Hitting the Slopes


Berry v. Greater Park City Company (Utah)
(Experienced Skier in Competition Breaks Neck and Suffers Paralysis; Release Enforceable to Preclude Liability for Ordinary Negligence; Triable Issues of Fact Existed Regarding “Gross Negligence”; Dismissal of Strict Liability Claim was Proper)

The plaintiff was a twenty-six year old expert skier who entered a “skiercross” race which took place on a course constructed on the defendant’s ski runs. In the “skiercross” race format, four racers simultaneously descended a course that featured difficult turns and tabletop jumps. The racers competed against each other as they skied down the mountain to complete the course first. On plaintiff’s fourth trip down the course, he attempted to negotiate a tabletop jump. Upon landing from the jump, he fell and fractured his neck, resulting in permanent paralysis. Before being allowed to participate in the contest, plaintiff was required to sign a “Release of Liability and Indemnity Agreement,” which purported to release defendant from negligence liability. Although plaintiff did not read the agreement, he signed it twelve days before the race.

Plaintiff filed a lawsuit against the defendant facility, alleging ordinary negligence, “gross negligence,” and common law strict liability. The trial court granted defendant’s motions to summarily dismiss each of plaintiff’s claims, concluding that plaintiff was bound by the “clear and unequivocal” language of the agreement, and he could not therefore pursue a negligence claim against defendant. The trial court also held that plaintiff’s strict liability claim was invalid because the race was not (as a matter of law) an abnormally dangerous activity. Finally, the trial court concluded that (as a matter of law) plaintiff failed to present evidence create a triable issue of material fact regarding “gross negligence.” An appeal to the Utah Supreme Court followed.

Referring to prior case law directly on point, the Court explained that pre-injury waiver and release agreements were not favored in the law. However, they were enforceable if they were property drafted and not contrary to public policy. According to the Court, Utah’s public policy did not foreclose the opportunity of parties to bargain for the waiver of tort claims based on ordinary negligence. Applying a six factor test, the Court concluded that the agreement in this case did not violate public policy.

The defendant did not contend that the release signed by the plaintiff insulated it from liability for “gross negligence.” Instead, defendant argued that the precautions that the race sponsors took, which were designed to minimize the risk of injury to participants without unduly compromising the competitive challenges (without which the contest would have little allure), were sufficient to overcome plaintiff’s “gross negligence” claim as a matter of law. However, the Court stated that there was no evidence in the record as to the appropriate standard of care. As such, it could not determine the issue as a matter of law. The defendant contended that its production of evidence indicating that it used “even slight care” or displayed something more than “complete and absolute indifference” to the consequences that might have resulted from an improper design or construction of the course was sufficient to remove plaintiff’s “gross negligence” claim from the jury. However, the Court disagreed, noting that the determination of the appropriate standard regarding course design and construction was a factual issue to be resolved by the finder of fact.

On appeal, plaintiff also continued to argue that the defendant should be strictly liable to him for his injuries because the activity of “skiercross racing” was an abnormally dangerous activity as described by the factors set forth in the Restatement of Torts. However, the Court explained that even if the activity was abnormally dangerous, liability under such a theory was precluded because plaintiff was a participant in the activity. The abnormally dangerous theory of liability concerned liability of participants to others that are injured or harmed as a result of the activity.

Therefore, the lower court’s decision was affirmed in part and reversed in part. The case was remanded for trial on the issue of “gross negligence.”

NOTE: Dealing with “gross negligence” allegations in the context of a summary judgment motion is not and easy task. In this instance, the Utah Supreme Court avoided having to decide the issue by claiming that the appropriate standard of care had not been established. The difficult part of this case is that the Court was essentially requiring the defendant to disprove “gross negligence” as a matter of law. From a logical perspective, the plaintiff should instead be required to affirmatively present evidence to create a triable issue of material fact as to the existence of “gross negligence.” The plaintiff did present declarations from an expert skier who witnessed the accident and from an expert in race course design, expressing criticisms of the course design. However, from a practical perspective, if one can overcome summary judgment and create a triable issue as to “gross negligence” by simply offering expert criticisms in hindsight, the opportunity for defendants to win judgments as a matter of law in Utah in these types of circumstances will seemingly be few and far between.

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