Ghionis v. Deer Valley Resort Co., Ltd.

• Decision Date: 07 December 1993
• Docket Number: Civ. No. 92-C-0270 A.
• Citation: 839 F. Supp. 789
• Parties: Christina GHIONIS, Plaintiff, v. DEER VALLEY RESORT COMPANY, LTD., a Utah limited partnership, Defendant.
• Court: U.S. District Court — District of Utah

839 F. Supp. 789

Christina GHIONIS, Plaintiff, v.DEER VALLEY RESORT COMPANY, LTD., a Utah limited partnership, Defendant.

Civ. No. 92-C-0270 A.

United States District Court, D. Utah, C.D.

December 7, 1993.

COPYRIGHT MATERIAL OMITTED

Christina Ghionis, pro se.

Gordon Strachan, Strachan & Strachan, Park City, UT, for defendant.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ALDON J. ANDERSON, Senior District Judge.

I.Background.

PlaintiffChristina Ghionis("Ghionis"), is a resident of Florida who visited Utah in March of 1990.While in Utah she decided to go skiing at Deer Valley resort owned by defendant("Deer Valley").Ghionis went into Deer Valley's rental shop with the intention of renting boots, skis and bindings.She had originally planned to use her own equipment which she had brought with her from Florida.However, she was told that her bindings were obsolete and, accordingly, decided to rent equipment prior to buying new equipment.

While in the rental shop, Ghionis was informed by Deer Valley certified technician that she could use her old ski boots with new bindings.Relying upon the technician's representations, Ghionis rented bindings and skis from the shop, but did not rent new boots.This was unfortunate because, contrary to the technicians representations, Ghionis's boots were not compatible with the leased bindings.Indeed, the manufacturer of the bindings expressly recommended against using its bindings with the type of boots owned by Ghionis.

Following the rental of the bindings and the skis, Ghionis signed up for a skiing lesson to familiarize herself with skiing in Utah.During the lesson, Ghionis's instructor pointed out a sign posted by Deer Valley talking about varying ski conditions.However, the instructor did not inform Ghionis or the other students of the increased risks of skiing in "crud" snow which exists during the spring in Utah.The instructor also failed to inspect Ghionis's equipment to determine if it was appropriate.If the instructor had done so, the incompatibility of the Ghionis's boots and bindings may have been noticed.

Approximately two hours into the ski lesson, Ghionis ran into crud snow and fell.Her bindings did not release, and Ghionis's knee was injured.Ghionis, who is a licensed attorney in Florida, brought this action against Deer Valley asserting negligence, product liability, and breach of express and implied warranties.Deer Valley then moved for summary judgment dismissing Ghionis's complaint because of a release signed by Ghionis at the time that she leased the bindings and skis.Deer Valley also moved for summary judgment under the Utah Inherent Risks of Skiing Act, Utah Code Ann. § 78-27-51 et seq. and because of its status as a lessor of equipment as opposed to a manufacturer or seller.

Having considered the matter, and drawing all factual inferences in favor of Ghionis, the nonmovant, the court is persuaded that summary judgment is inappropriate in this case.

II.Discussion.

A.Standard of Review.

Summary judgment is only appropriate when the moving party can show that there is no genuine issue of material fact, and that the party is entitled to judgment as a matter of law.Federal Rule of Civil Procedure 56(c).In reviewing the evidence presented, the court is to construe all facts, and reasonable inferences therefrom, in favor of the non-moving party.Lindley v. Amoco Production Co.,639 F.2d 671, 672(10th Cir.1981).This is true, even though it might appear, weighing the evidence, that the moving party has the stronger case.For purposes of summary judgment, the court does not weigh the evidence.Instead, the court examines the evidence to determine if a reasonable jury could return a verdict in favor of the nonmoving party.If it can, summary judgment must be denied.SeeAnderson v. Liberty Lobby, Inc.,477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202(1986);Clifton v. Graig,924 F.2d 182, 183(10th Cir.), cert. denied,___ U.S. ___, 112 S.Ct. 97, 116 L.Ed.2d 68(1991).

On the other hand, while the foregoing hurdle, in favor of summary judgment is high, it is not insurmountable.As the United States Supreme Court states: "The mere existence of a scintilla of evidence in support of the nonmoving party's position will be insufficient," to defeat summary judgment.Anderson v. Liberty Lobby, Inc.,477 U.S. at 252, 106 S.Ct. at 2512.Further, if, after a reasonable time has passed for discovery, it can be shown that the nonmoving party cannot present evidence to show an essential element to that party's case, then summary judgment is available.SeeCelotex Corp. v. Catrett,477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265(1986).¹Finally, summary judgment is appropriate to resolve issues of law, such as the meaning of statutes, and whether or not such statutes preclude the bringing of an action.

B.The Release Signed By Ghionis Is Ambiguous And May Not Be Relied Upon By Deer Valley To Escape Liability.

Deer Valley's primary arguments in favor of summary judgment are based upon a Release Agreement (the "Release") signed by Ghionis in favor of Deer Valley at the time she rented the ski bindings and skis.²Under Utah law, which must be applied in this diversity action,³ exculpatory agreements are binding so long as they are clear and unequivocal in expressing the parties' agreement to absolve a defendant of liability.SeeWalker Bank & Trust Co. v. First Security Corp.,341 P.2d 944, 947(Utah1959);Pickhover v. Smith's Management Corp.,771 P.2d 664(Utah App.1989).General language of release, however, without specificity as to the shifting of responsibility is not enough to relieve a party at fault from liability.

Deer Valley argues that the Release unequivocally protects it against claims for breach of express and implied warranties because it states at paragraph 1 that Ghionis accepts "for use as is the equipment listed on this form."It is Deer Valley's view that the use of the terms. "as is" in paragraph 1 constituted an express disclaimer by Deer Valley that any implied warranties existed.

The problem with Deer Valley's view is that the terms "as is," as set forth in the Release,⁴ are not "conspicuous" as contemplated by Utah Code Ann. § 70A-2a-214(3)(a).⁵The terms are not set apart with quotation marks or typed in a bold type.Instead, the terms are slipped into paragraph 1, without any indication to the average consumer that they are words of art with distinct legal meaning.Indeed, a review of paragraph 1, from a layman's perspective, is that it is primarily aimed at getting the renter's agreement to "care for the equipment while it is in his or her possession."⁶The court declines, therefore, to find a disclaimer of warranties by Deer Valley.

The Release document is also ambiguous with regard to indemnity and the scope of the release.As this court pointed out in Zollman v. Myers,797 F.Supp. 923, 927(D.Utah1992):

Whether an exculpatory provision is ambiguous, and therefore, unenforceable, ... is a question of law (Citations omitted) ... and must be determined by the court.(Citation omitted.)...

"`A cardinal rule in construing ... a contract is to give effect to the intentions of the parties.'"(Citation omitted.)To assess whether a contract is ambiguous, and consequently, whether the intention of the parties is unclear, "`the settled rule for interpreting a contract is to look to the four corners of the agreement to determine the intentions of the parties.'"(Citation omitted.)

In Zollmanthe court determined that a release given by a snow mobile park operator was ambiguous because it contained contradictory clauses, including a general release clause and a clause instructing a participant to stop and await instructions from the park operation in case of confronting a hazardous situation.Where the instructions given lead to injury, a reasonable person would assume the general release did not apply.

Like the release in Zollmanthe court finds the Deer Valley Release is ambiguous in that it is conditioned upon the renter receiving and understanding instructions on the use of the rental equipment.Seeparagraph 10 of the Release.⁷Where those instructions are lacking or deceptive, as is claimed by Ghionis on the compatibility of her boots and the ski binding, the release clause of paragraph 7 does not apply.Similarly, the indemnity provision of the Release document is inapplicable.⁸

C.Deer Valley May Not Rely Upon Ghionis's Assumption Of Risk To Escape Liability.

Deer Valley's next argument, in support of summary judgment, is that Ghionis assumed the risks which led to her injury.In that regard, Deer Valley notes that the Release states at paragraphs 5 that the renter of equipment is aware of the "inherent and other risks involved in skiing ... and ... freely assumes those risks."Further, paragraph 6 of the Release expressly recognizes the risk "that the ski-boot-binding system will not release at all times ... is, therefore, no guarantee for the renter's safety."Deer Valley also notes, in support of an assumption of risk defense, that at the time Ghionis rented the ski bindings and skis, there was playing in the background of the shop a video tape warning customers of the inherent dangers of skiing.

Ghionis's response to the assumption of risk argument is that while she may have been aware of the normal and usual risks of skiing, she was not aware of the particular risk which caused her injury, that being the incompatibility of the rented ski bindings and her boots.On the contrary, Ghionis argues that Deer Valley's personnel assured her that no incompatibility existed, and that it was not necessary for her to rent boots.

As noted by the Utah courts, assumption of risk requires a voluntary assumption of a known danger.Mikkelsen v. Haslam,764 P.2d 1384, 1388(Utah App.1988).Where the risk is not known because of the injured party's reasonable reliance upon faulty...