Court in New York Ski Case Rules that Parental Waivers Allowing Minors to Ski are Valid & Enforceable

By Doyice Cotten

14933868050_4f1b1e9ce3_zBryan DiFrancesco’s son was injured while on a ski lift with a ski instructor employed by the defendant Win-Sum Ski Corp [DBA Holiday Valley, Inc.]. The uncle of the boy had signed a waiver of liability and assumption of inherent risks so that the 5 year-old could ski. The boy fell from the lift and sustained severe injuries. The father subsequently filed a suit in federal court against the ski resort on behalf of the boy (DiFrancesco v. Win-Sum Ski Corp., 2017 U.S. Dist. LEXIS 39695).

The ultimate resolution of the suit has not yet been adjudicated, but a key issue (enforceability of the release signed by the uncle) was addressed by the court. The accepted rule in New York is that a minor is not bound by a release executed by his or her parent. The court, however, pointed out that “Where a statute expressly permits a certain class of agreements to be made by infants, that settles the question and makes an agreement valid and enforceable.”

Here, the Safety in Skiing Code  (Article 18 – (18-101 – 18-108)) stated

(3) that it is appropriate, as well as in the public interest, to take such steps as are necessary to help reduce the risk of injury to downhill skiers from undue, unnecessary and unreasonable hazards; and (4) that it is also necessary and appropriate that skiers become apprised of, and understand, the risks inherent in the sport of skiing so that they may make an informed decision of whether or not to participate in skiing notwithstanding the risks. Therefore, the purpose and intent of this article is to establish a code of conduct for downhill skiers and ski area operators to minimize the risk of injury to persons engaged in the sport of downhill skiing and to promote safety in the downhill ski industry,”

The Code empowered the New York State Commissioner of Labor to promulgate any and all rules and regulations necessary to the implementation of this act.

  • The State Legislature used the term “skier” without expressly distinguishing the age of skier.
  • The State Legislature authorized and directed the Commissioner of Labor to enact necessary rules and regulations.
  • Regulations under the Safety in Skiing Code apply to “all skiers,” again without distinction due to the age of the skier.
  • “Skier” means any person wearing a ski or skis and any person actually on a ski slope or trail located at a ski area, for the purpose of skiing.
  • “Passenger” means a person in or on or being transported by a tramway.
  • “Passenger tramway” means a mechanical device intended to transport skiers for the purpose of providing access to ski slopes and trails.
  • Neither the Code nor Regulations create a separate infant category.
  • The Commissioner, by requiring regulations to apply to “all skiers” either 1) abrogated an infant’s common law right of disaffirmance or 2) authorized infant skiers to enter into binding contracts with ski area operators, including the warning and release to authorize the infant skier to engage in the risky activities of skiing and the related, risky activities leading up to skiing.

The court concluded that the Safety in Skiing Code statutory and regulatory scheme including “all skiers” makes releases signed by adults bind infant skiers and removes the infants’ common law right to disaffirm the releases executed in their minority. On this basis, the court denied plaintiffs’ motion in limine to exclude the Holiday Valley release.

Final Note: For those of you who were wondering, “What about G.O.L. 5-326? It prohibits waivers for places of recreation charging a fee.” That is true, but in this case the court essentially said that the “New York public policy carved out ski resorts from the general ban on releases by recreational facility operators. On this alternative ground, plaintiffs’ motion to exclude that release is denied.”

Risk Management Take-away

  • Liability waivers for all skiers, including minor skiers, in New York State are enforceable based on the Safety in Skiing Code.
  • Interestingly, the U.S. District Court seems to be saying the signing adult does not have to be a parent since it elected to deny the motion to exclude the waiver even though the signer was the uncle of the boy.

Photo Credit: Thanks to Torekhan Saranov via Flickr.