December 27, 2007
Another Skiing Case
'Tis the season for skiing cases. A week before Christmas, the Utah Supreme Court, by a 3-2 vote, held that waivers of the right to recover for the negligence of ski resorts are void as against state public policy. Utah follows the familiar two-step inquiry in analyzing waivers (express assumption of risk). First, is the language of the waiver clear? Second, even if the language is clear, does the waiver violate public policy?
The court acknowledged that public policy can be difficult to discern:
[P]ublic policy is a protean substance that is too often easily shaped to satisfy the preferences of a judge rather than the will of the people or the intentions of the Legislature.
However, the court stated it had found clear public policy in a statute that provided ski resorts are not liable for the inherent risks of skiing, so that the resorts would be able to acquire insurance at reasonable rates:
The bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance. By extracting a preinjury release from [plaintiff] for liability due to their negligent acts, [defendant] breached this public policy bargain.
The dissent stated that the majority had read into the statute more than was there:
Nowhere does the text suggest that ski area operators may not contractually further limit their liability for risks that are not inherent to skiing.
The full opinion [pdf] is available here. Thanks, again, to Alberto Bernabe for the tip.
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