Dalury v. S-K-I Ltd. 1995
Assumption of the Risk > Exculpatory Clause Torts – pg374 – 11/5/09
Parties: Π – Injured Skier ∆ - Ski Resort Procedural History: - Summary judgment for ∆ Facts: - π injured when collided with a metal pole (part of lift control maze) while skiing - Allege negligent design, construction and replacement of the pole Legal Issue: Should exculpatory agreements be upheld when a business invites public use and controls the risks? Holding: No. Exculpatory clauses should be enforced when at odds with public policy because the general public is invited to use a service and the participants can’t control the risks. Reasoning: - Case of first impression in Vermont - Some public policy reasons block exculpatory clauses o Usually hinges on the clarity of the language towards parties’ intent - In Tunkl v Regents of Univ. of Cal., J. Tobriner sets out rationale for Public Policy exceptions: o Business generally thought suitable for regulation o Service is of great importance to public o Doesn’t discriminate who can use it o Has bargaining strength o Uses standardized adhesion K o Person or property put under control of seller - Tunkl applied in Colorado and Wyoming, but not Virginia - “No single formula will reach the relevant public policy issues in every factual context” - ∆ argues skiing Ø a public service but a private transaction done on private land and they should be able to control it - Court states otherwise b/c it’s open to the public and advertises and invites all skiers to come - ∆ already owes duty to keep premises reasonably safe like any other business - They alone can insure against risks and spread costs amongst thousands of customers o Otherwise public would bear costs and skiers have no ability to control risks - Statutory willingness argument by ∆ actually shows that skiers only responsibility for their own inherent risks, not the negligence of the resort Disposition: Reverse Dissent/Concurrence: