By Doyice Cotten
Seven “snow” case waivers have been considered by courts in the last few months. Three will be presented here with two to follow in each of the next two posts.
Courts in Pennsylvania, New York, and Missouri have addressed the validity of waivers in snow tubing cases in the last year or so.
In Tayar v. Camelback Ski Corporation, Inc. (2012), Barbara Tayar was injured when struck by another snow tuber. The second participant was sent down the slope too quickly by the employee starter who failed to insure the course was clear; immediately after the collision, they were almost struck by a third participant.
The first major issue was whether the negligence of the employee was covered by the waiver (employees were not mentioned in the waiver). The court ruled that they were included because the corporation cannot act except through actions of employees – so the waiver was upheld for negligence. The second allegation was that the corporation was reckless. The Pennsylvania Supreme Court ruled very plainly that there is a dominant public policy against the enforcement of waivers for recklessness.
In a 2013 New York case (Rich v. Tee Bar Corp.), Tee Bar operated a snow tubing activity. One of the starters (employees) gave Rich an extremely strong push-off sending her down the hill at such a speed that she suffered injury when she struck a restraining wall and fell from the tube.
Prior to participating, Rich had signed a waiver that included the following pertinent language:
3. I acknowledge that ski area and riding trail conditions vary constantly because of weather and natural causes. I also understand that ice, variations in terrain, moguls, rocks, forest growth, debris and other obstacles and hazards, including other participants exist throughout the property. Therefore I acknowledge that participation in any sport or activity can be a hazardous activity and that I could suffer personal injury as a participant.
I hereby expressly acknowledge my understanding and acceptance of the foregoing and agree to assume the risk of any personal injuries which I may incur during my use of the Rocking Horse Facilities.
The United States District Court followed New York state precedent finding the waiver failed to reference “negligence,” thus the waiver was insufficient to protect the provider from liability for its own negligence. Interestingly, the federal court made no mention of the New York statute G.O.L. 5-326 which prohibits waiver enforcement in these circumstances.
Hidden Valley Golf and Ski, Inc. operated a Polar Plunge Snow Tubing Run at their resort (Guthrie v. Hidden Valley Golf and Ski, Inc., 2013). Guthrie and two friends had been snow tubing for more than an hour when they began a slide. At some point, Skyler became separated from Guthrie and Zach; as they waited for him, Skyler approached and collided with them injuring Guthrie. Guthrie subsequently sued alleging negligent maintenance on the part of Hidden Valley.
The trial court granted summary judgment to the club and Guthrie appealed alleging the waiver was ambiguous and failed to include the term “negligence” as well as not being bold and obvious. Pertinent parts of the waiver follow:
POLAR PLUNGE SNOW TUBING HIDDEN VALLEY SKI-TUBE-RIDE AREA
ACKNOWLEDGMENT OF RISK AND AGREEMENT NOT TO SUE
THIS IS A CONTRACT! **** PLEASE READ!
1. I understand and acknowledge that snow tubing is a dangerous, risky sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries.
2. I understand that part of the thrill, excitement and risks of snow tubing is that the snow tubes all end up in a common, run-out area at various times and speeds and that is my responsibility to try to avoid hitting another snow tuber, and it is also my responsibility to try to avoid being hit by another snow tuber, but that notwithstanding these efforts by myself and other snow tubers, there is a risk of collisions.
3. I acknowledge that the risks of snow tubing include, but are not limited to, the following:
• Collisions in the run-out area and other locations of the snow tubing facility, with such collisions happening between snow tubes, between a snow tube and another patron, between a snow tube and a snow tubing facility attendant, between a snow tubing patron who may or may not be in or on a snow tube at the time of the collision and other sorts of collisions; collisions with fixed objects, obstacles or structures located within or outside of the snow tube facility;
5. I agree and understand that snow tubing is a purely, voluntary, recreational activity and that if I am not willing to acknowledge the risk and agree not to sue, I should not go snow tubing.
7. IN CONSIDERATION OF THE ABOVE AND OF BEING ALLOWED TO PA[R]TICIPATE IN THE SPORT OF SNOWTUBING, I AGREE THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND ALL LIABILITY, HIDDEN VALLEY GOLF AND SKI, INC. OR PEAK RESORTS, INC.,THEIR OWNERS, OPERATIONS, LESSORS, LESSEES, OFFICERS, AGENTS, AND EMPLOYEES IF I OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT SUCH INJURIES ARE THE RESULT OF NEGLIGENCE ON THE PART [OF] THE SNOWTUBING FACILITY.
The appellate court held that the waiver was not ambiguous: it warned of risks, it included reference to “negligence,” and its title allowed only one interpretation. Further, the language was conspicuous with bold and all caps used. The waiver protected Hidden Valley from liability for its negligence.
Photo Credit: Thanks to sknaB noIA at Flickr.