By Doyice Cotten
Karrol Leadbetter went snow tubing at Family Fun Management, a Maine amusement center. She suffered an injury and sued the center alleging negligence, gross negligence, and recklessness (Leadbetter v. Family Fun Mgmt, 2018).
The snow tube course consists of a number of parallel snow-covered tracks divided by man-made berms of snow. At the bottom of the tracks is a common runout area with a man-made pile of snow, which acts as a retaining wall to slow snow tubers at the end of their runs. The snow berms dividing the tubing tracks end prior to the common runout area. Adjacent to the tubing hill is a ravine or embankment. The embankment is located to the side of the runout area below track 11. Track 11 was closed during plaintiff’s participation in snow tubing. There was no barrier to prevent tubes sliding down track 10 from entering the runout area below track 11.
The following is a description of how the injury occurred:
After taking a tubing run down track 10, plaintiff encountered the retaining wall, slid backwards down it and through the runout area into the embankment. Plaintiff was unable to steer or stop her tube from entering the embankment. Plaintiff was injured as a result of sliding outside of the runout area and down the embankment. The parties dispute whether tubers have little ability to control their speed and direction while sliding down the retaining wall. The parties also dispute whether there was a protective barrier below track 11 preventing tubes from sliding into the embankment and whether track 11 was closed due to the hazard presented by the absence of such a barrier.
Prior to participation, Karrol’s husband purchased a ticket for her to use the snow tubing facilities. Warning signs at the ticket counter inform snow tubers that, under Maine law, they assume the inherent dangers and risks of the sport.
The tickets purchased by plaintiff’s husband contained a peel-off backing on which was an image of a stop sign next to large bold capital letters stating,
PLEASE READ CAREFULLY BEFORE REMOVING THIS BACKING.
Below the bold lettering, the ticket contained language stating:
[b]y removing this peel-off backing and affixing this ticket to your person, you are agreeing to be legally bound to the LIABILITY RELEASE AND COVENANT NOT TO SUE printed on your ticket and on signs adjacent to all ticket outlets.
Below these statements was the same warning displayed at the ticket booths informing tubers that they assume the risk of injuries resulting from the inherent dangers and risks of tubing. The front of the ticket contained the following statement:
I hereby accept and assume all risks of any property damage, personal injury or death, which may occur at the park area at which this ticket is used. I hereby COVENANT NOT TO SUE and release Seacoast Snow Park, its employees and agents, from any claims of liability for property damage, personal injury or death resulting from negligence of any kind, condition of the premises, operation of the Park area or actions or omissions of its employees or agents.
Karrol tubed with her ticket attached to her coat. Karrol asserts that her husband did not receive a copy of the ticket prior to paying for it and asserts that neither she nor her husband were aware that the release language on the front of the ticket differed from the warning language posted at the ticket counter and that on the ticket backing. Further, she points out that neither of them signed a waiver.
Issue of Statutory Immunity
While the defendant argues that the plaintiff was injured as a result of the inherent dangers and risks of snow tubing and fault in the design in the facility (for which recovery is barred by Maine’s ski liability statute, 32 M.R.S § 15217 (2017)), Mrs. Leadbetter argues that her injury was caused by the negligent operation and maintenance of the snow tubing facility– thus, not protected by immunity.
Section 15217 of the statute protects ski areas from liability for injuries caused by the inherent risks of skiing, but ski areas are liable for injuries resulting from negligent operation or maintenance. The statute defines inherent risks of skiing as “those dangers or conditions that are an integral part of the sport of skiing.” Included are 1 ) natural and man-made variations in steepness or terrain; and 2) collisions with or falls resulting from fences, enclosures, and other man-made objects or structures.
The court stated that there was a genuine issue of material fact as to whether defendants exercised reasonable care in operation of the park.
Examination of the Waiver
While defendant claimed protection from the waiver, Leadbetter challenged its validity base on four arguments:
(1) it is void against public policy;
(2) the release terms on the lift ticket do not reflect a meeting of the minds;
(3) the release terms do not clearly and specifically refer to the negligence claims at issue; and
(4) to the extent the ticket does create an enforceable release, it does not bar plaintiff’s claims for gross negligence and recklessness.
The Court Examined the Contrary to Public Policy Charge
Leadbetter claimed the waiver was against public policy because it was in violation of the ski statute; therefore, it is congruent to the purpose of the statute.
Maine disfavors waivers of liability, but the Maine Supreme Court has held that such contracts “do not, as a general rule, violate public policy.” This court cited a previous case saying “In Maine, a contract is unenforceable as violating public policy . . . only if it violates a well-defined and dominant policy that may be ascertained from the law and legal precedent.”
It went on to note that
. . . the statute places responsibility for injuries caused by the inherent risks of skiing on the skier. Ski areas expressly remain liable for injuries caused by the negligent operation or maintenance of the ski area. The statute thus expresses an intent to limit a ski area’s liability only for those injuries caused by the inherent risks of the sport. . . . Enforcement of the liability release in this case would contravene the intent of the legislature; the release is therefore void as against public policy.
Examination of the Contract
Maine courts have determined that waivers of negligence liability are disfavored and must be strictly construed against the party seeking immunity. To release one from liability for negligence, the contract “must expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability.” In fact, the Maine Supreme Court has indicated that “it must be beyond doubt that a plaintiff intended to grant a defending party immunity from liability for the defending party’s own negligence.” Therefore, such a contract must show the parties mutually assented to be bound by all the material terms of the contract.
The court stated that in this case, there is no evidence to indicate that plaintiff or her husband had actual notice of the release language prior to purchasing their tickets; no evidence whether plaintiff peeled off the ticket backing and affixed the ticket to her jacket; and no evidence that she was aware that the lift ticket contained the release language. The court concluded that there was a genuine issue of material fact regarding whether a contract exists that includes the terms of the waiver.
Examination of the Waiver Terms
Waiver language must clearly express an intent to release defendants from liability for the negligent operation and maintenance of the snow park. Plaintiff argued that the language could be construed to release defendants only from liability for injuries caused by the inherent risks of snow tubing. Under Maine waiver law, a contract “must expressly spell out with the greatest particularity the intention of the parties contractually to extinguish negligence liability” in order to relieve a provider of provider negligence.
The liability release language on the ticket backing states:
PLEASE READ CAREFULLY BEFORE REMOVING THIS BACKING
By removing this peel-off backing and affixing this ticket to your person, you are agreeing to be legally bound to the LIABILITY RELEASE AND COVENANT NOT TO SUE printed on your ticket and on signs adjacent to all ticket outlets.
WARNING: Under Maine law, a Boarder/Tuber assumes the risk of any injury to person or property resulting from any of the inherent dangers and risks of boarding/tubing and may not recover from any park area operator for any injury resulting from any of the inherent dangers and risks of boarding/tubing, including, but not limited to ….
The court acknowledged the presence of signs at the ticket counters warning customers that tubers assume the risk of injuries resulting from the inherent risks of tubing; likewise, there was no evidence that there were signs informing customers that by purchasing a ticket they were agreeing to release defendants for injuries resulting from the negligent operation or maintenance of the snow park. It seemed that with “the reference on the ticket backing to the signs located at the ticket counter, a customer could infer that the ticket backing reflects an intent to release defendants from liability only for those injuries resulting from the inherent risks of the sport.” In addition, the court noted that the ticket backing refered to the liability release printed on “this ticket” and does not specify the liability release language printed on the front of the ticket. All things considered, the court stated the waiver “. . . does not clearly and unequivocally reflect plaintiff’s intent to release defendants from liability for injuries resulting from defendants’ negligent operation or maintenance of the snow park.”
Examination for Gross Negligence and Recklessness Claims
Leadbetter claimed that even if the ticket releases defendants from liability for negligence, it does not bar her claims for gross negligence and recklessness. Family Fun responded that gross negligence is not recognized in Maine and there was no evidence supporting either claim. The court stated that there are no degrees of care and no degrees of negligence; that gross negligence is simply a synonym for willful and wanton injury. The court noted that the Maine Supreme Court had stated in dicta that waivers are not enforceable in cases of gross negligence or willful and wanton misconduct.
The court concluded that Leadbetter had raised an issue of material fact regarding the park manager’s awareness of the hazard presented by the absence of a barrier to the runout area. Defendants argue that they did not willfully ignore any risk; whether their conduct was willful and wanton is a question of fact for the jury. The court ended by concluding that there was a genuine issue of material fact as to whether the defendant’s conduct was willful and wanton.
Family Fun Management’s waiver and conduct present a number of problems. Obviously, their risk management person(s) needed to do a thorough analysis of their course and procedures.
Regarding the waiver process, there is no substitute for a good waiver administered with sound procedures. In a state like Maine, providers need to take great care in the development of the waiver:
- Take care that inherent risk and liability for negligence are not presented in a way they can be confused. Use a waiver developed for you by someone knowledgeable and experienced in preparing waivers.
- Be certain to clearly state release from liability for injuries resulting from the negligence of the provider (name).
- Make sure that the person signing the waiver understands the purpose and limits of the waiver. The waiver should be signed – rarely are unsigned waivers enforced. (It should be obvious that the process used in this case leaves too many opportunities in which a person might not know they are agreeing to an unfavorable contract.)
- Be aware that in most states a waiver will not protect against gross negligence, recklessness, or willful and wanton conduct – regardless of how they are defined.
Photo Credit: Thanks to Loup Loup Ski Bowl via Flickr.