Spencer v. Killington, Ltd.
Annotate this Case
Spencer v. Killington, Ltd (95-327); 167 Vt. 137; 702 A.2d 35
[Opinion Filed 18-Sep-1997]
[Motion for Reargument Denied as Untimely Filed 23-Apr-1997]
[Motion for Reargument Denied 18-Sep-1997]
ENTRY ORDER
SUPREME COURT DOCKET NO. 95-327
APRIL TERM, 1997
Samuel Spencer } APPEALED FROM:
}
}
v. } Chittenden Superior Court
}
Killington, Ltd., Killington Ski }
Club and Steven Miller } DOCKET NO. S368-92CNC
On Motion for Reargument
Killington Ltd. and Steven Miller (hereinafter Killington) contend
that the above-titled case should be reargued and remanded for development
of a full factual record because this Court (1) mistakenly assumed that the
"Ski Bum" race series was open to the general public, and (2) overlooked
the fact that Killington did not charge either plaintiff or the Killington
Ski Club for providing the site and assistance that made the race series
possible. According to Killington, a full exploration of these facts is
necessary because they are material to the "totality of the circumstances"
and "societal expectations" regarding the enforceability of the release.
Two members of the Court would grant the motion for reargument, even
though Killington merely restates arguments and facts considered and
rejected in the Court's opinion. In its supplemental brief and at oral
argument before we decided this case, Killington argued that the summary
judgment record was insufficient for this Court to determine that Dalury v.
S.K.I. Ltd., 164 Vt. 329, 670 A.2d 795 (1995) required invalidation of the
relevant releases. Killington contended, as it does again here, that it did
not invite the general public, by advertisement or otherwise, to
participate in the Ski Club's "Ski Bum" race series. In support of its
claim that there are disputed facts as to whether the race was open to the
public, Killington recites the same facts that it offered at oral argument.
It states that approximately 100 local people organized and promoted the
series for fun, and that although Killington provided the site, the
employees to lay out the course, the equipment, and the ski passes, it did
not directly profit from the activity. None of these facts, as represented
by Killington, suggest that the "Ski Bum" series was not open to the
general public. To the contrary, it is undisputed that the race series was
open to any and all members of the general public except for those with
significant racing experience. Indeed, the entry form/advertisement for
the series stated that "V.A.R.A., COLLEGIATE & PROFESSIONAL RACE
COMPETITORS ARE NOT PERMITTED to participate in this race series."
Moreover, the fact that Killington did not directly profit from the
race series is not a material fact regarding the enforceability of the
release. As noted, Killington conceded that it provided the site, the
employees to lay out the course, the equipment, and the ski passes. One
way or another, the race participants paid to be on Killington's mountain,
which was open for a wide variety of general recreational activities that
included the race series. As it stated in its original brief, Killington
requires all racers to have a lift ticket or a pass in order to use its
lifts. Regardless of whether Killington profited directly from the series,
it profited indirectly from having general recreational ski events such as
this on its premises. See Restatement (Second) of Torts § 496B, comment g
(1965) (those charged with duty of public service may be liable even if
compensation is received indirectly or from sources other than plaintiff).
Under Dalury,
164 Vt. at 334-35, 670 A.2d at 799, Killington owes a duty to the general
public skiing on its premises. In this case, plaintiff alleged that
Killington employees negligently laid out the "Ski Bum" race course on
Killington property. And as Killington states in its own brief, when
plaintiff was racing, he was "skiing at the area," and he was allegedly
injured as the result of "conditions of the premises."
In short, Killington's motion for reargument is nothing more than a
rehash of arguments and facts considered and rejected in this Court's
opinion. Because Killington has failed to identify facts or points of law
overlooked or misapprehended by this Court, its motion for reargument is
denied.
--------------------------------------------------------------------------------
Dooley, J., dissenting. This case demonstrates the risk of rushing
to judgment and deciding a case here on grounds for which there has been
inadequate development below. Dalury v. S.K.I. Ltd. had not been decided
when the summary judgment record was placed before the trial court.
Indeed, the decision came out only after the initial briefs in this court.
Killington Ltd. and Steven Miller have moved for reargument on the
ground that the facts upon which the majority decision is based are not
undisputed and summary judgment is improper on the law announced in the
opinion for the Court. Their main argument is with the statement in the
opinion that "it is undisputed that the recreational race series in this
case was open to the general public." In their motion for reargument
defendants respond "[i]n fact the `ski bum' series was not open to the
general public." They point out that they have consistently stated that
there is no support in the record for the fact the opinion found, and the
opinion itself even acknowledged this statement. I agree that the parties
should have an opportunity to make a factual record on this point.
Beyond the specific factual dispute, defendants argue that the opinion
assumed that the relationship of the ski area, and its employee, to the
race was such that the release is ineffective. If Killington's version of
the facts is accurate, I fear that all we have accomplished is that a ski
area will never again donate use of its terrain to a ski club again.
Further factual development would expose whether my fear is warranted.
I cannot accept the majority's response to Killington's request. Over
and over in its motion, Killington has stated that the ski bum race is not
open to the public and it wants an opportunity to prove that fact. The
majority discusses the request essentially by saying that none of the facts
support Killington's claim. The response is circular, denying Killington
an opportunity to prove a fact on the basis that it has not already done
so. I think it is particularly unfair to deny this proof opportunity when
no party knew that the fact was significant when the factual record was
initially developed. Moreover, the trial court's burden to resolve this
issue is slight, and if the facts turn out as the majority believes, the
litigation will be set back only minimally.
I do not ordinarily vote for reargument of matters resolved by
opinions with which I disagreed. I do not war with the now-resolved
conclusion that Dalury v. S-K-I, Ltd., 164 Vt. 129, 670 A.2d 795 (1995) now
applies to recreational ski races generally open to the public. I do not
think, however, that these defendants had a full and fair opportunity to
show that even under the law announced by the majority, the release is
effective. Accordingly, I dissent from the denial of reargument.
I am authorized to state that Chief Justice Allen joins this dissent.
BY THE COURT:
Dissenting:
_______________________________________
Ernest W. Gibson III, Associate Justice
_______________________________ _______________________________________
Frederic W. Allen, Chief Justice James L. Morse, Associate Justice
_______________________________ _______________________________________
John A. Dooley, Associate Justice Denise R. Johnson, Associate Justice
--------------------------------------------------------------------------------
[Filed 14-Mar-1997]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 95-327
Samuel Spencer Supreme Court
On Appeal from
v. Chittenden Superior Court
Killington, Ltd., et al. January Term, 1996
Linda Levitt, J.
R. Allan Paul, Robert S. DiPalma and April Shafer Johnson of Paul,
Frank & Collins, Inc., Burlington, for plaintiff-appellant
Allan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd.,
Rutland, for defendants-appellees Killington, Ltd. and Miller
William D. Cohen and Shannon A. Bertrand of Reiber, Kenlan,
Schwiebert, Hall & Facey, P.C., Rutland, for defendant-appellee Killington
Ski Club
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J. Plaintiff, who was injured when he collided with a post
during an amateur ski race, appeals the superior court's order granting
summary judgment to defendants, the ski area and its agents, based on
releases he signed. We conclude that the releases were void as contrary to
public policy, and reverse.
Plaintiff, an experienced skier, purchased a pass at Killington Ski
Area for the 1990-1991 season, as he had for several previous seasons. To
obtain the pass, plaintiff signed a document that released Killington and
its employees and agents from all liability for any injuries resulting from
the ski area's negligence. Similar release language was included on the
back of the season pass signed and worn by pass holders, including
plaintiff.
During the 1990-91 season, plaintiff also participated in an amateur
"Ski Bum" race series held at Killington Ski Area. The recreational races
were open to persons of all skiing abilities, except that skiers with
collegiate or professional racing experience were barred from
the competition. On January 16, 1991, after completing the second race in
the competition, plaintiff signed an entry form for the race series and
paid an entry fee to Killington Ski Club. The back of the entry form
included language releasing Killington and its employees and agents from
any liability for personal injury resulting from Killington's usual
activities.
On March 6, 1991, as he was completing another race in the series,
plaintiff was seriously injured when he struck a wooden post marking the
finish line of the race course. Plaintiff sued Killington, Ltd., its
employee Steven Miller, and the Killington Ski Club, alleging that
defendants negligently designed and erected the race course by (1)
installing permanent posts at the finish line, (2) laying out the course so
that competitors were guided into one of the posts, (3) setting the last
gate too close to the posts, and (4) failing to provide adequate padding
for the posts. Following the parties' submission of various motions,
memoranda, and affidavits, the superior court granted summary judgment to
defendants, ruling that the agreements plaintiff signed unambiguously
released defendants from liability for injuries resulting from their
negligence. Further, the court ruled that no special relationship existed
between the parties, and that public policy did not require invalidation of
the releases.
In his original brief on appeal, plaintiff argued that the superior
court erred by granting defendants summary judgment because there were
material facts in dispute as to (1) whether the language of the releases
and the circumstances surrounding plaintiff's signing of the releases
apprised plaintiff that he was releasing defendants from liability for any
injuries caused by their negligence, and (2) whether the documents released
Miller or the Killington Ski Club from liability. On September 8, 1995,
the same day Killington filed its responsive brief, this Court issued
Dalury v. S-K-I, Ltd., ___ Vt. ___, ___, 670 A.2d 795, 796 (1995), in which
we held that an exculpatory agreement signed by season pass holders and
relieving a ski area of all liability for injuries resulting from the ski
area's negligence was void as contrary to public policy. The parties then
filed supplemental briefs concerning the applicability of Dalury to this
appeal.
As a preliminary matter, we reject Killington's argument that
plaintiff waived his public
policy argument on appeal by failing to raise it during the trial court
proceedings. We have often stated that "[w]e will not reverse a lower
court decision when a party's failure to raise some matter below denied the
court an opportunity to consider it." Duke v. Duke, 140 Vt. 543, 545, 442 A.2d 460, 462 (1982). Here, however, the public policy issue was
addressed, albeit briefly, and rejected by the superior court. In its
motion for summary judgment, Killington argued that "[p]ublic policy is not
concerned with a person's decision to go ski racing." Plaintiff responded,
in part, by arguing that contractual exclusions of negligence liability are
disfavored and must be strictly construed. The superior court expressly
determined that "no public policy exists which should invalidate the
waivers." In short, although the public policy issue was not debated or
considered in depth by the parties or the trial court, it was raised and
ruled on, and thus we may consider plaintiff's claim of error on appeal.
We now turn to the merits of the public policy issue, which is
dispositive of the appeal. Acknowledging our holding in Dalury, Killington
concedes that its season pass releases are void, but contends that Dalury
does not preclude enforcement of the race registration release plaintiff
signed. According to defendants, Dalury does not control here because this
case, like Douglass v. Skiing Standards, Inc., 142 Vt. 634, 459 A.2d 97
(1983), involves ski racing rather than recreational skiing.
The plaintiff in Douglass was a professional skier injured during a
professional skiing competition. As a condition to entry into the
competition, the plaintiff had been required to sign an agreement releasing
the defendants from liability for any injuries he might sustain as the
result of his participation in the competition. We held that
notwithstanding the absence of the word "negligence" in the release, the
terms of the exculpatory agreement unambiguously demonstrated the parties'
intent that the defendants were to be held harmless for injuries to the
plaintiff caused by the defendants' negligence. Id. at 636-37, 459 A.2d at
98-99. The issue of whether the release violated public policy was neither
raised by the parties on appeal nor addressed by this Court. See Dalury,
___ Vt. at ___ n.1, 670 A.2d at 797 n.1 (noting that Douglass upheld
release signed by participant in freestyle skiing competition based on
clarity of
language rather than public policy, and declining to address whether such
releases are void as contrary to public policy).
Public policy was at issue in Dalury, however. In that case,
notwithstanding our acknowledgement that the ski industry does not provide
an "essential public service," we struck down as contrary to public policy
exculpatory agreements requiring season pass holders to release ski areas
from liability for injuries caused by the ski areas' negligence. See
Dalury, ___ Vt. at ___, ___, 670 A.2d at 796, 799. In arriving at this
decision, we considered, among other factors, that (1) the ski area
operated a facility open to the general public, (2) the ski area advertised
and invited persons of every level of skiing ability onto its premises, (3)
the ski area, and not recreational skiers, had the expertise and
opportunity to foresee and control hazards and to guard against the
negligence of its employees and agents, (4) the ski area was in a better
position to insure against the risks of its own negligence and spread the
cost of the insurance among its customers, and (5) if ski areas were
permitted to obtain broad waivers of their liability, incentives for them
to manage risks would be removed, with the public bearing the cost.
Killington argues that setting courses for local "Ski Bum" races is
neither a service of great importance to the public nor a matter of
practical necessity for any members of the public. Addressing the various
factors set forth in Dalury, Killington states that there is no evidence in
the summary judgment record that (1) defendants invited the general public
to participate in the "Ski Bum" race series, (2) a substantial number of
people participate in the event, (3) the racers cannot inspect or influence
the course layout, (4) Killington is able to obtain liability insurance to
cover such events, (5) members of the public cannot obtain insurance that
would cover them for injuries incurred while participating in amateur ski
racing, or (6) safety of these events would improve if racers were told
that the ski area would assume responsibility for its own negligence.
The Killington Ski Club adds that Dalury's public policy concerns are
far less compelling here because (1) plaintiff had the opportunity to view
the layout of the course, which was obvious and open, (2) ski racing is not
a necessity, (3) the race series is not a business suitable
for public regulatio, and (4) persons entering competitions know that they
will be pushing themselves to the limit, thereby creating greater risks
than if they were merely participating in recreational skiing. In the
Club's view, if we were to invalidate the ski competition release based on
public policy, we would discourage citizen participation in amateur
competitions by dissuading people from organizing or administering such
events for fear of incurring liability for the inevitable injuries that
would result.
We conclude that the public policy concerns that formed the basis for
our holding in Dalury apply with equal force under the facts and
circumstances of this case. ___ Vt. at ___, 670 A.2d at 798 (ultimately,
determination of what constitutes public interest must be made considering
totality of circumstances in any given case against backdrop of societal
expectations). The Club's arguments concerning the nature of recreational
ski racing are similar to the arguments we rejected in Dalury. Moreover,
the factual distinctions between Dalury and this case cited by defendants
are minor compared to the obvious similarities.
For instance, it is undisputed that the recreational race series in
this case was open to the general public, particularly persons with limited
or no experience in competitive skiing; indeed, skiers with collegiate or
professional racing experience were barred from the races. Cf. id. at ___,
670 A.2d at 799 (pointing out that ski area was open to members of public
with every level of skiing ability). As in Dalury, defendants, not the
recreational skiers participating in the races, had the expertise and
opportunity to maintain and inspect their premises, to foresee and control
hazards, to train their employees in risk management, to guard against the
negligence of their agents and employees, and to insure against the risks
and spread the increased cost of insurance among race participants or all
skiing customers. See id. Our statement in Dalury that "[i]f defendants
were permitted to obtain broad waivers of their liability, an important
incentive for ski areas to manage risk would be removed with the public
bearing the cost of the resulting injuries" is no less true here. Id.
Like other ski areas, Killington has a race course open to members of
the general public who ski at its facility. Given our analysis in Dalury,
Killington could not require recreational
skiers to sign releases barring them from suing Killington for injuries
incurred on the public race course as the result of Killington's
negligence. Such exculpatory agreements are void, whether the ski area
uses them to avert suits by recreational skiers testing themselves on the
ski area's public race course, or, as here, by recreational skiers
participating in an amateur race controlled by and held at the ski area.
In short, we see no salient distinctions between this case and Dalury.
The dissent, on the other hand, does find a significant distinction
between recreational skiers competing in a ski area's amateur race series
and recreational skiers skiing the ski area's trails or public race courses
outside a competition. But in making this distinction, the dissent
overstates the scope of our holding. We have not, as the dissent suggests,
required race promoters to eliminate all the hazards inherent to ski racing
or otherwise face liability for any injuries that result from those
inherent risks. To the contrary, "a person who takes part in any sport
accepts as a matter of law the dangers that inhere therein insofar as they
are obvious and necessary." 12 V.S.A. § 1037. Assumption of risk remains
as a defense.
Rather than requiring race promoters to eliminate all inherent
hazards, we are simply allowing plaintiffs the opportunity to show that a
ski area's negligence caused their injuries. The dissent would allow ski
areas to escape liability by requiring recreational skiers to waive their
right to sue for injuries resulting from the ski areas' negligence, not
from risks inherent to the sport. Thus, for example, if a racer were
injured upon striking a shovel accidently left on the course by race
promoters, the release signed by the racer would bar suit against the
promoters. Our opinion does not suggest that defendants were negligent or
even that plaintiff has made out a prima facie case of their negligence;
rather, we hold only that the releases plaintiff signed are void as
contrary to public policy, and thus the trial court erred by granting
defendants summary judgment based on the releases.
Reversed and remanded.
FOR THE COURT:
________________________________
Associate Justice
-------------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 95-327
Samuel Spencer Supreme Court
On Appeal from
v. Chittenden Superior Court
Killington, Ltd., et al. January Term, 1996
Linda Levitt, J.
R. Allan Paul, Robert S. DiPalma and April Shafer Johnson of Paul,
Frank & Collins, Inc., Burlington, for plaintiff-appellant
Alan R. Keyes and John J. Zawistoski of Ryan Smith & Carbine, Ltd.,
Rutland, for defendants-appellees Killington Ltd. and Miller
William D. Cohen and Shannon A. Bertrand of Reiber, Kenlan,
Schwiebert, Hall & Facey, P.C., Rutland, for defendant-appellee Killington
Ski Club
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J., dissenting. I cannot agree that the outcome of this
case is governed by our holding in Dalury v. S-K-I, Ltd., ___ Vt. ___, 670 A.2d 795 (1995). There we stated that the major public policy implications
were those underlying the law of premises liability and held that the
defendants, owners of a ski area, and not recreational skiers, have the
expertise to foresee and control hazards and eliminate risks of harm. Id.
at ___, 670 A.2d at 799. We reaffirmed that the operator of a ski area is
obligated to prepare and maintain its slopes in a reasonably safe condition
for skiing by members of the general public engaged in recreational skiing.
The controlling factual distinction between this case and Dalury is that
participants in a "ski bum" race or any other race know that they will be
skiing challenging courses artificially created to make the descent
difficult. The object is to get from the start to the finish in the
shortest possible time and to go "flat out" in order to do so. Danger of
injury is inherent in the
activity. Racers, whether amateur or professional, want the challenge that
implicitly requires the creation, not the elimination, of hazards. For
some, the descent may be too steep, the gates too closely spaced, the
course too icy or too rutted, but to require the promoter to eliminate such
hazards is to eliminate the challenges the racers seek. There is a
significant difference between the expectations of the general public,
which has a right to assume reasonable care on the part of the ski area
operator, and a ski racer who consciously undertakes risks that he or she
knows may strain or exceed the tolerance of any safety system.
We stated in Dalury that the social interest inherent in operating a
business that courts the public, like a ski area, outweighs the interest of
the business in shielding itself from liability for ordinary negligence.
The reason given for replacing the "essential nature of the service"
criterion, see Tunkl v. Regents of Univ. of Cal., 383 P.2d 441, 445-46
(Cal. 1963), with the "legitimate public interest" test was that
thousands of people buy lift tickets every day throughout the
season. Thousands of people ride lifts, buy services, and ski the
trails. Each ticket sale may be, for some purposes, a purely
private transaction. But when a substantial number of such sales
take[s] place as a result of the seller's general invitation to the
public to utilize the facilities and services in question, a legitimate
public interest arises.
Dalury, ___ Vt. at ___, 670 A.2d at 799. Nowhere in Dalury did we suggest
that those who choose to undertake particularly risky activities may not
validly waive their rights to sue the sponsor for ordinary negligence. We
went to the outer limit to hold that skiing implicates a legitimate public
interest. But see Szczotka v. Snowridge, Inc., 869 F. Supp. 247, 251 (D.
Vt. 1994) (exculpatory agreements for ski resorts do not affect the public
interest); Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 (D.
Colo. 1992) (skiing by definition is neither matter of great public
importance nor matter of practical necessity). The majority holding now
goes beyond a reasonable limit.
There is a segment of the population that engages in activities which
by nature are hazardous or ultra-hazardous. The danger produces the thrill
and is the motivation for the
undertaking. Bungee jumping, parachuting, river rafting, scuba diving, ski
racing, hang gliding are all activities involving varying degrees of risk.
The owners of the lands or chattels that are used to facilitate these
activities should be permitted to allocate the risk of harm. In short, a
ski bum race is not an activity thought to be suitable for public
regulation, a service of great importance to the public, or a matter of
practical necessity for any member of the public. I would affirm the grant
of summary judgment on the negligence claims. I am authorized to state
that Justice Dooley joins in this dissent.
________________________________
Chief Justice
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