Plaintiff loses snow tubing case in PA because their experts could not argue the actions of the defendant were gross negligence.

Association resource guide is used against the defendants to prove the plaintiff’s case.

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

State: Pennsylvania, Superior Court of Pennsylvania

Plaintiff: Ray M. Bourgeois and Mary Ann I. Bourgeois

Defendant: Snow Time, Inc. and Ski Roundtop Operating Corporation

Plaintiff Claims: negligence, gross negligence, recklessness, and loss of consortium

Defendant Defenses: failure to state a claim and release

Holding: For the defendant

Year: 2018

Summary

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Facts

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

The defendants filed a motion for summary judgment, which was granted and the plaintiff’s appealed.

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

The first issue the appellate court reviewed was the dismissal of the plaintiff’s claims for gross negligence. The appellate court held that “we find that Appellants did not establish a prima facie claim for recklessness or gross negligence

The court came to that conclusion because no one could state the standard of care needed to prove the actions of the defendant rose to the level of gross negligence.

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

The court first looked at the definition of recklessness and gross negligence.

The Pennsylvania Supreme Court, citing the Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

The key point is the failure must be an intentional failure. The plaintiff must establish that the defendant consciously acted or failed to act. “Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.

To prove gross negligence Pennsylvania laws requires a deviation from the standard of care.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary standard of care.”

Normally the trier of fact, the jury must make this decision. However, Pennsylvania courts are allowed to decide this issue if the facts are “entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence.”

Normally, to prove the defendant’s duty, expert testimony is required to establish the standard of care that the defendant failed to meet and how the expert deviated from that standard of care.

The plaintiff hired to experts that provided opinions as to the actions of the defendant. The first expert opined that the actions of the defendant were beyond the standard of care, but never provided an opinion about what the standard of care was.

DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

The second expert did not set forth any standards of care.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

The simple negligence claims were barred by a release. The plaintiff argued on appeal that the release was void because it did not specifically name in the release one of the defendants. However, the court found that the language in the release, “and their owners” was sufficient to cover the defendant when not specifically named in the release.

There was a dissent in this case. The dissent argued the plaintiff should win because the warning on the mats used to decelerate the tubes stated that vinyl tubes were not to be decelerated by mats or other devices. The dissent also argued the opinions of the experts did provide enough information for a decision about the recklessness and gross negligence of the defendants.

In my view, Appellants have put forth enough evidence at this stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

So Now What?

The plaintiff was rendered a quadriplegic by the accident so a lot of money was at stake. The plaintiff did not hire experts correctly or did not explain what was needed from the experts. This first rule of pleading is proving your case legally on the paperwork and then prove it in the record. The plaintiff failed to do that.

The biggest hurdle was the association resource guide. The National Ski Area Association created a resource guide for tubing hills. The dissenting judge called it the standard of care. The resource guide did not contain any information on using devices to slow tubes. The resource guide said you should have a sufficient run out.

The court did not see the issue as using a mat to slow participants as a violation of the standard to use a run out.

That was the close one in this case.

What do you think? Leave a comment.

Copyright 2019 Recreation Law (720) 334 8529

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




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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Jim@Rec-Law.US

By Recreation Law    Rec-law@recreation-law.com    James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, #RecreationLaw, #OutdoorLaw, #OutdoorRecreationLaw, #SkiLaw,


Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938; 2018 WL 3868670

Bourgeois v. Snow Time, Inc., 2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

Bourgeois v. Snow Time, Inc.

 

 

Superior Court of Pennsylvania

August 14, 2018, Decided; August 14, 2018, Filed

No. 1086 MDA 2017

Reporter

2018 Pa. Super. Unpub. LEXIS 2938 *; 2018 WL 3868670

RAY M. BOURGEOIS AND MARY ANN I. BOURGEOIS, Appellants v. SNOW TIME, INC. AND SKI ROUNDTOP OPERATING CORPORATION

Notice: DECISION WITHOUT PUBLISHED OPINION

Prior History:  [*1] Appeal from the Order Entered June 19, 2017. In the Court of Common Pleas of York County Civil Division at No(s): 2015-SU-001900-71.

Judges: BEFORE: OTT, J., DUBOW, J., and STRASSBURGER,* J. Judge Ott joins the memorandum. Judge Strassburger files a dissenting memorandum.

Opinion by: DUBOWS

Opinion

MEMORANDUM BY DUBOW, J.:

Appellants, Ray M. Bourgeois and Mary Ann I. Bourgeois, appeal from the Order entered in the York County Court of Common Pleas granting the Motion for Summary Judgment filed by Appellees, Snow Time, Inc. and Ski Roundtop Operating Corporation.1 Appellants challenge the trial court’s finding that Appellants could not establish that Appellees acted recklessly or with gross negligence. After careful review, we agree with the trial court that Appellants failed to provide an expert report that articulated a relevant standard of care. As a result, Appellants failed to establish that Appellees had a duty to Appellants and, thus, acted recklessly or were grossly negligent in placing deceleration mats at the end of the tubing run. We affirm the Order of the trial court.

In the instant matter, Appellant Ray Bourgeois was seriously injured while snow tubing when his tube crossed folded anti-fatigue rubber kitchen [*2]  mats which Appellees had placed in the deceleration area of the snow tubing run. Appellants’ theory of the case is that Appellees acted recklessly and with gross negligence by placing the mats at the end of the tubing run to aid in tube deceleration.

Appellants filed a Complaint against Appellees on July 24, 2015, asserting claims for negligence, gross negligence, recklessness, and loss of consortium.

On February 14, 2017, Appellees filed a Motion for Summary Judgment, which the trial court granted on June 19, 2017.

This timely appeal followed. Appellants filed a court-ordered Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. The trial court filed a Pa.R.A.P. 1925(a) Opinion, incorporating its Opinion in Support of the Order granting the Motion for Summary Judgment.

Appellants raise the following issues for our review:

1. Did the trial court err in granting [Appellees’] Motion for Summary Judgment when it disregarded [Appellants’] liability expert reports, which support the conclusion that, based on the evidence of record, that in placing large rubber kitchen mats, folded in half, on the snow and in the path of its patrons who were traveling at high speeds, [Appellees] acted recklessly and/or with gross negligence? [*3] 

2. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, by holding that, as a matter of law, [Appellees] were not reckless and/or grossly negligent, in that the trial court disregarded genuine issues of material fact showing recklessness and/or gross negligence, including but not limited to the following:

(a) the manufacturer of the inner tube [Appellees] provided Mr. Bourgeois specifically warned [Appellees] not to place obstacles, such as large folded rubber kitchen mats, in the path of tubing participants;

(b) [Appellees] deliberately placed obstacles-large, heavy, folded kitchen mats that [Appellees] knew were not designed for snow tubing and which would cause tubing participants to come to an abrupt stop during high-speed conditions-directly in Mr. Bourgeois’s path;

(c) [Appellees] knew that folding the large mats made them obstacles as the mats were fixed heavy masses that protruded high off the surface of the snow;

(d) [Appellees] had actual and/or constructive knowledge of similar incidents involving the folded kitchen mats prior to Mr. Bourgeois’s catastrophic accident;

(e) [Appellees] acknowledged in their written warnings that their tubing runs-including [*4]  their use of large rubber mats to stop speeding tubing patrons-posed a risk of grievous injury or death to its patrons; and

(f) the risk of grave harm posed by the folded rubber kitchen mats to [Appellees’] snow tubing patrons was obvious and readily apparent to a reasonable person?

3. Did the trial court err in granting [Appellees’] Motion for Summary Judgment, in that the trial court relied upon the testimony of [Appellees’] own employees-in contravention of the Nanty-Glo[]2 holding-to conclude as a matter of law that [Appellees] did not know or have reason to know that using folded kitchen mats to bring its fast-moving snow-tubing patrons to an abrupt stop did not pose a risk of serious bodily harm or death to its patrons?

4. Did the trial court err in granting [Appellees’] Motion for Summary Judgment as to [Appellee] Snow Time, Inc., when (a) the Release signed by Mr. Bourgeois did not name Snow Time as a signatory, and (b) there were genuine issues of fact that [Appellee] Snow Time directly participated and acted negligently with regard to Mr. Bourgeois?

Appellants’ Brief at 6-7.

Issues 1 and 2 – Summary Judgment

In their first two issues, Appellants argue that the trial court erred [*5]  in granting Appellees’ Motion for Summary Judgment by disregarding the conclusions of their experts that Appellees’ conduct was reckless and grossly negligent. Appellants’ Brief at 35, 42. In support, Appellants emphasize certain evidence and argue that the record contains genuine issues of material fact that make the grant of summary judgment inappropriate. Based on the following discussion, however, we find that Appellants did not establish a prima facie claim for recklessness or gross negligence and thus, the trial court did not err in granting summary judgment on these issues.

Our standard of review of the grant of a Motion for Summary Judgment is as follows. We “may reverse a grant of summary judgment if there has been an error of law or an abuse of discretion.” Summers v. Certainteed Corp., 606 Pa. 294, 997 A.2d 1152, 1159 (Pa. 2010). However, when there are no genuine issues as to any material fact and the only issue on appeal is a question of law, our standard of review is de novo.” Id.

In order to survive a motion for summary judgment, the non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Washington v. Baxter, 553 Pa. 434, 719 A.2d 733, 737 (Pa. 1998) (citation omitted). If the non-moving [*6]  party fails to establish one of the essential elements of her claim, the movant has valid grounds for summary judgment. Babb v. Ctr. Cmty. Hosp., 2012 PA Super 125, 47 A.3d 1214, 1223 (Pa. Super. 2012) (citation omitted).

It is well-established that when a trial court considers a motion for summary judgment that includes an expert report, the trial court must determine, inter alia, whether the expert sufficiently supports his conclusions in his expert report:

At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party. This clearly includes all expert testimony and reports submitted by the non moving party or provided during discovery; and, so long as the conclusions contained within those reports are sufficiently supported, the trial judge cannot sua sponte assail them in an order and opinion granting summary judgment. Contrarily, the trial judge must defer to those conclusions, and should those conclusions be disputed, resolution of that dispute must be left to the trier of fact.

Summers, supra at 1161 (citations omitted).

In this case, the trial court concluded as a matter of law that Appellants could not establish a claim for recklessness or gross negligence. The trial [*7]  court reasoned that since Appellants’ experts had not articulated the standard of care that Appellees failed to meet, a factfinder could not conclude that Appellees were aware of that standard of care and disregarded it and, thus, acted recklessly or with grossly negligence:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the mats at the bottom of hills for snow tubers. . . . The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Appellant] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Ct. Op., 7/19/17, at 18-19. The trial court similarly found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. Appellants challenge these conclusions.

We first turn to the definitions of recklessness and gross negligence. The Pennsylvania Supreme Court, citing the [*8]  Restatement (Second) of Torts, found that a defendant acts recklessly, when, inter alia, he owes a duty to the plaintiff and fails to meet that duty. That is, a defendant is reckless when:

he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Tayar v. Camelback Ski Corp., 616 Pa. 385, 47 A.3d 1190, 1200 (Pa. 2012), citing
Restatement (Second) of Torts § 500 (emphasis added). Therefore, an element of recklessness is the failure of the defendant to do any act that he has a duty to do for the plaintiff.

That failure, however, must be an intentional failure. In other words, a plaintiff must establish that a defendant consciously acted or failed to act. Thus, recklessness is more closely aligned with intentional conduct than with negligence, which suggests “unconscious inadvertence.” Id.

Similarly, an element of gross negligence is the deviation from a standard of care. More precisely, a plaintiff must establish that a defendant’s conduct grossly and flagrantly deviated from “the ordinary [*9]  standard of care.” Bloom v. Dubois Regional Medical Center, 409 Pa. Super. 83, 597 A.2d 671, 679 (Pa. Super. 1991).

Generally, it is for the jury to determine whether a party acted grossly negligent. Colloi v. Philadelphia Electric Co., 332 Pa. Super. 284, 481 A.2d 616, 621 (Pa. Super. 1984). However, a court may decide this question as a matter of law where the case is entirely free from doubt and there is no possibility that a reasonable jury could find gross negligence. Id.

Expert testimony is often required to opine about a defendant’s duty to the plaintiff, i.e., the standard of care that defendant failed to meet. In particular, an expert must opine about the relevant standard of care, the manner in which defendant’s actions deviated from the standard, and the manner in which that deviation caused the plaintiff’s harm. See Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 824 A.2d 1140, 1145 (Pa. 2003) (medical expert report must describe standard of care so as to establish duty, breach of duty, and causation). See also Zokaites Contracting Inc. v. Trant Corp., 2009 PA Super 35, 968 A.2d 1282, 1287 (Pa. Super. 2009) (in a professional negligence action, expert testimony is required to establish the “relevant standard of care applicable to the rendition of the professional services” and that the defendant’s conduct fell below that standard); Truax v. Roulhac, 2015 PA Super 217, 126 A.3d 991, 997-99 (Pa. Super. 2015) (discussing plaintiff’s use of an engineer’s expert testimony to establish the elements of negligence in a premises liability action).3 If the expert fails to provide the required information, a trial [*10]  court may conclude that the report is insufficient as a matter of law. Id.

We now turn to the theory of Appellants’ case. Appellants allege in their Complaint, inter alia, that Appellees’ use of folded deceleration mats at the base of its tubing run was reckless and grossly negligent because the use of the mats caused Appellant’s snow tube to stop suddenly and unexpectedly, resulting in the serious injuries that Appellant sustained. Appellants assert the same theory on appeal by arguing that Appellees engaged in reckless and grossly negligent conduct when they placed “large, heavy rubber mats in [Appellant’s] path … and that the mats could bring [Appellant] to an abrupt, immediate stop.”4
See Appellants’ Brief at 36.

In support of Appellants’ response to Appellees’ Motion for Summary Judgment, Appellants presented two expert reports that concluded that Appellees engaged in reckless and grossly negligent conduct. Neither expert, however, set forth a relevant standard of care and, thus, the duty that Appellees failed to meet.

Appellants’ first expert, Mark DiNola, is an expert in the field of ski and snow tubing risk management. When addressing Appellees’ standard of care, he did so generally [*11]  and failed to articulate a specific standard of care or industry standard for the use of deceleration mats in a tubing run-out area. In particular, DiNola first concluded generally that Appellees’ “decision to use deliberately deployed folded anti-fatigue rubber mats as a deceleration device constitutes an extreme departure from the ordinary standards of conduct for a tubing park operator.” DiNola Report, 3/15/17, at 40 (emphasis added). DiNola, however, did not cite or explain the “ordinary standards of conduct for a tubing park operator” from which Appellees’ conduct had departed. He just baldly opined that the use of the mats departs from ordinary standards of conduct.

In another portion of the report, however, DiNola discusses a standard of care set forth in National Ski Areas Association’s “Tubing and Operations Resource Guide.”5 That “standard of care,” however, addresses the length of a tubing run-out, not a standard of care for the use of mats as deceleration devices. Thus, this portion of the expert report does not sufficiently articulate the applicable standard of care or conduct to support Appellants’ theory of this case.

The second expert report, written by Gordon Moskowitz, [*12]  Ph.D., a mechanical and biomechanical engineering expert, does not set forth any standards of care for tubing operators. Thus, this report is not relevant to the determination of whether Appellees engaged in reckless or grossly negligent conduct in failing to meet a standard of care by using folded rubber mats in the deceleration area.

Therefore, we are constrained to agree with the trial court that Appellants failed to articulate the appropriate standard of care for the use of deceleration mats. Without such a standard of care, Appellants, as a matter of law, cannot establish Appellees’ duty to Appellants and that Appellees knew or should have known about the standard of care. Since Appellants failed to meet this element of recklessness and gross negligence, the trial court properly granted Appellees’ Motion for Summary Judgment on this issue.

Issue 3 – Nanty-Glo Rule

In their third issue, Appellants claim that the trial court erred in concluding, solely based on Appellees’ employees’ testimony, that Appellees were not aware of the risk of harm posed by their use of anti-fatigue mats in the deceleration areas of the tubing run. Appellants’ Brief at 55.

The Nanty-Glo Rule limits the trial [*13]  court’s use of affidavits or depositions to decide motions for summary judgment. The Rule provides that a trial court, when ruling on a motion for summary judgment, may not rely solely upon the moving party’s own testimonial affidavits or depositions, or those of its witnesses, to determine that no genuine issue of material fact exists. Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916, 918 (Pa. Super. 1992) (citation and footnote omitted).

Before applying the Nanty-Glo Rule, however, the trial court must first determine whether the plaintiff has alleged sufficient facts to establish a prima facie case:

Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the fact-finder by resolving any material issues of fact. It is only when the third stage is reached that Nanty-Glo comes into play.

DeArmitt v. New York Life Ins. Co., 2013 PA Super 161, 73 A.3d 578, 594-95 (Pa. Super. 2013) (citation omitted and emphasis added).

As discussed above, the trial court properly found as a matter of law that Appellants’ experts had not opined about a relevant standard of care [*14]  and, thus, Appellants could not establish facts sufficient to make out a prima facie case of recklessness or gross negligence. Accordingly, Appellants have not demonstrated the applicability of the Nanty-Glo Rule. This third issue, thus, warrants no relief.

Issue 4 – The Release of Snow Time, Inc.

Lastly, Appellants contend that the trial court erred in dismissing the negligence claim against Snow Time, Inc. because the Release at issue did not specifically name or identify Snow Time, Inc. Appellants’ Brief at 61. We disagree.

The Release at issue states, in pertinent part, that Appellants release from negligence claims Appellee Ski Liberty Operating Corporation and its owners:

In consideration of being allowed to use the tubing area at Liberty, Whitetail or Roundtop, I HEREBY AGREE NOT TO SUE AND TO RELEASE, SKI LIBERTY OPERATING CORP., WHITETAIL MOUNTAIN OPERATING CORP. AND SKI ROUNDTOP OPERATING CORP., AS WELL AS THEIR OWNERS, AGENTS AND EMPLOYEES FROM ANY AND ALL LIABILITY RELATED TO INJURY, PROPERTY LOSS OR OTHERWISE RELATED TO MY USE OF THE TUBING FACILITY, REGARDLESS OF ANY NEGLIGENCE ON THE PART OF THE SAME. I FURTHER AGREE TO INDEMNIFY AND DEFEND THE SAME, FROM ANY CLAIM FOR LIABILITY [*15]  RELATED TO INJURY AS A RESULT OF MY OR MY CHILD’S USE OF THE FACILITIES, REGARDLESS OF ANY NEGLIGENCE, RECKLESSNESS OR IMPROPER CONDUCT.

Release (emphasis added).

It is undisputed that Appellee Snow Time, Inc. owns Appellee Ski Roundtop Operating Corporation. Although the Release does not specifically name Appellee Snow Time, Inc., the Release still covers Appellee Snow Time, Inc. because the Release clearly and unambiguously covers the owner of Ski Roundtop Operating Corporation.

Moreover, Appellants do not otherwise contend that the Release is ambiguous. They raise no claims as to the Release’s general validity, conspicuity, or enforceability. Further, Appellants cite no authority to support their implication that unless the Release specifically names an owner, the term “owner” does not apply to it.

We agree with the trial court that the Release applied to Appellee Snow Time, Inc., as the owner of Ski Roundtop Operating Corporation. Therefore, the Release applied to general negligence claims against Appellee Snow Time, Inc. and Appellants’ claim to the contrary is without merit.

Based on the foregoing, we affirm.

Order affirmed.

Judge Ott joins the memorandum.

Judge Strassburger files a [*16]  dissenting memorandum.

Date: 8/14/18

Dissent by: STRASSBURGER

Dissent

DISSENTING MEMORANDUM BY STRASSBURGER, J.:

In this case, the learned Majority holds that the trial court correctly concluded that Appellants could not establish a claim for recklessness or gross negligence as a matter of law at the summary judgment stage.1 Because I believe a reasonable jury could find that the facts constitute gross negligence and/or recklessness, I respectfully dissent. See Albright v. Abington Mem’l Hosp., 548 Pa. 268, 696 A.2d 1159, 1164 (Pa. 1997) (holding that a court may only take issue of gross negligence away from jury and decide the issue as a matter of law “if the conduct in question falls short of gross negligence, the case is entirely free from doubt, and no reasonable jury could find gross negligence“).

This case stems from an incident that occurred while Appellant Ray Bourgeois (Bourgeois) was snow tubing at Roundtop Mountain Resort (the Resort), which is owned and operated by Appellees. As described by the trial court, Bourgeois

went down the hill on his stomach, [head first] on his tube, and proceeded to reach the run-out area at the bottom of the hill. To aid snow tubers in slowing down and stopping at the bottom of the hill, [Appellees] utilized deceleration mats. On his final [*17]  run, [Bourgeois’s] snow tube came into contact with a deceleration mat, causing his tube to come to an abrupt stop. [Bourgeois’s] body continued forward in motion after his tube stopped, causing him to land [head first] into the snow. The resulting collision caused a hyperextension of [Bourgeois’s] spinal cord in his neck that has left him quadriplegic with limited mobility from his neck down.

Trial Court Order Granting Summary Judgment,2 6/19/2017, at 2-3.

What the trial court refers to as “deceleration mats” are actually rubber anti-fatigue mats commonly used as a walking surface in commercial kitchens. Spahr Deposition, 7/14/2016, at 25; Weeden Deposition, 7/20/2016, at 64-65; Whitcomb Deposition, 9/1/2016, at 95-96. The Resort inherited some of the mats from another resort. Whitcomb Deposition, 9/1/2016, at 96. When the Resort needed additional mats, Matt Weeden, the manager of the tubing park at the Resort, testified that he attempted to match the mats in use and “asked [the Resort’s] food and beverage guy where he got his and basically shopped around and compared the mats and figured out exactly what they were and ordered them.” Weeden Deposition, 7/20/2016, at 65. The mats are [*18]  not specifically designed for snow tubing. Id. Appellees used the mats to assist the snow tube rider to slow down at the bottom of the hill and to minimize collisions between a snow tube and people walking around at the bottom of the hill. Reichert Deposition, 7/13/2016, at 34-35; Whitcomb Deposition, 9/1/2016, at 81, 89.

The vinyl snow tubes used by the Resort have a written warning stating that the product is designed to be used on hills with no obstacles with adequate room to stop. Appellants’ Brief in Opposition to Motion for Summary Judgment, 3/16/2017, at Exhibit E. Appellees never conducted any studies as to the effect of a vinyl tube encountering a rubber mat. Whitcomb Deposition, 9/1/2016, at 96. In 2004, Appellees added elevation to the snow-tubing hill in order to create a more fun experience for their customers. Whitcomb Deposition, 9/1/2016, at 53-54. When they did so, they extended the runout “a little bit,” because making the hill higher resulted in the riders traveling faster down the hill and a farther distance at the bottom. Id. at 54-56.

Two of the safeties3 testified that they are aware that the speed that riders travel depends on various factors, including weather conditions, [*19]  the time of day, and the number of people going down a slope at a time. For example, riders went faster when it was colder. Spahr Deposition, 7/14/2016, at 34; Reichert Deposition, 7/13/2016, at 35-37. Nevertheless, the Resort did not measure speed other than by observation. The safeties and tubing supervisors determined when and how to use the mats depending on their observations of how the lanes were running, the speed riders were moving, and where the tubes were stopping, but there were no formal policies or procedures about when and how to use the mats. Reichert Deposition, 7/13/2016, at 35-38, 45; Whitcomb Deposition, 9/1/2016, at 98. The mats sometimes lay flat; sometimes they were folded. One of the tubing safeties observed that folded mats usually slowed down the rider more than flat mats due to an increase in friction. Reichert Deposition, 7/13/2016, at 36.

Appellants obtained the opinions of two experts. The first, Mark A. Di Nola, is an expert in ski and snow tubing risk management. The second, Gordon Moskowitz, Ph.D., is a an expert in mechanical and biomechanical engineering.

Di Nola opined that Bourgeois was severely injured as a direct result of Appellees’ deliberate actions, [*20]  which include the following:

[1.] [Appellees’] conscious decision to employ an operationally reckless company policy mandating the deployment of deliberately placed folded anti-fatigue rubber mats at the bottom of the tubing hill as deceleration devices with explicit knowledge that the deliberately deployed folded anti-fatigue rubber mats were not designed or tested for use as deceleration devices[.]

[2.] [Appellees’] conscious decision to attempt to transfer the increased risks to their guests rather than make the tubing experience safer for consumers by eliminating the increased risk as they did only after [Bourgeois’s] tragic incident, placing their corporate financial needs over the needs of their guests.

[3.] [Appellees] consciously deployed snow tubes and provided them to their patrons in a manner that directly violated the manufacturer’s warning label by using the tubes on hill with deliberately placed obstacles that were set out in an attempt to offset the fact that the hill did not provide adequate room to stop.

[4.] [Appellees’] conscious decisions described above increased the risk of serious bodily injury to riders over and above those inherent in the activity of snow tubing [*21]  in the Commonwealth of Pennsylvania.

[5.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and constitute an extreme departure from the ordinary standards of conduct for a ski area in the Commonwealth of Pennsylvania.

[6.] [Appellees’] conscious decisions increased the risk of serious injury to riders over and above those inherent in the activity of snow tubing in the Commonwealth of Pennsylvania and are a proximate cause of [Bourgeois’s] injuries.

Di Nola Report, 3/15/2017, at 41-42.

Moskowitz opined, inter alia, that

***

2. The use of folded anti-fatigue mats as a deceleration device would expose tube riders to the likelihood of their tube encountering a sudden abrupt stop, particularly when the mats were folded with the ‘nubs’ exposed to the surface of the tube.

3. The stopping effect of a tube encountering a folded anti-fatigue mat with nubs exposed should have been readily apparent to [Appellees] well before [Bourgeois’s] accident of February 17, 2013.

4. Tube riders who travelled head [] first (on their stomachs) on ‘fast’ days would be subject to a greater [*22]  risk of suffering injuries similar to those experienced by [] Bourgeois.

***

6. Arranging the mats in a folded position enhances the risk of a sudden tube stop.

7. The variations in weather … would have resulted in [Bourgeois’s] tubing experience being significantly faster at or around 3:00 p.m. when his accident occurred than [on Bourgeois’s previous runs down the hill].

Moskowitz Report, 3/14/2017, at 20. Moskowitz also opined that Appellees

knew or should have known that tubers traveling at a high rate of speed would find their tube brought to an abrupt stop when it encountered a folded mat, with that risk increasing further when the mat was folded with the nubs exposed to the bottom of the tube. Analysis indicates that a tube and rider in the prone position with [Bourgeois’s] physical measurements, facing forward and traveling at approximately 15 mph would enter into a flipping motion upon contact with a folded mat due to the resulting friction and the fold. [B]ased upon the known weather conditions and [Bourgeois’s] weight, his speed at the point of encountering the folded mat was well in excess of this speed.

Id. at 16.

After discovery closed, Appellees moved for summary judgment, arguing, [*23] 
inter alia, that Appellants failed to support claims for reckless conduct, because Appellants used the mats in a matter customary to the industry without incident up until the incident. Appellees’ Motion for Summary Judgment, 2/14/2017, at ¶¶ 28-41; Appellees’ Memorandum of Law in Support of Motion for Summary Judgment, 2/14/2017, at 17-20 (pagination supplied). Appellees later argued that the record also did not support a claim of gross negligence. Appellees’ Reply Brief in Support of Motion for Summary Judgment, 3/31/2017, at 24. Appellees contended that Appellants’ expert, Moskowitz, attributed Bourgeois’s injuries to a “confluence of … interlinked events” and thus, Appellees would have no way of knowing or any reason to have known such events could have arisen to cause harm. Id. Appellants opposed Appellees’ motion for summary judgment by presenting the evidence referenced supra.

As the Majority recounts, the trial court stated the following regarding its determination that Appellants failed to set forth evidence support their claims of gross negligence and recklessness:

[Appellants] have not produced sufficient evidence to show that an industry standard exists for placing the [*24]  mats at the bottom of hills for snow tubers. … The absence of any standard on the record makes it difficult for the [c]ourt to find that [Appellees] knew that their conduct of using deceleration mats to stop snow tubers in the runout area would be placing [Bourgeois] at a higher unreasonable risk of harm than if [Appellees] had placed mats in a different manner, selected to purchase a different kind of mat, or used a different method for stopping the snow tubers.

Trial Court Order Granting Summary Judgment, 6/19/17, at 18-19.

The trial court further found no evidence that Appellees “knew or had reason to know that folding the mats created an unreasonable risk of physical harm.” Id. at 19. See also id. at 22-23 (discussing gross negligence).

Noticeably absent from the trial court’s discussion is any mention of Appellants’ expert reports. “At the summary judgment stage, a trial court is required to take all facts of record, and all reasonable inferences therefrom, in a light most favorable to the non-moving party.” Greely v. W. Penn Power Co., 2017 PA Super 33, 156 A.3d 276, 282-84 (Pa. Super. 2017). This includes all expert reports. In fact, this Court has held that when a trial court’s opinion does not reflect consideration of the non-moving party’s expert reports, this is error as it signals [*25]  a failure to consider all evidence of record in a light most favorable to the non-moving party. Id.

The Majority simply ignores the trial court’s failure to consider Appellants’ expert reports and undergoes its own analysis of the reports. It concludes that neither expert set forth a relevant standard of care and thus, the duty that Appellees failed to meet. Majority Memorandum at 8-10. The Majority dismisses the Moskowitz report entirely as irrelevant, and rejects the Di Nola report as conclusory. Id.

However, in my view, both experts satisfactorily assisted Appellants in establishing gross negligence and recklessness. Woven throughout the reports are detailed references to the way that Appellees grossly deviated from the standard of care. One cannot seriously dispute that Appellees owe their patrons, who are riding on a vinyl tube without a steering or stopping mechanism down a steep snow-covered hill on a course that Appellees designed, a duty to ensure that the patrons are able to stop safely without serious injury at the bottom. One hardly needs an expert to establish that placing a stationary object, which is designed for an entirely different use, in the path of a fast-travelling [*26]  snow tube rider in the hopes of slowing down the rider could instead, under certain foreseeable conditions, cause the rider to stop abruptly and eject the rider in a manner resulting in serious injury. This is particularly the case when Appellees have not conducted or reviewed studies to determine the effect of placing the mat in the rider’s path under various conditions. Further, a jury could find that risk of serious injury was substantially increased without a standardized method to measure riders’ specific speeds, assess conditions, or arrange the mats. Moreover, not only were the mats used by Appellees not designed for the purpose for which Appellees used them, they used the snow tubes in a manner that was contradicted expressly by the warning on the label – a label, by the way, which was illegible on Appellant’s tube.

The trial court states “[t]here is no evidence that [Appellants] were made aware of the risks of folding the deceleration mats and no evidence that any other incidents happened on the day Plaintiff suffered his injury[,] which would have put [Appellants] on notice that the mats were a problem. Trial Court Order Granting Summary Judgment, 6/19/2017, at 20 (emphasis [*27]  added). However, Appellants need not prove that Appellees actually were aware of the risks, just that Appellants had reason to know of facts which would lead a reasonable person to realize that the person’s conduct creates an unreasonable risk of physical harm to another and that such risk is substantially greater than that which is necessary to make the person’s conduct negligent. Tayar, 47 A.3d at 1200-01.4

In my view, Appellants have put forth enough evidence at this [*29]  stage for the jury to decide the issue. I disagree with the sole focus of the Majority and trial court on the use of the folded mats, when that is but one piece of Appellants’ claims. See Appellants’ Brief at 45-47 (discussing the facts Appellees knew or should have known, including the conditions contributing to speeds as high as 30-35 miles per hour, the risk of serious injuries when a fast-traveling snow tube abruptly collides with an obstacle, the lack of sufficient run-out area, and the use of mats not designed for use in snow tubing).5 Both experts explained the ways in which Appellees’ conduct deviated from the standard of care, based upon the facts established through depositions of Appellees’ employees and officers. It is clear to me that a jury could have determined that the series of conscious decisions made by Appellees worked together to create an unreasonable risk of physical harm to Bourgeois that was substantially greater than ordinary negligence. Therefore, I would reverse the trial court’s grant of summary judgment and remand for trial.

End of Document


To prove gross negligence under Washington State law you have to show intentional or reckless misconduct. Assumption of the risk prevents river tuber for suing for his injuries hitting a strainer.

Washington defines assumption of the risk the same way most other courts do. However, the names they sue to describe assumption of the risk are different in some cases and confusing in others.

Here, assumption of the risk stopped claims both for negligence and gross negligence for this tubing case.

Summary

Assumption of the risk is growing again as a defense to different types of claims by plaintiffs. In this case, the plaintiff assumed the risk of his injuries for a tubing accident which barred his negligence claim and his gross negligence claim. The standard of proof needed to prove a claim that cannot be defeated by assumption of the risk in Washington is a much higher level of action on the part of the defendant.

Here the plaintiff failed to plead or allege that level of acts by the defendant.

Washington also uses different names for the types of assumption of the risk that are applied to cases, which can lead to greater confusion.

If you are a defendant, instead of attempting to understand what is or is not assumption of the risk. Spend your time educating your customers, so they know and assume the risk they may be facing.

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

State: Washington, Court of Appeals of Washington, Division Three

Plaintiff: Brian Pellham

Defendant: Let’s Go Tubing, Inc., et al.

Plaintiff Claims: presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion lo-cation, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed.

Defendant Defenses: that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pelham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence.

Holding: For the Defendant

Year: 2017

Facts

The plaintiff rented an inner tube from the defendant. The rental included delivery to the put in by the defendant. This is commonly described as a livery operation as compared to a pure rental where the renter takes the inner tube and goes wherever.

Upon arrival, the plaintiff signed a release and rented an inner tube. The plaintiff uses releases in his business, although what type of business was never discussed by the court.

The bus driver for the defendant told most of the tubers that upon entry they should push off to the far side of the river to avoid a tree that had fallen into the river immediately downriver but out of sight of the put in.

The plaintiff did not hear this warning. The plaintiff and four friends tied their inner tubes together. The current was swift and they quickly rounded the bend where they saw the tree across the river. The rental company gave each renter a Frisbee to use as a paddle. Everyone used the Frisbee to paddle away from the tree, but the plaintiff hit the tree. Falling into the river the plaintiff broke his ear drum. He went under the tree and upon resurfacing; he struck a large branch which gave him a whiplash.

The plaintiff swam to shore and ended his tubing trip. The plaintiff eventually underwent a neck fusion surgery.

The defendant was legally not allowed to remove the strainer from the river.

The plaintiff sued the defendant. The trial court granted the defendant’s motion for summary judgment, and the plaintiff appealed.

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

Washington has defined four types of assumption of the risk and has identified them slightly differently than most other states.

Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.

The first two, Express Assumption of the Risk and Implied Assumption of the Risk are still complete bars to a claim of negligence. The second two, Implied Unreasonable and Implied Reasonable have merged into contributory negligence and simply reduce the plaintiff’s damages.

Washington defines the types of assumption of the risk the same way most other states do.

Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks.

Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent.

Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk.

Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so.

Washington also names Implied Primary Assumption of the Risk as Inherent Peril Assumption of the Risk.

Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves those known risks. One who participates in sports impliedly assumes the risks inherent in the sport.

How the plaintiff was injured defines whether or not Inherent Peril Assumption of the Risk applies. The court went on to define the inherent peril assumption of the risk as:

One who engages in sports assumes the risks that are inherent in the sport. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport.

Inherent peril assumption of the risk extends to water sports. One who plays in the water assumes the reasonably foreseeable risks inherent in the activity. Water sports include inner tubing and canoe rentals. Inherent risk applies because “Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions.”

For the plaintiff to assume the risk, three elements must be found.

Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk.

Washington also requires the plaintiff to understand the risk. “The rule of both express and inherent peril assumptions of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk.”

However, that does not require knowledge of the specific issues that caused the injury, just knowledge that the injury could occur. Meaning, if the injured party knows that trees fall into rivers, would be enough. There is no requirement that the injured plaintiff knew that a tree fell into the river.

…Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river.

However, even if the plaintiff assumed the risks, a plaintiff cannot assume the risk where the defendant unduly enhanced the risk.

While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks.

This difference places a burden on the plaintiff, in what he or she has to prove to win their claim and a burden on the courts to define what is an increase in the level of danger.

Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages.

However, here any negligence upon the part of the defendant did not increase the risk. The negligence occurred prior to the plaintiff entering the water. The danger was the tree in the river which the defendant could not do anything about.

When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.

The plaintiff also argued in this complaint, that the actions of the defendant were grossly negligent. Gross negligence in Washington is defined as failure to exercise slight care.

Gross negligence claims survive when a release has been signed. The issue before the court was whether gross negligence claims can be stopped if the plaintiff assumed the risk.

At the same time, gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk.

The court then redefined how gross negligence was going to be reviewed in Washington applying an intentional reckless standard as the level required proving gross negligence when a plaintiff assumes the risk.

We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.

There is a difference between gross negligence and reckless misconduct under Washington’s law.

Gross negligence consists of the failure to exercise slight care. Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her.

Because reckless conduct is a higher burden to meet, assumption of the risk becomes a defense that can beat a gross negligence claim in some situations in Washington. The plaintiff never pleaded reckless conduct on the part of the defendant so the plaintiff’s gross negligence claim was also denied.

Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.

So Now What?

Understanding the different slight subtlest between the various forms of assumption of the risk is difficult. Comparing them between states does nothing but create a confusing group of definitions that cross one another and at best confuse one another.

Better, set up a system to educate your guests or clients on the risks they may encounter. That time spent educating the guests can pay dividends both in keeping you out of court and keeping your guests happy and coming back.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) 334 8529

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

clip_image002 clip_image004 clip_image006 clip_image008 clip_image010

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

Author: Outdoor Recreation Insurance, Risk Management and Law

To Purchase Go Here:

Facebook Page: Outdoor Recreation & Adventure Travel Law

Email: Rec-law@recreation-law.com

By Recreation Law Rec-law@recreation-law.com James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, assumption of risk, peril, tubing, river, sport, gross negligence, risks inherent, fallen, rental, summary judgment, log, reckless, relieve, hazard, warn, impliedly, encounter, survive, swift, site, inherent risks, water sports, duty to warn, inner tube, outdoor, fault, tuber, negligence claim, contributory negligence, comparative negligence, River Tubing, Tubing, Tubing Livery, Livery, Gross Negligence, Assumption of the Risk,


Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Pellham, v. Let’s Go Tubing, Inc., et al., 199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

Brian Pellham, Appellant, v. Let’s Go Tubing, Inc., et al., Respondents.

No. 34433-9-III

COURT OF APPEALS OF WASHINGTON, DIVISION THREE

199 Wn. App. 399; 2017 Wash. App. LEXIS 1525

March 21, 2017, Oral Argument

June 27, 2017, Filed

SUMMARY:

WASHINGTON OFFICIAL REPORTS SUMMARY Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.

Nature of Action: A participant in an inner tube float on a river sought damages for personal injury incurred when his tube struck a fallen log. The plaintiff sued the company and its owners who rented him the inner tube and who selected the site where participants entered the river, claiming that the defendants owed him a duty to warn about a fallen log in the river that was hidden from but was near the entry site. The plaintiff also claimed that the defendants violated the Consumer Protection Act.

Superior Court: The Superior Court for Chelan County, No. 13-2-00663-9, Lesley A. Allan, J., on April 14, 2016, entered a summary judgment in favor of the defendants, dismissing all of the plaintiff’s claims.

Court of Appeals: Holding that the defendants did not have a duty to warn the plaintiff about the fallen log because the plaintiff assumed the risk of a fallen log and swift current by voluntarily participating in the activity, the court affirms the judgment.

HEADNOTES WASHINGTON OFFICIAL REPORTS HEADNOTES

[1] Negligence — Assumption of Risk — Sports — River Float — Assumed Risks — Fallen Trees — Swift Current. By voluntarily participating in a float on a wild river, one assumes the inherent risks of fallen trees in the water and a swift current. The assumption of risk may relieve the organizer of the activity of an actionable duty to warn about or to prevent injury from trees in the river.

[2] Negligence — Assumption of Risk — Sports — Nature of Assumed Risk. Assumption of risk in the context of participating in a sport is in reality the principle of no duty to warn of the hazards of the sport, in which case there can be no breach of duty and no actionable claim for negligence.

[3] Negligence — Duty — Necessity — In General. A cause of action for negligence will not lie absent the existence of a duty of care.

[4] Negligence — Assumption of Risk — Effect — Relief From Duty. The tort concept of duty overlaps with the contract and tort principles of assumption of risk. An assumption of risk can sometimes relieve a defendant of a duty.

[5] Negligence — Duty — Question of Law or Fact — In General. Whether a defendant owed a duty to a plaintiff is a question of law.

[6] Negligence — Assumption of Risk — Classifications. The term “assumption of risk” expresses several distinct common law theories, derived from different sources, that apply when one is knowingly exposed to a particular risk. The general rubric of assumption of risk does not signify a singular doctrine but, rather, encompasses a cluster of discrete concepts. The law recognizes four taxonomies of assumption of risk: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable.

[7] Negligence — Assumption of Risk — Effect — In General. Express assumption of risk and implied primary assumption of risk operate as complete bars to a plaintiff’s recovery. Implied unreasonable assumption of risk and implied reasonable assumption of risk are merely alternative names for contributory negligence and merely reduce a plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and RCW 4.22.015.

[8] Negligence — Assumption of Risk — Express Assumption — What Constitutes — In General. Express assumption of risk arises when one explicitly consents to relieve another of a duty regarding specific known risks.

[9] Negligence — Assumption of Risk — Implied Primary Assumption — What Constitutes — In General. Implied primary assumption of risk follows from one’s engaging in risky conduct, from which the law implies consent.

[10] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Focus of Inquiry. Implied unreasonable assumption of risk primarily focuses on the objective unreasonableness of one’s conduct in assuming a risk.

[11] Negligence — Assumption of Risk — Implied Reasonable Assumption — What Constitutes. Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that one assumes a risk, but acts reasonably in doing so.

[12] Negligence — Assumption of Risk — Implied Unreasonable Assumption — Implied Reasonable Assumption — Comparison. The gist of implied reasonable and implied unreasonable assumption of risk is that a defendant performed conduct that increased the risk of an activity or situation beyond the inherent risks thereof and the plaintiff reasonably or unreasonably encountered the increased risk. The categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar a plaintiff’s recovery.

[13] Negligence — Assumption of Risk — Inherent Peril — Risk of Activity — Assuming the Dangers. Inherent peril assumption of risk–also known as implied primary assumption of risk–bars a plaintiff’s claim resulting from specific known and appreciated risks impliedly assumed, often in advance of any negligence by the defendant. A plaintiff’s consent to relieve a defendant of any duty is implied based on the plaintiff’s decision to engage in an activity that involves the known risks.

[14] Negligence — Assumption of Risk — Sports — Implied Assumption. One who participates in a sport impliedly assumes the risks inherent in the sport.

[15] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — In General. Under the theory of inherent peril assumption of risk, a plaintiff assumes the dangers that are inherent in and necessary to a particular activity. To the extent a risk inherent in a sport injures a plaintiff, the defendant has no duty and there is no negligence. A defendant does not have a duty to protect a sports participant from dangers that are an inherent and normal part of the sport.

[16] Negligence — Assumption of Risk — Inherent Peril — Applicability — Sports — Water Sports. Inherent peril assumption of risk extends to water sports. One who engages in a water sport assumes the reasonably foreseeable risks inherent in the activity. This assumption of risk includes inner tubing on water. Bodies of water often undergo change, and changing conditions in the water do not alter the assumption of risk. There is no duty to warn of the presence of natural transitory conditions in the water.

[17] Negligence — Assumption of Risk — Inherent Peril — Test. Inherent peril assumption of risk requires evidence that (1) the plaintiff possessed at least an understanding (2) of the presence and nature of the specific risk and (3) voluntarily chose to encounter the risk. In the usual case, a plaintiff’s knowledge and appreciation of a danger is a question of fact, but if it is clear that any person in the plaintiff’s position would have understood the danger, the issue may be decided by a court as a matter of law.

[18] Negligence — Assumption of Risk — Sports — Negligence Enhancing Assumed Risk. While participants in sports are generally held to have impliedly assumed the risks inherent in the sport, such assumption of risk does not preclude recovery for the negligent acts of others that unduly enhance such risks.

[19] Negligence — Assumption of Risk — Inherent Peril — Limited Application. Inherent peril assumption of risk is the exception rather than the rule in assumption of risk situations.

[20] Negligence — Assumption of Risk — Increased Danger — What Constitutes. Increased danger assumption of risk–also known as implied unreasonable assumption of risk and implied reasonable assumption of risk–does not involve a plaintiff’s consent to relieve a defendant of a duty. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Increased danger assumption of risk involves a plaintiff’s voluntary choice to encounter a risk created by a defendant’s negligence. Increased danger assumption of risk arises when a plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. In such a case, the plaintiff’s conduct is not truly consensual, but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk.

[21] Negligence — Assumption of Risk — Increased Danger — Applicability. Increased danger assumption of risk does not apply in circumstances where the defendant did not create and could not remove the risk and where the plaintiff did not voluntarily take the risk because the plaintiff did not know the precise nature of the risk beforehand and lacked time to avoid the risk once it became apparent.

[22] Negligence — Assumption of Risk — Inherent Peril — Knowledge of Risk — Warning — Statements in Written Release — Sufficiency. A recitation in a release of liability warning of dangers inherent in an activity can be sufficient to notify a person of the risks of the activity that may give rise to inherent peril assumption of risk where the person chooses to engage in the activity and sustains injury from such dangers.

[23] Negligence — Assumption of Risk — Inherent Peril — Scope of Defense — Gross Negligence — Intentional or Reckless Conduct. Inherent peril assumption of risk in a sporting or outdoor activity may allow a defendant to avoid liability for gross negligence but not for intentional or reckless conduct. A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. An actor’s conduct is in “reckless disregard” of the safety of another if the actor intentionally does an act or fails to do an act that it is the actor’s duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to the other. Fearing, C.J., delivered the opinion for a unanimous court.

COUNSEL: Richard D. Wall (of Richard D. Wall PS), for appellant.

Kristen Dorrity (of Andrews o Skinner PS), for respondents.

JUDGES: Authored by George Fearing. Concurring: Kevin Korsmo, Laurel Siddoway.

OPINION BY: George Fearing

OPINION

[*403] ¶1 Fearing, C.J. — This appeal asks: does an inner tube rental company owe a duty to warn a renter about a fallen log in a river when the log is hidden from but near the launch site, the river’s current draws the tuber toward the log, the company knows of the fallen log, the company warns other tubers of the log, and the company chooses the launch site? To answer this question, interests such as exhilarating and uninhibited outdoor recreation, retaining the natural environment, and freedom to contract compete with cautious business practices, full disclosure of risks, and compensation for injury. Based on the doctrine of inherent peril assumption of risk, we answer the question in the negative. We affirm the trial court’s summary judgment dismissal of renter Brian Pellham’s suit for personal injury against the tube [**2] rental company, Let’s Go Tubing, Inc.

FACTS

¶2 Brian Pellham sues for injuries suffered while inner tubing on the Yakima River. Because the trial court dismissed Pellham’s suit on summary judgment, we write the facts in a light favorable to Pellham.

¶3 Melanie Wells invited Brian Pellham and his domestic partner to join her and three others on a leisurely unguided excursion floating the Yakima River. Wells arranged the expedition and reserved equipment and transportation from Let’s Go Tubing, Inc.

¶4 [*404] On July 30, 2011, Brian Pellham met the Wells party at the Let’s Go Tubing’s Umtanum gathering site, where additional tubers waited. Before boarding a bus, each participant signed a release of liability and assumption of risk form. Pellham felt rushed but read and signed the form. The form provided:

I, the renter of this rental equipment, assume and understand that river tubing can be HAZARDOUS, and that rocks, logs, bridges, plants, animals, other people, other water craft, exposure to the elements, variations in water depth and speed of current, along with other structures and equipment, and many other hazards or obstacles exist in the river environment. In using the rental equipment or any facilities [**3] or vehicles related thereto such dangers are recognized and accepted whether they are marked or unmarked. River tubing can be a strenuous and physically demanding activity. It requires walking, bending, lifting, paddling, swimming, and awareness of the outdoor environment. I realize that slips, falls, flips, and other accidents do occur and serious injuries or death may result and I assume full responsibility for these risks … . “IN CONSIDERATION FOR THIS RENTAL AND ANY USE OF THE FACILITIES, VEHICLES, OR ENVIRONMENT RELATED TO THE USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD HARMLESS AND INDEMNIFY LET’S GO TUBING, INC. ITS SUBSIDIARIES AND ITS AGENTS FROM ANY AND ALL CLAIMS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THE USE OF THIS RENTAL EQUIPMENT.”

Clerk’s Papers at 46. On other occasions, such as a rafting trip, Brian Pellham has signed a waiver. In his business, he employs release forms.

¶5 Let’s Go Tubing launches its customers from the Umtanum site unless the Yakima River level runs low. With low water, the company buses customers to one of two other Yakima River sites, Big Horn or Ringer Loop.

¶6 On July 30, 2011, Let’s Go Tubing’s shuttle bus, because [**4] of a low river level, transported Brian Pellham, his group members, and other customers eight miles upstream [*405] to Ringer Loop. Ringer Loop maintains a public concrete boat ramp and public restroom. The total number of customers on the excursion approached twenty. During transport, Steff Thomas, the Let’s Go Tubing bus driver, told Melanie Wells and a handful of others seated at the front of the bus to push into the middle of the river once they embarked, because a fallen tree obstructed the river immediately downriver but out of sight from the launch site. We do not know the number of customers the driver warned. Thomas did not warn Pellham of the obstructing tree. Nor did anyone else. Someone, possibly Thomas, warned everyone not to leave the river except at designated spots because private owners own most of the riverbank.

¶7 At the launch site, Let’s Go Tubing handed each person a Frisbee to use as a paddle. Brian Pellham requested a life jacket, but Steff Thomas ignored him. Fifteen inner tubers entered the river first. Pellham and four others followed in a second group with their tubes tied together. They encountered a swift current. As soon as the flotilla of five rounded the [**5] first bend in the river, they saw a fallen tree extending halfway across the river. Many branches extended from the tree trunk. Each paddled furiously with his or her Frisbee, but the fleet of five inner tubes struck the tree. Brian Pellham held the tree with his left hand and attempted to steer around the tree. The current grabbed the inner tubes and Pellham fell backward into the river. The fall broke Pellham’s eardrum. The current forced Pellham under the tree and the water level. When Pellham resurfaced, his head struck a large branch. He sustained a whiplash injury. His chest also hit the branch.

¶8 Brian Pellham swam to shore and ended his river excursion. Pellham told Steff Thomas of his dangerous encounter, and the driver admitted he knew about the fallen tree but laws prevented Let’s Go Tubing from removing the obstacle.

[*406] ¶9 Brian Pellham later underwent a neck fusion surgery. The accident also caused damage to a low back disk, and the damage creates pain radiating to his left foot.

PROCEDURE

¶10 Brian Pellham sued Let’s Go Tubing for negligent failure to warn and Consumer Protection Act, chapter 19.86 RCW, violations. Let’s Go Tubing answered the complaint and raised affirmative defenses, including release of liability and [**6] assumption of the risk. The company filed a motion for summary judgment dismissal based on the release and on assumption of risk. In response to the motion, Pellham argued that he did not waive liability because Let’s Go Tubing committed gross negligence. He also argued he did not expressly or impliedly assume the risk of floating into a hazard. Pellham agreed to dismissal of his consumer protection claim. The trial court granted summary dismissal of all of Pellham’s claims.

LAW AND ANALYSIS

¶11 On appeal, Brian Pellham contends the trial court erred in dismissing his claim because he presented sufficient evidence of gross negligence because Let’s Go Tubing chose the excursion location, knew of the existence of a hazard, and failed to warn Pellham of the hazard. He argues that the rental company’s gross negligence supersedes any release of liability and assumption of the risk contained in the form he signed. On appeal, he does not argue liability against Let’s Go Tubing for failing to provide a life vest.

[1] ¶12 Let’s Go Tubing responds that summary judgment was appropriate because Pellham failed to establish a duty, the liability release disposes of the claim, and Pellham’s evidence does not create [**7] a genuine issue as to any fact material to establishing gross negligence. We affirm based on the inherent risks in river tubing. Because of Pellham’s [*407] voluntary participation in the outdoor recreation activity, he assumed the risk of a fallen log and swift current. Conversely, Pellham’s assumption of the risk created no duty for Let’s Go Tubing to warn Pellham of or prevent injury to him from trees in the river. Because we rely on the inherent risks in river tubing, we do not address whether the written agreement signed by Pellham bars his suit.

¶13 Because we hold that Brian Pellham assumed the risk and thereby rendered Let’s Go Tubing dutyless, we do not address whether Pellham created an issue of fact with regard to gross negligence. We conclude that, to avoid application of inherent peril assumption of risk, Pellham needed to show intentional or reckless misconduct of the rental company, and Pellham does not show or argue either.

Summary Judgment Principles

¶14 We commence with our obligatory recitation of summary judgment principles. [HN1] This court reviews a summary judgment order de novo, engaging in the same inquiry as the trial court. Highline School District No. 401 v. Port of Seattle, 87 Wn.2d 6, 15, 548 P.2d 1085 (1976); Mahoney v. Shinpoch, 107 Wn.2d 679, 683, 732 P.2d 510 (1987). [HN2] Summary judgment is proper if the records on file with the [**8] trial court show “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” CR 56(c). [HN3] This court, like the trial court, construes all evidence and reasonable inferences in the light most favorable to Brian Pellham, as the nonmoving party. Barber v. Bankers Life & Casualty Co., 81 Wn.2d 140, 142, 500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). [HN4] A court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).

[*408] Defenses on Review

¶15 Let’s Go Tubing seeks affirmation of the summary judgment dismissal of Brian Pellham’s claim based on both an absence of duty and Pellham’s assumption of risk. In turn, Pellham argues that, under RAP 2.5(a), the rental company may not assert a lack of duty because the company did not raise this defense before the trial court.

[2] ¶16 We need not address Brian Pellham’s objection to Let’s Go Tubing’s argument of lack of duty. We base our decision on inherent peril assumption of risk, and the rental company raised the defense of assumption of risk below. Anyway, assumption of risk in this context is equivalent to a lack of duty. [HN5] Assumption of the risk in the sports participant context is in [**9] reality the principle of no duty and hence no breach and no underlying cause of action. Brown v. Stevens Pass, Inc., 97 Wn. App. 519, 523, 984 P.2d 448 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. 393, 401-02, 725 P.2d 1008 (1986).

Assumption of Risk

[3, 4] ¶17 [HN6] A negligence claim requires the plaintiff to establish (1) the existence of a duty owed, (2) breach of that duty, (3) a resulting injury, and (4) a proximate cause between the breach and the injury. Tincani v. Inland Empire Zoological Society, 124 Wn.2d 121, 127-28, 875 P.2d 621 (1994). Thus, to prevail on his negligence claim, Brian Pellham must establish that Let’s Go Tubing owed him a duty of care. Folsom v. Burger King, 135 Wn.2d 658, 671, 958 P.2d 301 (1998). [HN7] The tort concept of duty overlaps with the contract and tort principles of assumption of risk. As previously mentioned, sometimes assumption of risk relieves the defendant of a duty. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523 (1999); Codd v. Stevens Pass, Inc., 45 Wn. App. at 402 (1986).

[5] ¶18 [HN8] The threshold determination of whether a duty exists is a question of law. Tincani v. Inland Empire Zoological [*409] Society, 124 Wn.2d at 128; Coleman v. Hoffman, 115 Wn. App. 853, 858, 64 P.3d 65 (2003). We hold that, because of Brian Pellham’s assumption of the risk of fallen trees in the water, Let’s Go Tubing, as a matter of law, had no duty to warn Pellham of the danger or, at the least, the rental company possessed only a restricted duty to not intentionally injure Pellham or engage in reckless misconduct.

[6] ¶19 We first briefly explore the variegated versions of assumption of risk in order to later analyze the application of inherent peril assumption of risk. [HN9] The term “assumption of the risk” expresses [**10] several distinct common law theories, derived from different sources, which apply when a plaintiff knowingly exposes himself to particular risks. Allen v. Dover Co-Recreational Softball League, 148 N.H. 407, 807 A.2d 1274, 1281 (2002); Francis H. Bohlen, Voluntary Assumption of Risk (pt. 1), 20 Harv. L. Rev. 14, 15-30 (1906); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68 (5th ed. 1984). Stated differently, the general rubric of assumption of risk does not signify a singular doctrine but rather encompasses a cluster of discrete concepts. Kirk v. Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285 (1987). Washington law and most other states’ jurisprudence recognize four taxonomies of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied unreasonable, and (4) implied reasonable. Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010) (plurality opinion); Gleason v. Cohen, 192 Wn. App. 788, 794, 368 P.3d 531 (2016); 16 David K. DeWolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 9:11, at 398-99 (4th ed. 2013).

[7] ¶20 Before the enactment of comparative negligence and comparative fault statutes, practitioners and courts encountered little reason to distinguish the four versions of assumption of risk because at common law all assumption of the risk completely barred recovery. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484, 496, 834 P.2d 6 (1992). [*410] Today, [HN10] the first two categories of assumption of risk, express assumption and implied primary assumption, on the one hand, continue to operate as a complete bar to a plaintiff’s recovery. Kirk v. Washington State University, 109 Wn.2d at 453-54; Gleason v. Cohen, 192 Wn. App. at 794. On the other hand, implied unreasonable and implied [**11] reasonable assumption meld into contributory negligence and merely reduce the plaintiff’s recoverable damages based on comparative fault pursuant to RCW 4.22.005 and .015. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497. The last two types are merely alternative names for contributory negligence. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636 (2010). Our decision relies on implied primary assumption, but we will discuss other renderings of assumption of risk in order to sculpt our decision.

[8-11] ¶21 [HN11] Express assumption of risk arises when a plaintiff explicitly consents to relieve the defendant of a duty owed by the defendant to the plaintiff regarding specific known risks. Gregoire v. City of Oak Harbor, 170 Wn.2d at 636; Kirk v. Washington State University, 109 Wn.2d at 453. [HN12] Implied primary assumption of risk follows from the plaintiff engaging in risky conduct, from which the law implies consent. Kirk v. Washington State University, 109 Wn.2d at 453; Erie v. White, 92 Wn. App. 297, 303, 966 P.2d 342 (1998). [HN13] Implied unreasonable assumption of risk, by contrast, focuses not so much on the duty and negligence of the defendant as on the further issue of the objective unreasonableness of the plaintiff’s conduct in assuming the risk. Kirk v. Washington State University, 109 Wn.2d at 454. [HN14] Implied reasonable assumption of risk is roughly the counterpart to implied unreasonable assumption of risk in that the plaintiff assumed a risk but acted reasonably in doing so. Kirk v. Washington State University, 109 Wn.2d at 454.

[12] ¶22 We confront difficulty in distinguishing among at least three of the four categories because of the [**12] nondescript identifiers and near homophonic labels of some classifications. Therefore, we recommend that the Supreme [*411] Court rechristen the categories as express assumption, inherent peril assumption of risk, and increased danger assumption of risk. [HN15] The gist of implied reasonable and implied unreasonable assumption of risk is that the defendant performed conduct that increased the risk of an activity or situation beyond the risks inherent in the activity or situation and the plaintiff reasonably or unreasonably encountered this increased risk. The traditional categories of implied unreasonable and implied reasonable assumption of risk hold no meaningful distinction since both reduce rather than bar the plaintiff’s recovery, and so we urge combining the two concepts into increased danger assumption of risk. We hereafter use these new terms.

Inherent Peril Assumption of Risk

[13, 14] ¶23 We now focus on inherent peril assumption of risk. [HN16] Inherent peril assumption bars a claim resulting from specific known and appreciated risks impliedly assumed often in advance of any negligence of the defendant. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 497 (1992); Boyce v. West, 71 Wn. App. 657, 666-67, 862 P.2d 592 (1993). Plaintiff’s consent to relieve the defendant of any duty is implied based on the plaintiff’s decision [**13] to engage in an activity that involves those known risks. Egan v. Cauble, 92 Wn. App. 372, 376, 966 P.2d 362 (1998); Gleason v. Cohen, 192 Wn. App. at 797 (2016). [HN17] One who participates in sports impliedly assumes the risks inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Boyce v. West, 71 Wn. App. at 667.

[15] ¶24 [HN18] Whether inherent peril assumption of risk applies depends on whether the plaintiff was injured by an inherent risk of an activity. Gleason v. Cohen, 192 Wn. App. at 797. The plaintiff assumes the dangers that are inherent in and necessary to a particular activity. Tincani v. Inland Empire Zoological Society, 124 Wn.2d at 144 (1994); Scott v. Pacific West Mountain Resort, 119 Wn.2d at 500-01; Gleason [*412] v. Cohen, 192 Wn. App. at 797; Lascheid v. City of Kennewick, 137 Wn. App. 633, 641-42, 154 P.3d 307 (2007); Taylor v. Baseball Club of Seattle, LP, 132 Wn. App. 32, 37-39, 130 P.3d 835 (2006); Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996).

¶25 [HN19] The classic example of inherent peril assumption involves participation in sports when a participant knows that the risk of injury is a natural part of such participation. Gleason v. Cohen, 192 Wn. App. at 798. One who engages in sports assumes the risks that are inherent in the sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. To the extent a risk inherent in the sport injures a plaintiff, the defendant has no duty and there is no negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798. A defendant simply does not have a duty to protect a sports participant from dangers that are an inherent and normal part of a sport. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498; Gleason v. Cohen, 192 Wn. App. at 798.

[16] ¶26 [HN20] Inherent peril assumption extends to water sports. One who engages in water sports assumes the reasonably foreseeable risks inherent in the activity. DeWick v. Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d 592, 594 (2000). This assumption of risk includes inner tubing on water and canoe rentals. Record v. Reason, 73 Cal. App. 4th 472, 86 Cal. Rptr. 2d 547 (1999); Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d 937, 39 N.Y.S.3d 522 (2016). Bodies of water often undergo change, and changing conditions in the water [**14] do not alter the assumption of risk. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594. There is no duty to warn of the presence of natural transitory conditions. DeWick v. Village of Penn Yan, 713 N.Y.S.2d at 594.

¶27 DeWick v. Village of Penn Yan, 275 A.D.2d 1011 is illustrative of the application of inherent peril assumption in the context of water. Trina Kerrick and Daniel DeWick [*413] drowned in Keuka Lake on June 19, 1995. Kerrick allegedly gained access to the lake from the beach at Indian Pines Park, which was owned by defendant Village of Penn Yan. While wading in the water, she stepped from a sandbar where the lake bottom drops off and became caught in an undertow or current. DeWick drowned trying to save her. Neither could swim. The accident occurred on a hot day, four days before the beach officially opened for the season. The plaintiffs alleged that the village failed to warn specifically about the dangers of the drop-off and swift current. The court summarily dismissed the suit. The risk of reaching a drop-off was a reasonably foreseeable risk inherent in wading into a lake.

[17] ¶28 [HN21] Inherent peril assumption, like express assumption of risk, demands the presence of three elements. The evidence must show (1) the plaintiff possessed full subjective understanding (2) of the presence and nature of the specific risk and (3) voluntarily [**15] chose to encounter the risk. Kirk v. Washington State University, 109 Wn.2d at 453 (1987). The participant must know that the risk is present, and he or she must further understand its nature; his or her choice to incur it must be free and voluntary. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523. In the usual case, his or her knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his or her position must have understood the danger, the issue may be decided by the court. Brown v. Stevens Pass, Inc., 97 Wn. App. at 523; Keeton et al., supra, § 68, at 489.

¶29 [HN22] The rule of both express and inherent peril assumption of risk requires a finding that the plaintiff had full subjective understanding of the presence and nature of the specific risk. Kirk v. Washington State University, 109 Wn.2d at 453. Depending on how specific the risk must be, this statement of the rule taken literally would abrogate the rule of inherent peril assumption because one rarely, if ever, anticipates the full particulars of an accident producing injury. One can never predict all of the variables that [*414] combine to cause an accident and injury. Also, the doctrine might not apply in wrongful death cases, because the judge or jury will lack evidence of the subjective understanding of the decedent. Washington courts’ applications of the rule suggest, however, that the plaintiff need only know [**16] the general nature of the risk. One case example is Boyce v. West, 71 Wn. App. 657 (1993).

¶30 In Boyce v. West, a mother brought a suit against a college and its scuba diving instructor after the death of her son, who died during a scuba diving accident while engaging in the college course. The mother claimed the instructor negligently taught and supervised her son. The son, Peter Boyce, signed a document acknowledging the possibility of death from scuba diving and assuming all risks in connection with the course, whether foreseen or unforeseen. This court affirmed summary judgment dismissal of the claims against the school and the instructor. The court reasoned that negligent instruction and supervision are risks associated with being a student in a scuba diving course and were encompassed by the broad language of the contract. Although Peter may not have specifically considered the possibility of instructor negligence when he signed the release, this lack of consideration did not invalidate his express assumption of all risks associated with his participation in the course. [HN23] Knowledge of a particular risk is unnecessary when the plaintiff, by express agreement, assumes all risks.

¶31 Boyce v. West entails express assumption of [**17] risk, but [HN24] the same rule of subjective knowledge of risk applies to both express assumption and inherent peril assumption. Based on Boyce v. West and cases involving water sports, we hold that Brian Pellham assumed the risks involved in river tubing, including the fallen tree. Pellham may not have precisely and subjectively known how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury. Nevertheless, he knew of the potential of all factors. He may not have known of the location of any [*415] fallen tree in the river, but he knew of the potential of a fallen tree somewhere in the river. He had more reason to know of the dangers that caused his injury when he started his excursion than Peter Boyce had reason to know of the risks that led to his death when Boyce signed his college course form. In the setting of inherent peril assumption, New York courts have ruled that, [HN25] if the participant fully comprehends the risks of the activity or if those risks are obvious or reasonably foreseeable, he or she has consented to those risks and the defendant has performed its duty. Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d at 938 (2016); Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 (1986).

[18] ¶32 [HN26] While participants in sports are generally held to have impliedly assumed the risks [**18] inherent in the sport, such assumption of risk does not preclude a recovery for negligent acts that unduly enhance such risks. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 501; Gleason v. Cohen, 192 Wn. App. at 798. This principle leads us to a discussion of increased danger assumption.

[19] ¶33 [HN27] Courts have struggled to properly distinguish between inherent peril assumption of risk (implied primary assumption of risk), which bars the plaintiff’s claim, and increased danger assumption of risk (implied unreasonable assumption of risk), which simply reduces the plaintiff’s damages. Barrett v. Lowe’s Home Centers, Inc., 179 Wn. App. 1, 6, 324 P.3d 688 (2013). This court warned long ago that courts must carefully draw the line between these two types of assumption of risk. Gleason v. Cohen, 192 Wn. App. at 795; Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. at 425-26 (1996). A rigorous application of inherent peril assumption of risk could undermine the purpose of comparative negligence. Kirk v. Washington State University, 109 Wn.2d at 455-56. Significantly, [HN28] inherent peril assumption is the exception rather than the rule in assumption of risk situations.

[20] ¶34 [HN29] Increased danger assumption of risk does not involve a plaintiff’s consent to relieve the defendant of a [*416] duty. Gleason v. Cohen, 192 Wn. App. at 796. In this type of assumption of risk, the defendant breached a duty that created a risk of harm, and the plaintiff chose to take that risk. Gleason v. Cohen, 192 Wn. App. at 796. Specifically, increased danger assumption involves the plaintiff’s voluntary choice to encounter a risk created [**19] by the defendant’s negligence. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499; Gleason v. Cohen, 192 Wn. App. at 796. Increased danger assumption of risk arises when the plaintiff knows of a risk already created by the negligence of the defendant, yet chooses voluntarily to encounter it. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 499 (1992); Gleason v. Cohen, 192 Wn. App. at 798. In such a case, a plaintiff’s conduct is not truly consensual but is a form of contributory negligence, in which the negligence consists of making the wrong choice and voluntarily encountering a known unreasonable risk. Gleason v. Cohen, 192 Wn. App. at 796.

¶35 Dorr v. Big Creek Wood Products, Inc., 84 Wn. App. 420, 927 P.2d 1148 (1996) presents a good illustration of increased danger assumption of risk. Michael Dorr entered a forest where his friend John Knecht cut trees. Dorr knew of the phenomenon of “widow-makers,” large limbs caught in surrounding trees after a tree is felled. Nevertheless, after Knecht cut a tree, Knecht waved Dorr forward to meet him. As Dorr proceeded, a large limb fell on him. This court affirmed a verdict favoring Dorr. Although Dorr in general assumed the risk of “widow-makers,” Knecht’s misleading directions led to implied unreasonable or secondary assumption of risk. The jury could still find and did find Dorr comparatively at fault for proceeding with the knowledge of “widow-makers,” but Dorr’s fault would be compared with Knecht’s fault. The negligence of Knecht [**20] arose after Dorr entered the forest.

[21] ¶36 Brian Pellham alleges that Let’s Go Tubing was negligent by reason of sending him and others on inner tubes in fast moving water with a downed tree in the middle [*417] of the water without warning to the tuber. Let’s Go Tubing did not create the risk and could not remove the risk. Although Pellham knew of the risks of logs and current, Pellham did not know of the precise risk when he first encountered it. When he noticed the risk, he lacked time to avoid the hazard. Pellham did not voluntarily proceed after knowing of the alleged negligence of Let’s Go Tubing. Any alleged negligence of Let’s Go Tubing occurred before Pellham entered the river. Therefore, increased danger assumption of risk does not apply.

¶37 Let’s Go Tubing performed no act that created the swift current or felled the log into the water. [HN30] The cases that decline application of inherent peril assumption involve a positive act of the defendant, such as the implanting of a post or snow shack adjacent to a ski run. Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992); Brown v. Stevens Pass, Inc., 97 Wn. App. at 521 (1999).

¶38 One might argue that Let’s Go Tubing’s failure to warn increased the risk attended to the fallen log in the Yakima River. [HN31] A defendant may be held liable when a reasonable person would customarily [**21] instruct a plaintiff in respect to the dangers inherent in an activity. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Thus, a defendant may be held liable if the plaintiff alleges that a reasonable person would customarily warn, advise, inform, and instruct regarding the risk of injury to participants and the manner in which such risks could be minimized and their failure to do so caused the plaintiff’s injuries. Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1288. Brian Pellham presents no evidence that those who rent out watercrafts customarily warn of fallen natural objects in the water.

[22] ¶39 The document signed by Brian Pellham contained terms in addition to releasing Let’s Go Tubing from liability. In the instrument, Pellham also recognized that the hazards of river tubing included the existence of rocks, logs, plants, and variations in water depth and speed of [*418] current. Pellham agreed to assume full responsibility for all risks involved in river tubing, including serious injuries and death resulting from the hazards. Although we do not base our holding on express assumption of risk, we note that the release’s recitation of dangers warned Pellham of the inherent perils attended to inner tubing and those dangers that led to Pellham’s injuries.

Gross Negligence

¶40 Brian Pellham argues that the waiver [**22] form he signed does not bar a claim for gross negligence. The parties, in turn, devote much argument to the issue of whether Pellham creates a question of fact as to gross negligence. Since we do not rely on express assumption of risk, we need not directly address this argument. Instead, we must ask and answer whether a tuber may overcome the defense of inherent peril assumption of risk by showing gross negligence by the inner tube rental company.

¶41 [HN32] When inherent peril assumption of risk applies, the plaintiff’s consent negates any duty the defendant would have otherwise owed to the plaintiff. Scott v. Pacific West Mountain Resort, 119 Wn.2d at 498 (1992); Gleason v. Cohen, 192 Wn. App. at 798 (2016). Based on this premise of inherent peril assumption, the defendant should avoid liability for gross negligence. Gross negligence constitutes the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d 322, 331, 407 P.2d 798 (1965). The lack of duty resulting from inherent peril assumption should extend to an absence of any obligation to exercise slight care.

¶42 At the same time, [HN33] gross negligence claims survive a release against liability. A sporting participant’s assumption of inherent risks effectively acts as a release from liability. Since gross negligence claims survive a release, gross negligence maybe should survive inherent peril assumption of risk. [**23]

¶43 No Washington case directly holds that a claim for gross negligence survives the plaintiff’s express assumption [*419] of risk. Nevertheless, in at least two decisions, Washington courts assumed that a gross negligence cause of action endured. Boyce v. West, 71 Wn. App. 657 (1993); Blide v. Rainier Mountaineering, Inc., 30 Wn. App. 571, 636 P.2d 492 (1981). In Boyce v. West, the surviving mother failed to present evidence of gross negligence. In Blide v. Rainier Mountaineering, Inc., an injured climber did not argue gross negligence. Other jurisdictions have held that express assumption of risk does not bar a claim for gross negligence since public policy does not allow one to exonerate oneself from gross negligence. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. Hoppe, 128 Nev. 910, 381 P.3d 630 (2012); Perez v. McConkey, 872 S.W.2d 897, 904 (Tenn. 1994).

¶44 [HN34] Since express assumption of risk and inherent peril assumption of risk both result in the bar of the plaintiff’s claim and arise from the plaintiff’s voluntary assumption of risk, one might argue that a gross negligence claim should survive assumption of risk by inherent peril if it survives express assumption of risk. Nevertheless, the two varieties of assumption of risk promote different interests and raise disparate concerns. A signed assumption of all risks could be the result of unequal bargaining power and apply to activities that involve little, or no, risks. The bargaining [**24] power with regard to inherent peril assumption is immaterial. Assumption follows from hazards the plaintiff voluntarily assumes because of the thrill and enjoyment of an activity.

[23] ¶45 We find no foreign decisions in which the court holds that a cause of action for gross negligence survives the application of inherent peril assumption of risk in the context of sports or outdoor recreation. Instead, other courts addressing the question consistently [HN35] limit the liability of the defendant, when inherent peril assumption applies, to intentional or reckless conduct of the defendant. Ellis v. Greater Cleveland R.T.A., 2014-Ohio-5549, 25 N.E.3d 503, 507 (Ct. App.); Custodi v. Town of Amherst, 20 N.Y.3d 83, [*420] 980 N.E.2d 933, 957 N.Y.S.2d 268 (2012); Cole v. Boy Scouts of America, 397 S.C. 247, 725 S.E.2d 476, 478 (2011); Pfenning v. Lineman, 947 N.E.2d 392, 404 (Ind. 2011); Yoneda v. Tom, 110 Haw. 367, 133 P.3d 796, 808 (2006); Peart v. Ferro, 119 Cal. App. 4th 60, 13 Cal. Rptr. 3d 885, 898 (2004); Allen v. Dover Co-Recreational Softball League, 807 A.2d at 1281 (2002); Behar v. Fox, 249 Mich. App. 314, 642 N.W.2d 426, 428 (2001); Estes v. Tripson, 188 Ariz. 93, 932 P.2d 1364, 1365 (Ct. App. 1997); Savino v. Robertson, 273 Ill. App. 3d 811, 652 N.E.2d 1240, 1245, 210 Ill. Dec. 264 (1995); King v. Kayak Manufacturing Corp., 182 W. Va. 276, 387 S.E.2d 511, 518 (1989). A recklessness standard encourages vigorous participation in recreational activities, while still providing protection from egregious conduct. Behar v. Fox, 642 N.W.2d at 428 (2001). We join the other jurisdictions in imposing an intentional and reckless standard, rather than a gross negligence standard, when the plaintiff assumes the risks of inherent perils in a sporting or outdoor activity.

¶46 [HN36] Gross negligence consists of the failure to exercise slight care. Nist v. Tudor, 67 Wn.2d at 331 (1965). Reckless misconduct denotes a more serious level of misconduct than gross negligence. An actor’s conduct is in “reckless disregard” of the safety of another if he or she intentionally [**25] does an act or fails to do an act that it is his or her duty to the other to do, knowing or having reason to know of facts that would lead a reasonable person to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result to him or her. Adkisson v. City of Seattle, 42 Wn.2d 676, 685, 258 P.2d 461 (1953); Brown v. Department of Social & Health Services, 190 Wn. App. 572, 590, 360 P.3d 875 (2015). Brian Pellham does not allege that Let’s Go Tubing engaged in reckless conduct. No evidence supports a conclusion that the inner tube rental company bus driver purposely omitted a warning to Pellham with knowledge that Pellham would suffer substantial harm.

[*421] CONCLUSION

¶47 We affirm the trial court’s summary judgment dismissal of Brian Pellham’s suit against Let’s Go Tubing.

Korsmo and Siddoway, JJ., concur.

LexisNexis Practice Guide: Washington Torts and Personal Injury

LexisNexis Practice Guide: Washington Trial and Post-Trial Civil Procedure

Annotated Revised Code of Washington by LexisNexis


Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500

Hanks v. Powder Ridge Restaurant Corporation et al., 276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500

Gregory D. Hanks v. Powder Ridge Restaurant Corporation et al.

(SC 17327)

SUPREME COURT OF CONNECTICUT

276 Conn. 314; 885 A.2d 734; 2005 Conn. LEXIS 500

April 18, 2005, Argued

November 29, 2005, Officially Released

COUNSEL: William F. Gallagher, with whom, on the brief, was David McCarry, for the appellant (plaintiff).

Laura Pascale Zaino, with whom, on the brief, were John B. Farley and Kevin M. Roche, for the appellees (defendants).

JUDGES: Sullivan, C. J., and Borden, Norcott, Katz, Palmer, Vertefeuille and Zarella, Js. 1 In this opinion KATZ, VERTEFEUILLE and ZERELLA, Js., concurred. NORCOTT, J., with whom BORDEN and PALMER, Js., join, dissented.

1 This case originally was argued before a panel of this court consisting of Justices Borden, Norcott, Katz, Palmer and Vertefeuille. Thereafter, the court, pursuant to Practice Book § 70-7 (b), sua sponte, ordered that the case be considered en banc. Accordingly, Chief Justice Sullivan and Justice Zarella were added to the panel. They have read the record, briefs and transcript of the oral argument.

[***2]

OPINION BY: SULLIVAN

OPINION

[*316] [**736] SULLIVAN, C. J.

This appeal 2 arises out of a complaint filed by the plaintiff, Gregory D. Hanks, against the defendants, Powder Ridge Restaurant Corporation and White Water Mountain Resorts of Connecticut, Inc., doing business as Powder Ridge Ski Resort, seeking compensatory damages for injuries the plaintiff sustained while snowtubing at the defendants’ facility. The trial court rendered summary judgment in favor of the defendants, concluding that this court’s decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003), precluded the plaintiff’s negligence claim as a matter of law. We reverse the judgment of the trial court.

2 The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.

The record reveals the following factual and procedural history. The defendants [***3] operate a facility in Middlefield, known as Powder Ridge, at which the public, in exchange for a fee, is invited to ski, snowboard and snowtube. On February 16, 2003, the plaintiff brought his three children and another child to Powder Ridge to snowtube. Neither the plaintiff nor the four children had ever snowtubed at Powder Ridge, but the snowtubing [*317] run was open to the public generally, regardless of prior snowtubing experience, with the restriction that only persons at least six years old or forty-four inches tall were eligible to participate. Further, in order to snowtube at Powder Ridge, patrons were required to sign a “Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability” (agreement). The plaintiff read and signed the agreement on behalf of himself and the four children. While snowtubing, the plaintiff’s right foot became caught between his snow tube and the man-made bank of the snowtubing run, resulting in serious injuries that required multiple surgeries to repair.

Thereafter, the plaintiff filed the present negligence action against the defendants. Specifically, the plaintiff alleges that the defendants negligently caused his injuries by: (1) [***4] permitting the plaintiff “to ride in a snow tube that was not of sufficient size to ensure his safety while on the snow tubing run”; (2) “failing to properly train, supervise, control or otherwise instruct the operators of the snow tubing run in the proper way to run the snow tubing course to ensure the safety of the patrons, such as the plaintiff”; (3) “failing to properly groom the snow tubing run so as to direct patrons . . . such as the plaintiff away from the sidewalls of [the] run”; (4) “placing carpet at the end of the snow tubing run which had the tendency to cause the snow tubes to come to an abrupt halt, spin or otherwise change direction”; (5) “failing to properly landscape the snow tubing run so as to provide an adequate up slope at the end of the run to properly and safely slow snow tubing patrons such as the plaintiff”; (6) “failing to place warning signs on said snow tubing run to warn patrons such as the plaintiff of the danger of colliding with the side wall of [the] snow tubing run”; and (7) “failing to place hay bales or other similar materials on the sides of the snow tubing run in order to direct patrons [*318] such as the plaintiff away from the sidewalls of [the] [***5] run.”

[**737] The defendants, in their answer to the complaint, denied the plaintiff’s allegations of negligence and asserted two special defenses. Specifically, the defendants alleged that the plaintiff’s injuries were caused by his own negligence and that the agreement relieved the defendants of liability, “even if the accident was due to the negligence of the defendants.” Thereafter, the defendants moved for summary judgment, claiming that the agreement barred the plaintiff’s negligence claim as a matter of law. The trial court agreed and rendered summary judgment in favor of the defendants. Specifically, the trial court determined, pursuant to our decision in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640-44, that the plaintiff, by signing the agreement, unambiguously had released the defendants from liability for their allegedly negligent conduct. Thereafter, the plaintiff moved to reargue the motion for summary judgment. The trial court denied the plaintiff’s motion and this appeal followed.

The plaintiff raises two claims on appeal. First, the plaintiff claims that the trial court improperly concluded that the agreement clearly [***6] and expressly releases the defendants from liability for negligence. Specifically, the plaintiff contends that a person of ordinary intelligence reasonably would not have believed that, by signing the agreement, he or she was releasing the defendants from liability for personal injuries caused by negligence and, therefore, pursuant to Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643, the agreement does not bar the plaintiff’s negligence claim. Second, the plaintiff claims that the agreement is unenforceable because it violates public policy. Specifically, the plaintiff contends that a recreational operator cannot, consistent with public [*319] policy, release itself from liability for its own negligent conduct where, as in the present case, the operator offers its services to the public generally, for a fee, and requires patrons to sign a standardized exculpatory agreement as a condition of participation. We disagree with the plaintiff’s first claim, but agree with his second claim.

Before reaching the substance of the plaintiff’s claims on appeal, we review this court’s decision in Hyson. The plaintiff in Hyson was injured while [***7] snowtubing at Powder Ridge and, thereafter, filed a complaint against the defendant, White Water Mountain Resorts of Connecticut, Inc., alleging that the defendant’s negligence proximately had caused her injuries. 3 Id., 637-39. Prior to snowtubing at Powder Ridge, the plaintiff had signed an exculpatory agreement entitled “RELEASE FROM LIABILITY.” Id., 638 and n.3. The issue presented in Hyson was whether the exculpatory agreement released the defendant from liability for its negligent conduct and, consequently, barred the plaintiff’s negligence claims as a matter of law. Id., 640. We concluded that it did not. Id.

3 We note that White Water Mountain Resorts of Connecticut, Inc., is also a defendant in the present matter and that the plaintiff in the present matter was also injured while snowtubing at Powder Ridge.

In arriving at this conclusion, we noted that there exists “widespread support in other jurisdictions for a rule requiring that any agreement intended [***8] to exculpate a party for its own negligence state so expressly”; id., 641-42; and that this court previously had acknowledged “the well established principle . . . that ‘the law does not favor contract provisions which relieve a person from his own negligence . . . .'” Id., 643. [**738] Accordingly, we determined that “the better rule is that a party cannot be released from liability for injuries resulting from its future negligence in the absence of [*320] language that expressly so provides.” Id. This rule “prevents individuals from inadvertently relinquishing valuable legal rights” and “does not impose . . . significant costs” on entities seeking to exculpate themselves from liability for future negligence. Id. Examining the exculpatory agreement at issue in Hyson, we observed that “the release signed by the plaintiff [did] not specifically refer to possible negligence by the defendant” but, instead, only referred to “inherent and other risks involved in [snowtubing] . . . .” 4 (Internal quotation marks omitted.) Id., 640. Thus, “[a] person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing [***9] the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing.” Id., 643. Accordingly, we concluded that the exculpatory agreement did not [*321] expressly release the defendants from liability for future negligence and, therefore, did not bar the plaintiff’s claims. Consequently, we declined to decide whether a well drafted exculpatory agreement expressly releasing a defendant from prospective liability for future negligence could be enforced consistent with public policy. See id., 640 (“we do not reach the issue of whether a well drafted agreement purporting to have such an effect would be enforceable”); id., 643 n.11 (“we do not decide today whether a contract having such express language would be enforceable to release a party from liability for its negligence”).

4 That exculpatory agreement provided:

“SNOWTUBING

“RELEASE FROM LIABILITY

“PLEASE READ CAREFULLY BEFORE SIGNING

“1. I accept use of a snowtube and accept full responsibility for the care of the snowtube while in my possession.

“2. I understand that there are inherent and other risks involved in SNOW TUBING, including the use of lifts and snowtube, and it is a dangerous activity/sport. These risks include, but are not limited to, variations in snow, steepness and terrain, ice and icy conditions, moguls, rocks, trees, and other forms of forest growth or debris (above or below the surface), bare spots, lift terminals, cables, utility lines, snowmaking equipment and component parts, and other forms [of] natural or man made obstacles on and/or off chutes, as well as collisions with equipment, obstacles or other snowtubes. Snow chute conditions vary constantly because of weather changes and snowtubing use. Be aware that snowmaking and snow grooming may be in progress at any time. These are some of the risks of SNOWTUBING. All of the inherent risks of SNOWTUBING present the risk of serious and/or fatal injury.

“3. I agree to hold harmless and indemnify Powder Ridge, White Water Mountain Resorts of Connecticut, Inc. and/or any employee of the aforementioned for loss or damage, including any loss or injuries that result from damages related to the use of a snowtube or lift.

“I, the undersigned, have read and understand the above release of liability.” (Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 638 n.3.

[***10] As an initial matter, we set forth the appropriate standard of review. [HN1] “The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) D’Eramo v. Smith, 273 Conn. 610, 619, 872 A.2d 408 (2005).

[**739] I

We first address the plaintiff’s claim that the agreement does not expressly release the defendants from liability for personal injuries incurred as a result of their own negligence as required by Hyson. Specifically, the plaintiff maintains that an ordinary person of reasonable intelligence would not understand that, by signing the agreement, he or she was releasing the defendants from liability for future negligence. We disagree.

[HN2] “The law does not favor contract provisions which relieve a person from his own negligence . . . .” Hyson v. White Water Mountain Resorts of Connecticut, Inc., [*322] supra, 265 Conn. 643. [***11] “The law’s reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts . . . . Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility . . . .

“Not only does this stringent standard require that the drafter of such an agreement make its terms unambiguous, but it mandates that the terms be understand able as well. Thus, a provision that would exempt its drafter from any liability occasioned by his fault should not compel resort to a magnifying glass and lexicon. . . . Of course, this does not imply that only simple or monosyllabic language can be used in such clauses. Rather, what the law demands is that such provisions be clear and coherent . . . .” (Internal quotation marks omitted.) B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 72, 807 A.2d 1001 (2002), [***12] quoting Gross v. Sweet, 49 N.Y.2d 102, 107-108, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979); see also Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643 (“a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides”). [HN3] “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . where there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) “Goldberg v. Hartford Fire Ins. Co.,” 269 Conn. 550, 559-60, 849 A.2d 368 (2004).

[*323] The agreement 5 at issue in the present case provides in relevant part: “I understand [**740] that there are inherent risks involved in snowtubing, including the risk of serious [*324] physical injury or death and I fully assume all risks associated with snowtubing, even if due to the NEGLIGENCE of [the defendants] . . . including but not limited to: variations in the snow conditions; steepness and terrain; the presence of ice, [***13] moguls, bare spots and objects beneath the snowtubing surface such as rocks, debris and tree stumps; collisions with objects both on and off the snowtubing chutes such as hay bales, trees, rocks, snowmaking equipment, barriers, lift cables and equipment, lift towers, lift attendants, employees, volunteers, other patrons and spectators or their property; equipment or lift condition or failure; lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions; use of any lift; and the like. . . . I . . . agree I will defend, indemnify and hold harmless [the defendants] . . . from any and all claims, suits or demands by anyone arising from my use of the Powder Ridge snowtubing facilities and equipment including claims of NEGLIGENCE on the part of [the defendants] . . . . I . . . hereby release, and agree that I will not sue [the defendants] . . . for money damages for personal injury or property damage sustained by me while using the snowtubing facilities and equipment even if due to the NEGLIGENCE of [the defendants] . . . .” (Emphasis in original.)

5 The complete agreement provides:

“Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability

“In consideration for the privilege of participating in snowtubing at Powder Ridge Ski Area, I hereby agree that:

“1. I understand that there are inherent risks involved in snowtubing, including the risk of serious physical injury or death and I fully assume all risks associated with snowtubing, even if due to the NEGLIGENCE of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area and its Affiliates, Officers, Directors, Agents, Servants and/or Employees, including but not limited to: variations in the snow conditions; steepness and terrain; the presence of ice, moguls, bare spots and objects beneath the snowtubing surface such as rocks, debris and tree stumps; collisions with objects both on and off the snowtubing chutes such as hay bales, trees, rocks, snowmaking equipment, barriers, lift cables and equipment, lift towers, lift attendants, employees, volunteers, other patrons and spectators or their property; equipment or lift condition or failure; lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions; use of any lift; and the like.

“2. I, for myself and for my heirs, assigns, successors, executors, administrators, and legal representatives, agree I will defend, indemnify and hold harmless White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and Employees from any and all claims, suits or demands by anyone arising from my use of the Powder Ridge snowtubing facilities and equipment including claims of NEGLIGENCE on the part of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees.

“3. I, for myself and for my heirs, assigns, successors, executors, administrators, and legal representatives, hereby release, and agree that I will not sue, White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees for money damages for personal injury or property damage sustained by me while using the snowtubing facilities and equipment even if due to the NEGLIGENCE of White Water Mountain Resorts of Connecticut, Inc., d/b/a Powder Ridge Ski Area, its Affiliates, Officers, Directors, Agents, Servants and/or Employees.

“I have read this Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability and fully understand its terms. I further understand that by signing this agreement that I am giving up substantial legal rights. I have not been induced to sign this agreement by any promise or representation and I sign it voluntarily and of my own free will.” (Emphasis in original.)

[***14] We conclude that the agreement expressly and unambiguously purports to release the defendants from prospective liability for negligence. The agreement explicitly provides that the snowtuber “fully assumes all risks associated with snowtubing, even if due to the NEGLIGENCE” of the defendants. (Emphasis in original.) Moreover, the agreement refers to the negligence of the defendants three times and uses capital letters to emphasize the term “negligence.” Accordingly, we conclude that an ordinary person of reason able intelligence would understand that, by signing the [*325] agreement, he or she was releasing the defendants from liability for their future negligence. 6 [**741] The plaintiff claims, however, that the agreement does not expressly release the defendants from liability for their prospective negligence because the agreement “defines the word ‘negligence’ solely by reference to inherent [risks] of the activity.” We disagree. The agreement states that the snowtuber “fully assumes all risks associated with snowtubing, even if due to the NEGLIGENCE of [the defendants]” and provides a nonexhaustive list of such risks. (Emphasis in original.) We acknowledge that some of the risks listed [***15] arguably can be characterized as inherent risks because they are innate to the activity, “are beyond the control of the [*326] [recreational] area operator and cannot be minimized by the operator’s exercise of reasonable care.” Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 692, 849 A.2d 813 (2004). Other risks listed in the agreement, for example, “lack of safety devices or inadequate safety devices; lack of warnings or inadequate warnings; lack of instructions or inadequate instructions” are not inherent risks. The recreational operator has control over safety devices, warnings and instructions, and can ensure their adequacy through the exercise of reasonable care. Thus, a snowtuber who, by virtue of signing the present agreement, assumes the risk of inadequate safety devices, warnings or instructions, necessarily assumes the risk of the recreational operator’s negligence.

6 The plaintiff claims that the trial court improperly rendered summary judgment in the present matter because “there [was] a question of fact as to [the plaintiff’s] understanding of the scope of the release.” We reject this claim. [HN4] “It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties.” (Internal quotation marks omitted.) Pesino v. Atlantic Bank of New York, 244 Conn. 85, 94, 709 A.2d 540 (1998). Accordingly, where the language of a contract is clear and unambiguous, “[a] party may not assert as a defense to an action on [the] contract that [he] did not understand what [he] was signing.” John M. Glover Agency v. RDB Building, LLC, 60 Conn. App. 640, 645, 760 A.2d 980 (2000).

Regardless, the plaintiff’s deposition testimony establishes that he understood the scope of the agreement, but did not believe that the defendants would seek to enforce the agreement or that the agreement would be upheld as a matter of law. See part II of this opinion. Specifically, the plaintiff testified: “I did not understand that I was saying it was okay for Powder Ridge to willingly kill me or injure me or my children or anyone else that participated in the ride, and it is my understanding of the form as it’s written, that Powder Ridge has the right, from this document, to take my life, injure me, injure my children, without regard or responsibility. That is my under standing of the form now. At the time I read that, I did not believe that, and I had that understanding of the words as they’re written and I did not believe that any organization would attempt to enforce language of that kind nor would any court uphold it.” The plaintiff further testified: “My son, who at that time was [twelve], read [the agreement] as well and he said, ‘Dad, don’t sign this thing.’ And I looked at it and I said, ‘It’s so patently egregious, I don’t see how it could be enforced.’ He was right and I was wrong. ‘Out of the mouths of babes.'”

[***16] We conclude that the trial court properly determined that the agreement in the present matter expressly purports to release the defendants from liability for their future negligence and, accordingly, satisfies the standard set forth by this court in Hyson.

II

We next address the issue we explicitly left unresolved in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640, namely, whether the enforcement of a well drafted exculpatory agreement purporting to release a snowtube operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy. We [**742] conclude that it does and, accordingly, reverse the judgment of the trial court.

[HN5] Although it is well established “that parties are free to contract for whatever terms on which they may agree”; (internal quotation marks omitted) Gibson v. Capano, 241 Conn. 725, 730, 699 A.2d 68 (1997); it is equally well established “that contracts that violate public policy are unenforceable.” Solomon v. Gilmore, 248 Conn. 769, 774, [*327] 731 A.2d 280 (1999). “The question [of] whether a contract is against [***17] public policy is [a] question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review.” (Internal quotation marks omitted.) Parente v. Pirozzoli, 87 Conn. App. 235, 245, 866 A.2d 629 (2005), citing 17A Am. Jur. 2d 312, Contracts § 327 (2004).

As previously noted, “the law does not favor contract provisions which relieve a person from his own negligence . . . .” (Internal quotation marks omitted.) Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 643. This is because exculpatory provisions undermine the policy considerations governing our tort system. “The fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . . It is sometimes said that compensation for losses is the primary function of tort law . . . [but it] is perhaps more accurate to describe the primary function as one of determining when compensation [is] required. . . . An equally compelling function of the tort system is the [***18] prophylactic factor of preventing future harm . . . . [HN6] The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578-79, 717 A.2d 215 (1998). Thus, it is consistent with public policy “to posit the risk of negligence upon the actor” and, if this policy is to be abandoned, “it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer.” Tunkl v. Regents of the University of California, 60 Cal.2d 92, 101, 383 P.2d 441, 32 Cal.Rptr. 33 (1963).

[*328] Although this court previously has not addressed the enforceability of a release of liability for future negligence, the issue has been addressed by many of our sister states. A frequently cited standard for determining whether exculpatory agreements violate public policy was set forth by the Supreme Court of California in Tunkl v. Regents of the University of California, supra, 60 Cal.2d 98-101. In Tunkl, the court concluded that [HN7] exculpatory agreements [***19] violate public policy if they affect the public interest adversely; id., 96-98; and identified six factors (Tunkl factors) relevant to this determination: “[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in per forming a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bar gaining strength against any member of the public who seeks his services. [5] In exercising a [**743] superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person [***20] or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” Id., 98-101. The court clarified that [HN8] an exculpatory agreement may affect the public interest adversely even if some of the Tunkl factors are not satisfied. 7 Id., 101.

7 In Tunkl, the plaintiff filed suit against a charitable research hospital for personal injuries allegedly incurred as a result of the negligence of two physicians employed by the hospital. Tunkl v. Regents of the University of California, supra, 60 Cal.2d 94. Upon admission, the plaintiff was required to sign an exculpatory agreement that released the hospital from “any and all liability for the negligent or wrongful acts or omissions of its employees . . . .” (Internal quotation marks omitted.) Id. Applying the Tunkl factors, the court determined that the exculpatory agreement was unenforceable because it violated public policy. Id., 101-104.

[***21] [*329] Various states have adopted the Tunkl factors to determine whether exculpatory agreements affect the public interest adversely and, thus, violate public policy. See, e.g., Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa School District, 110 Wn. 2d 845, 851-52, 758 P.2d 968 (1988). Other states have developed their own variations of the Tunkl factors; see, e.g., Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (“in determining whether an exculpatory agreement is valid, there are four factors which a court must consider: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] whether the intention of the parties is expressed in clear and unambiguous language”); Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499-500, 465 P.2d 107 (1970) (“express agreements exempting one of the parties for negligence are to be sustained except where: [1] one party is at an obvious disadvantage in bargaining power; [2] a public duty is [***22] involved [public utility companies, common carriers]”); while still others have adopted a totality of the circumstances approach. See, e.g., Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522 (1994) (expressly declining to adopt Tunkl factors because “the ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of cur rent societal expectations”); Dalury v. S-K-I, Ltd., 164 Vt. 329, 333-34, 670 A.2d 795 (1995) (same). The Virginia Supreme Court, however, has determined that all exculpatory agreements purporting to release tortfeasors [*330] from future liability for personal injuries are unenforceable because “to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be law fully done where an enlightened system of jurisprudence prevails. Public policy forbids it . . . .” (Internal quotation marks omitted.) Hiett v. Lake Barcroft Community Ass’n, 244 Va. 191, 194, 418 S.E.2d 894 (1992).

Having reviewed the various methods for determining whether exculpatory [***23] agreements violate public policy, we conclude, as the Tunkl court itself acknowledged, that [HN9] “no definition of the concept of public interest can be contained within the four corners of a formula.” [**744] Tunkl v. Regents of the University of California, supra, 60 Cal.2d 98. Accordingly, we agree with the Supreme Courts of Maryland and Vermont that “the ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” Wolf v. Ford, supra, 335 Md. 535; Dalury v. S-K-I, Ltd., supra, 164 Vt. 333-34. Thus, our analysis is guided, but not limited, by the Tunkl factors, and is informed by any other factors that may be relevant given the factual circumstances of the case and current societal expectations.

We now turn to the merits of the plaintiff’s claim. The defendants are in the business of providing snowtubing services to the public generally, regardless of prior snowtubing experience, with the minimal restriction that only persons at least six years old or forty-four inches tall are eligible to participate. [***24] Given the virtually unrestricted access of the public to Powder Ridge, a reasonable person would presume that the defendants were offering a recreational activity that the whole family could enjoy safely. Indeed, this presumption is borne out by the plaintiff’s own testimony. Specifically, the plaintiff testified that he “trusted that [the defendants] [*331] would, within their good conscience, operate a safe ride.”

[HN10] The societal expectation that family oriented recreational activities will be reasonably safe is even more important where, as in the present matter, patrons are under the care and control of the recreational operator as a result of an economic transaction. The plaintiff, in exchange for a fee, was permitted access to the defendants’ snowtubing runs and was provided with snowtubing gear. As a result of this transaction, the plaintiff was under the care and control of the defendants and, thus, was subject to the risk of the defendants’ carelessness. Specifically, the defendants designed and maintained the snowtubing run and, therefore, controlled the steepness of the incline, the condition of the snow and the method of slowing down or stopping patrons. Further, the defendants [***25] provided the plaintiff with the requisite snowtubing supplies and, therefore, controlled the size and quality of the snow tube as well as the provision of any necessary protective gear. Accordingly, the plaintiff voluntarily relinquished control to the defendants with the reasonable expectation of an exciting, but reasonably safe, snowtubing experience.

Moreover, the plaintiff lacked the knowledge, experience and authority to discern whether, much less ensure that, the defendants’ snowtubing runs were maintained in a reasonably safe condition. As the Vermont Supreme Court observed, in the context of the sport of skiing, it is consistent with public policy “to place responsibility for maintenance of the land on those who own or control it, with the ultimate goal of keeping accidents to the minimum level possible. [The] defendants, not recreational skiers, have the expertise and opportunity to foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their [*332] premises, and train their employees in risk management. They alone can insure against risks and effectively spread the costs of insurance among [***26] their thousands of customers. Skiers, on the other hand, are not in a position to discover and correct risks of harm, and they cannot insure against the ski area’s negligence.

“If the defendants were permitted to obtain broad waivers of their liability, an important incentive for ski areas to manage risk would be removed, with the public bearing the cost of the resulting injuries. . . . It is illogical, in these circumstances, [**745] to undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control.” 8 (Citations omitted.) Dalury v. S-K-I, Ltd., supra, 164 Vt. 335. The concerns expressed by the court in Dalury are equally applicable to the context of snowtubing, and we agree that [HN11] it is illogical to permit snowtubers, and the public generally, to bear the costs of risks that they have no ability or right to control. 9

8 Exculpatory agreements, like the one at issue in the present matter, shift the costs of injuries from the tortfeasor to the person injured. As a consequence, health care insurance providers or the state, through its provision of medicaid benefits, absorb the costs of the tortfeasor’s negligence. These costs necessarily are passed on to the population of the state through higher health care premiums and state taxes. Accordingly, in the present matter, it ultimately would be the population generally, and not the snowtube operators and their patrons, who would bear the costs if these agreements were to be enforced.

[***27]

9 The dissent claims that “the Dalury court, like the majority in the present case, concluded that a recreational activity affected the public interest because of the considerable public participation.” The dissent mischaracterizes both the conclusion of the Vermont Supreme Court in Dalury v. S-K-I, Ltd., supra, 164 Vt. 335, and our conclusion today. In Dalury, the court did not rely solely on the volume of public participation in determining that exculpatory agreements violate public policy in the context of skiing. Rather, the court relied on the following relevant factors: “(1) the ski area operated a facility open to the general public, (2) the ski area advertised and invited persons of every level of skiing ability onto its premises, (3) the ski area, and not recreational skiers, had the expertise and opportunity to foresee and control hazards and to guard against the negligence of its employees and agents, (4) the ski area was in a better position to insure against the risks of its own negligence and spread the cost of the insurance among its customers, and (5) if ski areas were permitted to obtain broad waivers of their liability, incentives for them to manage risks would be removed, with the public bearing the cost.” Spencer v. Killington, Ltd., 167 Vt. 137, 141, 702 A.2d 35 (1997) (discussing Dalury). Likewise, we conclude today that the agreement at issue in this case violates public policy, not solely because of the volume of public participation, but because: (1) the defendants invite the public generally to snowtube at their facility, regardless of snowtubing ability; (2) snowtubers are under the care and control of the defendants as a result of an economic transaction; (3) the defendants, not recreational snowtubers, have the knowledge, experience and authority to maintain the snowtubing runs in reasonably safe condition, to determine whether the snowtubing equipment is adequate and reasonably safe, and to guard against the negligence of its employees and agents; (4) the defendants are in a better position to insure against the risk of their negligence and to spread the costs of insurance to their patrons; (5) if we were to uphold the present agreement under the facts of this case, the defendants would be permitted to obtain broad waivers of their liability and the incentive for them to maintain a reasonably safe snowtubing environment would be removed, with the public bearing the cost; (6) the agreement at issue is a standardized adhesion contract, offered to snowtubers on a “take it or leave it” basis, and without the opportunity to purchase protection against negligence at an additional, reasonable fee; and (7) the defendants had superior bargaining authority.

[***28] [*333] Further, the agreement at issue was a standardized adhesion contract offered to the plaintiff on a “take it or leave it” basis. [HN12] The “most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988); see also Black’s Law Dictionary (7th Ed. 1999) (defining adhesion contract as “[a] standard form contract prepared by one party, to be signed by the party in a weaker position, [usually] a consumer, who has little choice about the terms”). Not only was the plaintiff unable to negotiate the terms of the agreement, but the defendants also did not offer him [**746] the option of procuring protection against negligence at an additional reasonable cost. See Restatement (Third), Torts, Apportionment of Liability 2, comment (e), p. 21 (2000) (factor relevant to enforcement of contractual limit on liability is “whether the party seeking exculpation was willing to provide greater protection against [*334] tortious conduct for a reasonable, additional fee”). Moreover, the defendants did not inform prospective [***29] snowtubers prior to their arrival at Powder Ridge that they would have to waive important common-law rights as a condition of participation. Thus, the plaintiff, who traveled to Powder Ridge in anticipation of snowtubing that day, was faced with the dilemma of either signing the defendants’ proffered waiver of prospective liability or forgoing completely the opportunity to snowtube at Powder Ridge. Under the present factual circumstances, it would ignore reality to conclude that the plaintiff wielded the same bargaining power as the defendants.

The defendants contend, nevertheless, that they did not have superior bargaining power because, unlike an essential public service, “snowtubing is a voluntary activity and the plaintiff could have just as easily decided not to participate.” 10 We acknowledge that snowtubing is a voluntary activity, but we do not agree that there can never be a disparity of bargaining power in the context of voluntary or elective activities. 11 See [*335] Dalury v. S-K-I, Ltd., supra, 164 Vt. 335 [HN13] (“while interference with an essential public service surely affects the public interest, those services do not represent the universe of activities that [***30] implicate public concerns”). Voluntary recreational activities, such as snowtubing, skiing, basketball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga, are pursued by the vast majority of the population and constitute an important and healthy part of everyday life. Indeed, this court has previously recognized the public policy interest of promoting vigorous participation in such activities. See, e.g., Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. 702 (important public policy interest in encouraging vigorous participation in skiing); Jaworski v. Kiernan, 241 Conn. 399, 409, 696 A.2d 332 (1997) (important public policy interest in promoting vigorous participation in soccer). In the present case, the [**747] defendants held themselves out as a provider of a healthy, fun, family activity. After the plaintiff and his family arrived at Powder Ridge eager to participate in the activity, however, the defendants informed the plaintiff that, not only would they be immune from claims arising from the inherent risks of the activity, but they would not be responsible for injuries resulting from their own carelessness and negligence [***31] in the operation of the snowtubing facility. We recognize that the plaintiff had the option of walking away. We cannot say, however, that the defendants had no bargaining advantage under these circumstances.

10 The defendants also claim, and the dissent agrees, that the defendants did not have superior bargaining power because the plaintiff “could have participated in snowtubing elsewhere, either on that day or another day.” We are not persuaded. Snowtubing is a seasonal activity that requires the provision of specific supplies and particular topographic and weather conditions. Although the dissent correctly states that “‘snowtubing occurs regularly at locations all across the state, including parks, backyards and golf courses'”; we point out that, even when weather conditions are naturally appropriate for snowtubing, not all individuals are fortunate enough to have access to places where snowtubing is both feasible topographically and permitted freely. Moreover, the dissent argues that the plaintiff had ample opportunity to select a snowtubing environment “based on whatever safety considerations he felt were relevant.” As already explained in this opinion, however, the defendants, not the plaintiff, had the requisite knowledge and experience to determine what safety considerations are relevant to snowtubing. As such, it was reasonable for the plaintiff to presume that the defendants, who are in the business of supplying snowtubing services, provide the safest snowtubing alternative.

[***32]

11 We need not decide whether an exculpatory agreement concerning a voluntary recreational activity violates public policy if the only factor militating against enforcement of the agreement is a disparity in bargaining power because, in the present matter, there are additional factors that combine to render the agreement contrary to public policy. See footnote 9 of this opinion.

For the foregoing reasons, we conclude that the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because [*336] it violates public policy. 12 Accordingly, the trial court improperly rendered summary judgment in favor of the defendants.

12 We clarify that our conclusion does not extend to the risks inherent in the activity of snowtubing. As we have explained, [HN14] inherent risks are those risks that are innate to the activity, “are beyond the control of the [recreational] area operator and cannot be minimized by the operator’s exercise of reasonable care.” Jagger v. Mohawk Mountain Ski Area, Inc., supra, 269 Conn. 692 (distinguishing between inherent risks of skiing and ski operator’s negligence); see also Spencer v. Killington, Ltd., 167 Vt. 137, 143, 702 A.2d 35 (1997) (same). For example, risks inherent in the sport of skiing include, but are not limited to, the risk of collision with another skier or a tree outside the confines of the slope. See Public Acts 2005, No. 05-78, § 2. The risks inherent in each type of recreational activity will necessarily vary, and it is common knowledge that some recreational activities are inherently more dangerous than others.

[***33] The defendants and the dissent point out that our conclusion represents the “distinct minority view” and is inconsistent with the majority of sister state authority upholding exculpatory agreements in similar recreational settings. We acknowledge that most states uphold adhesion contracts releasing recreational operators from prospective liability for personal injuries caused by their own negligent conduct. Put simply, we disagree with these decisions for the reasons already explained in this opinion. Moreover, we find it significant that many states uphold exculpatory agreements in the context of simple negligence, but refuse to enforce such agreements in the context of gross negligence. See, e.g., Farina v. Mt. Bachelor, Inc., 66 F.3d 233, 235-36 (9th Cir. 1995) (Oregon law); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730, 736 (D. Haw. 1993), superseded in part by Haw. Rev. Stat. § 663-1.54 (1997) (recreational providers liable for simple negligence in addition to gross negligence); McFann v. Sky Warriors, Inc., 268 Ga. App. 750, 758, 603 S.E.2d 7 (2004), cert. denied, 2005 Ga. LEXIS 69 [***34] (January 10, 2005); Boucher v. Riner, 68 Md. App. 539, 543, 514 A.2d 485 (1986); Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. 17, 18-19, [*337] 687 N.E.2d 1263 (1997); Schmidt v. United States, 1996 OK 29, 912 P.2d 871, 874 (Okla. 1996); Adams v. Roark, 686 S.W.2d 73, 75-76 (Tenn. 1985); Conradt v. Four Star Promotions, Inc., 45 Wn. App. 847, 852, 728 P.2d 617 (1986); see also New Light Co. v. Wells Fargo Alarm Services, 247 Neb. 57, 62-65, 525 N.W.2d 25 (1994); 8 S. Williston, Contracts (4th Ed. 1998) § 19:23, pp. 291-97 (“an attempted exemption from liability for a future intentional tort or crime or for a future willful or grossly negligent act is generally held void, although a release exculpating a party from liability for negligence may also cover gross negligence where the jurisdiction has abolished the distinction between [**748] degrees of negligence and treats all negligence alike”). [HN15] Connecticut does not recognize degrees of negligence and, consequently, does not recognize the tort of gross negligence as a separate basis of liability. See, e.g., Matthiessen v. Vanech, 266 Conn. 822, 833, 836 A.2d 394 and n.10, 266 Conn. 822, 836 A.2d 394 (2003). [***35] Accordingly, although in some states recreational operators cannot, consistent with public policy, release themselves from prospective liability for conduct that is more egregious than simple negligence, in this state, were we to adopt the position advocated by the defendants, recreational operators would be able to release their liability for such conduct unless it rose to the level of recklessness. Id., 832 (recklessness is “a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent” [internal quotation marks omitted]). As a result, recreational operators would lack the incentive to exercise even slight care, with the public bearing the costs of the resulting injuries. See 57A Am. Jur. 2d 296, Negligence § 227 (2004) [*338] (“‘gross negligence’ is commonly defined as very great or excessive negligence, or as the want of, or failure to exercise, even slight or scant care or ‘slight diligence'”). [***36] Such a result would be inconsistent with the public policy of this state.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion KATZ, VERTEFEUILLE and ZARELLA, Js., concurred.

DISSENT BY: NORCOTT

DISSENT

NORCOTT, J., with whom BORDEN and PALMER, Js., join, dissenting. Although I concur in part I of the majority opinion, I disagree with its conclusion in part II, namely, that the prospective release of liability for negligence executed by the plaintiff, Gregory D. Hanks, in this case is unenforceable as against public policy. I would follow the overwhelming majority of our sister states and would conclude that prospective releases from liability for negligence are permissible in the context of recreational activities. Accordingly, I respect fully dissent from the majority’s decision to take a road that is, for many persuasive reasons, far less traveled.

I begin by noting that “it is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree. This freedom includes the right to contract for the assumption of known or unknown hazards and risks that may arise as a consequence [***37] of the execution of the contract. Accordingly, in private disputes, a court must enforce the contract as drafted by the parties and may not relieve a contracting party from anticipated or actual difficulties undertaken pursuant to the contract . . . .” Holly Hill Holdings v. Lowman, 226 Conn. 748, 755-56, 628 A.2d 1298 (1993). Nevertheless, contracts that violate public policy are unenforceable. See, e.g., Solomon v. Gilmore, 248 Conn. 769, 774, 731 A.2d 280 (1999).

[*339] In determining whether prospective releases of liability violate public policy, the majority adopts the Vermont Supreme Court’s totality of the circumstances approach. 1 Dalury v. S-K-I, Ltd., 164 Vt. 329, 334, [**749] 670 A.2d 795 (1995). Although it also purports to consider the widely accepted test articulated by the California Supreme Court in Tunkl v. Regents of the University of California, 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963), the majority actually accords the test only nominal consideration. Because I consider the Tunkl factors to be dispositive, I address them at length.

1 The majority also cites Wolf v. Ford, 335 Md. 525, 535, 644 A.2d 522 (1994), in support of its totality of the circumstances approach. The Wolf court concluded that a release executed in the context of a stockbroker-client relationship did not implicate the public interest. Id., 527-28. Such a result is incongruous with the vast majority of American law and I am aware of no other case in which a court held that a release of liability for negligence in such a sensitive context did not implicate the public interest. In my view, Wolf illustrates the significant problem inherent in employing an amorphous “totality of the circumstances” test.

[***38] “The attempted but invalid [release agreement] involves a transaction which exhibits some or all of the following characteristics. [1] It concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in per forming a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bar gaining strength against any member of the public who seeks his services. [5] In exercising a superior bar gaining power the party confronts the public with a standardized adhesion contract of exculpation, and [*340] makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control [***39] of the seller, subject to the risk of carelessness by the seller or his agents.” Id., 98-101.

“Not all of the Tunkl factors need be satisfied in order for an exculpatory clause to be deemed to affect the public interest. The [Tunkl court] conceded that ‘no definition of the concept of public interest can be contained within the four corners of a formula’ and stated that the transaction must only ‘exhibit some or all’ of the identified characteristics. . . . Thus, the ultimate test is whether the exculpatory clause affects the public interest, not whether all of the characteristics that help reach that conclusion are satisfied.” (Citations omitted.) Health Net of California, Inc. v. Dept. of Health Services, 113 Cal. App. 4th 224, 237-38, 6 Cal.Rptr. 3d 235 (2003), review denied, 2004 Cal. LEXIS 2043 (March 3, 2004).

Notwithstanding the statutory origins of the Tunkl factors, 2 numerous other states [**750] have adopted them to determine whether a prospective release violates public policy under their common law. See, e.g., Morgan v. [*341] South Central Bell Telephone Co., 466 So. 2d 107, 117 (Ala. 1985); Anchorage v. Locker, 723 P.2d 1261, 1265 (Alaska 1986); [***40] La Frenz v. Lake County Fair Board, 172 Ind. App. 389, 395, 360 N.E.2d 605 (1977); Lynch v. Santa Fe National Bank, 97 N.M. 554, 558-59, 627 P.2d 1247 (1981); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa School District, 110 Wn. 2d 845, 852, 758 P.2d 968 (1988); Schutkowski v. Carey, 725 P.2d 1057, 1060 (Wyo. 1986). 3

2 The Tunkl court construed California Civil Code 1668, which provides: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Internal quotation marks omitted.) Tunkl v. Regents of the University of California, supra, 60 Cal.2d 95. Despite the sweeping language of the statute, California courts had construed it inconsistently, with many allowing prospective releases from liability for negligence. See id., 95-98. The Tunkl court, in reconciling conflicting lower court decisions, confined the effect of 1668 on releases from liability for negligence to situations affecting the public interest, stating: “While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, [circumstances affecting the public interest] pose a different situation.” Id., 101.

[***41]

3 I note that still other states have chosen to adopt variations on the Tunkl factors. See, e.g., Jones v. Dressel, 623 P.2d 370, 376 (Colo. 1981) (“in determining whether an exculpatory agreement is valid, there are four factors which a court must consider: [1] the existence of a duty to the public; [2] the nature of the service performed; [3] whether the contract was fairly entered into; and [4] whether the intention of the parties is expressed in clear and unambiguous language”); Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499-500, 465 P.2d 107 (1970) (“on the basis of these authorities we hold that express agreements exempting one of the parties for negligence are to be sustained except where: [1] one party is at an obvious disadvantage in bargaining power; [2] a public duty is involved [public utility companies, common carriers]”).

Applying the six Tunkl factors to the sport of snow tubing, I note that the first, second, fourth and sixth factors support the defendants, Powder Ridge Restaurant Corporation and White Water Mountain [***42] Resorts of Connecticut, Inc., doing business as Powder Ridge Ski Resort, which operate the Powder Ridge facility, while the third and fifth factors support the plaintiff. Accordingly, I now turn to a detailed examination of each factor as it applies to this case.

The first of the Tunkl factors, that the business is of a type thought suitable for regulation, cuts squarely in favor of upholding the release. Snowtubing runs generally are not subject to extensive public regulation. Indeed, the plaintiff points to no statutes or regulations that affect snowtubing, and I have located only one statutory reference to it. This sole reference, contained in No. 05-78, § 2, of the 2005 Public Acts, explicitly [*342] exempts snowtubing from the scope of General Statutes (Rev. to 2005) § 29-212, which applies to liability for injuries sustained by skiers. 4 Thus, while the legislature has [**751] chosen to regulate, to some extent, the sport of skiing, it conspicuously has left snowtubing untouched.

4 Public Act 05-78, 2, which amended General Statutes (Rev. to 2005) 29-212 effective October 1, 2005, provides: “(a) For the purposes of this section:

“(1) ‘Skier’ includes any person who is using a ski area for the purpose of skiing or who is on the skiable terrain of a ski area as a spectator or otherwise, but does not include (A) any person using a snow tube provided by a ski area operator, and (B) any person who is a spectator while in a designated spectator area during any event;

“(2) ‘Skiing’ means sliding downhill or jumping on snow or ice using skis, a snowboard, snow blades, a snowbike, a sit-ski or any other device that is controllable by its edges on snow or ice or is for the purpose of utilizing any skiable terrain, but does not include snow tubing operations provided by a ski area operator; and

“(3) ‘Ski area operator’ means a person who owns or controls the operation of a ski area and such person’s agents and employees. “(b) Each skier shall assume the risk of and legal responsibility for any injury to his or her person or property caused by the hazards inherent in the sport of skiing. Such hazards include, but are not limited to: (1) Variations in the terrain of the trail or slope which is marked in accordance with subdivision (3) of section 29-211, as amended by this act, or variations in surface or subsurface snow or ice conditions, except that no skier assumes the risk of variations which are caused by the ski area operator unless such variations are caused by snow making, snow grooming or rescue operations; (2) bare spots which do not require the closing of the trail or slope; (3) conspicuously placed or, if not so placed, conspicuously marked lift towers; (4) trees or other objects not within the confines of the trail or slope; (5) loading, unloading or otherwise using a passenger tramway without prior knowledge of proper loading and unloading procedures or without reading instructions concerning loading and unloading posted at the base of such passenger tramway or without asking for such instructions; and (6) collisions with any other person by any skier while skiing, except that collisions with on-duty employees of the ski area operator who are skiing and are within the scope of their employment at the time of the collision shall not be a hazard inherent in the sport of skiing.

“(c) The provisions of this section shall not apply in any case in which it is determined that a claimant’s injury was not caused by a hazard inherent in the sport of skiing.” (Emphasis added.)

[***43] The second Tunkl factor also works in the defendants’ favor. Snowtubing is not an important public service. Courts employing the Tunkl factors have found [*343] this second element satisfied in the contexts of hospital admission and treatment, residential rental agreements, banking, child care services, telecommunications and public education, including interscholastic sports. See Henrioulle v. Marin Ventures, Inc., 20 Cal.3d 512, 573 P.2d 465, 143 Cal.Rptr. 247 (1978) (residential rental agreements); Tunkl v. Regents of the University of California, supra, 60 Cal.2d 92 (hospitals); Gavin W. v. YMCA of Metropolitan Los Angeles, 106 Cal. App. 4th 662, 131 Cal.Rptr.2d 168 (2003) (child care); Vilner v. Crocker National Bank, 89 Cal. App. 3d 732, 152 Cal.Rptr. 850 (1979) (banking); Morgan v. South Central Bell Telephone Co., supra, 466 So. 2d 107 (telephone companies); Anchorage v. Locker, supra, 723 P.2d 1261 (telephone companies); Wagenblast v. Odessa School District, supra, 110 Wn. 2d 845 (public schools and interscholastic sports). The public nature of these industries [***44] is undeniable and each plays an important and indispensable role in everyday life. Snowtubing, by contrast, is purely a recreational activity.

The fourth Tunkl factor also counsels against the plaintiff’s position that snowtubing affects the public interest because snowtubing is not an essential activity. The plaintiff’s only incentive for snowtubing was recreation, not some other important personal interest such as, for example, health care, banking or insurance. The plaintiff would not have suffered any harm by opting not to snowtube at Powder Ridge, because snowtubing is not so significant a service that a person in his position would feel compelled to agree to any terms offered rather than forsake the opportunity to participate. Furthermore, “unlike other activities that require the pro vision of a certain facility, snowtubing occurs regularly at locations all across the state, including parks, back yards and golf courses.” Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 650 n.4, 829 A.2d 827 (2003) (Norcott, J., dissenting). Thus, [*344] the plaintiff had ample opportunity to snowtube in an environment of his choosing, which he [***45] could have selected based on whatever safety considerations he felt were relevant. In the absence of a compelling personal need and a limited choice of facilities, I cannot conclude that the defendants enjoyed a significant bar gaining advantage over the plaintiff.

Finally, the sixth Tunkl factor weighs against a determination that the release implicates the public interest. The plaintiff did not place his person or property under the defendants’ control. Unlike the [**752] patient who lies unconscious on the operating table or the child who is placed in the custody of a day care service, the Powder Ridge patron snowtubes on his own, without entrusting his person or property to the defendants’ care. In fact, the attraction of snowtubing and other recreational activities often is the lack of control associated with participating.

In contrast, the third and fifth Tunkl factors support the plaintiff’s position. With respect to the third factor, although the defendants restricted access to the snow tubing run to persons at least six years old or forty-four inches tall, this minimal restriction does not diminish the fact that only a small class of the general public is excluded from [***46] participation. See Tunkl v. Regents of the University of California, supra, 60 Cal.2d 102 (research hospital that only accepted certain patients nevertheless met third prong of Tunkl because it accepted anyone who exhibited medical condition that was being researched at hospital). Such a small exclusion does not diminish the invitation to the public at large to partake in snowtubing at the defendants’ facility, because the snowtubing run is open to any person who fits within certain easily satisfied parameters. See id., 99-101.

Finally, I examine the fifth Tunkl factor, namely, whether the release agreement is an “adhesion contract . . . .” [*345] Id., 100. “[The] most salient feature [of adhesion contracts] is that they are not subject to the normal bargaining processes of ordinary contracts.” Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 416, 538 A.2d 219 (1988). Although the plaintiff made no attempt to bargain as to the terms of the release, it defies logic to presume that he could have done so successfully. As the majority correctly notes, the defendants presented patrons with a “take it or leave it” situation, [***47] conditioning access to the snowtubing run on signing the release agreement. Accordingly, the fifth Tunkl factor indicates that the agreement does affect the public interest.

In sum, I conclude that, under the Tunkl factors, the defendants’ release at issue in this case does not violate public policy with respect to the sport of snowtubing. This conclusion is consistent with the vast majority of sister state authority, which upholds releases of liability in a variety of recreational or athletic settings that are akin to snowtubing as not violative of public policy. See, e.g., Barnes v. Birmingham International Raceway, Inc., 551 So. 2d 929, 933 (Ala. 1989) (automobile racing); Valley National Bank v. National Assn. for Stock Car Auto Racing, 153 Ariz. 374, 378, 736 P.2d 1186 (App. 1987) (spectator in pit area at automobile race); Plant v. Wilbur, 345 Ark. 487, 494-96, 47 S.W.3d 889 (2001) (same); Madison v. Superior Court, 203 Cal. App. 3d 589, 602, 250 Cal.Rptr. 299 (1988) (scuba diving), review denied, 1988 Cal. LEXIS 1511 (October 13, 1988); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 785 (Colo. 1989) [***48] (horseback riding); Theis v. J & J Racing Promotions, 571 So. 2d 92, 94 (Fla. App. 1990) (automobile racing), review denied, 581 So. 2d 168 (Fla. 1991); Bien v. Fox Meadow Farms Ltd., 215 Ill. App. 3d 337, 341, 574 N.E.2d 1311, 158 Ill. Dec. 918 (horseback riding), appeal denied, 142 Ill. 2d 651, 584 N.E.2d 126, 164 Ill. Dec. 914 (1991); Clanton v. United Skates of America, 686 N.E.2d 896, 899-900 [*346] (Ind. App. 1997) (roller skating); Boucher v. Riner, 68 Md. App. 539, 551, 514 A.2d 485 (1986) (skydiving); Lee v. Allied Sports Associates, Inc., 349 Mass. 544, 551, 209 N.E.2d 329 (1965) (spectator at automobile race); Lloyd v. Sugarloaf Mountain Corp., 2003 ME 117, 833 A.2d 1, 4 (Me. 2003) (mountain biking); Gara v. [**753] Woodbridge Tavern, 224 Mich. App. 63, 66-68, 568 N.W.2d 138 (1997) (recreational sumo wrestling); Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 926 (Minn. 1982) (weightlifting at fitness center); Mayer v. Howard, 220 Neb. 328, 336, 370 N.W.2d 93 (1985) (motorcycle racing); Barnes v. New Hampshire Karting Ass’n, Inc., 128 N.H. 102, 108, 509 A.2d 151 (1986) [***49] (go-cart racing); Kondrad v. Bismarck Park District, 2003 ND 4, 655 N.W.2d 411, 414 (N.D. 2003) (bicycling); Cain v. Cleveland Parachute Training Center, 9 Ohio App. 3d 27, 28, 9 Ohio B. 28, 457 N.E.2d 1185 (1983) (skydiving); Manning v. Brannon, 1998 OK CIV APP 17, 956 P.2d 156, 159 (Okla. App. 1997) (skydiving); Mann v. Wetter, 100 Or. App. 184, 187-88, 785 P.2d 1064 (1990) (scuba diving); Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 448, 603 A.2d 663 (1992) (ski racing); Huckaby v. Confederate Motor Speedway, Inc., 276 S.C. 629, 631, 281 S.E.2d 223 (1981) (automobile racing); Holzer v. Dakota Speedway, Inc., 2000 SD 65, 610 N.W.2d 787, 798 (S.D. 2000) (automobile racing); Kellar v. Lloyd, 180 Wis. 2d 162, 183, 509 N.W.2d 87 (App. 1993) (flagperson at automobile race); Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988) (ski race during decathlon). 5

5 See also McAtee v. Newhall Land & Farming Co., 169 Cal. App. 3d 1031, 1034-35, 216 Cal.Rptr. 465 (1985) (motocross racing); Hulsey v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 343, 214 Cal.Rptr. 194 (1985) (skydiving); Jones v. Dressel, 623 P.2d 370, 375 (Colo. 1981) (skydiving).

[***50] This near unanimity among the courts of the various states reflects the fact that “most, if not all, recreational activities are voluntary acts. Individuals participate in them for a variety of reasons, including to exercise, to experience a rush of adrenaline, and to [*347] engage their competitive nature. These activities, while surely increasing one’s enjoyment of life, cannot be considered so essential as to override the ability of two parties to contract about the allocation of the risks involved in the provision of such activity. When deciding to engage in a recreational activity, participants have the ability to weigh their desire to participate against their willingness to sign a contract containing an exculpatory clause.” Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 649 (Norcott, J., dissenting). It also is consistent with the view of the American Law Institute, as embodied in 2 Restatement (Second) of Contracts § 195 (1981), 6 and Restatement (Third) of Torts, Apportionment of Liability 2 (2000). 7

6 Section 195 of 2 Restatement (Second) of Contracts provides in relevant part: “(2) A term exempting a party from tort liability for harm caused negligently is unenforceable on grounds of public policy if

“(a) the term exempts an employer from liability to an employee for injury in the course of his employment;

“(b) the term exempts one charged with a duty of public service from liability to one to whom that duty is owed for compensation for breach of that duty, or

“(c) the other party is similarly a member of a class protected against the class to which the first party belongs. . . .” 2 Restatement (Second), Contracts § 195, p. 65 (1981).

[***51]

7 Restatement (Third), Torts, Apportionment of Liability § 2, p. 19 (2000), provides: “When permitted by contract law, substantive law governing the claim, and applicable rules of construction, a contract between the plaintiff and another person absolving the person from liability for future harm bars the plaintiff’s recovery from that person for the harm. Unlike a plaintiff’s negligence, a valid contractual limitation on liability does not provide an occasion for the factfinder to assign a percentage of responsibility to any party or other person.”

The commentary to § 2 further supports our conclusion in the present case. See id., comment (b), p. 20 (“In appropriate situations, the parties to a transaction should be able to agree which of them should bear the risk of injury, even when the injury is caused by a party’s legally culpable conduct. That policy is not altered or undermined by the adoption of comparative responsibility. Consequently, a valid contractual limitation on liability, within its terms, creates an absolute bar to a plaintiff’s recovery from the other party to the contract.”); see also id., comment (e), p. 21 (“Some contracts for assumption of risk are unenforceable as a matter of public policy. Whether a contractual limitation on liability is unenforceable depends on the nature of the parties and their relationship to each other, including whether one party is in a position of dependency; the nature of the conduct or service provided by the party seeking exculpation, including whether the conduct or service is laden with ‘public interest’; the extent of the exculpation; the economic setting of the transaction; whether the document is a standardized contract of adhesion; and whether the party seeking exculpation was willing to provide greater protection against tortious conduct for a reasonable, additional fee.”).

[***52] [*348] [**754] Notwithstanding the foregoing authority, the majority adopts the Vermont Supreme Court’s holding in Dalury v. S-K-I, Ltd., supra, 164 Vt. 334, and concludes that the release agreement in the present case violates public policy. In Dalury, the plaintiff “sustained serious injuries when he collided with a metal pole that formed part of the control maze for a ski lift line. Before the season started, [the plaintiff] had purchased a midweek season pass and signed a form releasing the ski area from liability.” Id., 330. The release signed by the plaintiff in Dalury clearly disclaimed liability for negligence. Id. Citing the Tunkl factors, but fashioning an alternative test based on the totality of the circumstances, the Dalury court held the release invalid as against public policy. Id., 333-35. The Dalury court, like the majority in the present case, concluded that a recreational activity affected the public interest because of the considerable public participation. Id., 334. I find the Vermont court’s opinion unpersuasive.

Although the number of tickets sold to the public is instructive in determining whether [***53] an agreement affects the public interest, it is by no means dispositive. Private, nonessential industries, while often very popular, wield no indomitable influence over the public. The average person is capable of reading a release agreement and deciding not to snowtube because of the risks that he or she is asked to assume. 8 By contrast, in those fields [*349] implicating the public interest, the patron is at a substantial bargaining disadvantage. Few people are in a position to quibble over contractual obligations when seeking, for example, insurance, medical treatment or child care. A general characteristic of fields entangled with the public interest is their indispensability; snow tubing hardly is indispensable. Under the majority’s reasoning, nearly any release affects the public interest, no matter how unnecessary or inherently dangerous the underlying activity may be. 9 That position remains the distinct minority view, followed only by [**755] the courts of Vermont and Virginia. 10 Hiett v. Lake Barcroft Community Ass’n, 244 Va. 191, 194, 418 S.E.2d 894 (1992) (“to hold that it was competent for one party to put the other parties to the contract at the mercy of its own [***54] misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails”).

8 The majority apparently considers snowtubing to be so important that the average consumer would be unable to pass up participation, stating: “Thus, the plaintiff, who traveled to Powder Ridge in anticipation of snowtubing that day, was faced with the dilemma of either signing the defendants’ proffered waiver of prospective liability or forgoing completely the opportunity to snowtube at Powder Ridge.” Because snowtubing, unlike the important societal considerations that other courts have concluded implicate the public interest, is wholly nonessential, I disagree with the majority’s position that the mere inconvenience of having to forgo it creates an unacceptable disparity in bargaining power.

9 Indeed, the majority states: “Voluntary recreational activities, such as snowtubing, skiing, basketball, soccer, football, racquetball, karate, ice skating, swimming, volleyball or yoga are pursued by the vast majority of the population and constitute an important and healthy part of everyday life.”

[***55]

10 Although New York courts formerly upheld prospective releases from liability; see Lago v. Krollage, 78 N.Y.2d 95, 100, 575 N.E.2d 107, 571 N.Y.S.2d 689 (1991); that state’s legislature superseded many of those precedents with New York Gen. Oblig. Law 5-326 (McKinney 2001), which provides: “Every covenant, agreement or understanding in or in connection with, or collateral to, any contract, membership application, ticket of admission or similar writing, entered into between the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment and the user of such facilities, pursuant to which such owner or operator receives a fee or other compensation for the use of such facilities, which exempts the said owner or operator from liability for damages caused by or resulting from the negligence of the owner, operator or person in charge of such establishment, or their agents, servants or employees, shall be deemed to be void as against public policy and wholly unenforceable.”

[*350] The majority also contends that, because [***56] of the status of Connecticut negligence law, my conclusion would have broader public policy implications than the decisions of other courts upholding releases. Specifically, the majority contends that because the law of Connecticut does not recognize differing degrees of negligence, my position allows snowtube operators to insulate themselves from liability even for grossly negligent acts. This is a contrast from states that do recognize a separate claim for gross negligence. Thus, the majority avers, in this state, it would be possible to insulate oneself from liability for all acts not rising to the level of recklessness, whereas elsewhere only simple negligence may be disclaimed.

Although the majority’s theory initially appears compelling, closer examination reveals that the line it draws is a distinction without a difference because many states that prohibit prospective releases of liability for gross negligence define gross negligence in a way that mirrors Connecticut recklessness law. 11 See Mich. Comp. Laws § 691.1407 (7) (a) (2005) (governmental immunity statute defining gross negligence as “conduct so reckless as to demonstrate a substantial [***57] lack of concern for whether an injury results”); see also Williams v. Thude, 188 Ariz. 257, 259, 934 P.2d 1349 (1997) (“Wanton misconduct is aggravated negligence. . . . [*351] Willful, wanton, and reckless conduct have commonly been grouped together as an aggravated form of negligence.” [Citations omitted; internal quotation marks omitted.]); Cullison v. Peoria, 120 Ariz. 165, 169, 584 P.2d 1156 (1978) (“Wanton [or gross] negligence is highly potent, and when it is present it fairly proclaims itself [**756] in no uncertain terms. It is in the air, so to speak. It is flagrant and evinces a lawless and destructive spirit.” [Internal quotation marks omitted.]); Ziarko v. Soo Line R. Co., 161 Ill. 2d 267, 274-75, 641 N.E.2d 402, 204 Ill. Dec. 178 (1994) (“Unlike intentionally tortious behavior, conduct characterized as willful and wanton may be proven where the acts have been less than intentional–i.e., where there has been a failure, after knowledge of impending danger, to exercise ordinary care to prevent the danger, or a failure to discover the danger through . . . carelessness when it could have been discovered by the exercise of ordinary [***58] care. . . . Our case law has sometimes used interchangeably the terms willful and wanton negligence, gross negligence, and willful and wanton conduct. . . . This court has previously observed that there is a thin line between simple negligence and willful and wanton acts . . . .” [Citations omitted; internal quotation marks omitted.]); Murphy v. Edmonds, 325 Md. 342, 375, 601 A.2d 102 (1992) (“gross negligence . . . has been defined in motor vehicle tort cases as a wanton or reckless disregard for human life in the operation of a motor vehicle” [internal quotation marks omitted]); Stringer v. Minnesota Vikings Football Club, 686 N.W.2d 545, 552-53 (Minn. App. 2004) (“Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the [*352] want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal [***59] obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others.” [Internal quotation marks omitted.]), quoting State v. Bolsinger, 221 Minn. 154, 159, 21 N.W.2d 480 (1946), review granted, 2004 Minn. LEXIS 752, Nos. A03-1635, A04-205 (November 23, 2004); State v. Chambers, 589 N.W.2d 466, 478-79 (Minn. 1999) (person is grossly negligent when he acts “without even scant care but not with such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong” [internal quotation marks omitted]), quoting State v. Bolsinger, supra, 159; Bennett v. Labenz, 265 Neb. 750, 755, 659 N.W.2d 339 (2003) (“gross negligence is great or excessive negligence, which indicates the absence of even slight care in the performance of a duty”); New Light Co. v. Wells Fargo Alarm Services, 247 Neb. 57, 64, 525 N.W.2d 25 (1994) (relying on New York law characterizing gross negligence as “conduct that evinces a reckless indifference to the rights of others”); Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 554, 593 N.E.2d 1365, 583 N.Y.S.2d 957 (1992) [***60] (“Gross negligence, when invoked to pierce an agreed-upon limitation of liability in a commercial contract, must smack of intentional wrongdoing. . . . It is conduct that evinces a reckless indifference to the rights of others.” [Citations omitted; internal quotation marks omitted.]); Wishnatsky v. Bergquist, 550 N.W.2d 394, 403 (N.D. 1996) (“[Where] gross negligence is defined [by statute] as the want of slight care and diligence. . . . This court has construed gross negligence to mean no care at all, or the omission of such care which even the most inattentive and thoughtless seldom fail to make their concern, evincing a reckless temperament and lack of care, practically willful in its nature.” [Citation omitted; internal quotation marks omitted.]); [*353] Harsh v. Lorain County Speedway, Inc., 111 Ohio App. 3d 113, 118-19, 675 N.E.2d 885 (1996) (upholding release [**757] for negligence but not “willful and wanton conduct”); 12 Bogue v. McKibben, 278 Or. 483, 486, 564 P.2d 1031 (1977) (“gross negligence refers to negligence which is materially greater than the mere absence of reasonable care under the circumstances, and which is characterized [***61] by conscious indifference to or reckless disregard of the rights of others” [internal quotation marks omitted]); Albright v. Abington Memorial Hospital, 548 Pa. 268, 278, 696 A.2d 1159 (1997) (Pennsylvania Supreme Court approved a trial court’s characterization of gross negligence for purposes of governmental immunity statute as “a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.”); Jinks v. Richland County, 355 S.C. 341, 345, 585 S.E.2d 281 (2003) (For the purposes of a governmental immunity statute, gross negligence is defined as “the intentional conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do. . . . It is the failure to exercise slight care. . . . Gross negligence has also been defined as a relative term and means the absence of care that is necessary under the circumstances.” [Citations omitted.]). 13

11 Recklessness entails “something more than a failure to exercise a reason able degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . Wanton misconduct is reckless misconduct. . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action. . . . Willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.” (Internal quotation marks omitted.) Frillici v. Westport, 264 Conn. 266, 277-78, 823 A.2d 1172 (2003).

[***62]

12 The Ohio Supreme Court has equated willful and wanton conduct with recklessness as that term is defined in the Restatement Second of Torts, stating: “The actor’s conduct is in reckless disregard of the safety of others if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” (Internal quotation marks omitted.) Thompson v. McNeill, 53 Ohio St. 3d 102, 104-105, 559 N.E.2d 705 (1990), quoting 2 Restatement (Second), Torts § 500, p. 587 (1965).

13 Other states do, however, characterize gross negligence as more serious than ordinary negligence, while not rising to the level of recklessness. See Calvillo-Silva v. Home Grocery, 19 Cal. 4th 714, 968 P.2d 65, 80 Cal.Rptr.2d 506 (1998) (characterizing willful and wanton conduct as more serious than gross negligence), overruled on other grounds, Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 854, 24 P.3d 493, 107 Cal.Rptr.2d 841 (2001); Travelers Indemnity Co. v. PCR, Inc., 889 So. 2d 779, 793 n.17 (Fla. 2004) (defining “‘culpable negligence’ as ‘reckless indifference’ or ‘grossly careless disregard’ of human life” and gross negligence as “an act or omission that a reasonable, prudent person would know is likely to result in injury to another”); Altman v. Aronson, 231 Mass. 588, 592, 121 N.E. 505 (1919) (defining gross negligence as less serious than recklessness); Parret v. Unicco Service Co., 2005 OK 54, *11-13, 2005 Okla. LEXIS 54, 127 P.3d 572 (June 28, 2005) (same); Weaver v. Mitchell, 715 P.2d 1361, 1369-70 (Wyo. 1986) (punitive damages cannot be awarded for gross negligence, which is less serious than reckless or wanton conduct). Despite these decisions, I am not persuaded that our conclusion provides inadequate protection to snowtube patrons.

[***63] [*354] Furthermore, at least one other court has concluded that releases similar to the one in question are valid notwithstanding the absence of a gross negligence doctrine. New Hampshire, like Connecticut, does not recognize differing degrees of negligence, yet its highest court has upheld a release of liability for negligence, stating: “The plaintiff cites a number of cases from other jurisdictions that hold on public policy grounds that an exculpatory agreement does not release defendants from liability for gross negligence. These cases are inapposite because New Hampshire law does not distinguish causes of action based on ordinary and gross negligence. . . . The plaintiff advances no reasons for abandoning this rule and we decline to create an [**758] exception to allow him to pursue his claims of gross negligence.” (Citation omitted.) Barnes v. New Hampshire Karting Assn., Inc., supra, 128 N.H. 108-109; but see Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695, 705 n.3 (Pa. Super. 2000) (declining to reach issue of whether agreement that released liability for gross negligence would violate public policy where agreement in question stated [***64] only “negligence”); Bielski v. Schulze, 16 Wis. 2d 1, 18-19, 114 N.W.2d 105 (1962) (recognizing potential problems that Wisconsin’s abolition of gross negligence might raise in area of exculpatory clauses).

[*355] The great weight of these numerous and highly persuasive authorities compels my conclusion that the release at issue herein does not violate public policy as it pertains to the sport of snowtubing. Accordingly, I conclude that the trial court properly granted summary judgment in the defendants’ favor and I would affirm that judgment. I, therefore, respectfully dissent.


Final: 2015-2016 In bound ski/board fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of April 21, 2016. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Red type is natural or medical conditions that occurred inbounds on the slopes

Green Type is Fatalities while sledding at the Resort

Blue Type is a Lift Accidents

Purple Tye is Employee or Ski Patroller

2015 – 2016 Ski Season Fatalities

#

Date

State

Resort

Where

Trail Difficulty

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

Ref # 2

1

11/29/15

CA

Bear Mountain

 

 

she collided with a metal stairway

 

Ski

21

F

Jackson Township CA

 

http://rec-law.us/1HAkwAp

http://rec-law.us/1LJ13sm

2

12/7/15

WY

Jackson Hole

Moran Run

Blue

Hit tree

 

Board

23

F

Boston, MA

Y

http://rec-law.us/1OO1M1P

http://rec-law.us/1NGuZLh

3

12/15/15

CO

Steamboat

 

 

fell, landing face down in the snow

 

Ski

70

M

Louisville CO

 

http://rec-law.us/1TPTaHk

http://rec-law.us/1YksmR0

4

12/19/15

WA

Snoqualmie Pass

Silver Fir

 

tree-well

 

Ski

50

M

North Bend, WA

 

http://rec-law.us/1ZDDJG7

http://rec-law.us/1ms5yCF

5

12/22/15

WY

Jackson Hole

Sundance run

 

found inverted in a tree well

 

Ski

25

F

Jackson Hole, WY

Y

http://rec-law.us/1kwuRlK

http://rec-law.us/1mlDKjR

6

12/23/15

NY

Whiteface Lake Placid

Summit Express

Blue

fell and struck his head

blunt impact to the head

Board

26

M

Litiz, PA

N

http://rec-law.us/1P2BrJ2

 

7

12/23/15

CA

Bear Valley

 

 

 

 

Ski

71

M

 

 

http://rec-law.us/1JMVglS

http://rec-law.us/1OvzGUe

8

1/6/16

CO

Vail

 

 

 

tree well

Board

25

M

Avon, CO

 

http://rec-law.us/1ZqNv1y

http://rec-law.us/1ZYSDa6

9

1/12/16

UT

Park City

 

Intermediate

 

 

 

60

M

 

 

http://rec-law.us/1SNa4bx

 

10

1/20

CO

Keystone

Elk Run

 

Hit a tree

 

 

27

M

Boulder, CO

 

http://rec-law.us/1WtPfBv

http://rec-law.us/1or4JLh

11

1/24/16

VT

Mount Snow

Ripcord

Double Diamond

Hit Tree

Blunt Force Trauma

Board

57

M

Simsbury CT

Yes

http://rec-law.us/20r061U

http://rec-law.us/1KNgLDR

12

1/28/16

CO

Winter Park

 

 

 

 

Skier

24

M

Kalamazoo, MI

 

http://rec-law.us/1T5oZyT

 

13

1/30/16

ID

Solider Mountain

 

 

Hit building

 

Ski

14

F

Twin Falls, ID

Yes

http://rec-law.us/1NMwqDo

http://rec-law.us/1NMwqDo

14

2/3/16

PA

Blue Mountain Ski Area

 

 

 

blunt-force trauma

 

35

M

Tacoma, WA

 

http://rec-law.us/1VQlo5H

http://rec-law.us/1QL2hJ1

15

2/6

CA

Mt. Waterman

 

 

struck a tree

 

 

60

M

Winnetka, CA

 

http://rec-law.us/1RfvH4l

http://rec-law.us/1o6o30m

16

2/6

WI

Cascade Mountain Ski Hill

 

 

struck a tree

 

 

24

F

Oconto Falls, WI

No

http://rec-law.us/23RlSyy

http://rec-law.us/1LgT3js

17

2/6

UT

Park City Mtn Resort

Tombstone

 

collapsed

 

 

67

M

UT

 

http://rec-law.us/1K9Ehjw

 

18

2/15/16

VT

Burke Mountain Ski Area

Big Dipper Trail

 

collided with a tree

 

 

58

M

Watertown

No

http://rec-law.us/1mFfMPZ

http://rec-law.us/1POEu8S

19

2/16

NV

Heavenly Mountain Resort

Crossover and Comet ski runs

 

striking a tree

 

 

77

F

Madison, WI

 

http://rec-law.us/1oMH9sR

http://rec-law.us/1Oi11sG

20

2/22/16

UT

Snowbasin Ski

Janis’ trail

 

crashing into a tree,

 

 

56

M

NJ

N

http://rec-law.us/1Ukt7uB

 

21

2/22/16 (2/15)

CO

Aspen

 

Taking Lesson

Fell down

Head injury

 

68

M

CO,

 

http://rec-law.us/1SQuxxt

http://rec-law.us/1RYUVnJ

22

2/22/16

NY

Gore Mountain Ski Center

 

Double Black Diamond

struck several trees

 

 

65

M

Minerva, NY

Y

http://rec-law.us/1p1jSDG

http://rec-law.us/1VCcFnT

23

2/25

CO

Beaver Creek

 

Intermediate

Hit a sign attached to a wooden post between runs

blunt force trauma to the chest

 

39

M

Knoxville, TN

Y

http://rec-law.us/1QdvDQj

http://rec-law.us/1OFH6UP

24

2/26

MI

Crystal Mountain

Cheers Race Course

Intermediate

Lost control & slid backward

 

 

58

M

Traverse City, MI

Y

http://rec-law.us/1QdvDQj

http://rec-law.us/1n8gDJ7

25

2/27

PA

Seven Springs

Wagner Trail

 

Skier v. Skier Collision

 

 

51

M

Delmont

 

http://rec-law.us/1RA8V5e

http://rec-law.us/1LPZcnc

26

2/27

 

Squaw Valley resort

Headwall

 

fell and slid down the slope through a stand of trees, suffering multiple injuries

 

 

62

F

Olympic Valley

Y

http://rec-law.us/1Qh8MDD

http://rec-law.us/1Qh8MDD

27

3/1

CO

Breckenridge Ski Resort

Sundown

intermediate

he collided with another skier, lost control and ran into a tree

blunt force trauma injuries

 

26

M

Breckenridge, CO

N

http://rec-law.us/24BbQ4W

http://rec-law.us/1Slbxq4

28

 

 

Beaver Mountain Ski Resort

 

 

struck a tree

 

 

18

M

Camano Island, WA

 

http://rec-law.us/1TeeLg2

http://rec-law.us/1pqgmD5

 

3/6

WI

Cascade Mountain Ski Hill

 

 

running into a tree

 

 

 

F

Oconto Falls, WI

N

http://rec-law.us/21NEvov

 

30

3/6

NV

Mt. Rose Ski Tahoe

Galena run

 

reportedly fallen or collapsed

 

 

43

M

Reno, NV

 

http://rec-law.us/1SCRgwi

http://rec-law.us/1UYgTbw

31

3/9

CO

Telluride Ski Resort

Gold Hill

 

lost his skis and tumbled down a steep, wooded terrain

 

 

49

M

Colorado Springs, CO

 

http://rec-law.us/1SCRNOV

 

32

3/9

CO

Copper Mountain

American Flyer

Intermediate

hit a tree

blunt force trauma injuries

 

19

M

Arlington, VA

Y

http://rec-law.us/1UiqHfC

http://rec-law.us/1RDR0Z3

33

 

MT

 

 

 

in some trees near a ski lift

 

 

82

M

CA

 

 rec-law.us/1P223JC

 

34

3/19

CO

Telluride

Coonskin

Black Diamond

skis detached from his boots

crashed into trees

 

69

M

Greenwood, S.C.

 

http://rec-law.us/1PkTF86

http://rec-law.us/1Mxk4Qr

35

3/20

UT

Snowbird

Chip’s Run

 

 

hit a rock before losing control and colliding with the tree

 

57

M

 

 

http://rec-law.us/22s5Wog

http://rec-law.us/1o2dk6Q

36

3/24

CO

Steamboat Ski Area

Nastar Course

 

Fell

 

 

 

M

 

 

http://rec-law.us/1pBsUqX

http://rec-law.us/1UkfUTM

37

3/27

NH

Cannon Mtn

Upper Ravine Trail

 

sharp turn and struck a tree

Massive head trauma

 

29

M

Holden, MA

N

http://rec-law.us/1ZGeNNQ

http://rec-law.us/1ohdGXo

38

4/2

UT

Park City

 

Advanced

collided with a tree

 

 

48

M

Aspen, CO

 

http://rec-law.us/1UPNphr

http://rec-law.us/1V4mVbn

39

4/4

CO

Breckenridge

Tiger

Expert

Collided with another skier

 

 

43

M

Randolph, NJ

 

http://rec-law.us/23earj6

http://rec-law.us/1UTCSSn

40

4/6

CO

Breckenridge

Claimjumper

Intermediate

snowboarder collided with a tree

blunt force trauma

Board

32

M

 

Y

http://rec-law.us/1WlGz2t

http://rec-law.us/1SdftL9

41

4/9

ID

Bald Mountain Ski Area

Upper Greyhawk

 

speed flying

 

Ski

24

M

 

 

http://rec-law.us/1WBxSBf

http://rec-law.us/26cPR4Z

42

4/20

CO

Breckenridge Ski Area

Monte Cristo

 

hitting a tree

blunt force trauma injuries

Ski

20

F

Denver, CO

Y

http://rec-law.us/1YTB0qR

http://rec-law.us/1VSkLwL

 

 If you cannot read the entire chart you can download a PDF here: 2015 – 2016 Ski Season Deaths 6.15.16

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.

If you cannot read the entire chart you can download it here.

What do you think? Leave a comment.

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

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Skiing, Snowboarding, Fatality, Ski Area, Tubing, Chair Lift,  Jackson Hole, Steamboat Springs Ski Resort, Snoqualmie Pass, Mount Snow, Park City, Vail, Bear Valley, Whiteface, Snoqualmie Pass, Burke Mountain Ski Area, Park City Mtn Resort, Cascade Mountain Ski Hill, Mt. Waterman, Blue Mountain Ski Area, Solider Mountain, Solider Mountain, Winter Park, Aspen, Snowbasin, Heavenly Mountain, Burke Mountain, Park City, Cascade Mountain, Blue Mountain, Mt. Waterman, Squaw Valley resort,

 


2015-2016 In bound ski/board fatalities

This list is not guaranteed to be accurate. The information is found from web searches and news dispatches. Those references are part of the chart. If you have a source for information on any fatality please leave a comment or contact me. Thank you.

If this information is incorrect or incomplete please let me know.  This is up to date as of April 21, 2016. Thanks.

Skiing and Snowboarding are still safer than being in your kitchen or bathroom. This information is not to scare you away from skiing but to help you understand the risks.

Red type is natural or medical conditions that occurred inbounds on the slopes

Green Type is Fatalities while sledding at the Resort

Blue Type is a Lift Accidents

Purple Tye is Employee or Ski Patroller

2015 – 2016 Ski Season Fatalities

#

Date

State

Resort

Where

Trail Difficulty

How

Cause

Ski/ Board

Age

Sex

Home town

Helmet

Reference

Ref # 2

1

11/29/15

CA

Bear Mountain

 

 

she collided with a metal stairway

 

Ski

21

F

Jackson Township CA

 

http://rec-law.us/1HAkwAp

http://rec-law.us/1LJ13sm

2

12/7/15

WY

Jackson Hole

Moran Run

Blue

Hit tree

 

Board

23

F

Boston, MA

Y

http://rec-law.us/1OO1M1P

http://rec-law.us/1NGuZLh

3

12/15/15

CO

Steamboat

 

 

fell, landing face down in the snow

 

Ski

70

M

Louisville CO

 

http://rec-law.us/1TPTaHk

http://rec-law.us/1YksmR0

4

12/19/15

WA

Snoqualmie Pass

Silver Fir

 

tree-well

 

Ski

50

M

North Bend, WA

 

http://rec-law.us/1ZDDJG7

http://rec-law.us/1ms5yCF

5

12/22/15

WY

Jackson Hole

Sundance run

 

found inverted in a tree well

 

Ski

25

F

Jackson Hole, WY

Y

http://rec-law.us/1kwuRlK

http://rec-law.us/1mlDKjR

6

12/23/15

NY

Whiteface Lake Placid

Summit Express

Blue

fell and struck his head

blunt impact to the head

Board

26

M

Litiz, PA

N

http://rec-law.us/1P2BrJ2

 

7

12/23/15

CA

Bear Valley

 

 

 

 

Ski

71

M

 

 

http://rec-law.us/1JMVglS

http://rec-law.us/1OvzGUe

8

1/6/16

CO

Vail

 

 

 

tree well

Board

25

M

Avon, CO

 

http://rec-law.us/1ZqNv1y

http://rec-law.us/1ZYSDa6

9

1/12/16

UT

Park City

 

Intermediate

 

 

 

60

M

 

 

http://rec-law.us/1SNa4bx

 

10

1/20

CO

Keystone

Elk Run

 

Hit a tree

 

 

27

M

Boulder, CO

 

http://rec-law.us/1WtPfBv

http://rec-law.us/1or4JLh

11

1/24/16

VT

Mount Snow

Ripcord

Double Diamond

Hit Tree

Blunt Force Trauma

Board

57

M

Simsbury CT

Yes

http://rec-law.us/20r061U

http://rec-law.us/1KNgLDR

12

1/28/16

CO

Winter Park

 

 

 

 

Skier

24

M

Kalamazoo, MI

 

http://rec-law.us/1T5oZyT

 

13

1/30/16

ID

Solider Mountain

 

 

Hit building

 

Ski

14

F

Twin Falls, ID

Yes

http://rec-law.us/1NMwqDo

http://rec-law.us/1NMwqDo

14

2/3/16

PA

Blue Mountain Ski Area

 

 

 

blunt-force trauma

 

35

M

Tacoma, WA

 

http://rec-law.us/1VQlo5H

http://rec-law.us/1QL2hJ1

15

2/6

CA

Mt. Waterman

 

 

struck a tree

 

 

60

M

Winnetka, CA

 

http://rec-law.us/1RfvH4l

http://rec-law.us/1o6o30m

16

2/6

WI

Cascade Mountain Ski Hill

 

 

struck a tree

 

 

24

F

Oconto Falls, WI

No

http://rec-law.us/23RlSyy

http://rec-law.us/1LgT3js

17

2/6

UT

Park City Mtn Resort

Tombstone

 

collapsed

 

 

67

M

UT

 

http://rec-law.us/1K9Ehjw

 

18

2/15/16

VT

Burke Mountain Ski Area

Big Dipper Trail

 

collided with a tree

 

 

58

M

Watertown

No

http://rec-law.us/1mFfMPZ

http://rec-law.us/1POEu8S

19

2/16

NV

Heavenly Mountain Resort

Crossover and Comet ski runs

 

striking a tree

 

 

77

F

Madison, WI

 

http://rec-law.us/1oMH9sR

http://rec-law.us/1Oi11sG

20

2/22/16

UT

Snowbasin Ski

Janis’ trail

 

crashing into a tree,

 

 

56

M

NJ

N

http://rec-law.us/1Ukt7uB

 

21

2/22/16 (2/15)

CO

Aspen

 

Taking Lesson

Fell down

Head injury

 

68

M

CO,

 

http://rec-law.us/1SQuxxt

http://rec-law.us/1RYUVnJ

22

2/22/16

NY

Gore Mountain Ski Center

 

Double Black Diamond

struck several trees

 

 

65

M

Minerva, NY

Y

http://rec-law.us/1p1jSDG

http://rec-law.us/1VCcFnT

23

2/25

CO

Beaver Creek

 

Intermediate

Hit a sign attached to a wooden post between runs

blunt force trauma to the chest

 

39

M

Knoxville, TN

Y

http://rec-law.us/1QdvDQj

http://rec-law.us/1OFH6UP

24

2/26

MI

Crystal Mountain

Cheers Race Course

Intermediate

Lost control & slid backward

 

 

58

M

Traverse City, MI

Y

http://rec-law.us/1QdvDQj

http://rec-law.us/1n8gDJ7

25

2/27

PA

Seven Springs

Wagner Trail

 

Skier v. Skier Collision

 

 

51

M

Delmont

 

http://rec-law.us/1RA8V5e

http://rec-law.us/1LPZcnc

26

2/27

 

Squaw Valley resort

Headwall

 

fell and slid down the slope through a stand of trees, suffering multiple injuries

 

 

62

F

Olympic Valley

Y

http://rec-law.us/1Qh8MDD

http://rec-law.us/1Qh8MDD

27

3/1

CO

Breckenridge Ski Resort

Sundown

intermediate

he collided with another skier, lost control and ran into a tree

blunt force trauma injuries

 

26

M

Breckenridge, CO

N

http://rec-law.us/24BbQ4W

http://rec-law.us/1Slbxq4

28

 

 

Beaver Mountain Ski Resort

 

 

struck a tree

 

 

18

M

Camano Island, WA

 

http://rec-law.us/1TeeLg2

http://rec-law.us/1pqgmD5

 

3/6

WI

Cascade Mountain Ski Hill

 

 

running into a tree

 

 

 

F

Oconto Falls, WI

N

http://rec-law.us/21NEvov

 

30

3/6

NV

Mt. Rose Ski Tahoe

Galena run

 

reportedly fallen or collapsed

 

 

43

M

Reno, NV

 

http://rec-law.us/1SCRgwi

http://rec-law.us/1UYgTbw

31

3/9

CO

Telluride Ski Resort

Gold Hill

 

lost his skis and tumbled down a steep, wooded terrain

 

 

49

M

Colorado Springs, CO

 

http://rec-law.us/1SCRNOV

 

32

3/9

CO

Copper Mountain

American Flyer

Intermediate

hit a tree

blunt force trauma injuries

 

19

M

Arlington, VA

Y

http://rec-law.us/1UiqHfC

http://rec-law.us/1RDR0Z3

33

 

MT

 

 

 

in some trees near a ski lift

 

 

82

M

CA

 

 rec-law.us/1P223JC

 

34

3/19

CO

Telluride

Coonskin

Black Diamond

skis detached from his boots

crashed into trees

 

69

M

Greenwood, S.C.

 

http://rec-law.us/1PkTF86

http://rec-law.us/1Mxk4Qr

35

3/20

UT

Snowbird

Chip’s Run

 

 

hit a rock before losing control and colliding with the tree

 

57

M

 

 

http://rec-law.us/22s5Wog

http://rec-law.us/1o2dk6Q

36

3/24

CO

Steamboat Ski Area

Nastar Course

 

Fell

 

 

 

M

 

 

http://rec-law.us/1pBsUqX

http://rec-law.us/1UkfUTM

37

3/27

NH

Cannon Mtn

Upper Ravine Trail

 

sharp turn and struck a tree

Massive head trauma

 

29

M

Holden, MA

N

http://rec-law.us/1ZGeNNQ

http://rec-law.us/1ohdGXo

38

4/2

UT

Park City

 

Advanced

collided with a tree

 

 

48

M

Aspen, CO

 

http://rec-law.us/1UPNphr

http://rec-law.us/1V4mVbn

39

4/4

CO

Breckenridge

Tiger

Expert

Collided with another skier

 

 

43

M

Randolph, NJ

 

http://rec-law.us/23earj6

http://rec-law.us/1UTCSSn

40

4/6

CO

Breckenridge

Claimjumper

Intermediate

snowboarder collided with a tree

blunt force trauma

Board

32

M

 

Y

http://rec-law.us/1WlGz2t

http://rec-law.us/1SdftL9

41

4/9

ID

Bald Mountain Ski Area

Upper Greyhawk

 

speed flying

 

Ski

24

M

 

 

http://rec-law.us/1WBxSBf

http://rec-law.us/26cPR4Z

 

2015 – 2016 Ski Season Deaths

Our condolences go to the families of the deceased. Our thoughts extend to the families and staff at the ski areas who have to deal with these tragedies.

If you cannot read the entire chart you can download it here.

What do you think? Leave a comment.

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

Copyright 2016 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Skiing, Snowboarding, Fatality, Ski Area, Tubing, Chair Lift,  Jackson Hole, Steamboat Springs Ski Resort, Snoqualmie Pass, Mount Snow, Park City, Vail, Bear Valley, Whiteface, Snoqualmie Pass, Burke Mountain Ski Area, Park City Mtn Resort, Cascade Mountain Ski Hill, Mt. Waterman, Blue Mountain Ski Area, Solider Mountain, Solider Mountain, Winter Park, Aspen, Snowbasin, Heavenly Mountain, Burke Mountain, Park City, Cascade Mountain, Blue Mountain, Mt. Waterman, Squaw Valley resort,