Contracts no good in Utah: Rothstein v. Snowbird Corp.

by Ted Frank on December 19, 2007

In a 3-2 decision, the Utah Supreme Court has held a liability waiver unenforceable, and permitted a skier to sue a resort for his injuries in a skiing accident, notwithstanding his agreement to the contrary by disingenuously expanding a state assumption-of-the-risk statute for ski resorts to forbid any contractual modification of liability. When even Utah refuses to honor contracts, you know we’re in trouble.

Edited to add: For some reason, multiple commenters who haven’t read the opinion are claiming that the only thing the opinion does is require a signature. Not so: Rothstein explicitly signed a release, and the release only covered negligence (permitting Rothstein to sue for intentional torts). Rothstein realized the benefit of the bargain, by getting season tickets for a considerably cheaper price than he would have been able to if the resort knew he wasn’t going to honor his end of the bargain. The Utah Supreme Court (not an intermediate appellate court) rewrote the agreement retroactively. Consumers are hurt.

{ 13 comments }

1 Anonymous Attorney 12.19.07 at 2:01 pm

“Contrary to public policy,” saith the court. Or, contrary to the judges’ whims. This is one of those little-used (for good reason) judicial versions of the dynamite stick in the law’s game of rock, paper, scissors.

Now that ski resorts – or any other place where inherently dangerous activity goes on – cannot disclaim liability, look for places to shut down, or entrance prices to skyrocket.

Unbelievable. Contract means nothing. Hey, Utah Supreme Court! Why not scrap the entirety of the common law, right now, and just replace it with “our mood of the day”?

2 Adam 12.19.07 at 2:07 pm

That headline is a little much, isn’t it. Contracts are still plenty enforceable in Utah. The tenuous part of what the resorts have been doing is saying that you agree to a “contract” that is handed to you on the back of your lift ticket.

The resort (or anyone else) shouldn’t be protected from negligence, just because they announce in advance that they aren’t responsible for their own negligence.

This headline is a little silly, don’t you think?

[Adam's characterization is incorrect. As the majority opinion clearly states, Rothstein signed a release to get his lift ticket -- TF.]

3 AZFlyer 12.19.07 at 2:55 pm

Perhaps the state should consider changing its license plate logo from “Ski Utah” to “Sue in Utah”.

Anyone else find it amusing that the first sentence lists Rothstein as an “expert skier”, then goes on to explain that he injured himself on the “Fluffy Bunny” run?

As one who participates in inherently dangerous activities (skydiving, motorcycle racing,…) I find this ruling very disturbing. If liability waivers become generally unenforcable, I’ll have to take up knitting.

4 OBQuiet 12.19.07 at 3:20 pm

Personally, I found it fascinating how the court used the fact the the Legislature had passed a bill saying that skiing was inherently risky and that operators were not liable for that risk to make the operator liable.

Westley:
Truly, you have a dizzying intellect.
Vizzini:
Wait ’til I get going!

5 Jason Barney 12.19.07 at 5:16 pm

Yes, the public policy argument appears a bit stretched in this instance. I generally understand that so-called “exculpatory clauses” are often unenforceable, and for good reason. A good example is the invoice you sign after getting new tires on your vehicle. It has language disclaiming liability for the tire store. So, after leaving with your new tires your wheel falls off and causes a major wreck involving you and others. The tire store gets off scot-free right? Doubtful, and for good (public policy) reasons. There would be little motive to ensure such accidents didn’t reoccur, and tortfeasors should pay for the damages they caused.

This case seems a little different. Skiing is inherently dangerous. The fact the retaining wall is artificially constructed and not part of the natural course apparently gave enough justices pause about whether or not such a retaining wall is naturally part of the hazard one may expect while skiing, and that the liability waiver didn’t apply to that. That seems a bit on the edge of reason, in my opinion. I’d like to see how the wall looked in relation to the course.

And, as Ted Frank notes the liability waiver wasn’t just slapped on an invoice or on the back of his (and, everyone else’s) lift ticket. Apparently, it was specifically bargained for in exchange for extra privilege. That seems to give it extra weight in my opinion.

So, instead of losing on summary judgment the suit is allowed to go forward. I’d suspect the case is not a slam dunk on its merits anyway—and I bet Utah jurors may be a conservative lot.

6 Happy Fun Ball 12.19.07 at 5:38 pm

The Legislature passes a law that release liability for operators. Perhaps you have forgotten that “judges” know much better than the legislature and easily trump them in any discussion-at least when money is on the line.

“Never start a land war in Asia!”

PS Ted, how does the legislature exert it’s authority and stop/turnover this farce?
Is there any power left? Checks and balances?
Beuhler?

7 NE2d 12.19.07 at 6:23 pm

I’m generally sympathetic to the views on this blog, but I think the Court is right here. I find waivers of liability to be quite dubious, as dubious as waiver of any legal right.

The legislature said that skiing was inherently dangerous and that resorts should not be liable for that.

The injury here was not due to the inherent danger of skiing (if the plaintiff had simply fallen and broken his leg, the waiver would have been upheld), but rather to the negligence of the resort with regard to the wall.

Obviously one shouldn’t be allowed to waive all liability–for deliberate or extremely reckless torts, for example, but one should be able to for ordinary injuries. The Court found the right balance here.

[The Utah Supreme Court held that one shouldn't be allowed to waive liability for ordinary injuries allegedly caused by negligence, which is exactly what you said they shouldn't be allowed to do, so I don't understand why you think the Court is correct. -- TF]

8 Todd Rogers 12.19.07 at 6:36 pm

This is only one appeals court’s ruling. And, worst case, it will require nothing more than a waiver which requires a signature; it will be most inconvenient to parents who do a “drop-off.” I’ve skied on some of the ginormous “slopes” of N. Ohio where an actual waiver had to be signed.
Ridiculous and cash-trolling – Yes. Establishing a new doctrine of contracts – hardly.

[Wrong on both counts. It's the Utah Supreme Court, and the contract was signed. Read the opinion. -- TF]

9 Jason Barney 12.19.07 at 9:11 pm

People waive their rights all the time: waive their right to sue your employer in exchange for no-fault workers’ compensation benefits; waive their right to sue a tortfeasor in exchange for a settlement; waive their right to sue for getting struck by a fly ball at a baseball game; waive their right to a speedy trial in some instances; and, often, voluntarily waive many rights as a member of the US Armed Forces.

A waiver of rights in not automatically dubious, especially given some consideration (benefit.)

10 NE2d 12.19.07 at 9:37 pm

TF,

There’s either a typo in my comment or a typo in your response or my brain is buggy–we seem to be talking past each other. When I wrote “ordinary injuries,” I didn’t mean “ordinary injuries caused by negligence,” I meant “ordinary injuries from the inherent danger of skiing.” Here is the law as I understand it:

Waiver of liability for injuries sustained as a result of the inherent danger of skiing: OK (you can’t sue if you simply fall and break your leg)

Waiver of liability for injuries sustained as a result of negligence: Not OK (you can sue if the resort is allegedly negligent, e.g., in the placement of fences)

11 Ted 12.19.07 at 9:53 pm

NE,

Your original comment complained about a waiver for intentional torts, which was not part of the ski resort’s waiver and thus had nothing to do with the court’s opinion, so I thought you were distinguishing waivers for negligence from waivers for intentional torts.

Your second comment’s dividing line provides absolutely no real-world protection to ski resorts. If the waiver doesn’t cover negligence, then your hypothetical someone who falls over and breaks their leg can still sue: the injured party can claim negligence on any of a number of grounds (just as Rothstein did here), and the ski resort is forced to litigate and defend claims over elementary injuries. It’s not clear whether your waiver would cover anything other than a failure to warn claim.

This will likely get a legislative fix, but it shouldn’t have needed one. There’s no honest way to read the statute as doing anything other than setting a baseline.

12 jkoerner 12.20.07 at 9:48 am

Maybe Utah resorts should purchase insurance to cover their new liability and assess the new expense proportionally as a line item to all ski ticket reciepts. They could label it “Utah Supreme Court Tax” so skiers know why they are paying more.

13 Melvin 12.21.07 at 1:11 am

No, call it by its proper name: the “Rothstein tax”.

Or, “Trial Lawyer Fee”.

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