By Doyice Cotten
Matthew Rose rented a 2014 Polaris snowmobile from Summit Lodge. While approaching an opening in a wooden fence on the snowmobile, the throttle stuck on full-throttle and resulted in an injury to Rose.
The snowmobile has a thumb-operated throttle lever for acceleration; release of the lever is supposed to return the machine to idle. Normally, the machine has two methods of manual shut-off: a kill switch or by turning the key to off. However, the lodge had modified the snowmobile so that no key was required to operate it. Subsequently, Rose had only one option – the kill switch.
Recommendations of Owner’s Manual
The owner’s manual suggests that the operator 1) compress the throttle lever to ensure that it returns to the idle position without binding or hesitation when released, and 2) test the throttle safety switch to ensure that it is functioning properly. The owner’s manual also recommends the operator test these items before every ride, and checking both the throttle lever and the throttle safety switch at every service interval listed: 150 miles, 500 miles, 1,000 miles, 2,000 miles, and an annual preseason service.
Summit Lodge Maintenance Procedures:
- Documents all maintenance and repairs performed on the snowmobiles.
- Also inspects its snowmobiles on a regular basis.
- When a customer rents a snowmobile, an employee starts the machine, checks the throttle and the brakes, and drives it to a location where the customer can pick it up.
- When the customer returns the snowmobile, an employee then performs a more extensive inspection of the machine.
- This assessment follows a list found in the owner’s manual and includes testing the throttle lever and the throttle safety switch, but does not create written records for these routine inspections.
Rose sued Summit Lodge claiming negligence and gross negligence in the maintenance of the snowmobile’s throttle and negligent modification of the snowmobile so that it would run without a key.
Waiver of Liability
During the rental process, Rose signed a waiver of liability for negligence.
Rose claimed in his suit that the waiver was against public policy because waiver language in the state ski statute forbids the use of waivers by ski resorts; claiming that riding a snow mobile is similar to skiing, he claimed snow mobile rental waivers to be against public policy. The court disagreed. He also claimed the waiver was unenforceable because it was ambiguous, but failed to point out any specific ambiguity. The court stated that the waiver was unambiguous and pointed out that similarly worded waivers had been enforced in earlier Utah cases. Subsequently, the court ruled that the waiver protected against ordinary negligence claims.
Gross Negligence Claims
In addressing the claim that the defendant was grossly negligent in maintaining the machine, the court stated that “In Utah, gross negligence is `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.'”
The court pointed out that the defendant performed most of the recommendations of the manufacturer and took steps to see that the snow mobile was in good working order; hence, the plaintiff’s claim of failure to observe even slight care was unfounded. Further, It stated “In short, Rose has failed to point to any evidence suggesting the degree of utter indifference required for gross negligence.”
Regarding the claim of gross negligence in modifying the snow mobile, the court held that 1) Rose failed to cite any evidence that having only one shut-off method was riskier than having two methods, and 2) Rose presented no evidence to show that failure to have two shut-off methods was the cause of the accident.
The court ruled that the actions of Daniels Summit Lodge did not meet the requirements for gross negligence. The court granted summary judgment in favor of the defendant.
Risk Management Take-aways
- A well-written waiver can provide protection against liability for ordinary negligence in Utah.
- Waivers of ordinary negligence are not against public policy in Utah (with the exception of skiing).
- Use established risk management procedures with each piece of equipment and each customer.
- Waivers do not protect against liability for gross negligence, but Utah has a clear definition of gross negligence.
- Modification to equipment can increase provider risk of liability. In this case the provider was fortunate that the change was not a causal factor in the accident.
Photo Credit: Thanks to Stephen Chin via Flickr.