U.S. District Court Case Clouds Vermont Waiver Law

By Doyice Cotten

6970878132_084eed5183_m-1Over the past 20 years four Vermont Supreme Court rulings have made Vermont waiver law relatively clear. A recent U.S. District Court for the District of Vermont ruling (Littlejohn v. Timberquest Park at Magic, LLC, 2015) seems to have muddled the issue. It seems that occasionally federal courts get it wrong in predicting how a state supreme court would rule.

The Vermont Supreme Court (Dalury v. S-K-I, LTD, 1995), when ruling on whether a ski resort waiver was against public policy, concluded that the “determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations.” It went on to say “Generally, a private recreational business does not qualify as a service demanding a special duty to the public, nor are its services of a special, highly necessary or essential nature.” The Dalury court, however, disagreed with this commonly accepted interpretation stating “We do not accept the proposition that because ski resorts do not provide an essential public service, such agreements do not affect the public interest.” The court discussed factors it felt determined if a recreational sport business involves a legitimate public interest: 1) is the facility is open to the general public; does it allow all skill levels; and is a substantial number of the public involved (in the case of skiing, it was open to the public, open to all skill levels, and involved a thousand or more each day); and 2) is the operator in the best position to assure the safety of visitors (for instance, the ski operator controls and maintains the premises, lifts, and ski slopes).

The Dalury court said that in Vermont a business owner has a duty to keep its premises reasonably safe. It went on to say that a business invitee has a right to assume that the premises are reasonably safe; moreover, the operator, not the participants, has the expertise and opportunity to “foresee and control hazards, and to guard against the negligence of their agents and employees. They alone can properly maintain and inspect their premises, and train their employees in risk management.” In a subsequent case involving a ski race open to the public (Spencer v. Killington, LTD, 1997), the Supreme Court again declared a ski operator waiver to be against public policy – for the same reasons as in Dalury.

In two ensuing cases, one a motorcycle test drive (Thompson v. Hi Tech Motor Sports, Inc., 2008) and the other a motocross race open to only interested 300 club members (Provoncha v. Vermont Motocross Association, 2009), the Vermont Supreme Court determined the waivers were not opposed to public policy. Thompson differed from Dalury and Spencer in the nature of the service (test drive) and the total lack of control the provider has on a motorcycle test drive; regarding Provoncha, the court stated “we have no difficulty in determining that the service provided [motocross racing] by VMA and Driver is neither of great importance to the public nor open to the public at large.” The court also listed stock car racing, parachute jumping, scuba diving, and mountaineering as activities of no great public interest and not open to the public at large. In addition, it pointed out that operators in this type of activity have little or no control of the environment in which the activities occur. Contrast this with the control possible for activities such as trampoline parks, bowling lanes, health clubs, and golf courses.

Thereby, the Vermont Supreme Court seems to have created criteria for determining whether or not waivers are against public policy for any particular recreational sports activity – nature of the activity and degree to which the operator can control the activity.

Littlejohn Case   

In the 2015 Littlejohn case, the ruling by the U.S. District Court for the District of Vermont on a zip line incident seemed to conflict with previous Vermont Supreme Court Rulings. The business was open to the general public, participants of all skill levels were allowed, and the operator was in the best position to assure the safety of visitors; however, the Supreme Court decisions also consider whether a substantial number of the public is involved. Hundreds or even thousands participate in snow skiing daily during the season while very few take motorcycle test drives and the motocross case involved only those interested among the club’s 300 members. In Littlejohn, the number of clients was estimated to be about 1000 a year or about 10 visitors a day during the 100 day season. The court deemed the waiver to be against public policy even though very few people utilized the zip line.

So What is Vermont Waiver Law?

It is hard to say. According to the Vermont Supreme Court, waivers for ski operations open to the general public and for other recreational sports involving 1) operator control of the venue and  2) large numbers of participants  are against public policy.

We will have to wait for other cases to learn if the Vermont Supreme Court expands its public policy violation criteria to include recreational sports operations involving relatively small numbers of participants.

Photo Credit – Thanks to Emilian Robert Vicol for his photo from Flickr.

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