By Doyice Cotten
Theresa Brigance was injured at Vail while taking beginning skiing lessons. Vail claimed no liability on the basis of a required liability waiver. Brigance’s ski boot became wedged under the chair in the ski lift. Interestingly, Vail was unable to produce a signed waiver in court.(Brigance v. Vail Summit Resorts, Inc., 2017 U.S. Dist. LEXIS 5447)
Liability waivers sometimes fail because they are not broad enough to cover the circumstances of the incident; on the other hand, waivers in some states fail when the court considers the waiver overly broad. The waiver in this case was extremely broad. Note the breadth of the waiver in the parts produced below.
Note: The bold language is as it was in the waiver. Comments by the author are italicized.
RESORT ACTIVITY, SKI SCHOOL & EQUIPMENT RENTAL WARNING,
ASSUMPTION OF RISK, RELEASE OF LIABILITY & INDEMNITY AGREEMENT
THIS IS A RELEASE OF LIABILITY & WAIVER OF CERTAIN LEGAL RIGHTS
- The person who is participating in the Activity (defined below) is referred to as a “Participant.” I am either the Participant or . . . the Participant’s parent or legal guardian. I understand that participating in ski and ride school, skiing, . . . and using the ski area facilities, including the lifts, for any purpose (the “Activity”), can be HAZARDOUS AND INVOLVE THE RISK OF PHYSICAL INJURY AND/OR DEATH.
Notice the breadth of activities encompassed by the waiver: in ski and ride school, skiing, . . . and using the ski area facilities, including the lifts, for any purpose (the “Activity”); also, note that this paragraph includes the first warning of risk.
- I understand the dangers and risks of the Activity and that the Participant, as a “skier” (as may be defined by statute or other applicable law),ASSUMES ALL INHERENT DANGERS AND RISKSof the Activity.
In this second paragraph, the signer affirms understanding of the risks and assumes those risks.
- I expressly acknowledge and assume all additional risks and dangers that may result in property damage, physical injury and/or death above and beyond the inherent dangers and risks of the Activity, including but not limited to: Falling; . . . following the direction[*6] of an instructor or guide; equipment malfunction, failure or damage; improper use or maintenance of equipment; . . . loss of balance; . . . the negligence of Participant, Ski Area employees, an instructor . . . , or others; . . . lift loading, unloading, and riding; . . . I UNDERSTAND THAT THE DESCRIPTION OF THE RISKS IN THIS AGREEMENT IS NOT COMPLETE AND VOLUNTARILY CHOOSE FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE.
Here, the signer again acknowledges and assumes the risks including property damage, physical injury, death, etc., beyond inherent risks including “: Falling; . . . following the direction [*6] of an instructor or guide; equipment malfunction, failure or damage; improper use or maintenance of equipment; . . . loss of balance; . . . the negligence of Participant, Ski Area employees, an instructor . . . , or others; . . . lift loading, unloading, and riding;” and more. Of particular interest in the list are 1) negligence of employees and instructor and 2)” lift loading, unloading, and riding.” The lift, of course, is of particular importance because the plaintiff was injured on the lift.
Note that the paragraph also included, in bold print, a statement that the participant CHOOSE(s) FOR PARTICIPANT TO PARTICIPATE IN AND EXPRESSLY ASSUME ALL RISKS AND DANGERS OF THE ACTIVITY, WHETHER OR NOT DESCRIBED HERE, KNOWN OR UNKNOWN, INHERENT OR OTHERWISE
- Participant assumes the responsibility of maintaining control at all times while engaging in the Activity and for reading, understanding, and complying with all signage, including instructions on the use of lifts. Participant must have the physical dexterity and knowledge to safely load, ride and unload the lifts.
Paragraph 4 the participant assumes responsibility for 1) maintaining control at all times; 2) reading, understanding, and complying with signage and instructions; and 3) having physical dexterity to “safely load, ride and unload the lifts.” Also note that the language regarding the lift is of particular importance because the plaintiff was injured on the lift.
* * *
- Additionally, in consideration for allowing the Participant to participate in the Activity,I AGREE TO HOLD HARMLESS, RELEASE, INDEMNIFY, AND NOT TO SUEVail Resorts, Inc., The Vail Corporation . . . and all of their affiliated companies and subsidiaries, including the resort owner or operator . . . (each a “Released Party”) FOR ANY [*7] PROPERTY DAMAGE, INJURY OR LOSS TO PARTICIPANT, INCLUDING DEATH, WHICH PARTICIPANT MAY SUFFER, ARISING IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THOSE CLAIMS BASED ON ANY RELEASED PARTY’S ALLEGED OR ACTUAL NEGLIGENCE OR BREACH OF CONTRACT AND/OR EXPRESS OR IMPLIED WARRANTY.
And if paragraphs 1-4 were not enough, in paragraph 6 the client agrees to waive liability, to indemnify Vail for any loss, and not to sue Vail for any injury, death, or loss arising IN WHOLE OR IN PART OUT OF PARTICIPANT’S PARTICIPATION IN THE ACTIVITY — even if the incident involved provider negligence, breach of contract, or breach of warranty.
One issue was the fact that the resort did not produce a signed waiver. The resort provided evidence that all skiers, without exception, had to sign a waiver before participating. Courts in some states might have been reluctant to enforce such a missing waiver.
Plaintiff also argued that the Ski School Waiver was unenforceable as against public policy.
Under Colorado law, waivers are generally disfavored, but “are not necessarily void … as long as one party is not ‘at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence.'” To be enforceable, a waiver in Colorado must meet four criteria:
1) there must be no duty to the public;
2) the service performed must not be an “essential service”;
3) the contract must be fairly entered into; and
4) the intention of the parties must be expressed in clear and unambiguous language.”
The court held that under Colorado law, recreational businesses own no special duty to the public. It also ruled that ski resorts perform no “essential service.” Further, the court agreed that the contract was offered on a take-it-or-leave-it basis, but that it was not adhesionery because the service was not essential. Finally, the intent of the contract was expressed in clear and unambiguous language (see the previous discussion of the waiver language). There could be no doubt that the intent was to relieve the resort of liability for injuries resulting from either inherent risks of skiing or from the negligence of Vail and its employees.
The court ruled that the claims of the plaintiff were barred by the broad scope of the waiver signed by the plaintiff; subsequently, the court granted summary judgment in favor of the resort.
Photo Credit: Thanks to Paul Sableman on Flickr.