By Doyice Cotten
I have read well over 1000 sport and recreation waiver cases; occasionally, a strange one comes along. But of all the cases I have examined, Dearnly v. Mountain Creek (2012 N.J. Super. Unpub. LEXIS 527) has to be the most bizarre.
First, the sequence of events:
Mrs. Dearnly was eligible for a free season pass at the Vernon Ski Resort as a job benefit.
Nov. 2008: Mr. Dearnly wanted to go snowboarding, so Mrs. Dearnly applied for and obtained a ski pass. She signed a waiver on behalf of her husband.
Jan. 2009: Mr. Dearnly went snowboarding at the Mountain Creek ski area and was seriously injured. He required emergency back surgery and the implantation of a metal rod and screws. He spent 6 weeks in the hospital, endured two more surgeries, and spent weeks in therapy and rehabilitation.
Oct. 2009: Mr. and Mrs. Dearnly filed a personal injury suit against Mountain Creek Resort.
Dec. 2009: Two months later, (YOU ARE NOT GOING TO BELIEVE THIS!) Mr. Dearnly decided he wanted to go snowboarding again. He applied for a pass and received it.(YOU ARE REALLY NOT GOING TO BELIEVE THIS!) He was required to sign a waiver. At the top of the second page was the following language:
I FURTHER RELEASE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS THAT I MAY NOW HAVE AGAINST MOUNTAIN CREEK RESORT, INC. THIS RELEASES ALL CLAIMS, INCLUDING THOSE OF WHICH I AM NOT AWARE AND THOSE NOT MENTIONED IN THIS RELEASE. THIS RELEASE APPLIES TO CLAIMS RESULTING FROM ANYTHING WHICH HAS HAPPENED UP TO NOW.[bold added]
Apr. 2011: The trial court judge, having granted defendant’s motion to amend its answer to include the release, granted summary judgment to Mountain Creek based upon the release of liability signed by Mr Dearnly.
Mar. 2012: The Superior Court of New Jersey, Appellate Division ruled that “from our review of the undisputed factual record, we are satisfied that this case does not present any novel or first impression issues. Rather, it revolves around an ordinary release —— not exculpatory —— clause and is governed by familiar principles of contract interpretation.”
The court went on to state that
Mr. Dearnley’s 2009 agreement with defendant neither eroded defendant’s duty of care nor did it incentivize negligence. Each of the contracting parties gained or gave away something of value. There was no coercion, duress, fraud, or sharp practices afoot. Public policy is not offended by requiring a non-incapacitated adult to honor the type of promise given here. . . .(holding that in the absence of fraud, misrepresentation or overreaching by the releasee, in the absence of a showing that the releasor was suffering from an incapacity affecting his ability to understand the meaning of the release and in the absence of any other equitable ground, it is the law of this State that the release is binding and that the releasor will be held to the terms of the bargain he willingly and knowingly entered).
So, the court upheld the summary judgment ruling in favor of Mountain Creek.
Photo Credit: Thanks to Prosto Photos at http://www.flickr.com/photos/prosto/385803364/sizes/n/in/photostream/
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