By Doyice Cotten
A 2015 Colorado case at a ski resort illustrates the importance of clarity of intent or meaning in liability waivers (Schlumbrecht-Muniz v. Steamboat Ski and Resort Corporation, 2015 U.S. Dist LEXIS 125899). Colorado courts examine four factors in determining the validity of a waiver. They are:
• whether the service provided involves a duty to the public
• the nature of the service provided
• whether the agreement was fairly entered into
• whether the agreement is clear and unambiguous
In this case, the only factor at issue was the fourth; plaintiff alleged the waiver was ambiguous.
Linda Schlumbrecht-Muniz traveled to the resort with the Florida Ski Team to participate in ski races. She registered and signed a waiver. After finishing a race, she skied down a trail heading toward the lift. She collided with a snowmobile parked near the lift, sustained serious injuries, and filed suit. The resort claimed protection from suit based upon the waiver she signed. The pertinent parts of the waiver follow:
In exchange for being permitted to participate in NASTAR events (the “Event”), I agree to the following: …
I acknowledge that participating in the Event poses a RISK OF PERSONAL INJURY to me and damage to my property, and I knowingly and voluntarily ASSUME ALL RISKS associated with my involvement in the Event and the risk of injury caused by the condition of any property, facilities, or equipment used during the Event, whether foreseeable or unforeseeable. I hereby release and agree not to sue NASTAR, Bonnier Mountain Group, Bonnier Active Media, Inc., the applicable sponsoring ski area where the Event is held, and the Event sponsors, along with their parent companies, affiliates, successors, assigns, employees, agents, or other volunteers, and insurers of any of the above (collectively, the “Releasees”) for any injuries, losses, damages, claims, liabilities, or expenses that are caused or alleged to be caused by the Releasees, their negligent or reckless acts or omissions, hazards that are normally associated with participating in the Event, or the condition of the property, facilities, or equipment used for the Event.[Bold added.]
She argued that the scope of the agreement was unclear. She argued that the agreement does not specify whether the waiver of liability extends to claims for injuries that occur outside of her participation in “the Event,” (the ski races), or whether its scope is limited to racing activities during the ski event. She claimed that the waiver does not apply to the collision since it occurred outside of the race course. The Defendant responded that the agreement plainly covers injuries that occur outside of the ski race and moved for summary judgment in favor of the Resort.
This type of ambiguity is not unusual in waivers. But activity providers relying upon a waiver for protection should know that when ambiguity exists, courts are generally bound to interpret the issue in the light most favorable to the plaintiff — not the relying party.
The court stated that “what matters is whether the intent of the parties was to extinguish liability was clearly and unambiguously expressed.” In this particular case, the difficult issue to interpret was “what the parties intended by the language ‘normally associated with participating the Event.’”
The court explained that there are two differing fairly and honest interpretations of this language
1) might be understood to bar all claims for injuries to a race participant based on any injury that occurred anywhere at the sponsoring ski area before, after, or during the time of the race, or
2) it could be understood to be limited to injuries that occur only on the race course during the race.
Because the waiver language is subject to differing interpretations, it is ambiguous. For that reason, the court denied defendant’s summary judgment motion. So the waiver did not protect due, in part, because of the ambiguous wording. The moral of this story is don’t 1) download a waiver from the Internet; 2) don’t copy a waiver from a book; and 3) don’t borrow a waiver from a friend. Have a waiver written specifically for your business — and make sure it is someone familiar with your sport/recreation business and someone who has written many such waivers.