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Liability release

post #1 of 19
Thread Starter 
As part of buying a season pass, I was required to sign a liability release that included the following language:

1. In consideration of being permitted to use the ... facilities, I agree to RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS [the ski resort] from any and all claims I might bring as a result of physical injury, including death, or property damage sustained in connection with my use of [the] facilities INCLUDING CLAIMS BASED ON NEGLIGENCE OR BREACH OF WARRANTY. ... I promise not to bring a claim against or sue the Released Parties and agree that if anyone is physically injured or property is damaged while I am using the Released Parties facilities, I will have no right to make a claim or file a lawsuit against the Released Parties. ...

...

I HAVE CAREFULLY READ THE FOREGOING LIABILITY RELEASE, I UNDERSTAND ITS CONTENTS, AND I AM AWARE THAT I AM RELEASING CERTAIN LEGAL RIGHTS THAT I (OR THE MINOR CHILD) OTHERWISE MAY HAVE . I agree that this is a Release of Liability and Agreement Not to Sue, which will legally prevent me, or any other person, from filing suit or making any other claims for damages in the event of personal injury, death or property damage. I freely and voluntarily enter into this agreement. I understand that permission to use the resorts, their facilities, premises and equipment is being given to the undersigned participant (or guardian) in exchange for the execution of this Liability Release and Agreement Not to Sue. ...

I agreed because: 1) I assume that everyone who buys a season pass must and does, 2) I assume that a similar release is required by all ski areas, and, finally, 3) I assume that such a broad liability release is not enforceable. Does anyone have knowledge regarding whether such a broad liability release is enforceable? For example, it seems unlikely to me that you can be compelled to forego your right to sue for damages resulting from negligence on behalf of the ski resort. It's as much a matter of curiousity for me, as anything, prompted by a discussion in another thread.
post #2 of 19
out of curiosity, you don't have to sign a liability form when you buy a new car (one can potentially die driving) or when you fly (one can potentially die on a plane) do you?

i would think that if you were to be injured or die as a result of faulty equipment (i.e. the chair lift breaks) that you could hold the resort liable since when you buy a ticket and sign away any liability it's assuming that the resort itself is keeping all the equipment up to safety standards.
post #3 of 19
NO, the resort can not circumvent their legal responsibilities by having you sign such a waiver. It's just a ruse to help discourage frivolous suits.
"Your Honour, while it is true that I did shoot the defendant in the head with my 12-gauge, he signed a waiver so I'm allowed to do whatever I want to him.":
post #4 of 19
If you check the back of most lift tickets it says the same things. Basically, if you ski fast and out of control and get hurt it's not their fault. Makes enough sense.
post #5 of 19
Thread Starter 
Quote:
Originally Posted by Devils Fiddle View Post
If you check the back of most lift tickets it says the same things. Basically, if you ski fast and out of control and get hurt it's not their fault. Makes enough sense.
But that's not what the language I quoted says. It's a broad release of liability, prohibiting suing the ski area for any reason. If they're negligent and you get hurt, for example, you can't sue (according to the liability release). I'm pretty confident that such a liability release is not enforceable, but I'm curious to hear what others have to say.
post #6 of 19
Thread Starter 
Quote:
Originally Posted by Ghost View Post
NO, the resort can not circumvent their legal responsibilities by having you sign such a waiver. It's just a ruse to help discourage frivolous suits.
"Your Honour, while it is true that I did shoot the defendant in the head with my 12-gauge, he signed a waiver so I'm allowed to do whatever I want to him.":
I wonder at the breadth of the language, though, since narrower (and enforceable) language would seem effective in discouraging frivolous suits. And such overreaching just breeds ill will: it really put me off, frankly, but I didn't think much about not agreeing, for the reasons given in my original post.
post #7 of 19
You're also just about signing your life away every time you buy a normal lift ticket. Because of the disclaimer on the back of it, you're at fault unless there was some sort of gross negligence on the resort's part.
post #8 of 19
Several years ago my wife bought us a hot air baloon flight from a fellow down the road that had a small commercial operation.

The day before the flight (which was also to be a logged lesson for me), a "disclaimer" arrived in the mail which read .....

...... "injury or death due to equipment malfunction, pilot incompetency due to incapication by natural causes including drugs, alcohol or insanity ... should you choose, conventional insurance can be purchased for an additional $100 at the time of the flight"

:

When I questioned this, the operator indicated that it was "conventional and that I wasn't familiar with light general aviation".

I reminded him that we used to belong to the same pilots association, this is BS, and said see ya' in court since he was refusing a refund; he then grudgingly gave back my money. This was an obvious shakedown for an extra $100 and most people probably forked over the money .... how can you cancel a romantic moment hours before the flight.

Sorry .... a bit off topic but the "disclaimers" always remind me of this.

He was killed during an engine failure last month .... solo departing his strip.
post #9 of 19
The release is a broad form at best. It is not a worthless document though. It can be used and enforced and would depend upon the State and perhaps even county you are in. VERY GENERAL STATEMENT. Minor negligence or nuisance claims might be tossed---Gross or Malicious negligence claims would prevail against it. Example---an instructor gets so fed up with your little brat child---he slams her/him. You and your child can ski for free whereever you wish from now on. You sue the mountain for sore thighs after a tough day---you pay the Court costs and mountains attny fees.

-----------
Best example I have in real life---no suit or injury occured but could have. We are white water rafting on class V rapids. I mention on 3 occasions that our raft is loosing air and becoming so soft that I am loosing my balance. We have a patch and pump kit (but none of us, beside the guide, knew this at the time). The guide we paid over $100 each effectively ignored me advising this was ok. We made it though all of the 5's but during a 3 or 4 the raft bent on my side and eject me. Were I injured to the point my family felt the need to sue---I do not believe the release would have meant much---. If the raft never had a leak or if it did and no one noticed it, the release would have prevailed.
After we got everyone into the raft safe---we pulled over, the guide apologized and patched the raft....we even tipped him, which in hindsight might have been a mistake. But then the did provide beer when we landed.
post #10 of 19
Here in Oz, many of these blanket waiver things mention (grudgingly) that the waiver cannot cancel out any statutory rights or laws in existence. My read of them is, they are to make it clear to the customer that there are risks etc, and to make them feel that they can't get litigious if their leg hurts. I think the ultimate aim of these things is to reduce the insurance premiums a bit.
post #11 of 19
Thread Starter 
Quote:
Originally Posted by GregGaspar View Post
The release is a broad form at best. It is not a worthless document though.
I don't think it's worthless. I just don't believe that it works as a release from any possible claim, in particular, a claim based on negligence attributable to the ski area.

Quote:
Originally Posted by GregGaspar View Post
VERY GENERAL STATEMENT. Minor negligence or nuisance claims might be tossed---Gross or Malicious negligence claims would prevail against it. Example---an instructor gets so fed up with your little brat child---he slams her/him. You and your child can ski for free whereever you wish from now on. You sue the mountain for sore thighs after a tough day---you pay the Court costs and mountains attny fees.
Neither example is negligence. The first is battery. It IS a good example of something that I don't believe that any liability release is going to make go away. The second is ... nothing. It's just the normal result of using the mountain in the intended fashion. (Though in a country in which a man who looks nothing like Michael Jordan can sue Michael Jordan for a variety of bad juju resulting from his amazing resemblance to Michael Jordan, I'm hard pressed to say no one would ever sue for such "harm.")
post #12 of 19
Probably language required by the resort's insurance company.
post #13 of 19
Yep - they are generally enforceable against negligence claims. Generally not enforeceable against intentional conduct, or conduct that amounts to gross negligence. Of course, enforceability depends on the state of the particular state. In Washington, there is direct case law on point. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334 (2001). Skier sued Alpental for negligence -- case dismissed due to liability disclaimer. The negligence in that case was was:

"Chauvlier claims that while going down a trail called "Debbie's Gold," he ran into unmarked "bump/jumps" and "half-pipe" walls that had been erected by the ski area for use in an upcoming snowboarding competition called "Surf the Summit." Chauvlier claims he could not have seen the man-made structures from the top of the run and was completely surprised when he hit the structures and "went airborne." He contends Booth Creek was negligent in putting the temporary structures on the run and keeping the run open without warning recreational skiers."

If you are really interested, the full opinion can be read at: http://caselaw.lp.findlaw.com/script...7844-3&invol=3
post #14 of 19
Thread Starter 
Quote:
Originally Posted by Rusty View Post
Yep - they are generally enforceable against negligence claims. Generally not enforeceable against intentional conduct, or conduct that amounts to gross negligence. Of course, enforceability depends on the state of the particular state. In Washington, there is direct case law on point. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334 (2001). Skier sued Alpental for negligence -- case dismissed due to liability disclaimer. The negligence in that case was was:

"Chauvlier claims that while going down a trail called "Debbie's Gold," he ran into unmarked "bump/jumps" and "half-pipe" walls that had been erected by the ski area for use in an upcoming snowboarding competition called "Surf the Summit." Chauvlier claims he could not have seen the man-made structures from the top of the run and was completely surprised when he hit the structures and "went airborne." He contends Booth Creek was negligent in putting the temporary structures on the run and keeping the run open without warning recreational skiers."

If you are really interested, the full opinion can be read at: http://caselaw.lp.findlaw.com/script...7844-3&invol=3
Rusty,

I skimmed through the opinion. Thanks for finding that; I am interested. I'm a bit surprised too, though it is heartening to see that "releases cannot limit liability for acts falling `greatly below the standard established by law for protection of others.'" And, as you say, the enforceability of such releases will vary from state to state.

Skier/boarder beware.
post #15 of 19
Thread Starter 
Quote:
Originally Posted by Rusty View Post
Yep - they are generally enforceable against negligence claims. Generally not enforeceable against intentional conduct, or conduct that amounts to gross negligence. Of course, enforceability depends on the state of the particular state. In Washington, there is direct case law on point. Chauvlier v. Booth Creek Ski Holdings, Inc., 109 Wn. App. 334 (2001). Skier sued Alpental for negligence -- case dismissed due to liability disclaimer. The negligence in that case was was:

"Chauvlier claims that while going down a trail called "Debbie's Gold," he ran into unmarked "bump/jumps" and "half-pipe" walls that had been erected by the ski area for use in an upcoming snowboarding competition called "Surf the Summit." Chauvlier claims he could not have seen the man-made structures from the top of the run and was completely surprised when he hit the structures and "went airborne." He contends Booth Creek was negligent in putting the temporary structures on the run and keeping the run open without warning recreational skiers."

If you are really interested, the full opinion can be read at: http://caselaw.lp.findlaw.com/script...7844-3&invol=3
Rusty,

I skimmed through the opinion. Thanks for finding that; I am interested. I'm a bit surprised too, though it is heartening to see that "releases cannot limit liability for acts falling `greatly below the standard established by law for protection of others.'" And, as you say, the enforceability of such releases will vary from state to state.

Skier/boarder beware.
post #16 of 19
Woodstock,

Next season, just for fun, cross out the "won't sue" language, initial it and date it and give them your money. Most resorts are "smart" (cough) enough to just take your money.
post #17 of 19
Woodstocksez---"neither is negligence" that is your opinion, and it may be mine...but in the law and "INSURANCE" because that is who ultimately pays, a claim of negligence is what is needed to bring the insurance policy into effect. Trust me when I tell you--both examples could be shown to present a claim of negligence---the question is whether a judge or jury would buy it.

For sake of this arguement,, I went out of my way to show GROSS examples of the extreems. Sorry you did not understand my intent.

NOTE: In Louisanna---if you INTENTIONALLY shoot someone and hit them in a place you did not intend---your claim of negligence is ok with the courts and insurers must pay. As I stated, it depends on your State and then on the Judge or Jury. " I intended to shoot you so you would bleed, not die....opps."
post #18 of 19
Thread Starter 
Quote:
Originally Posted by GregGaspar View Post
Woodstocksez---"neither is negligence" that is your opinion, and it may be mine...but in the law and "INSURANCE" because that is who ultimately pays, a claim of negligence is what is needed to bring the insurance policy into effect. Trust me when I tell you--both examples could be shown to present a claim of negligence---the question is whether a judge or jury would buy it.

For sake of this arguement,, I went out of my way to show GROSS examples of the extreems. Sorry you did not understand my intent.
Greg, it's not my opinion. It's the law. Neither of the factual scenarios you present constitute negligence, not even arguably. If you had other facts in mind as part of either scenario, perhaps the situation may be different. (And how is insurance relevant to the enforceability of this liability release?)

I think I got your intent. Those are just not good examples for considering how a negligence claim may be treated in view of the liability release. They are good examples to show winning and losing cases, notwithstanding the liability release, which I gather was your intent (though the latter will lose even without the liability release).

quote=GregGaspar;558853]NOTE: In Louisanna---if you INTENTIONALLY shoot someone and hit them in a place you did not intend---your claim of negligence is ok with the courts and insurers must pay. As I stated, it depends on your State and then on the Judge or Jury. " I intended to shoot you so you would bleed, not die....opps."[/quote]

That's a bit muddled: I don't have a negligence claim against someone for shooting them in a place I didn't intend, not in Louisiana or any other state. Maybe you're trying to say that the shooter is contending that the shooter has been negligent so that the shooter's insurance policy (which presumably only covers negligent acts, not intentional ones) will pay any judgment against the shooter. In any event, again, how does whether an insurance policy covers a judgment bear on the enforceability of a liability release?
post #19 of 19

Question

If this really worked, why would ski resorts be spending money on liability insurance?
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