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Appeals Court Upholds Enforcement of Skiers’ Exculpatory Agreement

Blogs, Risk Management

The United States Court of Appeals for the Eighth Circuit, Myers v. Lutsen Mountains Corp.,587 F.3d 891, 894 (2009), recently upheld the enforceability of a pre-injury exculpatory agreement signed by a skier. While other courts around the United States have issued similar rulings, this one was particularly interesting because the court specifically focused on the fact that the agreement at issue expressly carved out any waiver of intentional or reckless claims that the skier might have against the ski area.

In this case, a skier brought a personal injury action against the operator of a ski resort for injuries he sustained when he lofted into an area containing rocks and small trees while skiing over the edge of an intermediate slope. Id. at 894. The District Court granted summary judgment in favor of the operator on the grounds that the skier had signed a valid exculpatory agreement waiving his right to bring such suits; the skier appealed. Id.

Applying Minnesota law, the Eighth Circuit held that “[e]xculpatory clauses are enforceable . . . as long as the clause (1) is not ambiguous, (2) does not release intentional, willful, or wanton acts, and (3) does not violate public policy.” Id.

The skier attempted to argue the release was ambiguous because it could be interpreted as waiving the operator’s liability for all claims, not just negligence claims. Id. The court, however, found the “language of the release expressly and unambiguously excludes from its coverage claims arising from reckless or intentional acts. . . .” Id.

The release at issue stated: “In accordance with Minnesota law, nothing in this Release of Liability should be construed as released, discharging or waiving any claims I may have for reckless or intentional acts on the part of Lutsen Mountains Corporation, or its owners, officers, shareholders, agents or employees.”

The skier next argued that the release violated public policy because he had no bargaining power; he had to sign the release or not ski. Id. Applying Minnesota law, the court concluded, “[w]e recognize that skiing is an activity enjoyed by many, but we believe the Minnesota Supreme Court would conclude it is not a necessary or public service and would find the release signed by Myers does not violate public policy.” Id. at 896.