. Here, the Release reads in relevant part:

I . [*13]  . . voluntarily agree to release . . . BPMC, the field operator, the event promoter, the owners of premises used to conduct the snowmobile activity, their owners, agents, officers and employees from any and all claims, actions or losses for bodily injury, . . . wrongful death or injury, loss of services or otherwise which may arise out of my use of [equestrian] or other equipment or my participation in any BPMC activity. I specifically understand that I am giving up any rights that I may have by releasing, discharging and waiving any claims or actions . . . for the negligent acts or other conduct by the owners, agents, officers, designees or employees of BPMC.

Defs.’ Mot. for Summary Judgment, Exh. A (emphasis supplied).

Defendants point out that OBK, and Welch individually, are covered by the Release because they are both “agents” of BPMC, and they acted as the referenced “field operator” for the snow machine tour. Indeed, plaintiffs specifically alleged the existence of an agency relationship between BPMC and OBK in their Complaint. See, e.g., Compl. ¶ 48 (“Mountain View Grand controlled in whole or in part the activities engaged in by Out Back Kayak and/or its employees and is vicariously [*14]  liable for the negligent actions of the snow mobile tour guides committed while engaged in the scope of employment.”). The asserted agency relationship is an essential element of plaintiffs’ vicarious liability claim. Defendants readily agree that OBK and Welch were agents of BPMC. For reasons satisfactory to the parties, they do not dispute OBK’s or Welch’s status as agents of BPMC. As BPMC’s agent, OBK and Welch are plainly covered by the Release.

Moreover, plaintiffs’ reliance on Porter is unhelpful. In Porter, the plaintiff, an undergraduate student at Dartmouth College, was fatally injured while participating in a class that included ski lessons, at a facility owned, operated, and maintained by Dartmouth. 2009 U.S. Dist. LEXIS 90516, 2009 WL 3227831, at *1. Her estate filed suit, asserting claims for negligence and wrongful death. Id. Dartmouth argued that the claims were barred by a release agreement plaintiff signed before renting ski equipment for the class. 2009 U.S. Dist. LEXIS 90516, [WL] at *2. The release in Porter, which had been drafted by Solomon (the ski and bindings manufacturer), did not mention Dartmouth by name, and repeatedly emphasized and referred only to ski equipment being rented by the student. See 2009 U.S. Dist. LEXIS 90516, [WL] at *3. Based on those distinguishing facts, the court concluded [*15]  that the release failed to place the “equipment renter on even functional notice that Dartmouth was in any way a party” to the release agreement. Id.

Unlike the release at issue in Porter, the Release here makes evident that it pertains not just to the furnishing and use of equipment associated with the snow machine activity, but also to the furnishing of services associated with that activity. The clearest example is found in the first paragraph of the Release, which provides: “In consideration of Brothers Property Management Corporation . . . furnishing services and equipment to enable me to participate in the Snow Machine tour (snowmobiling), I acknowledge and agree as follows.” Defs.’ Mot. for Summary Judgment, Exh. A (emphasis added). Indeed, nearly every time the Release references the signatory’s use of equipment, the Release also references the signatory’s participation in the snow machine lesson and tour. See id. Such references objectively manifest the parties’ intent that the Release encompass all claims based upon the negligent provision of services – including services provided by Mountain View Grand’s agent, OBK — that related to plaintiffs’ participation in the snow machine [*16]  tour activity. While not identified by name, OBK and Welch were functionally identified as benefitting from the Release, when acting as agents of Mountain View Grand.

C. Jennifer’s failure to initial certain paragraphs of the Release does not preclude its enforcement.

Plaintiffs next argue that, even if the Release does encompass the claims at issue, it is still not enforceable against Jennifer, because she failed to initial paragraphs B and D of the Release. Plaintiffs characterize the lettered paragraphs as “several distinct exculpatory clauses” that they were required to agree to separately, and which, as structured, give the impression that “the participant might agree to certain terms, but not others.” Pls.’ Mem. in Opp. to Mot. for Summary Judgment at p. 18. Because Jennifer did not initial two of the contract’s paragraphs, plaintiffs say, those paragraphs are not enforceable against her. At the very least, plaintiffs continue, Jennifer’s failure to initial those paragraphs gives rise to disputed issues of material fact regarding her intent to be bound by those paragraphs, and whether there was a “meeting of the minds” with respect to releasing defendants from liability for their [*17]  own negligence. Id.

In response, defendants point out that the final paragraph of the Release reads:

I have read the above paragraphs and fully understand their content. I understand that this is a Release of Liability, which will legally prevent me or any other person from filing suit and making any other claims for damages in the event of personal injury, death or property damage.

Defs.’ Mot. for Summary Judgment, Exh. A. Defendants argue that the final paragraph clearly and explicitly incorporates the terms of paragraphs B and D, and therefore plaintiffs’ argument is unavailing.

The final paragraph of the Release is unambiguous. By signing the Release, Jennifer acknowledged that she had read the entire agreement and agreed to its terms; all of its terms. Cf. Serna v. Lafayette Nordic Vill., Inc., No. 14-CV-049-JD, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *3 (D.N.H. July 16, 2015) (finding that plaintiff’s failure to sign a release on the back of a form did not bar enforcement, where plaintiff had signed the front of the agreement following a statement acknowledging that she had read the agreement on the back of the form concerning the release of liability, and agreed to its terms); see also Gannett v. Merchants Mut. Ins. Co., 131 N.H. 266, 269-70, 552 A.2d 99 (1988) (“The plaintiff argues, however, that she is not bound by the [*18]  condition in the release, as she never returned the release to Merchants. The return of the release, however, is irrelevant, as it was the acceptance of a check offered on the condition that it constitute payment in full, rather than the signing of the release, which bound [plaintiff]. It is also irrelevant whether she actually read the release, when the release clearly and unambiguously stated the condition, and when [plaintiff] had the opportunity to read it before cashing the check.”). Here, Jennifer acknowledged having read the entire release and objectively manifested her agreement, after which she accepted the services to be provided only on condition that a full release first be given.

The parties do not cite New Hampshire authorities directly on point, nor has the court found any, but it appears that the Tenth Circuit addressed a nearly identical issue in Elsken v. Network Multi-Family Security Corp, 49 F.3d 1470 (10th Cir. 1995). In Elsken, the plaintiff entered into a services agreement with a security corporation to provide a 24-hour alarm system. Id. at 1471. The agreement contained a limitation of liability clause, on the same page as a space provided for a party to initial. Id. at 1473. The plaintiff signed the agreement, but failed to initial the line next to the [*19]  limitation of liability clause. Plaintiff there also signed the agreement below a provision “articulating a presumption that the agreement was properly executed,” which read:

Resident acknowledges that resident has read and understands all of this resident agreement including the terms and conditions on this side and the reverse side, particularly Paragraph 3.0 Limitation of Liability and agrees to the amounts set forth herein.

Id. at 1473. The plaintiff was subsequently fatally stabbed in her apartment. Her estate filed suit against the security alarm company, asserting claims for breach of contract, negligence, and breach of warranties based on the alarm company’s failure to properly respond to an alarm. Plaintiffs argued that the limitation of liability clause was not effective because plaintiff did not initial the line provided for that purpose, and, therefore, had not objectively manifested her agreement to the waiver provision. Id. at 1472-73.

The court of appeals found that plaintiff’s failure to initial the line provided did not preclude summary judgment, since plaintiff had signed “directly below a statement of acceptance of the contract that explicitly incorporates the provisions on the reverse side [*20]  of the page.” Id. at 1474. The court determined that, “[b]ased upon a plain reading of the contract,” plaintiff agreed to the contract in its entirety as written. Id. So too, here. Jennifer’s signature directly follows a paragraph that references the liability waiver clauses defendants seek to enforce.

Finally, plaintiffs point to no evidence in the record that might support a finding that Jennifer’s failure to initial paragraphs B and D was in any way motivated by an objection to or non-acceptance of either of those terms. Nor do they point to evidence in the record that would support a finding that Jennifer ever expressed any objection to the terms of paragraphs B and D before executing the agreement. Indeed, the relevant evidence of record suggests that Jennifer’s failure to initial paragraphs B and D was not the product of a conscious decision. See Defs.’ Mot. for Summary Judgment, Exh. C, p. 4 (Q: “Do you have any explanation for why A, C, and E were initialed, but not B and D?” Jennifer Lizzol: “No.” . . . Q: “Was there a conscious decision on your part not to initial B and D?” Jennifer Lizzol: “No.”)

Jennifer Lizzol’s failure to initial paragraphs B and D of the Release does not render the Release [*21]  or those paragraphs unenforceable against her. The same general analysis applies to Michael Lizzol’s failure to initial Paragraph B of the Release.

D. The Release does not violate public policy.

Plaintiffs argue that the Release contravenes public policy, because its enforcement would relieve an instructor from liability for his own negligent instruction. Plaintiffs contend that because the instructor/guide holds a position of authority over the conduct of the snow machine tour, the instructor/guide is uniquely positioned to ensure that the tour is conducted in a reasonably safe manner. So, plaintiffs say, releasing an instructor of his or her obligation to exercise reasonable care will result in that instructor failing to make a good faith effort to carry out his duties, which, they say, is what happened here. That contravenes public policy, they argue, because it will surely impede public safety.

The argument, while creative, avoids the public policy analysis required under New Hampshire law. “A defendant seeking to avoid liability must show that the exculpatory agreement does not contravene public policy; i.e., that no special relationship existed between the parties and that there [*22]  was no other disparity in bargaining power.” Barnes, 128 N.H. at 106. “‘A special relationship exists when “the defendant is a common carrier, innkeeper or public utility, or is otherwise charged with a duty of public service.'” Serna v. Lafayette Nordic Vill., Inc., 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (quoting Barnes, 128 N.H. at 106). Additionally, a release may be against public policy if, among other things, “it is injurious to the interests of the public, violates some public statute, or tends to interfere with the public welfare or safety.” Serna, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (citing McGrath, 158 N.H. at 543).

Plaintiffs do not contend that a “special relationship” existed between the parties, as that term is used in the liability waiver context. Nor could they. While the Mountain View Grand is an inn, the Release does “not pertain to the usual activities of running an inn,” but instead to the Mountain View Grand’s facilitation of collateral outdoor recreation activities. Serna v. Lafayette Nordic Vill., Inc., 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2. And snowmobiling (like skating, Serna, id., and snowboarding, McGrath, 158 N.H. at 544) constitutes recreational activity, not “an activity ‘of such great importance or necessity to the public that it creates a special relationship.'” Serna, 2015 U.S. Dist. LEXIS 92669, 2015 WL 4366250, at *2 (quoting McGrath, 158 N.H. at 544).

“Where there is a disparity in bargaining power, the plaintiff may not be deemed to have freely chosen to enter into the contract.” McGrath, 158 N.H. at 544 (citing Barnes, 128 N.H. at 107). But, “there [is] no [*23]  substantial disparity in bargaining power among the parties, despite the fact that [plaintiffs were] required to sign the release in order to” participate in the snow machine lesson and tour. Barnes, 128 N.H. at 108. Here, the plaintiffs were “under no physical or economic compulsion to sign the release,” and “[s]ince the defendants’ service is not an essential one, the defendants had no advantage of bargaining strength” over the plaintiffs or others who sought to participate in the snowmobile lesson and tour. Barnes, 128 N.H. at 108.

The Release does not violate public policy.

E. The plaintiffs have not sufficiently established fraud in the inducement.

Finally, plaintiffs argue that the Release is unenforceable because they were fraudulently induced to enter into the agreement. Plaintiffs assert that defendants had prior knowledge that Welch generally drove too quickly when conducting snow machine tours, and, notwithstanding that knowledge, failed (negligently) to take reasonable steps to ensure that Welch conducted the tours safely. Plaintiffs further contend that they were induced to sign the Release based upon defendants’ false assurances that the lesson and tour would be conducted in a safe manner, with adequate instruction, and at [*24]  a safe speed. Relying on those assurances, plaintiffs signed the Release. Plaintiffs argue that, at the very least, whether the defendants made assurances (and omissions) regarding the nature of the snow machine tour with conscious indifference to the truth, and whether the plaintiffs justifiably relied upon those statements when signing the Release, are disputed issues of material fact precluding summary judgment.

“Under New Hampshire law, fraud in the inducement is a valid defense to a contract action and can be raised to void a contract.” Bryant v. Liberty Mut. Grp., Inc., No. 11-CV-217-SM, 2013 U.S. Dist. LEXIS 76713, 2013 WL 2403483, at *9 (D.N.H. May 31, 2013) (citing Nashua Trust Co. v. Weisman, 122 N.H. 397, 400, 445 A.2d 1101 (1982)). As the parties seeking to invalidate the Release on fraudulent inducement grounds, plaintiffs bear a substantial burden: they “must establish that the other party made a representation with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it. In addition, the party seeking to prove fraud must demonstrate justifiable reliance.” Trefethen v. Liberty Mut. Grp., Inc., No. 11-CV-225-SM, 2013 U.S. Dist. LEXIS 76753, 2013 WL 2403314, at *7 (D.N.H. May 31, 2013)(quoting Van Der Stok v. Van Voorhees, 151 N.H. 679, 682, 866 A.2d 972 (2005)) (additional citations omitted).

Plaintiffs rely on Van Der Stok v. Van Voorhees, but that decision offers little support. That case arose [*25]  out of a transaction for the sale of real estate. The plaintiff represented that defendant-purchaser would be able to build on the property, but did not disclose that his own earlier application to the zoning board for a permit to build on the property had been denied. After the closing, defendant went to the town offices to inquire about the property, and first learned that plaintiff’s earlier permit application had been denied. Defendant stopped payment on the check given at closing to cover the purchase price. The plaintiff subsequently filed an action, and defendant raised fraud in the inducement as a defense to plaintiff’s claims. Plaintiff argued the defendant could not show reasonable reliance on his purported misrepresentation, because the purchase and sale agreement provided, “Seller makes no representations as to land use law or regulations.” Id. at 682.

The New Hampshire Supreme Court rejected that argument for two reasons. First, the court was unconvinced that the disclaimer “would put a reasonable person on notice that he could not rely upon the specific representation made . . . that the particular lot he was buying was a buildable lot.” Id. at 683. Moreover, the plaintiff had “made a representation [*26]  with knowledge of its falsity or with conscious indifference to the truth with the intention to cause another to rely upon it.” Id. (quoting Snierson v. Scruton, 145 N.H. 73, 77, 761 A.2d 1046 (2000)). Such “positive fraud,” the court stated, “vitiates every thing.” Id. (quoting Jones v. Emery, 40 N.H. 348, 350 (1860)).

This case is distinguishable from Van Der Stok because the Lizzols have not shown what representation defendant(s) allegedly made “with knowledge of its falsity or with conscious indifference to its truth with the intention to cause another to rely upon it.” Id. In support of their assertion that defendants knew (or believed) that Walsh was likely to conduct their particular tour in an unsafe manner, plaintiffs point to the following: (1) “[u]pon information and belief, there had been complaints from customers that OBK’s tour guides, specifically Martin Welch, had driven unreasonably fast while conducting tours; (2) after the incident, the MVG manager asked Michael if Welch had been “driving too fast again.”

Admissibility of that evidence is doubtful, and it is plainly insufficient to support a finding that defendants knew that plaintiffs’ lesson and tour would be conducted in a negligent or actionably unsafe manner or were recklessly indifferent to that likelihood. And [*27]  plaintiffs have identified no particular representation made by defendants, with the intention to induce plaintiffs to rely upon it, and, upon which they justifiably relied, that either proved to be false or the product of reckless indifference to the truth. The only statement in the record to which they point (Welch’s statement that he would not drive the snow machines faster than 20 miles per hour) occurred after plaintiffs signed the Release. The record is also utterly silent with respect to whether speed in excess of 20 mph is considered dangerous or negligent when conducting a snowmobile tour, or whether “too fast” in the past equates to the speed driven by the guide on plaintiffs’ tour, or even what “too fast” might mean in the context of a snowmobile tour that included novices.

Because plaintiffs have not produced sufficient evidence from which a finder of fact could conclude that the defendants knowingly made fraudulent representations to them, they have not established that a genuine issue of fact exists with respect to whether their execution of the Release was fraudulently induced, and is therefore ineffective.

The Release is valid and enforceable, and it encompasses the plaintiffs’ [*28]  bystander liability claim as well as their negligence claims.

Conclusion

For the foregoing reasons, and for those argued in the defendants’ memoranda, the motion for summary judgment (document no. 23) is necessarily granted under controlling New Hampshire law. The Release at issue here is not ambiguous. It unmistakably released the defendants from any liability relating to their negligence, and that of their employees and agents. Neither qualifying language nor any other provision in, nor the structure of the Release, obscured the defendants’ intent to be relieved of all liability for their own negligence. A reasonable person would have understood that the Release relieved the defendants of all liability for injuries caused by their negligence. The Clerk of Court shall enter judgment for defendants and close the case.

SO ORDERED.

/s/ Steven J. McAuliffe

Steven J. McAuliffe

United States District Judge

October 31, 2016

 


First Colorado Avalanche Information Center Forecast for the 2014-15 Season. Become a member and support this group

logo Statewide
Avalanche Statement
Issued
By Scott Toepfer
HighlightsSummer is quickly fading into winter across Colorado’s high country. Snowfall, strong winds, and cold temperatures have begun to build the foundation for the coming winter’s snowpack. It is time to put on your avalanche thinking caps if you are planning a trip into steeper terrain. Weather forecasts point toward a more winter like pattern as we start the month of October. Many locations have seen old snow persist on the ground this summer, meaning slab avalanches can develop in October with new and wind deposited snow on a hard smooth old snow surface. It is not unusual to hear of avalanche incidents in the fall. Please be thinking avalanche if you visit the high country.We will update the Statewide Avalanche Conditions as necessary. On November 1, 2014, we will resume our regular weather products, and our regular avalanche and snowpack forecasts around mid-November.
Avalanches are possible any time you find snow on steep slopes in Colorado. Nearly every fall, eager riders and
late-season hikers are caught off-guard when they trigger avalanches. Hunters traveling through the high country need to exercise caution on steep, snow covered terrain. Our next scheduled update is November 1, 2014. We will continue to issue updates via Twitter if we anticipate unusually dangerous conditions before then.

Weather Discussion

A couple of smaller storms moved through the state in September bringing some snow to the higher elevations. Most of this snow melted off, but some did linger on north aspects and on old summer snowfields. October started with a winter storm bringing our first real chance at lingering snow for the 2014-15 winter season. This new snow will form weak layers and with the addition of stronger winds, expect wind slabs. Think avalanche if you have plans to travel into the high country.

You can get current weather forecasts from the National Weather Service here.

Our Computer Model Forecasts are updated four times a day and will run through the summer. If you are going into the Colorado high country use our Weather Stations by Zone page to check current conditions.

Snowpack & Avalanche Discussion

Avalanches are possible in the mountainous areas of Colorado whenever you find snow on a steep slope. In general, you should consider the consequences of being caught in an avalanche before you cross any steep, snow-covered slope, but below are some avalanche problems you may encounter this fall. You can look here for observations of snow conditions and reports of avalanches any time of the year. We also want to hear your reports on backcountry conditions and avalanche observations, so please send us your observations.

Storm Slabs, Wind Slabs, and Loose-Dry Avalanches

Most avalanches happen during or right after a snow storm. But any time new snow falls and the wind moves it through the the terrain, avalanches are possible. New snow often has a hard time sticking to hard, icy old snow surfaces, so a fall snow storm can produce small avalanches if it falls onto old snow, grassy areas or rock slab. Even small avalanches are dangerous if they push you off a cliff, or into rocks, trees, or a gulley. The best way to manage these avalanches in the fall is to have a current weather forecast, recognize when there is enough new snow to produce storm avalanches, and select terrain that minimizes your exposure to the risk (avoid areas where there was old snow, wind pillows along ridgelines, cross-loaded features like rock outcrops and subridges). Here is an example where a new-snow avalanche produced an fatal accident a few years ago.

 

Wet Slab and Loose-Wet Avalanches

As the snow heats up and begins to melt, water moving through the snowpack can produce avalanches. The most common wet avalanches are loose, sluff or point-release avalanches. These are most dangerous if they can push you off a cliff, or into rocks, trees, or a gulley. You can manage these by starting your tour early, when the snow is frozen, and ending your tour early before the snow gets too wet. Watch the overnight low temperatures at high-elevation weather stations, but remember that air temperature, cloud cover, and wind all affect how the snow freezes each night. Wet slab avalanches are much more dangerous. These often occur when melt water hits a persistent weaker layer that formed earlier in the winter or during a dramatic warm up that lasts a few days. The snow conditions that produce wet slab avalanches last longest on high-elevation, northerly slopes as we move into summer. Look at the old snow layers to see if they are still dry or turning to coarse spring-time snow. Regardless of what wet avalanche you are worried about, remember to stay off and out from under steep snow-covered slopes when you start to sink into the wet snow more than about 6 inches. Here is an example of a fatal accident in a wet slab avalanche from two years ago.

Cornice Fall

Throughout the winter, strong winds build large over-hanging snow features along ridgelines. These cornices can break off at any time of year, but also break and roll onto lower slopes during spring melt. It is hard to predict when these large masses of snow will break, so it is best to avoid traveling under them and give them a wide berth when you are traveling along them. If your route goes under one, use a similar approach as wet slab avalanches and look for a good overnight freeze and try to get past them early in the day. Remember that the sun may hit them earlier than it hits the slopes below them.

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Interesting Idea and maybe better than a balloon. Besides it serves a long term purpose after balloons deflate: Goggle Graffiti

http://www.gogglegraffiti.com/snow-id

Small brightly-colored  goggle strap wrap from Goggle Graffiti allows you to spot your child easily, and it contains emergency information.

Goggle Graffiti has a neat idea. They’ve created interesting little wraps for goggle straps. They have cute sayings, etc.. However, the neat one from my perspective is the Snow ID.

It is bright orange and comes with a sharpie. You open it up, and you can write important contact information on the inside. Your kid gets lost you can help people find your child by telling them about the bright orange wrap on their goggle strap.

If your child is found, they can unwrap the strap off the goggles and contact information on the inside.

If you are running a ski school, this is a great benefit you can add to the lesson. Although snow-id-backit may make identifying your students after a class more difficult because everyone is now from the wearing one, you can sell the idea to parents. While your child is with us, you know your contact info is with your child. After the lesson is over, you keep the Snow Id.

Besides balloons deflate.

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

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Nevada Skier Safety Act

Nevada Skier Safety Act

1.1 NEVADA REVISED STATUTES ANNOTATED

TITLE 40. Public Health And Safety.

CHAPTER 455A. Safety of Participants in Outdoor Sports.

Skiers and Snowboarders

GO TO NEVADA STATUTES ARCHIVE DIRECTORY

Nev. Rev. Stat. Ann. § 455A.023 (2012)

Table of Contents

Nevada Skier Safety Act 1

Table of Contents. 1

455A.010. Short title. 2

455A.020. Definitions. 2

455A.023. “Chair lift” defined. 3

455A.027. “Operator” defined. 3

455A.030. “Passenger” defined. 3

455A.035. “Patrol” defined. 3

455A.040. Transferred. 4

455A.050. Transferred. 4

455A.060. Transferred. 4

455A.070. “Skier” defined. 4

455A.075. “Skiing” defined. 4

455A.080. Transferred. 4

455A.083. “Snow recreation area” defined. 4

455A.085. “Snowboarder” defined. 5

455A.087. “Snowboarding” defined. 5

455A.090. “Surface lift” defined. 5

455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited. 5

455A.110. Duties of skiers and snowboarders. 6

455A.120. Prohibited acts. 7

455A.130. Signs at chair lifts: Requirements; inspection. 7

455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light. 8

455A.150. Illumination of signs at night. 8

455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers. 9

455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty. 9

455A.180. Revocation of license or privilege to engage in skiing or snowboarding. 10

455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter. 10

455A.010. Short title.

NRS 455A.010 to 455A.190, inclusive, may be cited as the Skier and Snowboarder Safety Act.

455A.020. Definitions.

As used in NRS 455A.010 to 455A.190, inclusive, unless the context otherwise requires, the words and terms defined in NRS 455A.023 to 455A.090, inclusive, have the meanings ascribed to them in those sections.

455A.023. “Chair lift” defined.

“Chair lift” means a device, except for an elevator, that carries, pulls or pushes a person along a level or inclined path to, from or within a snow recreation area by means of a rope, cable or other flexible element that is driven by an essentially stationary source of power.

455A.027. “Operator” defined.

“Operator” means a person, or a governmental agency or political subdivision of this State, who controls or operates an area where persons engage in skiing or snowboarding.

455A.030. “Passenger” defined.

“Passenger” means a person who utilizes a chair lift for transportation.

455A.035. “Patrol” defined.

“Patrol” means agents or employees of an operator who patrol the snow recreation area.

455A.040. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.083.

455A.050. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.023.

455A.060. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.035.

455A.070. “Skier” defined.

“Skier” means a person who engages in skiing in a snow recreation area.

455A.075. “Skiing” defined.

“Skiing” means the act of using skis to move across snow-covered ground.

455A.080. Transferred.

NOTES: Editor’s note. This section is now compiled as 455A.027.

455A.083. “Snow recreation area” defined.

“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.

455A.085. “Snowboarder” defined.

“Snowboarder” means a person who engages in snowboarding in a snow recreation area.

455A.087. “Snowboarding” defined.

“Snowboarding” means the act of using a snowboard to move across snow-covered ground.

455A.090. “Surface lift” defined.

“Surface lift” means a chair lift designed for skiers or snowboarders to remain in contact with the ground or snowy surface during transportation.

455A.100. Prohibited acts while on chair lift; skiing or snowboarding in area posted as closed prohibited.

A skier or snowboarder shall not:

1. Embark upon a chair lift:

(a) When the skier or snowboarder knows that he or she has insufficient knowledge or physical ability to use the chair lift safely; or

(b) That is posted as closed or not in operation;

2. Purposefully embark upon or disembark from a chair lift except at an area designated for such a purpose or at the direction and under the direct supervision of an authorized agent or employee of an operator;

3. Toss, throw or cast or intentionally drop, expel or eject an object from a chair lift;

4. Toss, throw or cast an object in the direction of a chair lift;

5. Fail or refuse to comply with:

(a) Reasonable instructions given to the skier or snowboarder by an authorized agent or employee of an operator regarding the use of a chair lift; or

(b) A sign posted pursuant to NRS 455A.130 or 455A.140;

6. Place any object in the uphill path of a surface lift;

7. Conduct himself or herself in a manner that interferes with the safe operation of a chair lift or with the safety of a passenger, skier or snowboarder; or

8. Engage in skiing or snowboarding in an area within the snow recreation area which is posted, as provided in NRS 207.200, as closed.

455A.110. Duties of skiers and snowboarders.

A skier or snowboarder shall, to the extent that the matter is within his or her control:

1. Locate and ascertain the meaning of signs in the vicinity of the skier or snowboarder posted pursuant to NRS 455A.130 and 455A.140;

2. Heed warnings and other information posted by an operator;

3. Remain a safe distance from vehicles, signs and equipment for grooming snow or for transportation;

4. Avoid skiers or snowboarders in motion when entering a slope, run or trail, and when commencing to engage in skiing or snowboarding from a stationary position;

5. Maintain a proper lookout and control of his or her speed to avoid downhill objects, skiers and snowboarders to the best of his or her ability; and

6. Conduct himself or herself in such a manner as to avoid injury to persons and property in a snow recreation area.

455A.120. Prohibited acts.

A skier or snowboarder shall not:

1. Use a ski or snowboard unless it is attached to the skier or snowboarder by a strap or equipped with a device capable of stopping the movement of the ski or snowboard when not attached to the skier or snowboarder;

2. Cross the uphill path of a surface lift except at locations designated by an operator; or

3. Willfully stop where the skier or snowboarder obstructs a slope, run or trail, or where he or she is not safely visible to uphill skiers or snowboarders.

455A.130. Signs at chair lifts: Requirements; inspection.

1. An operator shall prominently post and maintain signs in simple and concise language:

(a) By each chair lift, with information for the protection and instruction of passengers; and

(b) At or near the points where passengers are loaded on a chair lift, directing persons who are not familiar with the operation of the chair lift to ask an authorized agent or employee of the operator for assistance and instruction.

2. An operator shall prominently post and maintain signs with the following inscriptions at all chair lifts in the locations indicated:

(a) “Remove pole straps from wrists” at an area for loading skiers;

(b) “Safety gate” where applicable;

(c) “Stay on tracks” where applicable;

(d) “Keep ski tips or snowboard up” ahead of any point where a ski or snowboard can regain contact with the ground or snowy surface after a passenger departs from an area for loading skiers or snowboarders;

(e) “Prepare to unload” and “check for loose clothing and equipment” not less than 50 feet from an area for unloading skiers or snowboarders; and

(f) “Unload here” at an area for unloading skiers or snowboarders.

3. An operator shall inspect a snow recreation area for the presence and visibility of the signs required to be posted by this section each day before opening the snow recreation area for business.

455A.140. Slopes, runs and trails: System of signs required; vehicles used by operator to be equipped with light.

1. An operator shall post and maintain a system of signs:

(a) At the entrances to an established slope, run or trail to indicate:

(1) Whether any portion of the slope, run or trail is closed; and

(2) The relative degree of difficulty of the slope, run or trail;

(b) To indicate the boundary of the snow recreation area, except in heavily wooded areas or other terrain that cannot be skied or snowboarded readily; and

(c) To warn of each area within the boundary of the snow recreation area where there is a danger of avalanche by posting signs stating “Warning: Avalanche Danger Area.”

2. An operator shall equip vehicles it uses on or in the vicinity of a slope, run or trail with a light visible to skiers or snowboarders when the vehicle is in motion.

455A.150. Illumination of signs at night.

A sign required to be posted pursuant to NRS 455A.130; and 455A.140 must be adequately illuminated at night, if the snow recreation area is open to the public at night, and be readable and recognizable under ordinary conditions of visibility.

455A.160. Skiers and snowboarders to notify operator or patrol of injury; limitation on liability of operator; duty of operator to minimize dangers.

1. A skier or snowboarder who sustains a personal injury shall notify the operator or a member of the patrol of the injury as soon as reasonably possible after discovery of the injury.

2. An operator is not liable for the death or injury of a person or damages to property caused or sustained by a skier or snowboarder who knowingly enters an area which is not designated for skiing or snowboarding or which is outside the boundary of a snow recreation area.

3. An operator shall take reasonable steps to minimize dangers and conditions within the operator’s control.

455A.170. Prohibition against intoxication and use of controlled substances; duty to provide name and address to person injured in collision; penalty.

1. A skier or snowboarder shall not engage in skiing or snowboarding, or embark on a chair lift that is proceeding predominantly uphill, while intoxicated or under the influence of a controlled substance as defined in chapter 453 of NRS unless in accordance with a lawfully issued prescription.

2. A skier or snowboarder who is involved in a collision in which another person is injured shall provide his or her name and current address to the injured person, the operator or a member of the patrol:

(a) Before the skier or snowboarder leaves the vicinity of the collision; or

(b) As soon as reasonably possible after leaving the vicinity of the collision to secure aid for the injured person.

3. A person who violates a provision of this section is guilty of a misdemeanor.

455A.180. Revocation of license or privilege to engage in skiing or snowboarding.

An operator may revoke the license or privilege of a person to engage in skiing or snowboarding in a snow recreation area if the person violates any provision of NRS 455A.100, 455A.110, 455A.120 or 455A.170.

455A.190. County, city or unincorporated town may enact ordinance not in conflict with chapter.

The provisions of NRS 455A.010 to 455A.190, inclusive, do not prohibit a county, city or unincorporated town from enacting an ordinance, not in conflict with the provisions of NRS 455A.010 to 455A.190, inclusive, regulating skiers, snowboarders or operators.

 


Alaska Ski Safety Statute

Alaska Ski Safety Statute

TITLE 5. AMUSEMENTS AND SPORTS

CHAPTER 45. SKI LIABILITY, SAFETY, AND RESPONSIBILITY

Go to the Alaska Code Archive Directory

Alaska Stat. § 05.45.010 (2013)

Sec. 05.45.010. Limitation on actions arising from skiing

Notwithstanding any other provision of law, a person may not bring an action against a ski area operator for an injury resulting from an inherent danger and risk of skiing.

History: (§ 2 ch 63 SLA 1994)

Notes Applicable To Entire Title

Revisor’s Notes.—The provisions of this title were redrafted in 1985 to remove personal pronouns pursuant to § 4, ch. 58, SLA 1982, and in 1981, 1985, 1989, 1994, and 2004 to make other minor word changes.

Notes Applicable To Entire Chapter

Cross References.—For safety, inspection and regulation of recreational devices, see AS 05.20; for legislative findings and purpose in connection with the enactment of this chapter, see § 1, ch. 63, SLA 1994 in the Temporary and Special Acts.

Sec. 05.45.020. Effect of violations

(a) A ski area operator or other person who violates a requirement of this chapter, a provision of a plan of operation prepared under AS 05.45.040, or a regulation adopted by the Department of Labor and Workforce Development under AS 05.20.070 is negligent and civilly liable to the extent the violation causes injury to a person or damage to property.

(b) Notwithstanding the provisions of AS 09.17.080,

(1) the limitation of liability described under AS 05.45.010 is a complete defense in an action against a ski area operator for an injury if an inherent danger or risk of skiing is determined to be a contributory factor in the resulting injury, unless the ski area operator has violated a requirement of this chapter, a provision of a plan of operation prepared under AS 05.45.040, or a regulation adopted by the Department of Labor and Workforce Development under AS 05.20.070;

(2) a violation of the passenger duties imposed under AS 05.45.030 or skier duties imposed under AS 05.45.100 is a complete defense in an action against a ski area operator if the violation is determined to be a contributory factor in the resulting injury, unless the ski area operator has violated a requirement of this chapter, a provision of a plan of operation prepared under AS 05.45.040, or a regulation adopted by the Department of Labor and Workforce Development under AS 05.20.070.

(c) If the ski area operator is determined to have violated a requirement of this chapter, a provision of a plan of operation prepared under AS 05.45.040, or a regulation adopted by the Department of Labor and Workforce Development under AS 05.20.070, the provisions of AS 09.17.080 apply in an action against a ski area operator for an injury resulting from the violation.

History: (§ 2 ch 63 SLA 1994)

Notes: Revisor’s Notes.—In 1999, “Department of Labor” was changed to “Department of Labor and Workforce Development” in each subsection in accordance with § 90, ch. 58, SLA 1999.

User Note: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.030. Duties of passengers

(a) A passenger may not board a tramway if the passenger does not have

(1) sufficient physical dexterity or ability and knowledge to negotiate or use the facility safely; or

(2) the assistance of a person authorized by the ski area operator to assist a skier.

(b) A passenger may not

(1) embark upon or disembark from a tramway except at a designated area unless reasonably necessary to prevent injury to the passenger or others; this paragraph does not apply if the tramway stops and the operator assists the passengers to disembark from the tramway;

(2) intentionally throw or expel an object from a tramway while riding on the tramway, except as permitted by the operator;

(3) act while riding on a tramway in a manner that may interfere with proper or safe operation of the tramway;

(4) engage in conduct that may contribute to or cause injury to a person;

(5) intentionally place in an uphill track of a J-bar, T-bar, platter pull, rope tow, or another surface lift an object that could cause another skier to fall;

(6) embark upon a tramway marked as closed;

(7) disobey instructions posted in accordance with this chapter or oral instructions by the ski area operator regarding the proper or safe use of a tramway unless the oral instructions are contrary to this chapter or contrary to posted instructions.

History: (§ 2 ch 63 SLA 1994)

User Note: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.040. Required plan and patrol by ski area operators

(a) 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. Before the operation of the ski area for that season, the plan shall be reviewed and approved by the commissioner of natural resources except that if an agency of the United States manages the land on which the ski area operates, the plan shall be reviewed and approved by that agency. The commissioner of natural resources may require a ski area operator to pay a fee not to exceed the department’s cost of reviewing the plan, and may adopt regulations to implement this subsection.

(b) A ski area operator shall provide a ski patrol whose members meet or exceed the training standards of the National Ski Patrol System, Inc. This subsection does not apply to a ski area if the operator transports skiers using only a single tramway consisting of a rope tow, the rope tow does not transport skiers more than 500 vertical feet, and the ski area is operated by a nonprofit corporation or a municipality. In this subsection, “nonprofit corporation” means a corporation that qualifies for exemption from taxation under 26 U.S.C. 501(c)(3) or (4) (Internal Revenue Code).

(c) Notwithstanding any other law, the state and the commissioner of natural resources are not civilly liable for damages resulting from an act or omission in reviewing, approving, or disapproving a plan of operation under (a) of this section.

History: (§ 2 ch 63 SLA 1994)

User Note: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.050. Required signs for tramways; duties of operators

(a) A ski area operator who operates a tramway shall maintain a sign system with concise, simple, and pertinent information for the protection and instruction of passengers. Signs shall be prominently placed on each tramway, readable in conditions of ordinary visibility, and where applicable adequately lighted for nighttime passengers. Signs shall be posted

(1) at or near the loading point of each tramway, regardless of the type, advising that a person not familiar with the operation of the device must ask the operator of the device for assistance and instruction;

(2) in the interior of each two-car and multicar tramway showing

(A) the maximum capacity in pounds of the car and the maximum number of passengers allowed;

(B) instructions for procedures in emergencies;

(3) in a conspicuous place at each loading area of two-car and multicar tramways stating the maximum capacity in pounds of the car and the maximum number of passengers allowed;

(4) at all chair lifts stating the following:

(A) “Prepare to Unload,” which shall be located not less than 50 feet ahead of the unloading area;

(B) “Keep Ski Tips Up,” which shall be located ahead of any point where the skis may come in contact with a platform or the snow surface;

(C) “Unload Here,” which shall be located at the point designated for unloading;

(D) “Stop Gate,” which shall be located where applicable;

(E) “Remove Pole Straps from Wrists,” which shall be located prominently at each loading area;

(F) “Check for Loose Clothing and Equipment,” which shall be located before the “Prepare to Unload” sign;

(5) at all J-bars, T-bars, platter pulls, rope tows, and any other surface lift, stating the following:

(A) “Remove Pole Straps from Wrists,” which shall be placed at or near the loading area;

(B) “Stay in Tracks,” “Unload Here,” and “Safety Gate,” which shall be located where applicable;

(C) “Prepare to Unload,” which shall be located not less than 50 feet ahead of each unloading area;

(6) near the boarding area of all J-bars, T-bars, platter pulls, rope tows, and any other surface lift, advising passengers to check to be certain that clothing, scarves, and hair will not become entangled with the lift;

(7) at or near the boarding area of all lifts, stating the skier’s duty set out in AS 05.45.100(c)(2).

(b) Signs not specified by (a) of this section may be posted at the discretion of the ski area operator.

(c) A ski area operator, before opening the tramway to the public each day, shall inspect the tramway for the presence and visibility of the signs required by (a) of this section.

(d) A ski area operator shall post and maintain signs that are required by (a) of this section in a manner that they may be viewed during conditions of ordinary visibility.

HISTORY: (§ 2 ch 63 SLA 1994)JHMoss

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.060. Required signs for trails and slopes; duties of operators

(a) A ski area operator shall maintain a sign and marking system as required in this section in addition to that required by AS 05.45.050. All signs required by this section shall be maintained so as to be readable and recognizable under conditions of ordinary visibility.

(b) A ski area operator shall post a sign recognizable to skiers proceeding to the uphill loading point of each base area lift that depicts and explains signs and symbols that the skier may encounter at the ski area. The sign must include the following:

(1) the least difficult trails and slopes, designated by a green circle and the word “easier”;

(2) the most difficult trails and slopes, designated by a black diamond and the words “most difficult”; trails intended for expert skiers may be marked with a double black diamond and the words “expert only”;

(3) the trails and slopes that have a degree of difficulty that falls between the green circle and the black diamond designation, designated by a blue square and the words “more difficult”;

(4) danger areas designated by a red exclamation point inside a yellow triangle with a red band around the triangle and the word “danger” printed beneath the emblem;

(5) closed trails or slopes designated by a sign with a circle or octagon around a figure in the shape of a skier with a band running diagonally across the sign from the upper right-hand side to the lower left-hand side and with the word “closed” printed beneath the emblem.

(c) If applicable, a sign shall be placed at or near the loading point of each tramway as follows:

WARNING: This lift services (most difficult) or (most difficult and more difficult) or (more difficult) slopes only.

(d) If a particular trail or slope or portion of a trail or slope is closed to the public by a ski area operator, the operator shall place a sign notifying the public of that fact at each identified entrance of each portion of the trail or slope involved. A slope without an entrance defined by terrain or forest growth may be closed with a line of signs in a manner readily visible to skiers under conditions of ordinary visibility. This subsection does not apply if the trail or slope is closed with ropes or fences.

(e) A ski area operator shall

(1) place a sign at or near the beginning of each trail or slope, which must contain the appropriate symbol of the relative degree of difficulty of that particular trail or slope as described in (b) of this section; this paragraph does not apply to a slope or trail designated “easier” that to a skier is substantially visible in its entirety under conditions of ordinary visibility before beginning to ski the slope or trail;

(2) mark the ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility;

(3) mark that portion of the boundary with signs as required by (b)(5) of this section if the owner of land adjoining a ski area closes all or part of the land and notifies the ski area operator of the closure;

(4) mark hydrants, water pipes, and all other man-made structures on slopes and trails that are not readily visible to skiers under conditions of ordinary visibility from a distance of at least 100 feet and adequately and appropriately cover man-made structures that create obstructions with a shock absorbent material that will lessen injuries; any type of marker is sufficient, including wooden poles, flags, or signs, if the marker is visible from a distance of 100 feet and if the marker itself does not constitute a serious hazard to skiers; in this paragraph, “man-made structures” does not include variations in steepness or terrain, whether natural or as a result of slope design, snow making, grooming operations, roads and catwalks, or other terrain modifications;

(5) mark exposed forest growth, rocks, stumps, streambeds, trees, or other natural objects that are located on a slope or trail that is regularly used by skiers or that is regularly packed and prepared by a ski area operator using a snow vehicle and attached implements and that are not readily visible to skiers under conditions of ordinary visibility from a distance of at least 100 feet;

(6) mark roads, catwalks, cliffs, or other terrain modifications that are not readily visible to skiers under conditions of ordinary visibility from a distance of at least 100 feet;

(7) post and maintain signs that contain the warning notice specified in (g) of this section; the notice shall be placed in a clearly visible location at the ski area where lift tickets and ski school lessons are sold and in a position to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift; the signs may not be smaller than three feet by three feet and must be white with black and red letters as specified in this paragraph; the word “WARNING” must appear on the sign in red letters; the warning notice specified in this paragraph must appear on the sign in black letters with each letter to be a minimum of one inch in height.

(f) A ski lift ticket sold or made available for sale to skiers by a ski area operator must contain in clearly readable print the warning notice specified in (g) of this section.

(g) The signs described in (e)(7) of this section and the lift tickets described in (f) of this section must contain the following warning notice:

WARNING

Under Alaska law, the risk of an injury to person or property resulting from any of the inherent dangers and risks of skiing rests with the skier. Inherent dangers and risks of skiing include changing weather conditions; existing and changing snow conditions; bare spots, rocks, stumps and trees; collisions with natural objects, man-made objects, or other skiers; variations in terrain; and the failure of skiers to ski within their own abilities.

HISTORY: (§ 2 ch 63 SLA 1994)

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.070. Other duties of ski area operators

(a) A ski area operator shall equip a motorized snow-grooming vehicle with a light visible at any time the vehicle is moving on or in the vicinity of a ski slope or trail.

(b) When maintenance equipment is being employed to maintain or groom a ski slope or trail while the ski slope or trail is open to the public, the ski area operator shall place a conspicuous notice regarding the maintenance or grooming at or near the top of that ski slope or trail.

(c) A motor vehicle operated on the ski slope or trails of a ski area shall be equipped with at least

(1) one lighted head lamp;

(2) one lighted red tail lamp;

(3) a brake system maintained in operable condition; and

(4) a fluorescent flag at least 40 square inches mounted at least six feet above the bottom of the tracks.

(d) A ski area operator shall make available at reasonable fees, instruction and education regarding the inherent danger and risk of skiing and the duties imposed on skiers under this chapter. Notice of the availability of the instruction and education required under this subsection shall be placed in a clearly visible location at the ski area where lift tickets and ski school lessons are sold, in a position to be recognizable as a sign to skiers proceeding to the uphill loading point of each base area lift, and printed on equipment rental agreements.

HISTORY: (§ 2 ch 63 SLA 1994)

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.080. Skiers outside marked boundaries

A ski area operator does not have a duty arising out of the operator’s status as a ski area operator to a skier skiing beyond the area boundaries if the boundaries are marked as required by AS 05.45.060(e)(2).

HISTORY: (§ 2 ch 63 SLA 1994)

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.090. Reckless skiers; revocation of skiing privileges

(a) A ski area operator shall develop and maintain a written policy covering situations involving reckless skiers, including a definition of reckless skiing, procedures for approaching and warning skiers regarding reckless conduct, and procedures for taking action against reckless skiers, including revocation of ski privileges. A ski area operator shall designate ski patrol personnel responsible for implementing the ski area operator’s policy regarding reckless skiers.

(b) A ski area operator, upon finding a person skiing in a careless and reckless manner, may revoke that person’s skiing privileges. This section may not be construed to create an affirmative duty on the part of the ski area operator to protect skiers from their own or from another skier’s carelessness or recklessness.

HISTORY: (§ 2 ch 63 SLA 1994)

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.100. Duties and responsibilities of skiers

(a) A skier is responsible for knowing the range of the skier’s own ability to negotiate a ski slope or trail and to ski within the limits of the skier’s ability. A skier is responsible for an injury to a person or property resulting from an inherent danger and risk of skiing, except that a skier is not precluded under this chapter from suing another skier for an injury to person or property resulting from the other skier’s acts or omissions. Notwithstanding any other provision of law, the risk of a skier’s collision with another skier is not an inherent danger or risk of skiing in an action by one skier against another.

(b) A skier has the duty to maintain control of the skier’s speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, a person skiing downhill has the primary duty to avoid collision with a person or object below the skier.

(c) A skier may not

(1) ski on a ski slope or trail that has been posted as “closed” under AS 05.45.060(b)(5) and (d);

(2) use a ski unless the ski is equipped with a strap or other device capable of stopping the ski should the ski become unattached from the skier;

(3) cross the uphill track of a J-bar, T-bar, platter pull, or rope tow except at locations designated by the operator, or place an object in an uphill track;

(4) move uphill on a tramway or use a ski slope or trail while the skier’s ability is impaired by the influence of alcohol or a controlled substance as defined in AS 11.71.900 or other drug;

(5) knowingly enter upon public or private land from an adjoining ski area when the land has been closed by an owner and is posted by the owner or by the ski area operator under AS 05.45.060(e)(3).

(d) A skier shall stay clear of snow grooming equipment, vehicles, lift towers, signs, and other equipment on the ski slopes and trails.

(e) A skier has the duty to heed all posted information and other warnings and to refrain from acting in a manner that may cause or contribute to the injury of the skier or others. Evidence that the signs required by AS 05.45.050 and 05.45.060 were present, visible, and readable at the beginning of a given day creates a presumption that all skiers using the ski area on that day have seen and understood the signs.

(f) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, a skier has the duty to avoid moving skiers already on the ski slope or trail.

(g) Except for the purpose of securing aid for a person injured in the collision, a skier involved in a collision with another skier or person that results in an injury may not leave the vicinity of the collision before giving the skier’s name and current address to the other person involved in the collision and to an employee of the ski area operator or a member of the voluntary ski patrol. A person who leaves the scene of a collision to obtain aid shall give the person’s name and current address as required by this subsection after obtaining aid.

(h) A person who violates a provision of (c) or (g) of this section is guilty of a violation as defined in AS 11.81.900. The commissioner of natural resources, a person designated by the ski area operator who is authorized by the commissioner, or an employee of the Department of Natural Resources authorized by the commissioner may issue a citation in accordance with the provisions of AS 41.21.960 to a person who violates (c) or (g) of this section within a ski area.

(i) The supreme court shall establish by rule or order a schedule of bail amounts that may be forfeited without a court appearance for a violation of (c) or (g) of this section.

HISTORY: (§ 2 ch 63 SLA 1994; am §§ 1, 2 ch 64 SLA 2004)

NOTES: EFFECT OF AMENDMENTS.—The 2004 amendment, effective September 14, 2004, deleted “over which the state has jurisdiction” at the end of subsection (h), and added subsection (i).

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.110. Competition; immunity for ski area operator

(a) The ski area operator shall, before the beginning of a ski competition, allow an athlete who will ski in the competition a reasonable visual inspection of the course or area where the competition is to be held.

(b) An athlete skiing in competition assumes the risk of all course or area conditions, including weather and snow conditions, course construction or layout, and obstacles that a visual inspection would have revealed. A ski area operator is not liable for injury to an athlete who skis in competition and who is injured as a result of a risk described in this subsection.

HISTORY: (§ 2 ch 63 SLA 1994)

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.120. Use of liability releases

(a) A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.

(b) Notwithstanding (a) of this section, a ski area operator may

(1) require a special event coach, participant, helper, spectator, or rental customer to sign an agreement releasing the ski area operator from liability in exchange for the right to coach, participate, assist in, or observe the special event; or

(2) use a release agreement required by a third party as a condition of operating a rental program or special event at the ski area.

(c) In this section, “special event” means an event, pass, race, program, rental program, or service that offers competition or other benefits in addition to a ticket representing the right to ride a ski area tramway and ski on the ski slopes or trails, whether or not additional consideration is paid.

HISTORY: (§ 2 ch 63 SLA 1994)

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.

Sec. 05.45.200. Definitions

In this chapter,

(1) “base area lift” means a tramway that skiers ordinarily use without first using some other tramway;

(2) “conditions of ordinary visibility” means daylight or, where applicable, nighttime, in nonprecipitating weather;

(3) “inherent danger and risk of skiing” means a danger or condition that is an integral part of the sport of skiing, including 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; the term “inherent danger and risk of skiing” does not include the negligence of a ski area operator under AS 05.45.020, or acts or omissions of a ski area operator involving the use or operation of ski lifts;

(4) “injury” means property damage, personal injury, or death;

(5) “passenger” means a person who is lawfully using a tramway;

(6) “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;

(7) “ski area operator” means a person having operational responsibility for a downhill ski area, and includes an agency of the state or a political subdivision of the state;

(8) “skier” means an individual using a downhill ski area for the purpose of

(A) skiing;

(B) sliding downhill on snow or ice on skis, a toboggan, a sled, a tube, a ski-bob, a snowboard, or another skiing or sliding device; or

(C) using any of the facilities of a ski area, including ski slopes and trails;

(9) “ski slopes or trails” means those areas designated by a ski area operator to be used by a skier;

(10) “tramway” means a device that is a passenger tramway, aerial or surface lift, ski lift, or rope tow regulated under AS 05.20.

HISTORY: (§ 2 ch 63 SLA 1994)

USER NOTE: For more generally applicable notes, see notes under the first section of this article, chapter or title.