States that do not Support the Use of a Release.

Assumption of the risk is your best defense in these states.

These states do not allow a recreational business or program to use a release to stop litigation.

State

Citation

Issues/Article

Releases are Void
Louisiana C.C. Art. 2004 (2005) Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party. Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
Virginia Johnson’s Adm’x v. Richmond and Danville R.R. Co., 86 Va. 975, 11 S.E. 829 (1890) Except for Equine Activities Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited
Oregon Bagley v. Mt. Bachelor, Inc., dba Mt. Bachelor Ski and Summer Resort, 2014 Ore. LEXIS 994 Oregon Supreme Court finds release signed at ski area is void as a violation of public policy.
Use of a Release is Restricted
Arizona Phelps v. Firebird Raceway, Inc., 2005 Ariz. LEXIS 53
New Mexico Berlangieri v. Running Elk Corporation, 132 N.M. 332;2002 NMCA 60;48
P.3d 70;2002 N.M. App. 39;41 N.M. St. B. Bull. 25
State created Equine Liability Statute so no need for release
West Virginia Kyriazis v. University of West Virginia; 192 W. Va. 60; 450 S.E.2d 649;
1994 W. Va. LEXIS 161
Use of Releases is Probably Void
Connecticut Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 885 A.2d 734 (2005) and Reardon v. Windswept Farm, LLC, Et Al., 280 Conn. 153; 905 A.2d 1156; 2006
Conn. LEXIS 330
Mississippi Turnbough v. Ladner, 754 So. 2d 467; 1999 Miss. LEXIS 375 Mississippi Supreme Court makes it almost impossible to write a release that is enforceable because the court does not give direction as to what it wants.
Wisconsin Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 Wisconsin decision has left the status of release law in Wisconsin in jeopardy
Wisconsin Roberts v. T.H.E. Insurance Company, et al., 2016 WI 20; 2016 Wisc. LEXIS 121 Wisconsin Supreme Court voids another release because it violates public policy. Public Policy as defined in Wisconsin requires the ability to bargain before signing the release.
Vermont Dalury v. S-K-I, Ltd, 164 Vt 329; 670 A.2d 795; 1995 Vt. Lexis 127
Specific uses of Releases are Void
Alaska Sec. 05.45.120(a). Use of liability releases A ski area operator may not require a skier to sign an agreement releasing the ski area operator from liability in exchange for the right to ride a ski area tramway and ski in the ski area. A release that violates this subsection is void and may not be enforced.
Hawaii King v. CJM Country Stables, 315 F. Supp. 2d 1061, 2004 U.S. Dist. LEXIS 7511 (D. Haw. 2004) Found that Hawaii statute § 663-1.54. Recreational activity liability prevented the use of a release
New York General Obligation Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable 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.
Not Sure Where the Supreme Court Stands at This Time
Montana MCA § 27-1-701 Liability for negligence as well as willful acts. Except as otherwise provided by law, everyone is responsible not only for the results of his willful acts but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person except so far as the latter has willfully or by want of ordinary care brought the injury upon himself.
However, Montana passed the Montana Recreation Responsibility Act which now allows the use of a release for Recreational activities. This Act has not been reviewed by the courts.
Utah Decisions for Releases
Utah’s decision upholds a release for simple negligence but not gross negligence in a ski accident

Pearce v. Utah Athletic Foundation, 2008 UT 13; 179 P.3d 760; 597 Utah Adv. Rep. 13; 2008 Utah LEXIS 16

Decisions Against Releases

Utah Supreme Court Reverses long position on releases in a very short period of time

Utah seems to be adopting a position against releases. So far, they are invalidating releases if the legislature has created a statute protecting an activity.
However, they have had several decisions supporting releases. Good luck

What do you think? Leave a comment.

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States that allow a parent to sign away a minor’s right to sue.

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62. Equine Activity Liability § 3.2-6202. Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203. Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute Restrictions
Alaska Alaska: Sec. 09.65.292 Sec. 05.45.120 does not allow using a release by ski areas for ski injuries
Arizona ARS § 12-553 Limited to Equine Activities
Colorado C.R.S. §§13-22-107
Florida Florida Statute § 744.301 (3) Florida statute that allows a parent to release a minor’s right to sue
Virginia Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited Allows a parent to sign a release for a minor for equine activities
Utah 78B-4-203.  Limitations on Liability for Equine and Livestock Activities Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.
 

By Case Law

California Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)
Florida Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454 Allows a release signed by a parent to require arbitration of the minor’s claims
Florida Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147 Release can be used for volunteer activities and by government entities
Maryland BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897 Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.
Massachusetts Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384
Minnesota Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299
North Dakota McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3 North Dakota decision allows a parent to sign away a minor’s right to sue
Ohio Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998) Ohio Appellate decision upholds the use of a release for a minor for a commercial activity
Wisconsin Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1 However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state
 

On the Edge, but not enough to really rely on

Decisions are by the Federal District Courts and only preliminary motions
North Carolina Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741 North Carolina may allow a parent to sign away a minor’s right to sue for injuries when the minor is engaged in non-profit activities sponsored by schools, volunteers, or community organizations
New York DiFrancesco v. Win-Sum Ski Corp., Holiday Valley, Inc., 2017 U.S. Dist. LEXIS 39695 New York Federal Magistrate in a Motion in Limine, hearing holds the New York Skier Safety Statute allows a parent to sign away a minor’s right to sue.

What do you think? Leave a comment.

Copyright 2017 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com

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Skiing collision in Utah where the collision was caused by one skier falling down in front of the other skier

Is that a collision, an obstacle, a reason for a lawsuit? Skiers fall all the time.

Ricci v. Schoultz, M.D., 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745

State: Utah, Court of Appeals of Utah

Plaintiff: Gary Ricci

Defendant: Charles Schoultz, M.D.

Plaintiff Claims: Negligence

Defendant Defenses: no negligence

Holding: for the defendant

Year: 1998

Sometimes you stumble across a case that catches your eye from the way the facts are described by the court. This is one of them.

The two skiers were advanced skiers skiing on an easy run. Both were skiing under control. The defendant was part of a ski school class. The defendant was taking small easy turns as part of his class. Just as he was being passed by the plaintiff, he reached the top of a crest and slowed down, lost control and fell into the path of the plaintiff.

The two collided and slid into a tree at a high rate of speed. The plaintiff hit the tree suffering injuries. The defendant was able to ski away on his own.

At trial, the plaintiff argued that the defendant was negligent because he fell on an easy run.

At trial, Ricci argued that since Schoultz’s fall took place on one of the easiest runs at Snowbird under near perfect conditions, there was no possible reason for Schoultz to have fallen except for his own negligence.

The jury found the defendant was negligent and returned a verdict in favor of the plaintiff. The trial judge then granted the defendant’s j.n.o.v. (judgment notwithstanding the verdict). This was based on the court’s opinion that there was no negligence on the part of the defendant. “There was a duty not to be negligent. However, there was no negligence on the part of the defendant in this case.” Thus, the trial judge granted Schoultz’s j.n.o.v. motion, or alternatively granted a new trial.”

A JNOV is a fantasy. They never occur because as long as there is some evidence of negligence and a decision by the jury a trial judge is not going to overturn a jury verdict. To overturn a judgment by a jury the trial judge:

…[is] justified in granting a j.n.o.v. only if, after looking at the evidence and all of its reasonable inferences in a light most favorable to [the nonmoving party], the trial court concludes that there [is] no competent evidence to support a verdict in [the nonmoving party’s] favor.

Consequently, the burden to grant a JNOV and overturn the jury’s verdict is very high and never done.

The appellate court has the same standard in reviewing a JNOV granted by the trial court.

“On appeal, we apply the same standard. In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts  and evidence that tend to disprove its case. Thus, if we determine that there was competent evidence supporting the jury’s verdict, we must reverse the trial court’s grant of the j.n.o.v.

The plaintiff appealed the JNOV which granted a judgment for the defendant.

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

The appellate court looked at other collision cases were the cases rested on whether or not the defendant was negligent. Something was required to support the idea that the plaintiff was negligent in those cases that had found negligence, such as the defendant drinking a large quantity of alcohol.

The court found several cases where collisions on the slopes had occurred, but the defendant was found not to be liable because there was no evidence of negligence on the part of the defendant.

…the Tenth Circuit Court of Appeals affirmed the trial court’s ruling that the plaintiff could not recover from defendant for injuries sustained in a mid-mountain ski collision. Similar to the case at bar, the defendant was skiing behind the plaintiff and failed to alert plaintiff of his presence before they collided. The LaVine court specifically rejected the appellant’s claim of negligence: “Appellant contends that the collision itself conclusively establishes the defendant’s negligence and the plaintiff’s right to recover. We disagree.”

In another decision the court reviewed, there was the same statement that care was owed by the defendant. The defendant is not the insurer of the plaintiff and not responsible for everything that happens to a skier on the slopes.

The Dillworth court stated some collisions between skiers may be as a result of the obvious and necessary risks inherent in skiing, and accidents might occur despite the exercise of ordinary and reasonable care and without negligence by either skier. . . . Like all others, skiers owe that degree of care an ordinary prudent person would exercise under like or similar circumstances. One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. . . . Thus . . . skiers who lose control even while exercising due care–that is, have breached no duty owed to other skiers–may pose a danger which is inherent, obvious and necessary to participate in the sport of skiing.

The court found that falling down on the slope is not proof of negligence. Without something to indicate that the defendant was negligent, a plaintiff cannot recover.

In sum, a skier does have a duty to other skiers to ski reasonably and within control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty. We conclude, after a careful review of the trial record, that Ricci failed to introduce any competent evidence that Schoultz was skiing negligently before his sudden and unexpected fall in front of Ricci. Ricci himself testified about the conditions and events just before the accident, noting that up to one second before the collision, Schoultz was skiing in control.

Ricci’s evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently.

The appellate court upheld the trial court’s granting of the JNOV and did not look at the other issues raised by the plaintiff on appeal.

There was a dissent in the opinion that argued there was enough evidence based on his analysis of the facts to support the jury finding. However, the facts presented were circumstantial based on the dissenting judge’s review of the evidence.

So Now What?

This was a rare case. There seems to be an assumption in all ski collision cases that if two people are on a slope together, and they collide with one person must have been negligent. This decision and the two other decisions the court pointed out show that is not the case. Not every collision on a ski slope is a negligent act.

At the same time, this is fairly easy to see and understand the issues because the party causing the collision, even though the “downhill” skier was the party that probably generated the issues to start the collision.

However, falling down is not negligence on a ski slope, at least in Utah.

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Ricci v. Schoultz, M.D., 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745

Ricci v. Schoultz, M.D., 963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745

Gary Ricci, Plaintiff and Appellant, v. Charles Schoultz, M.D., Defendant and Appellee.

Case No. 971189-CA

COURT OF APPEALS OF UTAH

963 P.2d 784; 348 Utah Adv. Rep. 24; 1998 Utah App. LEXIS 57; 75 A.L.R.5th 745

July 23, 1998, Filed

PRIOR HISTORY: [**1] Third District, Salt Lake Department. The Honorable Homer F. Wilkinson.

COUNSEL: Jeffrey D. Eisenberg, Alan W. Mortensen, and Paul M. Simmons, Salt Lake City, for Appellant.

Paul M. Belnap, Robert L. Janicki, and Darren K. Nelson, Salt Lake City, for Appellee.

JUDGES: Before Judith M. Billings, Judge. I CONCUR: Russell W. Bench, Judge. Gregory K. Orme, Judge, Dissenting.

OPINION BY: JUDITH M. BILLINGS

OPINION

[*785] OPINION

BILLINGS, Judge:

Appellant Gary Ricci appeals the trial court’s grant of a judgment notwithstanding the verdict (j.n.o.v.) to Dr. Charles Schoultz, dismissing Ricci’s negligence claims. We affirm.

FACTS

The parties had completely different versions of how the accident occurred. [HN1] “We must review the record and determine whether there is any basis in the evidence, including reasonable inferences which could be drawn therefrom, to support the jury’s determination that [Schoultz] was negligent.” Braithwaite v. West Valley City Corp., 921 P.2d 997, 999 (Utah 1996). Thus, we recite the facts in a light most favorable to Ricci.

On April 12, 1994, Ricci and Schoultz were skiing [**2] at Snowbird Ski Resort (Snowbird) in Salt Lake County, Utah. Both parties were advanced skiers. On the sunny morning of the accident they were skiing an “easy run” that was groomed and had only a few skiers on it. Schoultz was skiing down Anderson Hill when Ricci reached the top of the run. Ricci began to ski towards the bottom and in the direction of Schoultz. Schoultz was taking a ski lesson and was making a number of small controlled turns as he descended. Schoultz and Ricci were both skiing at the same speed and in control throughout their descent. However, Schoultz slowed as he approached a small crest on the ski run and Ricci closed to within a few feet behind Schoultz. Schoultz unexpectedly lost control of his skis, and within a few seconds he fell to the left, and into Ricci, who was unable to avoid Schoultz. The two skiers slid into a tree well, with Ricci striking the tree with some force. Ricci suffered significant injuries and was eventually life-flighted to a local hospital. Schoultz was merely bruised and skied down the mountain on his own.

At trial, Ricci argued that since Schoultz’s fall took place on one of the easiest runs at Snowbird under near perfect conditions, [**3] there was no possible reason for Schoultz to have fallen except for his own negligence. The jury found that Schoultz was negligent, and that his failure to ski in control was the cause of the accident. Schoultz moved for a j.n.o.v. on the grounds that Ricci failed to demonstrate that Schoultz, by falling unexpectedly in front of him, had breached any duty he owed to Ricci. The trial judge agreed: “There was a duty not to be negligent. But there was no negligence on the part of defendant in this case.” Thus, the trial judge granted Schoultz’s j.n.o.v. motion, or alternatively granted a new trial. Ricci now appeals.

STANDARD OF REVIEW

Our standard for reviewing a trial court’s grant of a j.n.o.v. is strict: [HN2] “‘In passing on a motion for a j.n.o.v., . . . a trial court has no latitude and must be correct.'” Braithwaite, 921 P.2d at 999 (quoting Crookston v. Fire Ins. Exch., 817 P.2d 789, 799 (Utah 1991)). Further,

“The trial court [is] justified in granting a j.n.o.v. only if, after looking at the evidence and all of its reasonable inferences in a light most favorable to [the nonmoving party], the trial court concludes that there [is] no competent evidence to support [**4] a verdict in [the nonmoving party’s] favor.”

Id. (quoting Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1066 (Utah 1996)). “On appeal, we apply the same standard. In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts [*786] and evidence that tend to disprove its case.” Gold Standard, 915 P.2d at 1066 (citing Koer v. Mayfair Mkts., 19 Utah 2d 339, 340, 431 P.2d 566, 568-69 (1967) (additional citation omitted). Thus, if we determine that there was competent evidence supporting the jury’s verdict, we must reverse the trial court’s grant of the j.n.o.v.

ANALYSIS

Although there is no helpful Utah authority, other state and federal courts have dealt with similar ski collision cases.

In LaVine v. Clear Creek Skiing Corp., 557 F.2d 730, 735 (10th Cir. 1977), the Tenth Circuit Court of Appeals affirmed the trial court’s ruling that the plaintiff could not recover from defendant for injuries sustained in a mid-mountain ski collision. Similar to the case at bar, the defendant was skiing behind [**5] the plaintiff and failed to alert plaintiff of his presence before they collided. See id. at 735. The LaVine court specifically rejected the appellant’s claim of negligence: “Appellant contends that the collision itself conclusively establishes the defendant’s negligence and the plaintiff’s right to recover. We disagree.” Id.

More recently, in Dillworth v. Gambardella, 970 F.2d 1113, 1114 (2d Cir. 1992), the Second Circuit Court of Appeals dealt with a similar issue: “Whether collisions between skiers require as a matter of law . . . a finding of negligence on the part of at least one skier.” In Dillworth, the parties had significantly different versions of the facts leading up to the mid-mountain collision, but the result was the same as this case–significant injuries to the party bringing the cause of action. See id. at 1114-15. The Dillworth court stated [HN3] some collisions between skiers may be as a result of the obvious and necessary risks inherent in skiing, and accidents might occur despite the exercise of ordinary and reasonable care and without negligence by either skier. . . . Like all others, skiers owe that degree of care an ordinary prudent person [**6] would exercise under like or similar circumstances. One skier is not the insurer of another skier’s safety nor, absent negligence, is one skier liable to another for inadvertent or accidental contact. . . . Thus . . . skiers who lose control even while exercising due care–that is, have breached no duty owed to other skiers–may pose a danger which is inherent, obvious and necessary to participate in the sport of skiing.

Id. at 1122 (citing LaVine, 557 F.2d 734-35) (additional citations omitted).

Cases that have supported a finding of negligence in a ski collision have required proof of some negligent conduct before the collision. For example, in Freeman v. Hale, 30 Cal. App. 4th 1388, 36 Cal. Rptr. 2d 418, 420 (Cal. Ct. App. 1994), two skiers collided while descending a ski slope and the plaintiff suffered severe injuries as a result of the accident. In Freeman, however, the defendant had consumed a large quantity of alcohol, and was inebriated when the collision occurred. See 36 Cal. Rptr. 2d at 420. The California Court of Appeals succinctly summarized its conclusion that a negligence regime was the proper way to analyze liability: “While Hale did not have a duty [**7] to avoid an inadvertent collision with Freeman, he did have a duty to avoid increasing the risk of such a collision.” Id. at 423-24 (citing Knight v. Jewett, 3 Cal. 4th 296, 834 P.2d 696, 710-11 (Cal. 1992)). The Freeman court concluded that alcohol consumption was not an integral aspect of skiing, and that by consuming alcohol prior to and during his skiing, defendant breached his duty to plaintiff “‘not to increase the risks to a participant over and above those inherent in the sport.'” 36 Cal. Rptr. 2d at 421 (quoting Knight, 834 P.2d at 710).

In sum, [HN4] a skier does have a duty to other skiers to ski reasonably and within control. However, an inadvertent fall on a ski slope, alone, does not constitute a breach of this duty. We conclude, after a careful review of the trial record, that Ricci failed to introduce any competent evidence that Schoultz was skiing negligently before his sudden and unexpected fall in front of Ricci. Ricci himself testified about the conditions and events just before the accident, noting that up to one second before the collision, Schoultz was skiing in control. Schoultz’s [*787] loss of control and fall, by itself, does not establish his negligence.

Ricci’s [**8] evidence, including all reasonable inferences drawn from it, is simply insufficient for a jury to have concluded that Schoultz skied negligently. We conclude the trial court was correct in determining that Schoultz did not breach his duty of reasonable care to Ricci by accidentally falling into Ricci when there was no evidence that Schoultz was skiing negligently at the time of his fall. Because we agree with the trial court’s ruling, we do not reach the questions of whether a new trial should have been granted or whether the trial court’s decisions to exclude Schoultz’s expert witness testimony were proper.

CONCLUSION

Some collisions between skiers are an inherent risk of skiing and may occur absent negligence, as in this case. Thus, we affirm the trial court’s grant of a judgment notwithstanding the verdict.

Judith M. Billings, Judge

I CONCUR:

Russell W. Bench, Judge

DISSENT BY: GREGORY K. ORME

DISSENT

ORME, Judge (dissenting):

By focusing on the evidence plaintiff presented, rather than all evidence in the record and the reasonable inferences that can be drawn therefrom, my colleagues take a too narrow view of our role in reviewing a trial court’s reversal of a [**9] jury’s verdict. Simply stated, the question is not whether the evidence plaintiff presented supports the jury’s verdict; rather, it is whether any evidence from whatever source will support it. See Gold Standard, Inc. v. Getty Oil Co., 915 P.2d 1060, 1066 (Utah 1996) (“In determining whether competent evidence supports the verdict, we accept as true all testimony and reasonable inferences flowing therefrom that tend to prove [the nonmoving party’s] case, and we disregard all conflicts and evidence that tend to disprove its case.”). As the Fifth Circuit has noted,

on motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence– not just that evidence which supports the non-mover’s case–but in the light and with all reasonable inferences most favorable to the party opposed to the motion.Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 336, 339 (5th Cir. 1997). Accord Guilbeau v. W. W. Henry Co., 85 F.3d 1149, 1161 (5th Cir. 1996), cert. denied, 136 L. Ed. 2d 713, 117 S. Ct. 766 (1997); Lamb [**10] ex rel. Shepard v. Sears, Roebuck & Co., 1 F.3d 1184, 1187 (11th Cir. 1993); Epoch Producing Corp. v. Killiam Shows Inc., 522 F.2d 737, 743 (2d Cir. 1975), cert. denied, 424 U.S. 955, 47 L. Ed. 2d 360, 96 S. Ct. 1429 (1976); Anderson v. Lykes Pasco Packing Co., 503 So. 2d 1269, 1271-72 (Fla. Dist. Ct. App. 1986); Millet v. Cormier, 671 So. 2d 1101, 1107-08 (La. Ct. App.), cert. denied, 673 So. 2d 1036 (La. 1996).

In this case, the jury might well have believed defendant’s testimony that he was skiing in complete control until immediately before the accident, that his skis did not come apart, and that he did not fall. Rejecting defendant’s testimony that he was hit from behind by plaintiff, which was essentially impossible given where the two ended up after the collision, the jury was also free to disbelieve plaintiff’s recollection that defendant’s skis separated and defendant merely fell into plaintiff’s path. The jury could nonetheless have believed plaintiff’s testimony that, immediately prior to the collision, he was skiing in control and a safe distance from defendant and defendant’s apparently intended route. Mindful that plaintiff and defendant ended up [**11] in a heap well off the ski run, in a position consistent with defendant hitting into plaintiff at high speed, the jury might well have inferred that the only way the accident could have occurred was if defendant, fully in control, carelessly and precipitously turned sharply to the left, hitting the unsuspecting plaintiff, who had every reason to assume defendant was going to continue with his pattern of tight turns as plaintiff passed uneventfully on the left.

To be sure, this is not exactly the theory plaintiff developed at trial, but it is a scenario that emerges quite readily if one reviews all the evidence and all reasonable inferences that could be drawn therefrom in the light [*788] most favorable to the jury’s verdict. If that is what the jury concluded, then the accident was caused by defendant’s negligence, not an inadvertent fall. Accordingly, the trial court should not have disturbed the jury’s verdict, and we should reinstate it.

Gregory K. Orme, Judge


Saving yourself while sacrificing the rest of an industry. Is anyone going to buy you a drink for winning when you just made it easier to sue them?

In the US Forest Service response to the lawsuit to open snowboarding at Alta, allegations were made by the USFS that are going to come back and haunt all other ski areas in states with weak skier safety statutes.

Alta is one of three ski areas that do not allow snowboarding. Deer Valley and Mad River Glen are the other two. Alta and the US Forest Service were sued last year by a group of snowboarders wanting to open Alta to snowboarding. The lawsuit was based on Federal constitutional law, and the legal arguments have little relevance here. Except the USFS defense to the lawsuit placed into the record some statements that can create havoc in lawsuits against other ski areas.

A ski area operating on USFS land must file an Operation Plan. If the resort is open year round the plan may have two plans, a Winter Operation Plan and a Summer Operation Plan. The USFS in referencing the Alta’s Winter Operation plan quotes it stating:

Additionally, the Operating Plan provides that Alta reserves the right to exclude those whose “skiing device” is deemed to create an “unnecessary risk,” causes “undue damage to the quality of the snow,” and “is not consistent with [Alta’s] business management decisions.”

In another section of the USFS motion they quote the plan as:

Alta Ski Area reserves the right to exclude any type of skiing device that they deem creates an unnecessary risk to other skiers and/or the user of the device, or any device that they deem causes undue damages to the quality of the snow, or is not consistent with their business management decisions.

So snowboards have been labeled by a ski area and the USFS as an “unnecessary risk.” That risk in the second paragraph applies to other skiers on the mountain and the user. Another issue I find almost comical is the argument that snowboarders have a blind spot.

First, snowboarders go down the mountain facing sideways, whereas skiers go down the mountain facing forward and directly downhill. ECF No. 2, ¶ 87. A snowboarder’s side-ways orientation creates a blind-spot that they must turn into; skiers do not turn into their blind spot.

But so do skiers, and walkers, and people on an inner tube going down the hill. The blind spot is directly behind your head (your eyes) were you can’t see. That blind spot is not based on what is on your feet, but is based on your orientation to the other people.  A snowboarder going downhill has an identical blind spot to a skier crossing the hill. Neither can see behind them.

The issue is where a ski area can be sued for injuries of a skier; any injuries the skier alleges were caused by the snowboarder are going to be buttressed by the USFS motion and Alta’s Winter Operation Plan. Maybe even if injuries they do to themselves?

Are these issues critical to other ski areas? Hopefully not. However, they may be thrown up in other cases and can provide testimony that can influence a jury.

What do you think? Leave a comment.

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States that allow a parent to sign away a minor’s right to sue

If your state is not listed here, you should assume a parent cannot waive a minor’s right to sue in your state.

State

By Statute

Restrictions

Alaska

Alaska: Sec. 09.65.292

Sec. 05.45.120 does not allow using a release by ski areas for ski injuries

Arizona

ARS § 12-553

Limited to Equine Activities

Colorado

C.R.S. §§13-22-107

 

Florida

Florida Statute § 744.301 (3)

Florida statute that allows a parent to release a minor’s right to sue

Virginia

Chapter 62.  Equine Activity Liability § 3.2-6202.  Liability limited; liability actions prohibited

Allows a parent to sign a release for a minor for equine activities

Utah

78B-4-203.  Limitations on Liability for Equine and Livestock Activities

Limited to Equine Activities
(b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

 

By Case Law

 

California

Hohe v. San Diego Unified Sch. Dist., 224 Cal.App.3d 1559, 274 Cal.Rptr. 647 (1990)

 

Florida

Global Travel Marketing, Inc v. Shea, 2005 Fla. LEXIS 1454

Allows a release signed by a parent to require arbitration of the minor’s claims

Florida

Gonzalez v. City of Coral Gables, 871 So.2d 1067, 29 Fla. L. Weekly D1147

Release can be used for volunteer activities and by government entities

Massachusetts

Sharon v. City of Newton, 437 Mass. 99; 769 N.E.2d 738; 2002 Mass. LEXIS 384

 

Minnesota

Moore vs. Minnesota Baseball Instructional School, 2009 Minn. App. Unpub. LEXIS 299

 

North Dakota

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

 

Ohio

Zivich v. Mentor Soccer Club, Inc., 696 N.E.2d 201, 82 Ohio St.3d 367 (1998)

 

Wisconsin

Osborn v. Cascade Mountain, Inc., 655 N.W.2d 546, 259 Wis. 2d 481, 2002 Wisc. App. LEXIS 1216, 2003 WI App 1

However the decision in Atkins v. Swimwest Family Fitness Center, 2005 WI 4; 2005 Wisc. LEXIS 2 may void all releases in the state

Maryland

BJ’s Wholesale Club, Inc. v. Rosen, 435 Md. 714; 80 A.3d 345; 2013 Md. LEXIS 897

Maryland top court allows a parent to sign away a minor’s right to sue. Release was not fantastic, but good enough.

 

On the Edge, but not enough to really rely on

 

North Carolina

Kelly v. United States of America, 2011 U.S. Dist. LEXIS 89741
Kelly , v. United States of America, 2014 U.S. Dist. LEXIS 135289

Ruling is by the Federal District Court and only a preliminary motion
And final decision dismissing the case

What do you think? Leave a comment.

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Utah courts like giving money to injured kids. This decision does clarify somewhat murky prior decisions about the defenses provided to a ski area in Utah: there are none.

A minor was hurt during ski racing practice by hitting a mound of machine-made snow. The Utah Skier Safety Act is weak and Utah Supreme Court interpretations of the act do nothing but weaken it more. This act clarified those weaknesses and what a Utah ski area can do to protect itself from lawsuits, which is not much really. This court, not finding the act weak enough, agreed with the Utah Supreme Court and eliminated releases as a defense for ski areas in the state of Utah.

Rutherford v. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

State: Utah

Plaintiff: Philip Rutherford and Wendy Rutherford, on Behalf of Their Minor Child, Levi Rutherford

Defendant: Talisker Canyons Finance Co., LLC and ASC UTAH, LLC (The Canyons Ski Area) and the U.S. Ski and Snowboard Association

Plaintiff Claims: the machine that produced the snow mound was not functioning properly, that the Ski Resort could have warned patrons of the hazard by marking the mound or closing the trail, and that the Ski Resort did not adequately monitor the snowmaking taking place on the Retreat run that day

Defendant Defenses: release, Utah Ski Act,

Holding: For the Plaintiff

Year: 2014

Utah famously does not award money for adults who are injured; however, if a minor is injured, as a defendant, be prepared to write a big check. For such a conservative state, the judgments for a minor’s injuries can be massive. In this case, the trial court bent over backwards to allow a case by a minor to proceed even with numerous valid defenses. In all but one case, the appellate court agreed with the plaintiffs.

The minor was going to a race practice. He skied down the hill without changing his position and not turning. He hit a mound of man-made snow and was hurt. His parents sued.

The plaintiff’s sued the resort, Canyons which was identified in the case citation by two different names. The plaintiff also sued the US Ski and Snowboard Association, which were not part of the appeal, but mentioned frequently.

The defendants filed an interlocutory appeal after all of their motions of summary judgment were denied. An Interlocutory appeal is one that is made to a higher court before the lower court has issued a final ruling. The appeal is based on intermediary rulings of the trial court. The appeal can only be heard upon a limited set of rules, which are set out by each of the courts. Interlocutory appeals are rare, normally, when the decision of the lower court will force a new trial because of the rulings if the case goes to trial.

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

The first issue is the application of the Utah’s Inherent Risks of Skiing Act to the case. The trial court ruled the plaintiff was not a competitor as defined by the act. Like many state ski acts the act; a competitor assumes greater risks, and the ski area owes fewer duties to competitors. The trial court based this decision on its review of the facts and determined:

…skiing on an open run that any member of the public could ski on” and that his accident indisputably did not occur during a ski race, while skiing through gates, or while otherwise “negotiating for training purposes something that had been specifically designated as a race course

However, the plaintiffs in their motions and pleadings as well as the plaintiff’s expert witness report stated the minor plaintiff was engaged in race training and practice. The appellate court reversed the trial court’s decision on this. However, instead of holding the plaintiff was a competitor and assumed more risk; the appellate court required the trial court to determine if plaintiff’s “engagement in race training at the time of his injury is truly undisputed by the parties.”

The next issue was whether the phrase machine-made snow in the act was an inherent risk or an exemption from the risks assumed. The plaintiff’s argued the snow machine was malfunctioning and because of that the resort was negligent. The statute states:

§ 78B-4-402.  Definitions

    (b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

The appellate court agreed with the trial court because the supreme court of Utah had found the Utah act:

…does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers” but protects ski-area operators “from suits to recover for injuries caused by one or more of the dangers listed [in the Act] only to the extent those dangers, under the facts of each case, are integral aspects of the sport of skiing.

This interpretation of the act is the exact opposite of how statutes are normally interpreted and how all other courts have interpreted other state skier safety acts. Instead of providing protection, the act simply lists items the act may protect from litigation. The act is to be interpreted every time by the trial court to determine if the risk encountered by the skier in Utah was something the act my say the skier assumed.

This means most injuries will receive some money from the ski area. The injured skier can sue and the resort and its insurance company will settle for a nominal amount rather than pay the cost of going to trial to prove the injury was something that was an inherent risk as defined by the Utah’s Inherent Risks of Skiing Act.

The court as part of this analysis then looked at the phrase “inherent risk.”

The term ‘inherent risk of skiing,’ using the ordinary and accepted meaning of the term ‘inherent,’ refers to those risks that are essential characteristics of skiing–risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks.

This is a normal definition applied to inherent risk. However, the court then went on and quoted the Utah Supreme court as stating.

The court divided these risks into two categories, the first of which represents “those risks, such as steep grades, powder, and mogul runs, which skiers wish to confront as an essential characteristic of skiing.” Under the Act, “a ski area operator is under no duty to make all of its runs as safe as possible by eliminating the type of dangers that skiers wish to confront as an integral part of skiing.”

The second category of risks consists of those hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort,” such as weather and snow conditions that may “suddenly change and, without warning, create new hazards where no hazard previously existed. For this category of risks, “[t]he only duty ski area operators have . . . is the requirement set out in [the Act] that they warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront when participating in the sport of skiing.

Then the interpretation of the Supreme Court decision goes off the chart.

However, this does not exonerate a ski-area operator from any “duty to use ordinary care to protect its patrons”; “if an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside of [the Act].”

Instead of the act providing protection from a list of risks that are part and parcel of skiing, the act in Utah only provides of hazards that if not eliminated will still allow litigation. That is any injury is worth filing suit over because the cost of defending the case will exceed the cost of settling.

How does this apply in this case? The act refers to machine made snow. The complaint states the plaintiff was injured because the snow making machine was not functioning properly. There was no allegation that the snow was at issue, which is protected by the act, just the machine that makes the snow. However, this was enough for the trial court and the appellate court to say the act did not provide immunity for the ski area.

That is the defense of the tree on the side of the road scared me, so I opened the passenger-side door and knocked down the pedestrian. If the snow making machine was malfunctioning, unless it is making “bad” snow that has nothing to do with hitting a mound of snow.

The next issue is the defense of release. This part of the decision actually makes sense.

The US Ski and Snowboard Association has members sign releases. The majority of racing members of the USSA are minors, hoping to become major racers for the US. The USSA is based in Park City, Utah. Utah has always held that a parent cannot sign away a minor’s right to sue. So the USSA made its choice of law provision Colorado in an attempt to take advantage of Colorado’s laws on releases and minors and releases. (See States that allow a parent to sign away a minor’s right to sue.)

However, courts won’t and this court did not, let you get away with such a stretch. The venue and jurisdiction clause in a release must have a basis with where the defendant is located, where the activity (and as such accident) happens or where the plaintiff lives. Here the USSA is based in Park City Utah, the plaintiff lives in Utah and the accident happened in Utah; the Utah trial court and Appellate court properly held the jurisdiction and venue clause in the release was not valid.

On top of that, you need to justify why you are using a foreign state for venue and jurisdiction, in the jurisdiction and venue clause in the release. You need to state with a reasonable degree of plausibility why you are putting the venue in a certain place if it is not the location where the parties are located or the accident occurred. State in the release that in order to control litigation, the jurisdiction and venue of any action will be in the state where the defendant is located.

The release was thrown out before getting to whether a parent can sign away a minor’s right to sue, which the Utah Supreme Court has never upheld. (See States that allow a parent to sign away a minor’s right to sue.) However, the appellate court reviewed this issue and also threw the release out because Utah does not allow a parent to sign away a minor’s right to sue. (The Utah Equine and Livestock Activities Act has been amended to allow a parent to sign away a minor’s right to sue for Equine injuries.)

The court then looked at what releases are viable in the ski industry in Utah. In 90 days, the Utah Supreme Court voided a release in a ski case and then upheld a release in a ski case. (See Utah Supreme Court Reverses long position on releases in a very short period of time.) This court stated the differences where a release is void under Utah’s law for recreational skiers. “Our supreme court has interpreted this public policy statement as prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers.”

The public policy statement is the preamble of the Utah’s Inherent Risks of Skiing Act.

The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act; therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

Simply put this is an analysis of the action of the legislature, by the court, to say, the legislature gave you this, so we, the court, are going to take away releases.

In other words, the Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier who signed the release or whether the release was signed by a parent on behalf of a child.

The court explained that the Act was designed to strike a “bargain” with ski-area operators by freeing them “from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.

The court then looked at whether this release could be applied if the plaintiff was a competitive skier? (Yeah, confusing to me also.)

Following that confusing analysis this court then determined the release by a competitive skier was also invalid, contrary to what the Supreme Court had decided in Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171 P.3d 442. However, the court rationalized the analysis by saying the amendment to the ski act, which occurred before the Berry decision, but after the accident giving rise to Berry, made a competitive skier the same as a recreational skier for the purposes of the act therefore no releases were valid in Utah for skiing.

Here is the conclusion of the case.

The trial court’s determination that Levi was not engaged in race training at the time of his injury, especially in the face of the fact, apparently undisputed by the parties, that he was injured during racing practice, was improper in the context of the Ski Resort’s motions for summary judgment. The trial court correctly denied the Ski Resort’s joinder in the Ski Team’s motion for summary judgment based on the Act and correctly granted the Rutherfords’ related partial motion for summary judgment, based on the court’s determination that there were disputed issues of material fact regarding the applicability of the machine-made snow exemption. We affirm the trial court’s denial of the Ski Resort’s motion for summary judgment based on the USSA release and the court’s determination that the Colorado choice-of-law provision in the USSA release is inapplicable here. We agree with the trial court that the release, as it pertains to the Ski Resort, is unenforceable under Utah law, but base this conclusion on different grounds than the trial court.

It almost reads like it is a normal case. The court sent the issue back to the lower court, basically handing the plaintiff the decision. The only thing left to do is determine the amount.

So Now What?

It’s a kid thing in Utah. Kids get hurt the courts’ hand out money. Even the ski industry is not big enough, or organized enough, to do anything about it.

I don’t know of any other reason why this decision would come out this way.

This decision which eliminates releases as a defense for the ski area may trickle down to other recreational activities. Let’s hope not.

So we know the following about Utah and ski areas.

1.       Releases are not a valid defense unless you are racing, actually on the course for a race or practice.

2.      A competitor under the Utah’s Inherent Risks of Skiing Act is only a competitor when racing or running gates.

3.      The Utah’s Inherent Risks of Skiing Act only sets out the defenses available to a ski area if they ski area was not negligent and could not have prevented the accident or risk which caused the accident.

4.      Minor’s in Utah always win.

What do you think? Leave a comment.

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Rothstein v. Snowbird Corporation, 2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219

Rothstein v. Snowbird Corporation, 2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219

William Rothstein, Plaintiff and Appellant, v. Snowbird Corporation, a Utah corporation, Defendant and Appellee.

No. 20060158

SUPREME COURT OF UTAH

2007 UT 96; 175 P.3d 560; 593 Utah Adv. Rep. 26; 2007 Utah LEXIS 219

December 18, 2007, Filed

February 6, 2008, Released for Publication

PRIOR HISTORY: [***1]

Third District, Salt Lake. The Honorable Anthony B. Quinn. No. 040925852.

COUNSEL: Jesse C. Trentadue, Salt Lake City, for plaintiff.

Gordon Strachan, Kevin J. Simon, Park City, for defendant.

JUDGES: NEHRING, Justice. Chief Justice Durham and Justice Parrish concur in Justice Nehring’s opinion. Justice Durrant concurs in Associate Chief Justice Wilkins’s dissenting opinion.

OPINION BY: NEHRING

OPINION

[**560] NEHRING, Justice:

[*P1] William Rothstein, an expert skier, sustained injuries when he collided with a retaining wall while skiing at Snowbird Ski Resort. He sued Snowbird, claiming the resort’s [**561] negligence caused his injuries. The district court granted Snowbird’s motion for summary judgment and dismissed Mr. Rothstein’s ordinary negligence claim. The district court agreed with Snowbird that Mr. Rothstein had surrendered his right to recover damages for Snowbird’s ordinary negligence when he became a party to two agreements releasing Snowbird from liability for its acts of negligence. In this appeal, Mr. Rothstein challenges the enforceability of the releases and the district court’s summary judgment based on them. We hold that the releases are contrary to the public policy of this state and are, therefore, unenforceable. Accordingly, [***2] we vacate the district court’s grant of summary judgment in favor of Snowbird.

BACKGROUND

[*P2] [HN1] When we review a district court’s grant of summary judgment, as in this case, we review the facts and their reasonable inferences in a manner most favorable to the nonmoving party. See, e.g., Progressive Cas. Ins. Co. v. Ewart, 2007 UT 52, P 2, 167 P.3d 1011. We present the facts surrounding Mr. Rothstein’s injury in this light.

[*P3] As he was descending Snowbird’s Fluffy Bunny run, Mr. Rothstein collided with a retaining wall constructed of stacked railroad ties and embedded partially in the mountain. The collision left Mr. Rothstein with broken ribs, an injured kidney, a bruised heart, a damaged liver, and a collapsed lung. At the time of the accident, a light layer of snow camouflaged the retaining wall from Mr. Rothstein’s view. As photographs and the alleged admission of a resort official suggest, the retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there remained a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance [***3] to the Fluffy Bunny run. Mr. Rothstein filed suit against Snowbird for its ordinary and gross negligence. 1 Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.

1 Mr. Rothstein’s initial complaint alleged only ordinary negligence. The district court permitted him to amend his complaint to incorporate a gross negligence claim after it had granted Snowbird’s motion for summary judgment on Mr. Rothstein’s ordinary negligence cause of action.

[*P4] At the time he was injured, Mr. Rothstein held a season pass to Snowbird and a Seven Summits Club membership which entitled him to bypass lift lines for faster access to the slopes. In order to obtain these benefits, Mr. Rothstein signed two release and indemnify agreements. The first agreement provided:

I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing . . . or resulting from the [***4] fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird . . . from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees

(emphasis in original). The second agreement stated:

In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any [**562] other cause including the negligence of Snowbird, its employees and agents

(emphasis in original).

[*P5] Citing the agreements, the district court granted summary judgment in favor of Snowbird on Mr. Rothstein’s ordinary negligence claim. (Mr. Rothstein later voluntarily moved to dismiss [***5] his gross negligence claim without prejudice.) The issue before us is whether the district court correctly granted Snowbird summary judgment on Mr. Rothstein’s ordinary negligence claim on the basis of the existence of the release and indemnify agreements.

DISCUSSION

[*P6] [HN2] Preinjury releases from liability for one’s negligence pit two bedrock legal concepts against one another: the right to order one’s relationship with another by contract and the obligation to answer in damages when one injures another by breaching a duty of care. E.g., Berry v. Greater Park City Co., 2007 UT 87, P 12, 171 P.3d 442. We have joined the majority of jurisdictions in permitting people to surrender their rights to recover in tort for the negligence of others. Id. P 15. We have made it clear throughout our preinjury release jurisprudence, however, that contract cannot claim victory over tort in every instance. We have indicated that releases that are not sufficiently clear and unambiguous cannot be enforced. Hawkins v. Peart, 2001 UT 94, P 9 n.3, 37 P.3d 1062. We have also indicated that we would refuse to enforce releases that offend public policy. Id. P 9. We do not explore the clarity with which Snowbird communicated [***6] to Mr. Rothstein its intention to release itself of liability for its negligence because we conclude that the releases offend the public policy of this state as articulated by the Legislature.

[*P7] We first insisted that preinjury releases be compatible with public policy a century ago when we affirmed Christine Pugmire’s jury verdict awarding her damages for injuries she sustained when a locomotive ran into the railroad car in which she lived and worked as a cook. 2 Pugmire v. Or. Short Line R.R. Co., 33 Utah 27, 92 P. 762, 763, 767 (Utah 1907). Mrs. Pugmire had signed a release absolving the railroad from liability for any injuries she might sustain. We affirmed the trial court’s refusal to instruct the jury that Mrs. Pugmire could be bound by the release, noting that such master-servant agreements “are held to be void . . . [because] they are against public policy.” Id. at 765.

2 Mrs. Pugmire worked in the railroad car with her husband. The defendant railroad attempted to escape liability by claiming that only Mr. Pugmire was its employee. (Of course, this case predated the enactment of Utah’s Workers’ Compensation Act by a decade.) In testimony that stands out as an artifact of a bygone era of gender [***7] roles, a railroad witness sabotaged this defense when he told the jury that Mr. Pugmire’s duties included cooking for the train crew. As it happened, Mr. Pugmire could not cook, but “it was taken for granted that [Mrs. Pugmire] could cook and would assist in the work; and that was why the wife was permitted to go.” Pugmire v. Or. Short Line R.R. Co., 33 Utah 27, 92 P. 762, 764 (Utah 1907) (internal quotation marks omitted).

[*P8] By the time it was adopted within the Restatement of Torts in 1965, the principle that the interests of public policy could supplant the interests of contract had acquired universal acceptance. See, e.g., Bisso v. Inland Waterways Corp., 349 U.S. 85, 90, 75 S. Ct. 629, 99 L. Ed. 911 (1955); Am. S.S. Co. v. Great Lakes Towing Co., 333 F.2d 426, 428-29 (7th Cir. 1964); Mohawk Drilling Co. v. McCullough Tool Co., 271 F.2d 627, 633 (10th Cir. 1959); Gilpin v. Abraham, 218 F. Supp. 414, 415 (E.D. Pa. 1963). Section 496B of the Restatement (Second) of Torts states, [HN3] “A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.” 3 Restatement (Second) of Torts § 496B [***8] (1965).

3 This section of the Restatement is titled “Express Assumption of the Risk.” Courts are wise to exercise caution whenever they encounter the term assumption of the risk. To many, it is a concept that had been wholly discredited with the arrival of comparative negligence. We spoke to the perils of falling prey to this overgeneralization in Fordham v. Oldroyd, 2007 UT 74, PP 9-14, 171 P.3d 411. Express assumption of the risk of the type addressed in section 496B is another species of the doctrine that coexists with comparative negligence. In Jacobsen Construction Co. v. Structo-Lite Engineering, Inc., we noted,

An express assumption of risk involves a contractual provision in which a party expressly contracts not to sue for injury or loss which may thereafter be occasioned by the acts of another. We not only follow suit by refraining to include this form of assumption of risk in our discussion, but furthermore fail to see a necessity for including this form within assumption of risk terminology.

619 P.2d 306, 310 (Utah 1980).

[**563] [*P9] Our recent encounters with preinjury releases have uniformly reaffirmed the public policy exception to the general rule that preinjury releases are enforceable. [***9] See, e.g., Hawkins, 2001 UT 94, P 1, 37 P.3d 1062 (holding invalid as contrary to public policy a waiver of liability and an indemnity provision that an equestrian group required individuals to sign before riding horses).

[*P10] Despite our willingness to invoke public policy as the justification for refusing to enforce certain preinjury releases, we are mindful of the caution with which we must proceed when contemplating this analytic approach. Ascertaining when a preinjury release sufficiently offends public policy to warrant stripping the release of its enforceability can be difficult. As the example of preinjury releases for negligence amply illustrates, the quest to identify good public policy in a particular instance often requires a court to account for two or more conflicting policies, each laudable, but none of whose claims on the good can be fully honored. Extracting public policy from statutes can be no less challenging. Moreover, in most instances, our proper role when confronted with a statute should be restricted to interpreting its meaning and application as revealed through its text. To pluck a principle of public policy from the text of a statute and to ground a decision of this court [***10] on that principle is to invite judicial mischief. Like its cousin legislative history, public policy is a protean substance that is too often easily shaped to satisfy the preferences of a judge rather than the will of the people or the intentions of the Legislature. We aptly noted the risks of relying on public policy rationales when we stated that [HN4] “‘the theory of public policy embodies a doctrine of vague and variable quality, and, unless deducible in the given circumstances from constitutional or statutory provisions, should be accepted as a basis for judicial determinations, if at all, only with the utmost circumspection.'” Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1043 (Utah 1989) (quoting Patton v. United States, 281 U.S. 276, 306, 50 S. Ct. 253, 74 L. Ed. 854 (1930)). When, however, the Legislature clearly articulates public policy, and the implications of that public policy are unmistakable, we have the duty to honor those expressions of policy in our rulings. Such is the case here.

[*P11] Seldom does a statute address directly the public policy relevant to the precise legal issue confronting a court. Here, no statute or other legislative pronouncement of public policy answers squarely the question of whether [***11] a preinjury release of a ski resort operator’s negligence executed by a recreational skier is enforceable. Few legislative expressions of public policy speak more clearly to an issue, however, than the public policy rationale for Utah’s Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007), speaks to preinjury releases for negligence.

[*P12] Our confidence in defining the public policy that the Act was created to serve is enhanced by the fortuitous fact that the Utah Legislature introduced the substantive text of the Act with a statement of public policy. Section 78-27-51 states:

[HN5] The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and [***12] the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, [**564] no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

[*P13] [HN6] Read in its most restrictive sense, section 78-27-51 simply announces that it is the public policy of Utah to bar skiers from recovering from ski area operators for injuries resulting from the inherent risks of skiing, as enumerated in the Act. So limited, this pronouncement explains nothing that one could not deduce from the text of the Act itself which by its terms codifies this policy. Of equal or greater significance are legislative findings and expressions of public policy that bear on why it is important to identify the inherent risks of skiing and insulate ski area operators from liability for injury caused by them.

[*P14] According to the Legislature, it was necessary to immunize ski area operators from liability for injuries caused by inherent risks because they were otherwise being denied insurance coverage or finding coverage too expensive to purchase. See id. The Legislature found that the ski industry [***13] insurance crisis imperiling the economic viability of ski area operators was more than an inconvenient product of market forces. It had become a matter of public policy concern meriting the intervention of public policy because, in the words of the Legislature, “the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state.” Id. Thus, the ski industry’s prominent role in Utah’s economy justified, in the view of the Legislature, governmental intervention to ameliorate the untoward effects of the free market.

[*P15] The central purpose of the Act, then, was to permit ski area operators to purchase insurance at affordable rates. The insulation of ski area operators from liability for injuries caused by inherent risks of skiing was a means to that end. There is no evidence that, in the absence of a perceived insurance crisis, the Legislature would have interceded on behalf of ski area operators merely to clarify the scope of duties owed skiers who used the ski facilities. [HN7] The Act is most clearly not, as Snowbird contends, intended to protect ski area operators by limiting their liability [***14] exposure generally. It is rather a statute that is intended to clarify those inherent risks of skiing to which liability will not attach so that ski resort operators may obtain insurance coverage to protect them from those risks that are not inherent to skiing.

[*P16] By expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Act into being, the Legislature authoritatively put to rest the question of whether ski area operators are at liberty to use preinjury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not. The premise underlying legislative action to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks [***15] by purchasing insurance. By extracting a preinjury release from Mr. Rothstein for liability due to their negligent acts, Snowbird breached this public policy bargain.

[*P17] There is little to recommend Snowbird’s rejoinder to this interpretation of the public policy provision of the Act. Snowbird contends that the purpose of the Act is to immunize ski area operators from liability generally. Since releases of liability also serve this end, Snowbird argues such releases are wholly compatible with the Act. This reasoning fails to account for the Legislature’s inescapable public policy focus on insurance and ignores the reality that the Act’s core purpose is not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned by their negligence.

[*P18] The cases cited by Snowbird from other states that statutorily insulate the providers [**565] of recreational activities from liability for inherent risks and permit preinjury releases lose their persuasive appeal on close examination. Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296 (D. Wyo. 1999); Clanton v. United Skates, 686 N.E.2d 896 (Ind. Ct. App. 1997). [***16] Neither Wyoming’s Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to -123 (1995), nor the relevant Indiana statute, Ind. Code § 14-22-10-2 (1995), that inform these cases contain public policy sections or discuss the issue of insurance. Although both statutes contemplate the lack of liability associated with a variety of recreational activities, neither contains the kind of resounding public policy pronouncement present in Utah’s Act.

[*P19] Likewise unavailing is Snowbird’s assertion that the freedom to enter into a preinjury release must be preserved in the absence of express legislative disapproval. Were we to adopt this reasoning, we would call into question the legitimacy of the entire body of our preinjury release jurisprudence inasmuch as we have never declared a preinjury release unenforceable with the aid of an express statutory mandate to do so. Nor would we be likely to encounter such an occasion. In the face of an express legislative prohibition of a preinjury release, a public policy analysis would hardly be necessary. Moreover, the Act’s expression of public policy does not lend itself to the need for an additional statement concerning the status of preinjury releases. The [***17] legislative goal expressed in the Act of easing the task of ski area operators to insure themselves against noninherent risks creates the presumption that ski area operators will confront those risks through insurance and not by extracting contractual releases from skiers. In this setting, the burden shifts to ski area operators to persuade the Legislature to expressly preserve their rights to obtain and enforce preinjury releases.

CONCLUSION

[*P20] Consistent with our duty to honor the Legislature’s unambiguous expressions of public policy, we hold that the release and indemnify agreements Mr. Rothstein signed per Snowbird’s request are contrary to the public policy of this state and are, therefore, unenforceable. We vacate the district court’s grant of summary judgment and remand for proceedings consistent with this opinion.

[*P21] Chief Justice Durham and Justice Parrish concur in Justice Nehring’s opinion.

DISSENT BY: WILKINS

DISSENT

WILKINS, Associate Chief Justice, dissenting:

[*P22] I conclude that the preinjury releases at issue in this appeal are not, in and of themselves, contrary to the public policy of this state. Accordingly, I respectfully dissent from the majority opinion.

[*P23] I agree with the majority that the central [***18] purpose of Utah’s Inherent Risks of Skiing Act is to facilitate affordable insurance rates for ski area operators because of their direct impact on and contribution to the Utah economy. See Utah Code Ann. § 78-27-51 (2002 & Supp. 2007). I also agree that, in drafting the public policy statement that precedes the substantive text of the Act, the Legislature clearly intended to clarify the law and proscribe lawsuits against ski area operators for those risks that are inherent in skiing. My conformity with the majority opinion, however, ends thee.

[*P24] Grounding their reasoning in the “legislative findings and expressions of public policy [in the Act],” supra P 13, the majority ultimately concludes that the Legislature has “authoritatively put to rest the question of whether ski area operators [may] use preinjury releases to significantly pare back or . . . eliminate their need to purchase . . . liability insurance . . . . They [may] not.” Supra P 16. In other words, the majority reasons that because encouraging affordable insurance rates is the primary objective of the Act, once ski area operators obtain that insurance they may do no more to protect themselves. Consequently, my colleagues [***19] conclude, it violates this express public policy for ski area operators to attempt to limit their liability by seeking preinjury releases from patrons. Extracting such releases, according to the majority, “breache[s the] public policy bargain” made by the Act. Supra P 16. I disagree.

[**566] [*P25] When deciding questions of statutory interpretation, we customarily look first to the plain language of a statute. It is also usual that we take note of words and phrases the Legislature did not include. See Biddle v. Washington Terrace City, 1999 UT 110, P 14, 993 P.2d 875 (“[O]missions in statutory language should be taken note of and given effect.” (citation and internal quotation marks omitted)). Similarly, we have previously expressed the view that “[this] court has no power to rewrite a statute to make it conform to an intention not expressed.” Mountain States Tel. & Tel. Co. v. Pub. Serv. Comm’n, 107 Utah 502, 155 P.2d 184, 185 (Utah 1945) (emphasis added).

[*P26] In my view, the majority’s interpretation improperly expands the plain language of the Act and infuses it with “intention not expressed” by the Legislature. Id. Section 78-27-51 simply proscribes lawsuits against ski area operators for those risks that are [***20] inherent to skiing. See Utah Code Ann. § 78-27-51. Nowhere does the text suggest that ski area operators may not contractually further limit their liability for risks that are not inherent to skiing. In fact, the text is silent about whether an individual may or may not sue a ski area operator on some other basis. Accordingly, this court should resist the temptation to add language or meaning to the Act where no hint of it exists in the text.

[*P27] When the Legislature clearly identifies a public policy objective, we have a duty to honor it. We also have a duty, however, not to stray beyond the plain language of a statute, as I believe the majority has done here. I conclude that preinjury releases do not automatically violate the public policy of this state and that releases must be examined on an individual basis to determine whether they are enforceable under the applicable law. Where, as here, neither preinjury release executed by the plaintiff was a requirement to using the ski area but instead granted additional benefits and privileges to the skier, both parties should be free to enter into the agreement, or not, and expect it to be enforced by our courts as agreed. Accordingly, I would [***21] affirm the district court’s grant of summary judgment in favor of Snowbird.

[*P28] Justice Durrant concurs in Associate Chief Justice Wilkins’s dissenting opinion.


Berry v. Greater Park City Company, 2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192

Berry v. Greater Park City Company, 2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192

James Gordon Berry V, Plaintiff and Appellant, v. Greater Park City Company dba Park City Mountain Resort, a Utah corporation; CRE Management, Inc., dba Milosport; and International Ski Federation, Defendants and Appellee.

No. 20051057

SUPREME COURT OF UTAH

2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192

October 30, 2007, Filed

December 6, 2007, Released for Publication

PRIOR HISTORY: [***1]

Third District, Salt Lake. The Honorable J. Dennis Frederick. No. 030904411.

COUNSEL: Harold G. Christensen, Richard A. Van Wagoner, Julianne Blanch, Ryan B. Bell, Salt Lake City, for appellant.

Gordon Strachan, Kevin J. Simon, Park City, for appellee.

JUDGES: NEHRING, Justice. Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Parrish concur in Justice Nehring’s opinion.

OPINION BY: NEHRING

OPINION

[**444] NEHRING, Justice:

[*P1] James Gordon “V.J.” Berry was seriously injured while competing in a ski race. He sued the parties connected with the event, including Park City Mountain Resort (PCMR), the site where the race was held. The district court granted PCMR’s motions for summary judgment and dismissed Mr. Berry’s claims for ordinary negligence, gross negligence, and common law strict liability. We affirm in part and hold that Mr. Berry’s preinjury release of PCMR is enforceable and that the district court properly determined that Mr. Berry’s strict liability claim fails as a matter of law. We further hold that the district court improperly awarded PCMR summary judgment on Mr. Berry’s gross negligence claim and therefore reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

[*P2] In February [***2] 2001, Mr. Berry, an expert skier then twenty-six years of age, entered a skiercross race promoted as the King of the Wasatch, which was constructed on one of PCMR’s ski runs. In the skiercross race format, four racers simultaneously descend a course that features difficult turns and tabletop jumps. The racers compete against each other as they ski down the mountain to complete the course first. A series of elimination heats determines the race winner. On Mr. Berry’s fourth trip over the course, he attempted to negotiate the course’s first tabletop jump. Upon landing from the jump, Mr. Berry fell and fractured his neck, an injury that resulted in permanent paralysis.

[*P3] Before being allowed to participate in the contest, competitors like Mr. Berry were required to sign a Release of Liability and Indemnity Agreement. Although Mr. Berry did not read the agreement, he signed it twelve days before the race. The agreement purported to release PCMR from claims arising from its negligence, stating:

In consideration for being permitted to participate in the Event, I agree to release from any legal liability, agree not to sue and further agree to defend, indemnify and hold harmless Park City Mountain [***3] Resort . . . the race organizers, sponsors and all of their officers, agents and employees for injury or death resulting from participation in the Event, regardless of the cause, including the negligence of the above referenced parties and their employees or agents.

[*P4] PCMR introduced several measures aimed at enhancing the safety of contest participants like Mr. Berry. Blue paint marked the take-off point of the tabletop jumps. The course was built with speed gates and berms uphill of the jump in order to slow and control the speed of racers on their approach. Safety barriers enclosed the racecourse and closed it to noncompetitors. Racers were required to wear helmets and familiarize themselves with the course by inspecting its features while twice “slipping” its length. Competitors were also permitted to take practice runs of the course on the day of the race.

[*P5] Naturally occurring conditions compromised these measures on the day of the race. The light was “flat,” which hindered depth perception and made it difficult for participants to make out aspects of the course. The snow-covered surface of the course was packed particularly hard.

[*P6] Mr. Berry offered expert opinion that pointed to [***4] significant design flaws in the tabletop jump that was the site of his fall. For example, the left side of the jump, from which Mr. Berry was forced to ascend due to his competitors’ positioning in the heat, was built in a manner to launch skiers at a dangerously steep angle, causing them to be propelled beyond the landing area. Expert opinion also faulted the landing area as being too small and not steep enough to accommodate safe landings.

[*P7] Relevant to our purposes, Mr. Berry brought suit against PCMR and alleged claims of ordinary negligence, gross negligence, and common law strict liability. The district court granted PCMR’s motions to summarily dismiss each of Mr. Berry’s claims. The district court concluded that Mr. Berry was bound by the “clear and unequivocal” language of the agreement and could not therefore pursue a claim against [**445] PCMR based on the resort’s alleged negligence. The district court held that Mr. Berry’s strict liability claim was invalid because the King of the Wasatch race was not as a matter of law an abnormally dangerous activity. Finally, the district court concluded that as a matter of law Mr. Berry failed to present evidence sufficient to place in dispute [***5] the issue of whether PCMR had designed and built the skiercross course with “utter indifference to the consequences that may result” or gross negligence. This appeal followed.

STANDARD OF REVIEW

[*P8] [HN1] Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). [HN2] Because a grant of summary judgment by definition involves conclusions of law, we afford no deference to the district court’s decision and review it for correctness. See Peterson v. Sunrider Corp., 2002 UT 43, P 13, 48 P.3d 918.

ANALYSIS

I. MR. BERRY’S AGREEMENT TO RELEASE PCMR FROM LIABILITY FOR ITS NEGLIGENT ACTS IS ENFORCEABLE

[*P9] [HN3] Preinjury exculpatory releases turn against one another the freedom of persons to regulate their affairs by contract and the social bargain at the heart of tort law that persons who fail to exercise reasonable care should be accountable in damages to those injured by negligent acts. We have not previously had occasion to consider whether the sponsor of a competitive ski race may shield itself from negligence by obtaining prospective exculpatory agreements from participants. This appeal is not, however, [***6] our introduction to preinjury releases.

[*P10] In our most recent encounter, we held that a preinjury release could not foreclose claims of negligence brought by the parent of a minor child who was injured during a guided equestrian trail ride. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062. Mr. Berry interprets Hawkins as a case containing sufficient kinetic energy to move it beyond its facts to guide the outcome of this appeal. According to Mr. Berry, Hawkins signaled that we had found common cause with a “growing consensus” of jurisdictions that rejected as contrary to public policy preinjury releases generally and those releasing ski areas particularly. To support his interpretation, Mr. Berry drew on our statement in Hawkins that

[a]n exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party.

Id. P 13.

[*P11] We made observations [***7] critical of preinjury releases in the context of the point that sound reasons exist for the law to treat preinjury releases with greater suspicion than postinjury releases. Regardless of the context in which they appear, we readily acknowledge that the shortcomings of exculpatory clauses cited in Hawkins provide ample cause to approach preinjury releases with caution. Indeed, the reasoning used by courts to reject as contrary to public policy preinjury releases is persuasive. See Hiett v. Lake Barcroft Cmty. Ass’n, 244 Va. 191, 418 S.E.2d 894, 8 Va. Law Rep. 3381 (Va. 1992); see also Jaffe v. Pallotta TeamWorks, 362 U.S. App. D.C. 398, 374 F.3d 1223, 1226 (D.C. Cir. 2004); Coughlin v. T.M.H. Int’l Attractions Inc., 895 F. Supp. 159 (W.D. Ky. 1995); Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 799 (Vt. 1995); cf. N.Y. Gen. Oblig. §§ 5-321 to -326 (2007). In the Commonwealth of Virginia, for example, public policy forbids exculpatory agreements 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 lawfully done where an enlightened system of jurisprudence prevails.'” Hiett, 418 S.E.2d at 896 (quoting Johnson’s Adm’x v. Richmond & Danville R.R. Co., 11 S.E. 829, 829, 86 Va. 975 (Va. 1890)). [***8] This approach is certainly defensible both as a statement of legal and social philosophy–the right to con [**446] tract is always subordinate to the obligation to stand accountable for one’s negligent acts–and on an operational level inasmuch as such a clear statement eliminates any ambiguity over whether a court would later deem a particular preinjury release enforceable. Our recognition of the undesirable features of preinjury releases and of the merits of arguments that we should brand all preinjury releases unenforceable falls short of convincing us that freedom to contract should always yield to the right to recover damages on the basis of another’s fault. See, e.g., Jones v. Dressel, 623 P.2d 370 (Colo. 1981); Porubiansky v. Emory Univ., 156 Ga. App. 602, 275 S.E.2d 163, 167-68 (Ga. Ct. App. 1980); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn. 1977); Wagenblast v. Odessa Sch. Dist., 110 Wn.2d 845, 758 P.2d 968 (Wash. 1988); Kyriazis v. Univ. of W. Va., 192 W. Va. 60, 450 S.E.2d 649 (W. Va. 1994).

[*P12] Our analysis in Hawkins disclosed both our conviction that [HN4] a person should retain the power to contract away the right to recover damages for the negligence of another and our understanding that the authority to exercise the right was subject [***9] to many conditions and limitations. 1 We began that analysis by acknowledging, uncritically, the “general principle of common law” that [HN5] “‘those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty.'” Hawkins, 2001 UT 94, P 9, 37 P.3d 1062 (quoting 6A Arthur Linton Corbin, Corbin on Contracts § 1472 (1962)). After canvassing the legal landscape for perspective on how courts have received and interpreted the Corbin principle, we noted that most of the cases from jurisdictions that were not among the minority rejecting all preinjury releases focused their analytical energy on ascertaining how to know who is and who is not “engaged in public service.” Id. P 9. Because it was not necessary to do so, we did not delve into this question in Hawkins and instead limited ourselves to the observation that most jurisdictions that permit prospective releases draw the line at attempts to limit liability for activities in which there is a strong public interest. These cases did not, however, aid us in making progress toward a proper outcome because Hawkins concerned the unique circumstance of the release of a [***10] minor’s prospective claim for negligence and did not implicate the public service exception. Our analysis in Hawkins relied, then, on a public policy exception to the Corbin principle “specifically relating to releases of a minor’s claims.” Id. P 10.

1 For example, parents in many jurisdictions lack the authority to release a minor’s claims against a negligent party. E.g., Hawkins, 2001 UT 94, P 10, 37 P.3d 1062. When Hawkins was decided, Utah was such a jurisdiction; the state afforded parents no “general unilateral right to compromise or release a child’s existing causes of action without court approval or appointment to that effect.” Id. P 11. Although Hawkins involved a mother’s preinjury release of her minor daughter’s claims, we reasoned that it would be inconsistent for the court to allow parents to do preinjury what they were prohibited from doing postinjury. Id.

[*P13] The lesson of Hawkins is that all of the analytical approaches we discussed were exceptions to the general principle that preinjury releases are enforceable. The viability of the principle itself was never challenged. We assumed its controlling force then and make explicit our adoption of the principle now.

[*P14] Had we intended our observations [***11] concerning the deleterious effects of preinjury releases to be our final expression of views on the proper place of such releases in our law, little reason would have existed for us to have refrained from using Hawkins to declare categorically that such releases offend public policy and are unenforceable. The proper inference to draw from Hawkins is that this general rule is well embedded in our common law despite its flaws. Our position on this matter can coexist with our endorsement of the prevailing view that [HN6] the law disfavors preinjury exculpatory agreements. See Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 885 A.2d 734, 739 (Conn. 2005).

[*P15] Having determined that our public policy does not foreclose the opportunity of parties to bargain for the waiver of tort claims based on ordinary negligence, we confront the issues we stopped short of resolving in Hawkins: selecting and applying a standard [**447] relating to the public interest exception to the general rule recognizing the enforceability of preinjury releases. 2 2001 UT 94, P 10, 37 P.3d 1062. This is an inquiry that directs our attention to the nature of the activity seeking to be shielded from liability for its negligence and away from Hawkins’ focus on the [***12] status of the person from whom the release is sought. 3 In Hawkins, we stated that many states had come to rely on the guidelines for evaluating the applicability of the public interest exception to preinjury releases set out in Tunkl v. Regents of The University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963). The Tunkl guidelines have retained their vitality over the years since Utah, through Hawkins, became one of many jurisdictions to permit preinjury releases. See, e.g., Omni Corp. v. Sonitrol Corp., 476 F. Supp. 2d 125, 128 (D. Conn. 2007); Am. Structural Composites, Inc. v. Int’l Conference of Bldg. Officials, 325 F. Supp. 2d 1148, 1151 (D. Nev. 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Brown v. Soh, 280 Conn. 494, 909 A.2d 43, 48-51 (Conn. 2006); Courbat v. Dahana Ranch, Inc., 111 Haw. 254, 141 P.3d 427, 437-39 (Haw. 2006); Berlangieri v. Running Elk Corp., 2003 NMSC 24, 134 N.M. 341, 76 P.3d 1098, 1109-10 (N.M. 2003). [HN7] The Tunkl standard, which identifies the traits of an activity in which an exculpatory provision may be invalid, is as follows:

“[1] [The transaction] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing [***13] 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 bargaining strength against any member of the public who seeks his services. [5] In exercising a 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 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.”

Hawkins, 2001 UT 94, P 9 n.3, 37 P.3d 1062 (quoting Tunkl, 383 P.2d at 445-46).

2 [HN8] The law’s wariness of preinjury releases is reflected in the requirement that to be enforceable, such agreements must be communicated in a clear [***14] and unequivocal manner. See Paralift, Inc. v. Superior Court, 23 Cal. App. 4th 748, 29 Cal. Rptr. 2d 177, 180 (Ct. App. 1993); Cain v. Banka, 932 So. 2d 575, 578 (Fla. Dist. Ct. App. 2006); Hawkins, 2001 UT 94, P 5, 37 P.3d 1062. Mr. Berry has not claimed that PCMR’s release failed to meet this standard. We therefore limit our discussion of the public interest exception to the general rule that exculpatory agreements are enforceable.

3 Of course, the status of the person giving a preinjury release is an omnipresent consideration insofar as status relates to the relative bargaining power of the parties to the release.

[*P16] [HN9] Consideration of these traits is a flexible endeavor; the activity at issue need exhibit only a sufficient number of Tunkl characteristics such that one may be convinced of the activity’s affinity to the public interest. When a preinjury release is contrary to the public interest, it is invalid. Applying this approach, we test the King of the Wasatch race against each of the six Tunkl guidelines.

[*P17] First, while as an academic matter it may be debatable whether the sport of skiing is of a type generally thought to be suitable for public regulation, in Utah there can be no debate. [HN10] In Utah, skiing is regulated [***15] by the Inherent Risk of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007). Although the parties assume that the Act applies to skiercross events like the King of the Wasatch race, it is less clear that the applicability of the Act to skiercross racing would qualify the competition as suitable for public regulation. The Act was animated by a legislative finding that “the sport of skiing is practiced by a large number of residents of [**448] Utah and attracts a large number of nonresidents.” Id. § 78-27-51. The same cannot be said for skiercross racing. This form of competition has simply not generated sufficient public interest either through its popularity or because of hazards associated with it to generate a call for intervention of state regulatory authority. Skiercross racing is but one of an almost countless number of competitive sporting events occurring at any particular time in Utah. Among these, Utah law regulates only competitive boxing and equestrian events. See id. §§ 63C-11-301 to -318; id. §§ 63C-11-320 to -325; id. §§ 78-27b-101 to -102 (Supp. 2007).

[*P18] Thus, [HN11] while the reach of the Act may extend to ski-related activities that fall outside the public policy considerations [***16] underlying the adoption of the Act, those activities, like skiercross racing, are nevertheless subject to a separate analysis for the purpose of evaluating the enforceability of preinjury releases. Put another way, while the services provided by a business operating a recreational ski area and the services provided by a business sponsoring a competitive ski race may be covered by the provisions of the Act, the differences between recreational and competitive skiing are substantial enough to warrant the application of a separate analysis concerning their suitability for public regulation. In our view, skiercross racing is not generally thought suitable for public regulation.

[*P19] Second, for all the benefits that the King of the Wasatch race may have bestowed on its competitors, sponsors, and spectators, the race sponsors were in no way performing a service of great importance to the public, nor was race participation a matter of practical necessity for anyone.

[*P20] Third, the record suggests that PCMR made race participation available to anyone who sought to enter. Based on the description of the King of the Wasatch race in the record, a clear inference exists that competitors came from a limited [***17] group of expert, competitive skiers.

[*P21] The fourth Tunkl guideline diminishes the likelihood that we might find a preinjury release enforceable considering that the essential nature of the activity or service results in endowing the party seeking exculpation with a decisive advantage of bargaining strength. We have little doubt that Mr. Berry possessed no bargaining strength whatsoever. If he wanted to compete in the King of the Wasatch race, he was required to sign the preprinted release form. In this setting, however, PCMR’s decisive advantage in bargaining strength was of little consequence since the race was a nonessential activity.

[*P22] Fifth, PCMR’s superior bargaining power, its use of a contract of adhesion, and its failure to provide Mr. Berry an option to purchase protection against PCMR’s negligence is similarly of little consequence because of the nonessential nature of the race.

[*P23] The final Tunkl factor, that Mr. Berry was placed under PCMR’s control as a result of signing the release and made subject to the risk of PCMR’s carelessness, is of questionable application. PCMR appears to have been capable of exercising a negligible degree of control over the manner in which Mr. Berry [***18] traversed the racecourse or whether he elected to complete the course at all after inspecting its features.

[*P24] After considering the facts of Mr. Berry’s case with the Tunkl guidelines in mind, we are convinced that the release Mr. Berry executed in favor of PCMR is enforceable.

II. THE DISTRICT COURT ERRED WHEN IT AWARDED PCMR SUMMARY JUDGMENT ON MR. BERRY’S GROSS NEGLIGENCE CLAIM

[*P25] PCMR does not claim that its release insulates it from liability for gross negligence. It argues instead that the precautions the sponsors of the King of the Wasatch race took, designed to minimize the risk of injury to participants without unduly compromising the competitive challenges, without which the contest would have little allure, were sufficient to overcome Mr. Berry’s gross negligence claim as a matter of law. Without guidance anywhere in the record as to the applicable standard of care, we cannot conclude that PCMR was not grossly negligent as a matter of law.

[**449] [*P26] We must initially return to the topic of the standard of review because its proper form and application largely determine the outcome of Mr. Berry’s challenge to the district court’s summary dismissal of his gross negligence claim. [HN12] In securing [***19] recovery, the task confronting a plaintiff who claims injury due to a defendant’s gross negligence is markedly greater than that of a plaintiff who traces his injury to ordinary negligence. Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence. We have characterized gross negligence as “‘the failure to observe even slight care; it is carelessness or recklessness to a degree that shows utter indifference to the consequences that may result.'” Atkin Wright & Miles v. Mountain States Tel. & Tel. Co., 709 P.2d 330, 335 (Utah 1985) (quoting Robinson Ins. & Real Estate, Inc. v. Sw. Bell Tel. Co., 366 F. Supp. 307, 311 (W.D. Ark. 1973)).

[*P27] [HN13] When reviewing appeals from grants of summary judgment in cases of ordinary negligence, we have consistently followed the principle that “summary judgment is generally inappropriate to resolve negligence claims and should be employed ‘only in the most clear-cut case.'” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994) (quoting Ingram v. Salt Lake City, 733 P.2d 126, 126 (Utah 1987) (per curiam)). Moreover, summary judgment is “‘inappropriate unless the applicable standard [***20] of care is fixed by law, and reasonable minds could reach but one conclusion as to the defendant’s negligence under the circumstances.'” White, 879 P.2d at 1374 (quoting Wycalis v. Guardian Title of Utah, 780 P.2d 821, 825 (Utah Ct. App. 1989) (internal quotation marks omitted)).

[*P28] Were we evaluating this case as one of ordinary negligence, we would have little difficulty discerning the presence of genuine issues of material fact sufficient to overcome a motion for summary judgment. Mr. Berry presented testimony of an experienced ski racer, coach, and jumper who witnessed Mr. Berry’s accident and faulted the jump’s design. A second expert in ski racecourse design and safety was likewise critical of the configuration of the accident site.

[*P29] According to PCMR, this testimony is insufficient to overcome summary dismissal of Mr. Berry’s gross negligence claim because evidence that would be adequate to take an ordinary negligence case to a jury cannot withstand uncontroverted evidence that PCMR exercised enough care to avoid a finding of gross negligence. PCMR urges that its production of evidence indicating that it used “even slight care” or displayed something more than “complete and absolute [***21] indifference” to the consequences that might have resulted from an improper design or construction of the tabletop jump and landing area is sufficient to remove Mr. Berry’s gross negligence claim from the jury. We disagree.

[*P30] The parties have not directed us to, nor have we been able to discover, a location in the record where the appropriate standard of care applicable to the design and construction of skiercross courses appears. We have held that [HN14] where a standard of care is not “fixed by law,” the determination of the appropriate standard is a factual issue to be resolved by the finder of fact. Wycalis, 780 P.2d at 825. Identification of the proper standard of care is a necessary precondition to assessing the degree to which conduct deviates, if at all, from the standard of care–the core test in any claim of gross negligence. Absent the presence of an identified, applicable standard of care to ground the analysis, we hold that the district court improperly granted PCMR summary judgment and dismissed Mr. Berry’s gross negligence claim.

III. THE DISTRICT COURT’S SUMMARY DISMISSAL OF MR. BERRY’S STRICT LIABILITY CLAIM WAS PROPER

[*P31] Mr. Berry contends that the district court erred when it [***22] summarily dismissed his claim that PCMR was strictly liable for damages for his injuries because skiercross racing is an abnormally dangerous activity as defined by the factors set out in section 520 of the Restatement (Second) of Torts. In aid of his argument, Mr. Berry points to numerous [**450] articles in popular ski publications, describing in dramatic terms the injuries sustained, seemingly as a matter of routine, by racers in skiercross competitions. These aspects of the record may indeed advance Mr. Berry’s cause regarding the degree of peril that skiercross races pose. To us, they establish convincingly alternative grounds upon which to affirm the district court’s rejection of Mr. Berry’s strict liability claim. See, e.g., State v. Robison, 2006 UT 65, P 19, 147 P.3d 448 (allowing affirmance of the judgment appealed from based “‘on any legal ground or theory apparent on the record'” (quoting Bailey v. Bayles, 2002 UT 58, P 10, 52 P.3d 1158)).

[*P32] [HN15] Assuming the skiercross racing is an abnormally dangerous activity, Mr. Berry’s role as a participant excludes him from eligibility to recover under a theory of strict liability. See, e.g., Pullen v. West, 278 Kan. 183, 92 P.3d 584 (Kan. 2004) (holding that [***23] an individual who lit fireworks while a guest at an Independence Day party was a participant in an abnormally dangerous activity and therefore barred from recovery on a strict liability theory). As a general principle, the Restatement’s protections extend to those individuals who are injured as the result of an activity that carries “the existence of a high degree of risk of some harm to the person, land or chattels of others.” Restatement (Second) of Torts § 520 (1977). Like the Pullen court and others, we agree that the scope of section 520 excludes participants, like Mr. Berry, who engage in the very activity for which they seek to recover damages based on strict liability. See, e.g., Whitlock v. Duke Univ., 637 F. Supp. 1463, 1475 (M.D.N.C. 1986); Gaston v. Hunter, 121 Ariz. 33, 588 P.2d 326, 341 (Ariz. Ct. App. 1978); Trull v. Carolina-Virginia Well Co., 264 N.C. 687, 142 S.E.2d 622, 622-26 (N.C. 1965). This conclusion is not undermined by the principles upon which Mr. Berry rests his claim to strict liability recovery.

[*P33] Section 520 generally states that [HN16] a court should consider the following factors in determining whether an activity is abnormally dangerous:

(a) existence of a high degree of risk of some harm [***24] to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the activity to the place where it is carried on; and

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Mr. Berry argues the eligibility of skiercross racing under several of these. Although we fully recognize that all of these factors may aid a court in evaluating whether an activity is abnormally dangerous, we view the first factor as qualitatively different than the rest and therefore worthy of separate consideration. See, e.g., Restatement (Second) of Torts § 520 cmt. f (“Any one of them is not necessarily sufficient of itself . . . for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily.”). Unlike its five colleagues, the first factor targets the very nature of the strict liability protection–who is eligible. Section 520 exposes landowners who conduct abnormally dangerous activities on their land–harboring [***25] dangerous animals has of particular concern to the drafters of the Restatement–to strict liability for injury suffered by those who come onto the land under color of privilege, but not for injury suffered by those who participated in the abnormally dangerous activity. We accordingly affirm the district court’s dismissal of Mr. Berry’s strict liability claim.

CONCLUSION

[*P34] Because our public policy does not foreclose Mr. Berry from waiving PCMR’s liability, we hold that Mr. Berry’s preinjury release is enforceable. We further hold that Mr. Berry’s strict liability claim fails as a matter of law considering his participation in the skiercross race. Finally, we hold that the district court erred in awarding summary judgment on Mr. Berry’s gross negligence claim without reference to the applicable [**451] standard of care. We therefore reverse and remand to the district court for proceedings consistent with this opinion.

[*P35] Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Parrish concur in Justice Nehring’s opinion.


Utah Equine Liability Statutes

Utah Code Annotated

Title 78B  Judicial Code 

Chapter 4  Limitations on Liability 

Part 2  Limitations on Liability for Equine and Livestock Activities

Utah Code Ann. § 78B-4-201  (2014)

78B-4-201.  Definitions.

As used in this part:

(1) “Equine” means any member of the equidae family.

(2) “Equine activity” means:

      (a) equine shows, fairs, competitions, performances, racing, sales, or parades that involve any breeds of equines and any equine disciplines, including dressage, hunter and jumper horse shows, grand prix jumping, multiple-day events, combined training, rodeos, driving, pulling, cutting, polo, steeple chasing, hunting, endurance trail riding, and western games;

      (b) boarding or training equines;

      (c) teaching persons equestrian skills;

      (d) riding, inspecting, or evaluating an equine owned by another person regardless of whether the owner receives monetary or other valuable consideration;

      (e) riding, inspecting, or evaluating an equine by a prospective purchaser; or

      (f) other equine activities of any type including rides, trips, hunts, or informal or spontaneous activities sponsored by an equine activity sponsor.

(3) “Equine activity sponsor” means an individual, group, governmental entity, club, partnership, or corporation, whether operating for profit or as a nonprofit entity, which sponsors, organizes, or provides facilities for an equine activity, including:

      (a) pony clubs, hunt clubs, riding clubs, 4-H programs, therapeutic riding programs, and public and private schools and postsecondary educational institutions that sponsor equine activities; and

      (b) operators, instructors, and promoters of equine facilities, stables, clubhouses, ponyride strings, fairs, and arenas.

(4) “Equine professional” means a person compensated for an equine activity by:

      (a) instructing a participant;

      (b) renting to a participant an equine to ride, drive, or be a passenger upon the equine; or

      (c) renting equine equipment or tack to a participant.

(5) “Inherent risk” with regard to equine or livestock activities means those dangers or conditions which are an integral part of equine or livestock activities, which may include:

      (a) the propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;

      (b) the unpredictability of the animal’s reaction to outside stimulation such as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

      (c) collisions with other animals or objects; or

      (d) the potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within his or her ability.

(6) “Livestock” means all domesticated animals used in the production of food, fiber, or livestock activities.

(7) “Livestock activity” means:

      (a) livestock shows, fairs, competitions, performances, packing events, or parades or rodeos that involve any or all breeds of livestock;

      (b) using livestock to pull carts or to carry packs or other items;

      (c) using livestock to pull travois-type carriers during rescue or emergency situations;

      (d) livestock training or teaching activities or both;

      (e) taking livestock on public relations trips or visits to schools or nursing homes;

      (f) boarding livestock;

      (g) riding, inspecting, or evaluating any livestock belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the livestock or is permitting a prospective purchaser of the livestock to ride, inspect, or evaluate the livestock;

      (h) using livestock in wool production;

      (i) rides, trips, or other livestock activities of any type however informal or impromptu that are sponsored by a livestock activity sponsor; and

      (j) trimming the feet of any livestock.

(8) “Livestock activity sponsor” means an individual, group, governmental entity, club, partnership, or corporation, whether operating for profit or as a nonprofit entity, which sponsors, organizes, or provides facilities for a livestock activity, including:

      (a) livestock clubs, 4-H programs, therapeutic riding programs, and public and private schools and postsecondary educational institutions that sponsor livestock activities; and

      (b) operators, instructors, and promoters of livestock facilities, stables, clubhouses, fairs, and arenas.

(9) “Livestock professional” means a person compensated for a livestock activity by:

      (a) instructing a participant;

      (b) renting to a participant any livestock for the purpose of riding, driving, or being a passenger upon the livestock; or

      (c) renting livestock equipment or tack to a participant.

      (10) “Participant” means any person, whether amateur or professional, who directly engages in an equine activity or livestock activity, regardless of whether a fee has been paid to participate.

(11)  (a) “Person engaged in an equine or livestock activity” means a person who rides, trains, leads, drives, or works with an equine or livestock, respectively.

      (b) Subsection (11)(a) does not include a spectator at an equine or livestock activity or a participant at an equine or livestock activity who does not ride, train, lead, or drive an equine or any livestock.

78B-4-202.  Equine and livestock activity liability limitations.

(1) It shall be presumed that participants in equine or livestock activities are aware of and understand that there are inherent risks associated with these activities.

(2) An equine activity sponsor, equine professional, livestock activity sponsor, or livestock professional is not liable for an injury to or the death of a participant due to the inherent risks associated with these activities, unless the sponsor or professional:

(a)  (i) provided the equipment or tack;

      (ii) the equipment or tack caused the injury; and

      (iii) the equipment failure was due to the sponsor’s or professional’s negligence;

(b) failed to make reasonable efforts to determine whether the equine or livestock could behave in a manner consistent with the activity with the participant;

(c) owns, leases, rents, or is in legal possession and control of land or facilities upon which the participant sustained injuries because of a dangerous condition which was known to or should have been known to the sponsor or professional and for which warning signs have not been conspicuously posted;

(d)  (i) commits an act or omission that constitutes negligence, gross negligence, or willful or wanton disregard for the safety of the participant; and

      (ii) that act or omission causes the injury; or

(e) intentionally injures or causes the injury to the participant.

(3) This chapter does not prevent or limit the liability of an equine activity sponsor, an equine professional, a livestock activity sponsor, or a livestock professional who is:

(a) a veterinarian licensed under Title 58, Chapter 28, Veterinary Practice Act, in an action to recover for damages incurred in the course of providing professional treatment of an equine;

(b) liable under Title 4, Chapter 25, Estrays and Trespassing Animals; or

(c) liable under Title 78B, Chapter 7, Utah Product Liability Act.

78B-4-203.  Signs to be posted listing inherent risks and liability limitations.

(1) An equine or livestock activity sponsor shall provide notice to participants of the equine or livestock activity that there are inherent risks of participating and that the sponsor is not liable for certain of those risks.

(2) Notice shall be provided by:

            (a) posting a sign in a prominent location within the area being used for the activity; or

            (b) providing a document or release for the participant, or the participant’s legal guardian if the participant is a minor, to sign.

(3) The notice provided by the sign or document shall be sufficient if it includes the definition of inherent risk in Section 78B-4-201 and states that the sponsor is not liable for those inherent risks.

(4) Notwithstanding Subsection (1), signs are not required to be posted for parades and activities that fall within Subsections 78B-4-201(2)(f) and (7)(c), (e), (g), (h), and (j).

 


Rutherfordv. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

Rutherfordv. Talisker Canyons Finance Co., LLC, 2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

Philip Rutherford and Wendy Rutherford, on Behalf of Their Minor Child, Levi Rutherford, Plaintiffs and Appellees, v. Talisker Canyons Finance Co., LLC and ASC UTAH, LLC, Defendants and Appellants.

No. 20120990-CA

COURT OF APPEALS OF UTAH

2014 UT App 190; 767 Utah Adv. Rep. 41; 2014 Utah App. LEXIS 201

August 14, 2014, Filed

NOTICE:

THIS OPINION IS SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTER.

PRIOR HISTORY: [**1] Third District Court, Silver Summit Department. The Honorable Todd M. Shaughnessy. No. 100500564.

COUNSEL: Eric P. Lee, M. Alex Natt, Elizabeth Butler, and Timothy C. Houpt, Attorneys, for Appellants.

David A. Cutt, Attorney, for Appellees.

JUDGES: JUDGE JAMES Z. DAVIS authored this Opinion, in which JUDGE GREGORY K. ORME and SENIOR JUDGEPAMELA T. GREENWOOD concurred.1 DAVIS, Judge.

1 The Honorable Pamela T. Greenwood, Senior Judge, sat by special assignment as authorized by law. See generally Utah Code Jud. Admin. R. 11-201(6).

OPINION BY: JAMES Z. DAVIS

OPINION

DAVIS, Judge:

[*P1] Talisker Canyons Finance Co., LLC and ASC Utah, LLC (collectively, the Ski Resort) bring this interlocutory appeal challenging the trial court’s denial of their motion for summary judgment and the trial court’s grant of partial summary judgment in favor of Philip and Wendy Rutherford, on behalf of their minor child, Levi Rutherford (collectively, the Rutherfords). We affirm in part, vacate in part, and remand for further proceedings in accordance with this decision.

BACKGROUND

[*P2] In 2010, ten-year-old Levi Rutherford was a member of the Summit Ski Team, a ski racing club that is affiliated with the United States Ski and Snowboard Association (the USSA). The Ski [**2] Team trained primarily at the Canyons, a ski resort near Park City, Utah, with the resort’s permission and subject to the resort’s requirement that the Ski Team carry liability insurance. The Ski Team’s liability insurance was provided through its affiliation with USSA. All Summit Ski Team participants were required to become USSA members, and USSA membership required applicants to execute a release indemnifying USSA from any injury the individual may suffer in connection with his participation in USSA-associated activities, regardless of USSA’s negligence. Because of Levi’s age, his father, Philip Rutherford, executed the release on Levi’s behalf. In that agreement, the term “USSA” is defined as including, inter alia, local ski clubs and ski and snowboard facility operators.

[*P3] On January 15, 2010, Levi and his seven-year-old brother were at the Canyons to attend a Ski Team race-training session. The brothers rode a chairlift that carried them along the length of the “Retreat” ski run where the Ski Team was setting up for practice. Snowmaking machines along the Retreat run were actively making snow at this time. After exiting the chairlift, Levi and his brother skied down Retreat.2 Levi [**3] skied down the slope maintaining a racing stance and without making any turns. Near the bottom of the run, Levi fell when he collided with a mound of man-made snow that was of a different and wetter consistency than other snow on the run. Levi sustained injuries as a result of his fall.

2 It is unclear whether the Ski Team coaches instructed Levi and his brother to take a warm-up run down Retreat or whether the brothers did so of their own accord. See infra note 7.

[*P4] The Rutherfords filed a complaint against the Ski Resort and the Ski Team, seeking damages for Levi’s injuries, which they claim were caused by the defendants’ negligence. As against the Ski Resort specifically, the Rutherfords alleged that the machine that produced the snow mound was not functioning properly, that the Ski Resort could have warned patrons of the hazard by marking the mound or closing the trail, and that the Ski Resort did not adequately monitor the snowmaking taking place on the Retreat run that day.

[*P5] The parties filed several motions for summary judgment. The Ski Team submitted motions for summary judgment on the basis that Utah’s Inherent Risks of Skiing Act (the Act) precluded the Rutherfords’ claims against [**4] it because Levi was indisputably injured when he crashed into a mound of machine-made snow, an inherent risk of skiing for which ski-area operators are exempted from liability under the Act. See generally Utah Code Ann. §§ 78B-4-401 to -404 (LexisNexis 2012) (Inherent Risks of Skiing Act); id. § 78B-4-402(1)(b) (machine-made snow exemption). The Ski Team also contended that it had no duty to protect Levi from a risk inherent to skiing and that it otherwise did not owe him a general duty of care as alleged by the Rutherfords. The Ski Resort joined in the Ski Team’s motions, specifically arguing that the Act exempts the Ski Resort, as a ski-area operator, from any duty to protect Levi from the inherent risk of skiing posed by the mound of machine-made snow. The Ski Resort did not argue that any of the Act’s exemptions other than the machine-made snow exemption applied in this case. The Rutherfords moved for partial summary judgment, arguing that the Act did not bar their claims against the Ski Resort.

[*P6] The trial court rejected the Ski Team’s argument that it is entitled to protection under the Act but granted the Ski Team’s motion for summary judgment on the negligence issue, dismissing with prejudice the Rutherfords’ negligence [**5] claim against it. The trial court concluded that “the Ski Team did not owe Levi a general duty of reasonable care to protect him from harm as alleged by [the Rutherfords]” and that even assuming that it did, “given the undisputed facts in this case, no reasonable jury could find that the Ski Team breached such a duty.”3 The trial court denied the Ski Resorts’ joinder in the Ski Team’s motion for summary judgment based on the Act, ruling that the applicability of the Act and the machine-made snow exemption to the Ski Resort depended on the resolution of disputed facts, namely, whether the snowmaking equipment along Retreat was functioning properly. The trial court granted the Rutherfords’ motion for partial summary judgment based on their argument that the Act did not bar their claims against the Ski Resort.

3 The Ski Team is not a party to this interlocutory appeal.

[*P7] The Ski Resort also filed a motion for summary judgment on the basis that the USSA release that Mr. Rutherford signed on behalf of his son barred Levi’s claims. The court denied the motion based on its determinations (1) that the waiver’s Colorado choice-of- law provision “is unenforceable and . . . Utah law applies to the [**6] USSA release”; (2) that the release is unenforceable under Utah law based on the Utah Supreme Court’s decision in Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062; and (3) that even if the release was enforceable under Utah or Colorado law, Levi was not racing at the time of his injury or otherwise engaged in the activities covered by the release because the Ski Team’s practice had not yet begun. The Ski Resort petitioned for interlocutory review, which was granted by our supreme court and assigned to this court.

ISSUES AND STANDARD OF REVIEW

[*P8] The Ski Resort contends that the trial court erroneously granted the Rutherfords’ motion for partial summary judgment after finding that Levi was not engaged in race training at the time of his injury and that an exemption in the Act regarding competitive skiing did not bar the Rutherfords’ claims. See Utah Code Ann. § 78B-4-402(1)(g) (competitive-skiing exemption). The Ski Resort also asserts that the trial court’s interpretation of the Act’s machine-made snow exemption was incorrect and that, as a matter of law, summary judgment should be entered for the Ski Resort based on either the machine-made snow exemption or the competitive-skiing exemption. Last, the Ski Resort argues that the trial court erred in determining that [**7] the Colorado choice-of-law provision in the USSA release was not enforceable, that the release was not enforceable under Utah law, and that the release was nevertheless inapplicable here, where Levi was engaged in an activity not covered by the release when he was injured.

[*P9] [HN1] Summary judgment is appropriate “only when all the facts entitling the moving party to a judgment are clearly established or admitted” and the “undisputed facts provided by the moving party . . . preclude[], as a matter of law, the awarding of any relief to the losing party.” Smith v. Four Corners Mental Health Ctr., Inc., 2003 UT 23, ¶ 24, 70 P.3d 904 (alteration in original) (citations and internal quotation marks omitted); see also Utah R. Civ. P. 56(c). “We also note that summary judgment is generally inappropriate to resolve negligence claims and should be employed only in the most clear-cut case.” White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994) (citation and internal quotation marks omitted). “An appellate court reviews a trial court’s legal conclusions and ultimate grant or denial of summary judgment for correctness, and views the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (citations and internal quotation marks omitted).

ANALYSIS

I. The Distinction Between Competitive Skiing and Recreational [**8] Skiing

[*P10] [HN2] The Act exempts ski resorts from liability for injuries sustained by individuals engaged in “competitive” skiing, including injuries sustained as a result of an individual’s “participation in, or practicing or training for, competitions or special events.” See Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012).4 Here, a determination that Levi was injured while engaged in competitive, as opposed to recreational, skiing under the Act could be case-determinative.5

4 Except where otherwise noted, we cite the most recent version of the Utah Code for the convenience of the reader.

5 The applicability of the USSA release could also turn on whether Levi was injured while engaged in one of the activities specifically enumerated in the release; if he was not, then the release cannot apply, rendering irrelevant the question of the release’s enforceability under Utah or Colorado law. The release defines the covered activities as “skiing and snowboarding in their various forms, as well as preparation for, participation in, coaching, volunteering, officiating and related activities in alpine, nordic, freestyle, disabled, and snowboarding competitions and clinics” “in which USSA is involved in any way.” Because USSA employs different [**9] terminology to describe the competitive skiing activities covered by the release, a determination that Levi was not injured while competitively skiing under the terms of the Act would not necessarily foreclose a finding that he was engaged in an activity covered by the release. However, because we determine that the release is unenforceable for other reasons, see infra ¶ 30, we need not address whether Levi was injured while engaging in an activity covered by the release.

[*P11] In their complaint, the Rutherfords allege that Levi was injured during Ski Team practice, stating, “[T]he Summit Ski Team instructed Levi to ski down the Retreat run. . . . As Levi was skiing down Retreat, he crashed into [a mound of snow] and sustained serious injuries . . . .” Similarly, in the Rutherfords’ motions for partial summary judgment as to the enforceability of the Act and the USSA release, they state, “Levi was injured while participating in racing practice as a member of [the Ski Team].”6 Further, the Rutherfords’ expert witness, whose statement was submitted with the Rutherfords’ summary judgment filings, based his expert report and evaluation on the premise that Levi was engaged in race training and practice. [**10] In its response to the Rutherfords’ motions, the Ski Resort agreed that it was an undisputed fact that “Levi was injured while participating in racing practice as a member of the [Ski Team].”7

6 On appeal, the Rutherfords assert that they “never alleged that Levi was injured while ski racing” but only that he “was injured in connection with Ski Team practice,” and that it was through discovery that they learned that Levi was injured before practice started. To the extent this sentiment is contradictory to the allegations contained in the Rutherfords’ complaint, we note that [HN3] “[a]n admission of fact in a pleading is a judicial admission and is normally conclusive on the party making it.” See Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984); see also Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1197 n.6, 185 L. Ed. 2d 308 (2013) (holding that a party was bound by an admission in its answer); Belnap v. Fox, 69 Utah 15, 251 P. 1073, 1074 (Utah 1926) (overturning a finding entered by the trial court because the finding was “against and in conflict with the admission in the answer of the principal defendant”). But see Baldwin, 676 P.2d at 415 (recognizing “that an admission may be waived where the parties treat the admitted fact as an issue”).

7 The Ski Team, although not a party to this appeal, disputed in part the Rutherfords’ assertion that Levi was injured during practice, stating, “[A]lthough Levi was injured [**11] during a practice in which the [Ski Team] had intended to conduct race training, he was injured while free skiing and not while running gates.” The Ski Team’s summary judgment filings imply that there is a factual dispute as to whether a “warm-up” run can constitute part of the Ski Team’s race training. See supra note 2.

[*P12] The trial court, however, likened Levi to a recreational skier, rather than a competitive skier, and determined that Levi’s accident occurred while he was “skiing on an open run that any member of the public could ski on” and that his accident indisputably did not occur during a ski race, while skiing through gates, or while otherwise “negotiating for training purposes something that had been specifically designated as a race course.” The trial court made this ruling in the context of rejecting the Ski Resort’s argument that the USSA release is enforceable under Utah law. Thus, while the specific details in the trial court’s ruling are not entirely in conflict with the parties’ undisputed statement of fact that Levi was injured during race training, the court’s comparison of Levi to a recreational skier amounts to a rejection of the parties’ undisputed statement of [**12] fact. This ruling also implies a distinction between injuries sustained during a competition and injuries sustained during training for competition that is not made in the Act’s provision that “participation in, or practicing or training for, competitions” are all inherent risks of skiing. See Utah Code Ann. § 78B-4-402(1)(g). We conclude that the trial court improperly made a finding in the summary judgment context and that its finding is contrary to what appear to be undisputed facts. We vacate this ruling and direct the trial court to reconsider the parties’ arguments in light of the undisputed statements of fact as set forth in the Rutherfords’ and the Ski Resort’s pleadings and motion filings.8 See Staker v. Ainsworth, 785 P.2d 417, 419 (Utah 1990) ( [HN4] “Where a triable issue of material fact exists, the cause will be remanded for determination of that issue.”). We likewise leave for the trial court’s determination the question of whether Levi’s engagement in race training at the time of his injury is truly undisputed by the parties.

8 Although we often provide guidance for the trial court on remand by addressing “[i]ssues that are fully briefed on appeal and are likely to be presented on remand,” State v. James, 819 P.2d 781, 795 (Utah 1991), we do not address whether the competitive-skiing exemption precludes the Rutherfords’ [**13] claims against the Ski Resort based on the parties’ agreement that Levi was injured while engaged in race training. That argument was not presented below, nor was it sufficiently briefed on appeal. See McCleve Props., LLC v. D. Ray Hult Family Ltd. P’ship, 2013 UT App 185, ¶ 19, 307 P.3d 650 (determining that [HN5] “it is better to leave” a legal issue that was not addressed by the parties in briefing “for the district court to address in the first instance based on appropriate briefing by the parties” than to “endeavor to provide the district court with guidance”); cf. Medley v. Medley, 2004 UT App 179, ¶ 11 n.6, 93 P.3d 847 (declining to provide the trial court with guidance on a legal issue likely to arise on remand where the court of appeals had “no consensus on whether [it] should offer guidance . . . and, if so, what any such guidance should be”).

II. The Machine-Made Snow Exemption

[*P13] The Ski Resort next argues that the trial court erroneously denied its motion for summary judgment based on the machine-made snow exemption under the Act, particularly where the machine that produced the snow mound that Levi skied into “was indisputably making snow.” (Emphasis omitted.) [HN6] The Act identifies as an inherent risk of skiing “snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, [**14] slush, cut-up snow, or machine-made snow.” Utah Code Ann. § 78B-4-402(1)(b); see also id. § 78B-4-402(1)(d) (immunizing ski-area operators from injuries caused by “variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations”).

[*P14] The Ski Resort contends that the Rutherfords’ “allegations fall squarely into” the machine-made snow exemption given the Rutherfords’ own assertion that Levi was injured when he came into contact with a patch of wet, machine-made snow. As a result, the Ski Resort argues, the trial court “erred in ruling that a mere allegation of malfunctioning snowmaking equipment was sufficient to force a jury trial.”9

9 Because we ultimately reject the Ski Resort’s interpretation of the Act, we do not address the Rutherfords’ argument that the Ski Resort’s interpretation renders the Act unconstitutional.

[*P15] The trial court ruled,

Solely for purposes of this Motion, the existence of ongoing snowmaking is an inherent risk of skiing and a type of danger that skiers wish to confront. Among other things, plaintiff claims that the snowmaking equipment in this particular case was not functioning properly. That claim creates a question of fact as to whether skiers wish to confront [**15] this type of risk and whether that risk could be eliminated through the exercise of reasonable care.

The trial court’s ruling recognizes the principles explained in Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991). In that case, our supreme court expressly rejected Snowbird Ski Resort’s argument that recovery from the resort for “any injury occasioned by one or more of the dangers listed in [the Act] is barred by the statute because, as a matter of law, such an accident is caused by an inherent risk of skiing.” Id. at 1044–45. Instead, the court held that [HN7] the Act “does not purport to grant ski area operators complete immunity from all negligence claims initiated by skiers” but protects ski-area operators “from suits to recover for injuries caused by one or more of the dangers listed [in the Act] only to the extent those dangers, under the facts of each case, are integral aspects of the sport of skiing.” Id. at 1044 (emphasis added). The court interpreted the Act as providing a non-exclusive list of dangers that must be analyzed on a case-by-case basis to determine whether a given danger is “inherent” in the sport. Id. at 1044–45 (alteration in original) (quoting Utah Code Ann. § 78-27-52(1) (current version at id. § 78B-4-402(1) (LexisNexis 2012))).

[*P16] The court explained, [HN8] “The term ‘inherent risk of skiing,’ using [**16] the ordinary and accepted meaning of the term ‘inherent,’ refers to those risks that are essential characteristics of skiing–risks that are so integrally related to skiing that the sport cannot be undertaken without confronting these risks.” Id. at 1047. The court divided these risks into two categories, the first of which represents “those risks, such as steep grades, powder, and mogul runs, which skiers wish to confront as an essential characteristic of skiing.” Id. Under the Act, “a ski area operator is under no duty to make all of its runs as safe as possible by eliminating the type of dangers that skiers wish to confront as an integral part of skiing.” Id.

[*P17] [HN9] “The second category of risks consists of those hazards which no one wishes to confront but cannot be alleviated by the use of reasonable care on the part of a ski resort,” such as weather and snow conditions that may “suddenly change and, without warning, create new hazards where no hazard previously existed.” Id. For this category of risks, “[t]he only duty ski area operators have . . . is the requirement set out in [the Act] that they warn their patrons, in the manner prescribed in the statute, of the general dangers patrons must confront [**17] when participating in the sport of skiing.” Id. However, this does not exonerate a ski-area operator from any “duty to use ordinary care to protect its patrons”; “if an injury was caused by an unnecessary hazard that could have been eliminated by the use of ordinary care, such a hazard is not, in the ordinary sense of the term, an inherent risk of skiing and would fall outside of [the Act].” Id. The Clover court then applied its interpretation of the Act to the facts before it, stating that because “the existence of a blind jump with a landing area located at a point where skiers enter the run is not an essential characteristic of an intermediate run,” the plaintiff could “recover if she [could] prove that [the ski resort] could have prevented the accident through the use of ordinary care.” Id. at 1048; see also White v. Deseelhorst, 879 P.2d 1371, 1374–75 (Utah 1994) (reaffirming the approach taken by the court in Clover and concluding that summary judgment was precluded by the question of fact as to whether “an unmarked cat track on the blind side of a ridge” was a risk that the ski resort “could have alleviated . . . through the exercise of ordinary care”).

[*P18] In light of how narrowly the Clover court’s ruling suggests the inherent risk determination [**18] ought to be framed, we agree with the trial court here that summary judgment in favor of the Ski Resort is not appropriate on this claim. The trial court recognized that under the facts of this case, “the existence of ongoing snowmaking is an inherent risk of skiing and a type of danger that skiers wish to confront” but that the Rutherfords’ allegations that the equipment “was not functioning properly,” “[a]mong other things,” created questions of fact as to “whether skiers wish to confront [the] type of risk” created by malfunctioning snowmaking equipment and “whether that risk could be eliminated through the exercise of reasonable care.” Cf. Moradian v. Deer Valley Resort Co., No. 2:10-CV-00615-DN, 2012 U.S. Dist. LEXIS 116075, 2012 WL 3544820, at *4 (D. Utah Aug. 16, 2012) (affirming summary judgment in favor of a ski resort based on a provision in Utah’s Inherent Risks of Skiing Act that immunizes ski-area operators from injuries sustained by a patron’s collision with other patrons because “[t]his type of collision cannot be completely prevented even with the exercise of reasonable care, and is an inherent risk in the sport of skiing,” and rejecting the plaintiff’s speculation that the individual that collided with him was a Deer Valley employee as insufficient “to create [**19] a genuine issue of material fact necessary to defeat summary judgment”). Accordingly, we affirm the trial court’s ruling that questions of fact regarding the applicability of the machine-made snow exemption preclude summary judgment on this issue, and we likewise reject the Ski Resort’s argument that the inclusion of machine-made snow as an inherent risk of skiing in the Act is, by itself, sufficient to immunize the resort from liability in this case.10 See White, 879 P.2d at 1374 ( [HN10] “Courts cannot determine that a risk is inherent in skiing simply by asking whether it happens to be one of those listed in [the Act].”).

10 It is notable, as the Ski Resort points out in its opening brief, that the language of the Act has broadened since the issuance of Clover. See Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1044 (Utah 1991). At the time Clover was decided, the Act listed “snow or ice conditions” as inherent risks. Id. [HN11] In the current version of the Act, those same risks are described as “snow or ice conditions, as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow.” See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at Utah Code Ann. § 78B-4-402(1)(b) (LexisNexis 2012)). The Ski Resort contends that this expansion [**20] supports the “practical” necessity of interpreting “the Act broadly when allegations regarding the consistency of snow are in issue” because “the consistency of the snow cannot be objectively tested, measured, retained, analyzed, photographed, or reliably documented.” That this element may be hard to prove, however, is not a persuasive reason to otherwise repudiate our supreme court’s precedent rebuffing the notion that the presence of a risk on the list in the Act is necessarily the end of the inquiry. See White v. Deseelhorst, 879 P.2d 1371, 1374 (Utah 1994); Clover, 808 P.2d at 1044. We likewise reject the Ski Resort’s argument that the post-Clover amendment to the statute adding the competitive-skiing exemption conflicts with the Clover analysis in a manner that “would render the statutory language nonsensical.”

III. Enforceability of the USSA Release

[*P19] To the extent our analysis of the issues raised under the Act may not be dispositive of this case on remand, we next address the parties’ arguments related to the USSA release. See State v. James, 819 P.2d 781, 795 (Utah 1991) ( [HN12] “Issues that are fully briefed on appeal and are likely to be presented on remand should be addressed by [the appellate] court.”). The Ski Resort challenges the trial court’s determination that the Colorado choice-of-law provision [**21] in the USSA release was not enforceable in this case and the court’s subsequent application of Utah law. The Ski Resort contends that the USSA release is enforceable under both Utah and Colorado law and that as a result, the release immunizes it from the Rutherfords’ claims.11 We address each argument in turn.

11 Because of the manner in which we resolve the issues under this heading, we decline to address what impact, if any, the fact that the Ski Resort is not a signatory to the USSA release may have on the applicability of the release to the Ski Resort.

A. The Colorado Choice-of-Law Provision

[*P20] The Ski Resort contends that the trial court erred in ruling that the Colorado choice-of-law provision in the USSA release was not enforceable based on the court’s determination that “Utah is the only state that has an interest in the outcome of the case.” The Ski Resort explains that USSA’s operation as a national organization justifies the need for the choice-of-law provision. It also explains that the USSA designated Colorado law because the USSA holds “more major events in Colorado than any other state” and “more USSA athletes compete in Colorado than any other state,” thereby giving Colorado [**22] “a particular interest in the outcome of this case.” [HN13] We review the trial court’s choice-of-law analysis for correctness. See One Beacon Am. Ins. Co. v. Huntsman Polymers Corp., 2012 UT App 100, ¶ 24, 276 P.3d 1156.

[*P21] [HN14] “Since Utah is the forum state, Utah’s choice of law rules determine the outcome of” whether Utah law or Colorado law applies. See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 14, 54 P.3d 1054. To determine whether the choice of Colorado law will govern our substantive interpretation of the USSA release, we must determine first whether “‘two or more states have an interest in the determination of the particular issue'” in this case and, if so, we then analyze whether Colorado has a “‘substantial relationship to the parties or the transaction'” or there is a “‘reasonable basis for the parties[‘] choice.'” Prows v. Pinpoint Retail Sys., Inc., 868 P.2d 809, 811 (Utah 1993) (quoting Restatement (Second) of Conflict of Laws § 187(2)(a) & cmt. d (Supp. 1988)).

[*P22] In Prows v. Pinpoint Retail Systems, Inc., 868 P.2d 809 (Utah 1993), a Canadian company that conducted business throughout the United States sought to enforce a New York choice-of-law provision contained in a contract it entered into with a Utah-based business. Id. at 810–11. The Utah Supreme Court recognized that although “New York has no substantial relationship to the parties or the transaction, there is a reasonable basis for [the Canadian company’s] choosing New York law to govern the [contract]”–“to limit the number of forums in which it may be required to bring [**23] or defend an action.” Id. at 811 (internal quotation marks omitted). Nonetheless, the court concluded that “[t]he existence of that ‘reasonable basis,’ . . . [was] without effect” because “New York [had] no interest in the determination of [the] case.” Id. The court identified various “relevant contacts” that Utah had with the case and concluded that Utah was “the only state with an interest in the action.” Id. (internal quotation marks omitted). Specifically, the court noted that a “Utah plaintiff brought this suit against a Utah defendant and a Canadian defendant,” that the contract “was to be performed in Utah,” that the contract “was signed in Utah, and [that] the alleged breach and tortious conduct occurred [in Utah].” Id. In other words, without any similar relevant contacts, New York had no interest in the case for the choice-of-law provision to be enforceable. Id.

[*P23] Besides analyzing what contacts a state may have with the case, Prows does not provide much guidance for our analysis of whether Colorado has an interest in this case. Indeed, Prows appears to use the terms “interest in,” “substantial relationship,” and “relevant contacts” interchangeably. Accordingly, we look to the Restatement [**24] for guidance. See American Nat’l Fire Ins. Co. v. Farmers Ins. Exch., 927 P.2d 186, 190 (Utah 1996) (noting that [HN15] Utah courts should apply the test “explained in Restatement of Conflict section 188” to resolve “a conflict of laws question in a contract dispute”). The Restatement lists several factors a court might consider in analyzing the significance of a state’s relationship to the parties and transaction at issue, including, “(a) the place of contracting, (b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation and place of business of the parties.” Restatement (Second) of Conflict of Laws § 188(2) (1971).

[*P24] Here, any interest the state of Colorado may have in this case arises out of the possibility that Levi could have competed in Colorado at some point during the relevant ski season as a USSA member because USSA holds most of its competitions in Colorado and that is where most USSA athletes compete. According to the Ski Resort, “at the time they entered the contract, the parties did not know and could not have known the full geographic scope of where the [USSA] contract was to be performed.” All of these factors, however, relate to the reasonableness of USSA’s choice of Colorado law, not Colorado’s interest [**25] in or substantial relationship with the parties in this case or the transaction at issue. As dictated by Prows, USSA’s interest in having one state’s laws apply to its contracts with its members located throughout the country, and the logic behind its choice of Colorado law specifically, does not vest in the state of Colorado a “substantial relationship” or “interest in” the parties or the transaction before us. See Prows, 868 P.2d at 811. And, as in Prows, the state of Utah clearly has an interest in the determination of this case; the Rutherfords entered into the USSA release while domiciled in Utah, they remained domiciled in Utah at the time of Levi’s injury, Levi’s injury occurred in Utah, USSA is a Utah entity, and the Ski Resort’s principal place of business is in Utah. See id. Accordingly, the choice-of-law provision does not control in this case and we rely on Utah law to determine the enforceability of the release.

B. Enforceability of the USSA Release under Utah Law

[*P25] The Ski Resort argues that even if the Colorado law provision does not apply here, the USSA release is enforceable under Utah law. The trial court determined that the release was unenforceable under Utah law based on case law describing [**26] a general policy in Utah rejecting pre-injury releases signed by parents on behalf of minors and, alternatively, based on its determination that Levi was a recreational skier and pre-injury releases executed by recreational skiers are not valid under the Act. We agree with the trial court that the release, as it may apply to the Ski Resort, is unenforceable under Utah law, but we reach this conclusion based on somewhat different reasoning. See Bailey v. Bayles, 2002 UT 58, ¶ 13, 52 P.3d 1158 ( [HN16] “[A]n appellate court may affirm the judgment appealed from if it is sustainable on any legal ground or theory apparent on the record.” (emphasis, citation, and internal quotation marks omitted)).

1. Enforceability of the USSA Release Based on Levi’s Status as a Minor

[*P26] The trial court ruled that Utah law rejects pre-injury releases signed by a parent on behalf of a minor, rendering the USSA release invalid in Utah. The trial court interpreted Utah case law as “prevent[ing] enforcement of the USSA release,” relying specifically on one Utah Supreme Court case in which the court rejected as against public policy a pre-injury release signed by a parent on behalf of a minor as a prerequisite to the minor’s participation in a recreational horseback ride. See Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, ¶¶ 2, 13-14, 37 P.3d 1062, superseded [**27] by statute, Utah Code Ann. § 78B-4-203(2)(b) (LexisNexis 2012), as recognized in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 21 n.43, 301 P.3d 984.

[*P27] In Hawkins, a minor was injured when she was thrown off of a horse during a guided trail ride. Id. ¶ 3. She filed suit against the company that provided the horses and trail guides based on various claims of negligence. Id. The guide company argued that a release signed by the minor’s mother prior to the horseback ride precluded her suit. Id. In addressing the parties’ arguments, the supreme court recognized that releases for liability are, in general, permitted in most jurisdictions “for prospective negligence, except where there is a strong public interest in the services provided.” Id. ¶ 9. The court recognized various standards and criteria employed in other jurisdictions to aid in “determining public policy limitations on releases” but declined to specifically adopt any one standard. Id. ¶¶ 9-10. Instead, the Hawkins court held that “[i]n the absence of controlling statutes or case law,” “general statements of policy found in statutes detailing the rights of minors and the responsibilities of guardians” demonstrate a public policy in Utah disfavoring “contracts releasing individuals or entities from liability for future injuries to [**28] minors.” Id. ¶¶ 7, 11-13. The court was also persuaded by the “clear majority of courts treating the issue” that “have held that a parent may not release a minor’s prospective claim for negligence.” Id. ¶ 10 (collecting cases). Most notably, the court adopted the holding expressed by the Washington Supreme Court that “‘[s]ince a parent generally may not release a child’s cause of action after injury, it makes little, if any, sense to conclude a parent has authority to release a child’s cause of action prior to an injury.'” Id. ¶¶ 10, 13 (alteration in original) (quoting Scott ex rel. Scott v. Pacific W. Mountain Resort, 119 Wn.2d 484, 834 P.2d 6, 11-12 (Wash. 1992)). The Hawkins court affirmed the trial court’s ruling that because “the general rule permitting release of liability did not apply where a parent signs the contract on behalf of a minor,” the release signed by Hawkins’s mother on her behalf was unenforceable. Id. ¶¶ 6, 13.

[*P28] Since the Utah Supreme Court’s decision in Hawkins, the statute applicable in that case–the Limitations on Liability for Equine and Livestock Activities Act (the Equine Act)–has been amended to specifically “permit[] a parent to sign a release on behalf of a minor.” See Penunuri, 2013 UT 22, ¶ 21 n.43, 301 P.3d 984; see also Utah Code Ann. §§ 78B-4-201 to -203 (LexisNexis 2012) (Equine Act); id. § 78B-4-203(2)(b) (permitting a parent to sign a release). [**29] [HN17] Our supreme court recently recognized that Hawkins remains a valid example of how to determine whether a contract offends public policy when the public policy is not clearly discernible in the applicable statutes or case law. See Penunuri, 2013 UT 22, ¶ 28, 301 P.3d 984 & n.43. The court also explained that a public policy statement arrived at in the manner undertaken in Hawkins does not take precedence over express policy language in a controlling statute. See id. (indicating that, to the extent Hawkins conflicts with the amended Equine Act, the Equine Act controls and the conclusion in Hawkins is overruled).

[*P29] Here, the Act includes a clear “legislative expression[] of public policy” regarding the specific industry and activities at issue; thus, we need not undertake a Hawkins-like public policy analysis. See Rothstein v. Snowbird Corp., 2007 UT 96, ¶¶ 11, 19, 175 P.3d 560. The public policy statement in the Act provides,

[HN18] The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers [**30] have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

Utah Code Ann. § 78B-4-401 (LexisNexis 2012). [HN19] Our supreme court has interpreted this public policy statement as prohibiting pre-injury releases of liability for negligence obtained by ski-area operators from recreational skiers. Rothstein, 2007 UT 96, ¶¶ 16-17, 175 P.3d 560. And the court has outright rejected the notion that releases of liability serve the purpose of the Act–to immunize ski-area operators from liability generally–stating,

This reasoning fails to account for the Legislature’s inescapable public policy focus on insurance and ignores the reality that the Act’s core purpose is not to advance the cause of insulating ski area operators from their negligence, but rather to make them better able to insure themselves against the risk of loss occasioned [**31] by their negligence.

Id. ¶ 17.

[*P30] In other words, [HN20] the Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier that signed the release or whether the release was signed by a parent on behalf of a child. The Act does not differentiate among the “large number” of residents and nonresidents engaged in the sport of skiing that “significantly contribut[e] to the economy of this state” based on the participant’s age. Accordingly, we reject the trial court’s determination that the USSA release is unenforceable because it was signed by a parent on behalf of a minor; rather, the release is unenforceable based on the Act’s policy statement.

2. Enforceability of the USSA Release Based on Levi’s Status as a Competitive or Recreational Skier

[*P31] The trial court also determined that the USSA release was unenforceable in this case based on its determination that Levi was injured while engaging in recreational skiing, rather than competitive skiing. Utah courts have interpreted the Act’s policy statement as prohibiting pre-injury releases signed by recreational skiers, see Rothstein, 2007 UT 96, ¶¶ 3, 16, 175 P.3d 560, while permitting pre-injury releases signed by competitive skiers, see Berry v. Greater Park City Corp., 2007 UT 87, ¶¶ 18, 24, 171 P.3d 442. Here, the trial court [**32] rejected the release’s enforceability by likening Levi to the recreational skier in Rothstein.

[*P32] As previously discussed, our supreme court in Rothstein v. Snowbird Corp., 2007 UT 96, 175 P.3d 560, explained that [HN21] the Act was enacted in recognition that the ski industry, which plays a “prominent role in Utah’s economy,” was in the midst of an “insurance crisis.” Id. ¶ 14. To achieve the Act’s goal of ensuring that ski-area operators had access to “insurance at affordable rates,” the Act prohibited “skiers from recovering from ski area operators for injuries resulting from the inherent risks of skiing.” Id. ¶¶ 13, 15. The court explained that the Act was designed to strike a “bargain” with ski-area operators by freeing them “from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.” Id. ¶ 16. Accordingly, the Rothstein court concluded that “[b]y extracting a preinjury release from Mr. Rothstein for liability due to [the ski resort’s] negligent acts, [the resort] breached [the Act’s] public policy bargain.” Id.

[*P33] However, not long before Rothstein, our supreme court in Berry v. Greater Park City Corp., 2007 UT 87, 171 P.3d 442, deemed a pre-injury release enforceable based on the type of skiing involved in that case. [**33] Id. ¶¶ 18, 24. The pre-injury release in that case was signed in favor of a ski resort by an adult prior to, and as prerequisite for, his participation in a skiercross race. Id. ¶¶ 2-3. The Berry court recognized that the vitality of Utah’s ski industry is a matter of public interest, as evidenced by the enactment of the Act, and “that most jurisdictions that permit [pre-injury] releases draw the line [of enforceability of those releases] at attempts to limit liability for activities in which there is a strong public interest.” Id. ¶¶ 12, 17. The court then applied a six-part test to determine whether skiercross racing is an activity “in which there is strong public interest.” Id. ¶¶ 12, 15 (citing Tunkl v. Regents of the Univ. of Cal., 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441, 445-46 (Cal. 1963) (in bank)). The Berry court determined that “skiercross racing” “has simply not generated sufficient public interest either through its popularity or because of hazards associated with it to generate a call for intervention of state regulatory authority” and that it is therefore “subject to a separate analysis for the purpose of evaluating the enforceability of preinjury releases,” even though “the services provided by a business operating a recreational ski area and the services provided [**34] by a business sponsoring a competitive ski race may be covered by the provisions of the Act.” Id. ¶¶ 17-18. Accordingly, the supreme court held “that the release Mr. Berry executed in favor of [the ski resort was] enforceable.” Id. ¶ 24.

[*P34] Here, the Ski Resort asserted, and the trial court agreed, “that the critical distinction between Berry and Rothstein is that the plaintiff in Berry signed a release as a condition of participating in a competitive skiercross racing event, while the plaintiff in Rothstein was simply a recreational skier who signed a release when he purchased a ski pass.” Based on that distinction and the seemingly undisputed fact as between the Ski Resort and the Rutherfords that Levi was injured during race training, the Ski Resort argued that the USSA release was enforceable under Utah law because this case “more closely resembles Berry than Rothstein.”

[*P35] However, [HN22] the Act was amended in 2006 to expand the definition of “the sport of skiing to include participation in, or practicing or training for, competitions or special events.”12 See Act of March 1, 2006, ch. 126, § 1, 2006 Utah Laws 549, 549 (codified at Utah Code Ann. § 78B-4-402(1)(g) (LexisNexis 2012)). This amendment indicates the legislature’s intent [**35] that competitive skiing, including practicing and training for competitions, should be treated the same way as recreational skiing.13 Cf. Collins v. Schweitzer, Inc., 21 F.3d 1491, 1493-94 (9th Cir. 1994) (holding that Idaho’s similar act precludes claims brought by competitive skiers against ski resorts, particularly in light of the fact that the statute “does not distinguish between injuries suffered during racing and injuries suffered during other types of skiing”); Brush v. Jiminy Peak Mountain Resort, Inc., 626 F. Supp. 2d 139, 148–49 (D. Mass. 2009) (determining that a USSA waiver was valid under Colorado law and also concluding that a Massachusetts statute requiring ski-area operators to operate their ski areas “in a reasonably safe manner” does not impose on ski-area operators a “greater duty to racing skiers than to other, perhaps less experienced, recreational skiers” because [c]ompetitive skiers . . . have the same responsibility to avoid collisions with objects off the trail as other skiers”); Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 901 (D. Colo. 1998) (explaining that Colorado law defines “[c]ompetitor” as “a skier actually engaged in competition or in practice therefor with the permission of the ski area operator on any slope or trail or portion thereof designated by the ski area operator for the purpose of competition” (citation and internal quotation marks omitted)); Lackner v. North, 135 Cal. App. 4th 1188, 37 Cal. Rptr. 3d 863, 869, 875 (Cal. Ct. App. 2006) (holding that a ski resort has no [**36] duty to eliminate or protect a recreational skier from a collision with a participant in a snowboarding race and that the resort had no duty to supervise the race participants as they warmed up on a designated training run prior to a competition). In conjunction with Rothstein, the amendment supports the conclusion that pre-injury releases extracted by ski-area operators from competitive skiers are also contrary to public policy.

12 Although both Rothstein and Berry were decided in 2007, long after the May 1, 2006 effective date of the amendment to the Act, neither case acknowledges the amended text; the only reference to the amendment was in the Berry court’s inclusion of the 2007 supplement as part of its general citation to where the Act was codified. See Berry v. Greater Park City Co., 2007 UT 87, ¶ 17, 171 P.3d 442.

13 During the Senate floor debates on the 2006 amendment to the Act, Senator Lyle Hillyard, the sponsor of the bill amending the Act, explained that the “dramatic change[s] of our skiing” industry since the Act’s initial passage required that the Act be updated to “also include[] the sports of recreational, competitive, or professional skiing so that we cover not just the sport, but also the competitive and professional part.” Recording of Utah [**37] Senate Floor Debates, 56th Leg., Gen. Sess. (Feb. 13, 2006) (statements of Sen. Lyle Hillyard). This and other proposed changes were intended “to make [the Act] more compatible with what the ski industry is now doing.” Id. (Feb. 14, 2006). Senator Hillyard also noted that “there is no intention in [the proposed 2006 amendment] to exempt the negligence of the ski resort,” clarifying, “We are just talking about the inherent risks when people go skiing. . . . It’s just bringing the statute . . . up to date and clarify[ing its] policy and so that’s what we’ve done is taken those words and given better definitions and more specificity.” Id. (Feb. 13, 2006).

[*P36] To the extent our interpretation of the Act and its 2006 amendment may seem to be in conflict with the holding in Berry, we note that the plaintiff in that case was injured in February 2001, long before the Act contained the competitive-skiing exemption. Accordingly, [HN23] because the Act does not contain a specific provision permitting the retroactive application of the 2006 amendment, we presume the Berry court abided by “[t]he well-established general rule . . . that statutes not expressly retroactive should only be applied prospectively.” In re J.P., 648 P.2d 1364, 1369 n.4 (Utah 1982) [**38] ; see also Utah Code Ann. § 68-3-3 (LexisNexis 2011) (“A provision of the Utah Code is not retroactive, unless the provision is expressly declared to be retroactive.”). Therefore, we construe Berry as applying an older version of the Act and interpreting the Act as it existed prior to the insertion of the competitive-skiing exemption at issue in this case. As it applies to the Ski Resort, we determine that the USSA release is unenforceable because it is contrary to the holding in Rothstein, to the purpose of the Act’s 2006 amendment, and to the public policy statement in the Act, all of which reject pre-injury releases executed by competitive and recreational skiers of all ages in favor of ski-area operators.

CONCLUSION

[*P37] The trial court’s determination that Levi was not engaged in race training at the time of his injury, especially in the face of the fact, apparently undisputed by the parties, that he was injured during racing practice, was improper in the context of the Ski Resort’s motions for summary judgment. The trial court correctly denied the Ski Resort’s joinder in the Ski Team’s motion for summary judgment based on the Act and correctly granted the Rutherfords’ related partial motion for summary judgment, based on the court’s determination that there were disputed issues of material fact regarding the applicability of the machine-made snow exemption. We affirm the trial court’s denial of the Ski Resort’s motion for summary judgment based on the USSA release and the court’s determination that the Colorado choice-of-law provision in the USSA release is inapplicable here. We agree with the trial court that the release, as it pertains to the [**39] Ski Resort, is unenforceable under Utah law, but base this conclusion on different grounds than the trial court. We remand this case for further proceedings consistent with this decision.


Tour of Utah UCI ranking increases to 2.HC

International Ranking for Tour of Utah Cycling Event

Elevated to Highest Classification

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SALT LAKE CITY, UTAH (September 25, 2014) – One month following a record-setting 10th edition of the Larry H. Miller Tour of Utah, the Union Cycliste Internationale (UCI) has confirmed that the Utah race has been elevated to its highest classification on the UCI America Tour, a 2.HC stage race. The Tour of Utah joins the Amgen Tour of California (May 10-17) and USA Pro Challenge (August 17-23) as the only events on the UCI America Tour with 2.HC designations. The 2015 Larry H. Miller Tour of Utah will be held Aug. 3-9.The UCI grades each individual stage race for road cycling on a four-category scale. A 2.2 is the lowest rating for a multi-day stage race. A 2.HC designation, from the French “hors categorie” meaning beyond category, is the highest rating a stage race can receive outside of the WorldTour races, such as the Tour de France. A higher categorization means that the event offers greater prize money and more UCI points for competitors, allowing organizers to invite and attract the best teams in the world. As a 2.HC event in 2015, the Tour of Utah will be allowed to invite more ProTeams to compete. Up to 65 percent of the field may now be comprised of teams in the top world rankings.“This upgraded designation by the international governing body of cycling is further evidence of the Tour of Utah’s growing stature,” said Steve Miller, president of Miller Sports Properties, which organizes the Tour of Utah. “We aspire to continue to organize a world-class race that showcases our state and the sport.”The Tour of Utah began in 2004 as a three-day, regional competition for amateur and elite cycling athletes. By 2011 the Tour had expanded to six days of racing for professional teams and offered more than $125,000 for a prize purse, tripling the amount from previous years. The UCI recognized the Tour of Utah in 2011 as a 2.1-rated stage race, adding it to the UCI America Tour for the first time. For 2015, the Tour of Utah will be part of the UCI America Tour, which includes 25 professional cycling events in North America and South America.

“The elevation of the Larry H. Miller Tour of Utah to HC-status on the international calendar is a tremendous honor and a clear acknowledgement by cycling’s International governing body that the event is one of the world’s great races,” said USA Cycling CEO & President Steve Johnson. “I would like to congratulate Steve Miller and the extraordinary staff and volunteers of the Larry H. Miller Tour of Utah on the success of their efforts over the past 10 years; and also thank the Utah cycling and business community for their tremendous support of the event.”

In 2014, the Tour of Utah set records with 275,000 spectators and $20 million in economic impact for the state. The seven-day event, known “America’s Toughest Stage RaceTM”, featured 753 miles of racing and 57,863 vertical feet of climbing for 16 of the best professional teams in the U.S. and abroad. American Tom Danielson of Team Garmin-Sharp claimed the overall title for the weeklong Larry H.Miller Tour of Utah for a second year in a row. The inaugural Tour of Utah Women’s Edition presented by PlayHard GiveBack was held on Aug. 6, a 15-lap circuit race at Miller Motorsports Park, and was won by American Coryn Rivera of UnitedHealthcare.

Next year’s Tour of Utah will continue as the first internationally-sanctioned cycling competition in North America following the Tour de France. Host venues and the overall route for 2015 will be announced in the coming weeks. The Larry H. Miller Tour of Utah continues to be free to all spectators, making professional cycling one of the most unique professional sports in the world today. More information about the Tour of Utah and its partners can be found by visiting www.tourofutah.com, as well as social channels Facebook (tourofutah), Twitter (thetourofutah), Instagram (thetourofutah) and YouTube (2014 Tour of Utah).


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Alliance for a Better UTAH: great group fighting to protect Utah from Utahans

Alliance for a Better UTAHYou did it. On Monday we delivered nearly 3,000 signatures to BLM Director Juan Palma, asking the BLM to hold accountable Phil Lyman and his friends for breaking the law by riding roughshod through Recapture Canyon.Director Palma assured us that he is working to hold the protesters accountable. The BLM is preparing to release a report they will then deliver to the US Attorney’s Office in Utah. We anticipated this would happen by directing our petition not only to the BLM, but to US Attorney David Barlow as well. We will follow this every step of the way.

In the meantime, we hope you’ll scroll down to catch up on the latest from the Alliance for a Better UTAH. If you like what you see, chip in a few bucks by clicking here. We depend on donations from supporters like you to keep our elected leaders honest.

Happy Fourth of July,

Josh, Maryann & Isaac
Your Better UTAH Team


Utah Skier Safety Act

Utah Skier Safety Act

UTAH CODE ANNOTATED

TITLE 78B.  JUDICIAL CODE 

CHAPTER 4.  LIMITATIONS ON LIABILITY 

PART 4.  INHERENT RISKS OF SKIING

Go to the Utah Code Archive Directory

Utah Code Ann. § 78B-4-401  (2012)

§ 78B-4-401.  Public policy

   The Legislature finds that the sport of skiing is practiced by a large number of residents of Utah and attracts a large number of nonresidents, significantly contributing to the economy of this state. It further finds that few insurance carriers are willing to provide liability insurance protection to ski area operators and that the premiums charged by those carriers have risen sharply in recent years due to confusion as to whether a skier assumes the risks inherent in the sport of skiing. It is the purpose of this act, therefore, to clarify the law in relation to skiing injuries and the risks inherent in that sport, to establish as a matter of law that certain risks are inherent in that sport, and to provide that, as a matter of public policy, no person engaged in that sport shall recover from a ski operator for injuries resulting from those inherent risks.

§ 78B-4-402.  Definitions

   As used in this part:

   (1) “Inherent risks of skiing” means those dangers or conditions which are an integral part of the sport of recreational, competitive, or professional skiing, including, but not limited to:

      (a) changing weather conditions;

      (b) snow or ice conditions as they exist or may change, such as hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, or machine-made snow;

      (c) surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

      (d) variations or steepness in terrain, whether natural or as a result of slope design, snowmaking or grooming operations, and other terrain modifications such as terrain parks, and terrain features such as jumps, rails, fun boxes, and all other constructed and natural features such as half pipes, quarter pipes, or freestyle-bump terrain;

      (e) impact with lift towers and other structures and their components such as signs, posts, fences or enclosures, hydrants, or water pipes;

      (f) collisions with other skiers;

      (g) participation in, or practicing or training for, competitions or special events; and

      (h) the failure of a skier to ski within the skier’s own ability.

   (2) “Injury” means any personal injury or property damage or loss.

   (3) “Skier” means any person present in a ski area for the purpose of engaging in the sport of skiing, nordic, freestyle, or other types of ski jumping, using skis, sled, tube, snowboard, or any other device.

   (4) “Ski area” means any area designated by a ski area operator to be used for skiing, nordic, freestyle, or other type of ski jumping, and snowboarding.

   (5) “Ski area operator” means those persons, and their agents, officers, employees or representatives, who operate a ski area.

§ 78B-4-403.  Bar against claim or recovery from operator for injury from risks inherent in sport

   Notwithstanding anything in Sections 78B-5-817 through 78B-5-823 to the contrary, no skier may make any claim against, or recover from, any ski area operator for injury resulting from any of the inherent risks of skiing.

§ 78B-4-404.  Trail boards listing inherent risks and limitations on liability

   Ski area operators shall post trail boards at one or more prominent locations within each ski area which shall include a list of the inherent risks of skiing, and the limitations on liability of ski area operators, as defined in this part.

§ 72-11-201.  Passenger ropeways — Purpose and scope

   (1) In order to safeguard the life, health, property, and welfare of citizens while using passenger ropeways, it is the policy of the state to:

   (a) protect citizens and visitors from unnecessary mechanical hazards in the design, construction, and operation of passenger ropeways, but not from the hazards inherent in the sports of mountaineering, skiing, snowboarding, mountain biking, and hiking, or from the hazards of the area served by passenger ropeways, all of which hazards are assumed by the sportsman; and

   (b) require periodic inspections of passenger ropeways to ensure that each passenger ropeway meets “The United States of America Standard Institute Safety Code for Aerial Passenger Tramways,” or an equivalent standard established by rule under Section 72-11-210.

(2) (a) Except as provided in Subsection (2)(b), the committee, through the Department of Transportation, shall:

      (i) register all passenger ropeways in the state;

      (ii) establish reasonable standards of design, construction, and operational practices; and

      (iii) make inspections as necessary to implement this section.

   (b) The committee has no jurisdiction over the construction, modification, registration, or inspection of a private residence passenger ropeway.

 


Contributers Wanted! For a New Book on Adventure Education & Travel

CONTRIBUTORS WANTED! For a New Book on Adventure Education & Travel

What does adventure education & travel look like now and how will it look in the future?
Edited by Dr Rosemary Black, Charles Sturt University, Australia; Dr Kelly Bricker, University of Utah, USA

Readership: Undergraduate students and researchers in adventure education, adventure tourism, adventure therapy, outdoor recreation, and commercial recreation and professionals in the adventure education and adventure tourism industries.

Description: This new book will focus primarily on preparing undergraduate students for employment in the adventure profession as we move into the 21st century. This diverse profession will be explored in this new volume covering past and current trends, issues and programs, and future opportunities and challenges, as well as hot topics such as climate change, risk management, technology, sustainability and conservation.

Writers wanted for Chapters and Case Studies: Chapters 6-7,000 words and Case Studies at 2-3,000 words. We need writers for these topics:
Chapters
• Chapter on Adventure program design, delivery & evaluation
• Chapter on Outdoor recreation trends
• Chapter on operating a commercial adventure business
Case Studies
• Case studies on corporate adventures
• Case studies on communication, group dynamics & group management
• Regional case studies on adventure – Asia-Pacific, N. America, UK & Europe • Case studies on adventure on public lands/protected areas
• Case studies on artificial adventure venues
• Case studies on adventure programs for special needs groups
• Case studies on ethical issues in adventure
• Case studies on the use of technology in adventure
• Case studies on adventure program design, delivery & evaluation
• Case studies on iconic locations where adventure occurs

Interested in contributing to the book?

If you are interested in contributing to the book please contact Kelly Bricker – email kelly.bricker by 30 November 2012.

Final Chapters and Case Studies need to be submitted to the editors by 15 February 2013. Publisher: Venture Publishing Inc. Venture Publishing, Inc., 1999 Cato Ave, State College, PA 16801, USA. http://www.venturepublish.com/

Kelly S. Bricker
Associate Professor, Department of Parks, Recreation, and Tourism
Sustainable Tourism Management
The International Ecotourism Society, Chair
250 South 1850 East, Room 200
Salt Lake City, Utah 84112-0920
Office: 801.585.6503
Email: kelly.bricker

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Utah Rental Release void because the product was subject to recall

Jozewicz v. GGT Enterprises, LLC; 2010 U.S. Dist. LEXIS 53937

The public policy exception allows the release to be void when the recalled product was not pulled from the rental fleet.

This is a Utah ski rental case. The plaintiff rented skis from the defendant. While skiing, the plaintiff fell injuring her neck. She claimed she fell because the bindings prematurely released. The bindings were manufactured by K2 a subsidiary of the Jarden Corporation.

Prior to the plaintiff’s injury, K2 had notified the Consumer Product Safety Commission and issued a recall for the bindings the plaintiff was using. The recall was based due to a tendency for the bindings to unexpectedly release. The recall was issued by the CPSC and K2 had sent notice of the recall to retail and rental shops.

The plaintiff filed this suit in federal court against the defendant rental shop and the binding manufacture K2. The defendant rental shop filed this motion to dismiss because the plaintiff had signed a release when she rented the recalled skis and bindings.

Summary of the case

The defendant rental shop filed a motion for summary judgment because the plaintiff had signed a release upon renting the skis and bindings. The court first looked at releases and Utah’s law and found Utah allows people to “contract away their rights to recover in tort for damages caused by the ordinary negligence of others.” Under Utah’s law, there are three exceptions that can void a release when:

(1) the release offends public policy,

(2) the release is for activities that fit within the public interest exception, or

(3) the release is unclear or ambiguous.

The court found that the second and third exceptions were not at issue here. The first issue, that releases must be compatible with public policy under Utah’s law. The court looked at the public policy exception to the rule slightly different in Utah than in most other states that allow a release to be voided due to public policy issues.

The court looked at the federal law that created the Consumer Products Safety Commission and created the requirement that products be recalled.

Under 15 U.S.C. § 2064(b), manufacturers, distributors, and retailers are required to notify the United States Consumer Product Safety Commission when they become aware a product (1) fails to comply with applicable safety standards, (2) fails to comply with other rules, regulations, standards, or bans under any acts enforced by the Commission, (3) “contains a defect which could create a substantial product hazard,” or (4) “creates unreasonable risk of serious injury or death.”

The court then stated: “The law requires distributors and retailers to heed recall alerts issued by the Commission and ensure defective products are either fixed or not sold.” Finding this requirement puts an extreme burden on shops, retail or rental when dealing with recalled products.

The rental shop argued that the federal law cannot preempt state law, and state law allows releases. The court agreed, however, the court stated the law did not conflict or preempt the Utah law.

The court went on to say.

The rental of the ski bindings at issue in this case became unlawful once the recall notice became effective. Public policy should not favor allowing a party to insulate itself from harms caused to others arising from unlawful acts.

The said that if a release relieved the retailer of the duty to recall products, then the effect of the law would be nullified and would violate the value of the law. Public policy issues should encourage compliance with laws designed to make products safer not void them.

The court held the rental companies arguments were not valid and denied the motion for summary judgment.

So Now What?

If you get a recall notice, and you are in a retail store, rental shop, or distributor, remove the product from the shelves and/or the rental fleet. Period. The judge in his final sentence stated: “GGT’s preinjury release is unenforceable and invalid as a matter of public policy.” There is no leeway in that statement.

This may create disaster in a small rental shop. Most times the shop has one binding on all of its skis. It makes setting the bindings easier and makes training the employees on setting the bindings much easier also.

It can be a scary situation when you open an email and find you have no rental fleet. You should contact the company immediately and tell them that you are out of business effectively unless they respond and assist you in correcting the entire recalled product or replacing it.

This may be an issue you want to discuss with someone when you are negotiating bindings for your rental fleet.

Product recalls are not minor matter. Any product you have in your store that is subject to a recall is no longer available for sale until after the product has been fixed according to the manufacture’s requirements.

What do you think? Leave a comment.

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Tour of Utah Announces the Host Cities for the 2012 race.

Tour of Utah

Image via Wikipedia

Time Trial added to the race format for 2012

The Tour of Utah has announced the host cities for the 2012 race. Ogden, Tooele, Salt Lake City, Park City, and Snowboard Ski Resort will either host a start or finish at this year’s race.

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This race is becoming a great lead up to the USA Pro-Challenge which is scheduled a little over a week later.

See: Team Time Trial Highlights Changes for 2012 Tour of Utah; Host Cities Announced

Do Something

Get out and support professional cycling in Utah

What do you think? Leave a comment.

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

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ShmoozaPalooza Job Fair – At Outdoor Retailer trade show, Saturday, January 21, 2012

Malakye.com - Action Sports, Outdoor & Lifestyle Industry Jobs
There's an opportunity in your area!
7059.jpgShmoozaPalooza Job Fair – At Outdoor Retailer trade show, Saturday, January 21, 2012

This is your official invitation to participate in the ShmoozaPalooza which will take place at the Outdoor Retailer Show. The Shmooz is a one-of-a-kind gathering and opportunity for employers and prospective employees to connect in-person. It’s FREE to everyone – companies and job seekers!

Saturday, January 21, 2012
Outdoor Retailer Winter Market
At Marriott Downtown
Salt Lake City, Utah.

Meet With These Great Companies:

Petzl | Backcountry.com | Specialized Bicycle Components | ENVE Composites | GU Energy | Amer Sports | Black Diamond Equipment | Ogio

**HIRING? WANT TO GET YOUR COMPANY INVOLVED? Send an email to shmooz

For information on specific job opportunities, and to learn more, click here, or follow this link:

http://www.malakye.com/asp/front/CMSPage.asp?TYP_ID=4&ID=3970

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WHO?
YOU! The amazing people and companies that make up the Outdoor industry.

WHAT: The Shmooz:
11am – 4pm – Job Fair – come out and connect with great employers. Great employers, come out and connect with great employees.

WHY
It’s an IN-PERSON event! It brings a resume to life! It’s the the best way to connect with employment opportunities in the action sports and lifestyle-driven industries!

WHEN
Saturday January 21, 2012 – 11am – 4pm
(The trade show IS NOT OPEN to the public, only the Shmooz is open to the public.)

WHERE
Salt Palace Convention Center (Go To Site)
100 S. West Temple Salt Lake City, UT 84101 (View on Google Maps)

Location – accross the street at the Marriott Downtown

Parking – information on parking rates / location for the convention center.

HOW
Remember, it’s FREE! Simply click the button below to submit your resume and confirm your attendance as a candidate. (Employers – get in touch with us by emailing shmooz or get in touch with your account manager.)

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Utah Supreme Court Reverses long position on releases in a very short period of time.

Rothstein v. Snowbird Corporation (UT 2007)

In an amazing decision, the Utah Supreme Court ruled releases were no longer valid as a defense by Utah Ski Areas. With one statement, “We hold that the releases are contrary to the public policy of this state and are, therefore, unenforceable” place all outdoor recreation activities in Utah at risk.

In more confusing is the same Utah Supreme Court less than 90 days earlier had upheld a release signed by a skier in Berry v. Greater Park City Company, 2007 UT 87; 171 P.3d 442; 590 Utah Adv. Rep. 3; 2007 Utah LEXIS 192.

Yet 50 days later the same court upheld an injured skier’s right to sue, even though the skier had signed two different releases. In Rothstein the plaintiff had signed a release for his season pass at the defendant resort and a release for his Seven Summits Club Membership. Rothstein was injured when he skied into a retaining wall above where the wall had been roped off. There was a light dusting of snow which partially or did hide the retaining wall.

The court then analyzed the legislatures intention in creating the Utah’s Inherent Risks of Skiing Act, Utah Code Ann. §§ 78-27-51 to -54 (2002 & Supp. 2007) and concluded the act was enacted to help ski areas keep insurance costs down. In effect because the legislature had enacted an act to help the resorts, the resorts were limited solely to the defenses provided by the act.

For an analysis of this case see: Utah Supreme Court flip flop on releases for ski areas could have broader consequence (Subscription).


Is your Release and Risk Management Program Up To Date?

It’s that time of year. If you are an outdoor recreation program, summer camp, challenge course or outfitter have you had your risk management program reviewed and ready for the summer? Is your release up to date? Have you had an attorney review your release to make sure it complies with the latest court decisions, changes in the law and what the rest of the industry is doing?

If not, you should!

Release laws for your state and activity may not change for years, but sometimes it can change monthly. Connecticut, Utah and Arizona Supreme Courts have recently handed down decisions that complicate the laws in those states. Many other states including Colorado, California, Wyoming, Idaho and most eastern states have had decisions that may modify your release.

It’s that time of year, to get ready for the season, make sure your risk management and legal needs are up to date also.

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The State of Utah is now responsible for what bears do

A family from Provo Utah is suing the State of Utah and the US Forest Service for the death of their son by a bear. Samuel Ives was killed at a campground in American Fork Canyon by a nuisance bear. The family is claiming the State of Utah who “own” the wildlife and the US Forest Service on whose ground the bear was roaming and the campground was located.

The family says they are experienced campers and understood the risk. However if they had known that a nuisance bear was in the area they would not have stayed 15 minutes.

The state and the USFS had two chances to warn them of the fact that a dangerous bear was in the area.

See Family files lawsuits over fatal bear attack and Family to file lawsuits over fatal bear attack

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Remember the women who sued her date when she fell rock climbing with him?

Lindsey Enloe had met Stephen Stinson and had asked her out on a date. Stinson took Enloe climbing saying he had been climbing for 12 years. Allegedly Stinson had not been truthful about his climbing experience or the fact that he was married. The anchor Stinson set failed and Enloe fell, out of love, and into a hospital. Enloe then sued Stinson for the injuries she incurred in the fall.

The case garnered national attention. The Wall Street Journal said “We wonder how many dates she’ll get now.”

The Intermountain Commercial Salt Lake Times the Record listed the case as settled for $65,000 sometime in August of 2002. That was either an expensive date or an expensive lie. Either way, I suspect the costs for Mr. Stinson did not subside once his wife found out that he had been dating and now owed her $65,000. Even in Utah professionals have to be cheaper!

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