Berry v. Greater Park City Co.

• Decision Date: 30 October 2007
• Docket Number: No. 20051057.,20051057.
• Citation: 171 P.3d 442,2007 UT 87
• Parties: James Gordon BERRY V, Plaintiff and Appellant, v. GREATER PARK CITY COMPANY dba Park City Mountain Resort, a Utah corporation; CRE Management, Inc., dba Milosport; and International Ski Federation, Defendants and Appellee.
• Court: Utah Supreme Court

171 P.3d 442

2007 UT 87

James Gordon BERRY V, Plaintiff and Appellant, v. GREATER PARK CITY COMPANY dba Park City Mountain Resort, a Utah corporation; CRE Management, Inc., dba Milosport; and International Ski Federation, Defendants and Appellee.

No. 20051057.

Supreme Court of Utah.

October 30, 2007.

Harold G. Christensen, Richard A. Van Wagoner, Julianne Blanch, Ryan B. Bell, Salt Lake City, for appellant.

Gordon Strachan, Kevin J. Simon, Park City, for appellee.

NEHRING, Justice:

¶ 1 James Gordon "V.J." Berry was seriously injured while competing in a ski race. He sued the parties connected with the event, including Park City Mountain Resort (PCMR), the site where the race was held. The district court granted PCMR's motions for summary judgment and dismissed Mr. Berry's claims for ordinary negligence, gross negligence, and common law strict liability. We affirm in part and hold that Mr. Berry's preinjury release of PCMR is enforceable and that the district court properly determined that Mr. Berry's strict liability claim fails as a matter of law. We further hold that the district court improperly awarded PCMR summary judgment on Mr. Berry's gross negligence claim and therefore reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In February 2001, Mr. Berry, an expert skier then twenty-six years of age, entered a skiercross race promoted as the King of the Wasatch, which was constructed on one of PCMR's ski runs. In the skiercross race format, four racers simultaneously descend a course that features difficult turns and tabletop jumps. The racers compete against each other as they ski down the mountain to complete the course first. A series of elimination heats determines the race winner. On Mr. Berry's fourth trip over the course, he attempted to negotiate the course's first tabletop jump. Upon landing from the jump, Mr. Berry fell and fractured his neck, an injury that resulted in permanent paralysis.

¶ 3 Before being allowed to participate in the contest, competitors like Mr. Berry were required to sign a Release of Liability and Indemnity Agreement. Although Mr. Berry did not read the agreement, he signed it twelve days before the race. The agreement purported to release PCMR from claims arising from its negligence, stating:

In consideration for being permitted to participate in the Event, I agree to release from any legal liability, agree not to sue and further agree to defend, indemnify and hold harmless Park City Mountain Resort . . . the race organizers, sponsors and all of their officers, agents and employees for injury or death resulting from participation in the Event, regardless of the cause, including the negligence of the above referenced parties and their employees or agents.

¶ 4 PCMR introduced several measures aimed at enhancing the safety of contest participants like Mr. Berry. Blue paint marked the take-off point of the tabletop jumps. The course was built with speed gates and berms uphill of the jump in order to slow and control the speed of racers on their approach. Safety barriers enclosed the racecourse and closed it to noncompetitors. Racers were required to wear helmets and familiarize themselves with the course by inspecting its features while twice "slipping" its length. Competitors were also permitted to take practice runs of the course on the day of the race.

¶ 5 Naturally occurring conditions compromised these measures on the day of the race. The light was "flat," which hindered depth perception and made it difficult for participants to make out aspects of the course. The snow-covered surface of the course was packed particularly hard.

¶ 6 Mr. Berry offered expert opinion that pointed to significant design flaws in the tabletop jump that was the site of his fall. For example, the left side of the jump, from which Mr. Berry was forced to ascend due to his competitors' positioning in the heat, was built in a manner to launch skiers at a dangerously steep angle, causing them to be propelled beyond the landing area. Expert opinion also faulted the landing area as being too small and not steep enough to accommodate safe landings.

¶ 7 Relevant to our purposes, Mr. Berry brought suit against PCMR and alleged claims of ordinary negligence, gross negligence, and common law strict liability. The district court granted PCMR's motions to summarily dismiss each of Mr. Berry's claims. The district court concluded that Mr. Berry was bound by the "clear and unequivocal" language of the agreement and could not therefore pursue a claim against PCMR based on the resort's alleged negligence. The district court held that Mr. Berry's strict liability claim was invalid because the King of the Wasatch race was not as a matter of law an abnormally dangerous activity. Finally, the district court concluded that as a matter of law Mr. Berry failed to present evidence sufficient to place in dispute the issue of whether PCMR had designed and built the skiercross course with "utter indifference to the consequences that may result" or gross negligence. This appeal followed.

STANDARD OF REVIEW

¶ 8 Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Utah R. Civ. P. 56(c). Because a grant of summary judgment by definition involves conclusions of law, we afford no deference to the district court's decision and review it for correctness. See Peterson v. Sunrider Corp., 2002 UT 43, ¶ 13, 48 P.3d 918.

ANALYSIS

I. MR. BERRY'S AGREEMENT TO RELEASE PCMR FROM LIABILITY FOR ITS NEGLIGENT ACTS IS ENFORCEABLE

¶ 9 Preinjury exculpatory releases turn against one another the freedom of persons to regulate their affairs by contract and the social bargain at the heart of tort law that persons who fail to exercise reasonable care should be accountable in damages to those injured by negligent acts. We have not previously had occasion to consider whether the sponsor of a competitive ski race may shield itself from negligence by obtaining prospective exculpatory agreements from participants. This appeal is not, however, our introduction to preinjury releases.

¶ 10 In our most recent encounter, we held that a preinjury release could not foreclose claims of negligence brought by the parent of a minor child who was injured during a guided equestrian trail ride. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062. Mr. Berry interprets Hawkins as a case containing sufficient kinetic energy to move it beyond its facts to guide the outcome of this appeal. According to Mr. Berry, Hawkins signaled that we had found common cause with a "growing consensus" of jurisdictions that rejected as contrary to public policy preinjury releases generally and those releasing ski areas particularly. To support his interpretation, Mr. Berry drew on our statement in Hawkins that

[a]n exculpatory clause that relieves a party from future liability may remove an important incentive to act with reasonable care. These clauses are also routinely imposed in a unilateral manner without any genuine bargaining or opportunity to pay a fee for insurance. The party demanding adherence to an exculpatory clause simply evades the necessity of liability coverage and then shifts the full burden of risk of harm to the other party.

Id. ¶ 13.

¶ 11 We made observations critical of preinjury releases in the context of the point that sound reasons exist for the law to treat preinjury releases with greater suspicion than postinjury releases. Regardless of the context in which they appear, we readily acknowledge that the shortcomings of exculpatory clauses cited in Hawkins provide ample cause to approach preinjury releases with caution. Indeed, the reasoning used by courts to reject as contrary to public policy preinjury releases is persuasive. See Hiett v. Lake Barcroft Cmty. Ass'n, 244 Va. 191, 418 S.E.2d 894 (1992); see also Jaffe v. Pallotta TeamWorks, 374 F.3d 1223, 1226 (D.C.Cir.2004); Coughlin v. T.M.H. Int'l Attractions Inc., 895 F.Supp. 159 (W.D.Ky. 1995); Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795, 799 (1995); cf. N.Y. Gen. Oblig. §§ 5-321 to -326 (2007). In the Commonwealth of Virginia, for example, public policy forbids exculpatory agreements because "`to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct . . . can never be lawfully done where an enlightened system of jurisprudence prevails.'" Hiett, 418 S.E.2d at 896 (quoting Johnson's Adm'x v. Richmond & Danville R.R. Co., 86 Va. 975, 11 S.E. 829, 829 (1890)). This approach is certainly defensible both as a statement of legal and social philosophy — the right to contract is always subordinate to the obligation to stand accountable for one's negligent acts — and on an operational level inasmuch as such a clear statement eliminates any ambiguity over whether a court would later deem a particular preinjury release enforceable. Our recognition of the undesirable features of preinjury releases and of the merits of arguments that we should brand all preinjury releases unenforceable falls short of convincing us that freedom to contract should always yield to the right to recover damages on the basis of another's fault. See, e.g., Jones v. Dressel, 623 P.2d 370 (Colo.1981); Porubiansky v. Emory Univ., 156 Ga.App. 602, 275 S.E.2d 163, 167-68 (1980); Olson v. Molzen, 558 S.W.2d 429, 431 (Tenn.1977); Wagenblast v. Odessa Sch. Dist., 110 Wash.2d 845, 758 P.2d 968 (1988); Kyriazis v. Univ. of W. Va., 192 W.Va. 60, 450 S.E.2d 649 (1994).

¶ 12 Our analysis in Hawkins disclosed both our conviction that a person should retain the power to contract away the right to recover damages for the negligence of another and our understanding that the authority to exercise the right was subject to many conditions and limitations.¹ We began that analysis by acknowledging, uncritically, the "general principle of common law" that "`those...