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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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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.

clip_image002What do you think? Leave a comment.

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Author: Outdoor Recreation Insurance, Risk Management and Law

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

 

 

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

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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.