Milligan v. Big Valley Corp., 87-59

• Decision Date: 17 May 1988
• Docket Number: No. 87-59,87-59
• Citation: 754 P.2d 1063
• Parties: Elizabeth MILLIGAN, as personal representative for and the administratrix of the estate of Dean Keven Griffin, deceased, and on Behalf of John Matthew Brock Milligan, Appellant (Plaintiff), v. BIG VALLEY CORPORATION, a Wyoming corporation d/b/a Grand Targhee Ski Resort, Appellee (Defendant), Ira Koplow (Defendant).
• Court: Wyoming Supreme Court

Page 1063

754 P.2d 1063

Elizabeth MILLIGAN, as personal representative for and the administratrix of the estate of Dean Keven Griffin, deceased, and on Behalf of John Matthew Brock Milligan, Appellant (Plaintiff), v. BIG VALLEY CORPORATION, a Wyoming corporation d/b/a Grand Targhee Ski Resort, Appellee (Defendant) Ira Koplow (Defendant).

No. 87-59.

Supreme Court of Wyoming.

May 17, 1988.

Jeffrey A. Tennyson (argued), and Robert N. Williams, Jackson, for appellant.

Roger E. Shumate (argued), and W. Henry Combs, III of Murane & Bostwick, Casper, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

CARDINE, Justice.

Appellant Elizabeth Milligan, as personal representative of the estate of Dean Griffin, brought this wrongful death action against Big Valley Corporation d/b/a Grand Targhee Ski Resort, alleging negligence and willful and wanton misconduct in organizing, sponsoring and coordinating a ski race as part of the Ironman Decathlon. Summary judgment was entered in favor of appellee, predicated upon a release signed by the decedent prior to the ski race. This appeal is from the summary judgment.

Appellant raises two issues on appeal:

I. Whether the release in question violates public policy and is therefore invalid and unenforceable.

II. Whether the trial court correctly granted summary judgment to appellee in light of the allegation that appellee was guilty of willful and wanton misconduct.

We affirm.

FACTS

The appellant's decedent, Dean Griffin, entered an Ironman Decathlon at the Grand Targhee Ski Resort in Alta, Wyoming, on April 13, 1985. Grand Targhee is solely owned and operated by Big Valley Corporation, a Wyoming corporation, doing business as Grand Targhee Ski Resort. The decathlon was sponsored and organized by several individuals for fun and not for profit; there was no advertising or financial sponsors. The decathlon consisted of several events, including swimming five pool laps, bowling one line, drinking a quart of beer, throwing darts, and both downhill and cross-country ski races.

The first event in the decathlon was the downhill ski race. The race was held early in the morning before the ski resort was opened to the public. The only skiers on the mountain at that time were those participating in the race. The race was run under extremely hard and icy snow conditions. No course was marked for the contestants; thus, they could take any way down the mountain they chose. The race was begun with a "La Mans" start, whereby the skiers removed their skis and left them at a distance up the mountain. Once the race started, the racers ran up to their skis, scattered for confusion's sake, put them on, and began the descent to the finish line. There were no speed gates, hay barriers, or safety nets used in the race. Nor were the racers required to wear safety helmets.

Prior to the race, and in consideration of being allowed to enter the downhill race portion of the decathlon, all of the downhill contestants, including Mr. Griffin, were required to sign a document entitled "General Release of Claim," which provided:

"The undersigned does hereby acknowledge that he/she __________ has under the auspices of Targhee Resort at his free and voluntary will, and and [sic] further acknowledges that he understands and appreciates the risks and hazards as a participant of IRONMAN DECATLON [sic] and that there is a possibility of personal injury.

"In consideration of my being allowed to participate in IRONMAN DECATLON [sic] at Targhee Resort, Alta, Wyoming, I irrevocably and forever hereby release and discharge Targhee Resort and the other sponsors of and any and all of the employees, agents or servants and owners of Targhee Resort and the other sponsors of IRONMAN DECATLON [sic] officially connected with this event of and from any and all legal claims or legal liability of any kind, nature and description involving or relating to bodily injury or death suffered or sustained by me, or any property damage of mine, during my stay at Targhee Resort.

"I hereby personally assume all risks in connection with said event and I further release the aforementioned resort, its agents, and operators, including but not limited to persons not mentioned, for any harm, injury or damage which might befall me as a participant in this event including all risks connected therewith, whether foreseen or unforeseen and further save and hold harmless said resort and persons from any claim by me or my family, estate, Heirs or assigns.

"/s/ Dean Griffin 4/13/84

Participant's Signature Date"

Prior to the race, a ski patrol member inspected and skied the run. He radioed to the top of the hill that the snow was extremely hard, icy, and fast and that there were some rough areas in the lower section of the run. The rough areas were marked with skis, and the skiers were informed of the conditions of the run at least five or six times before the race began. The skiers were also warned that the race was just for fun and that anyone taking it too seriously would be disqualified.

About ten minutes after the race began, the decedent Griffin, an experienced expert skier and a certified ski instructor at the Jackson Hole ski area, was found unconscious approximately 3/4 of the way down the mountain. Mr. Griffin never regained consciousness and was pronounced dead a few hours later by the Teton County Coroner's office. No one witnessed the incident that resulted in Mr. Griffin's death. It was speculated that he lost control of his skis, fell, hit a tree or trees, and suffered fatal injuries. At least three other race participants also lost control of their skis at approximately the same place where Mr. Griffin's accident occurred.

Appellant, Elizabeth Milligan, as personal representative for and administratrix of the estate of Dean Griffin, commenced this wrongful death action on behalf of Dean Griffin's son, John Matthew B. Milligan, against appellee, alleging negligence and willful and wanton misconduct on the part of appellee in organizing, sponsoring, and coordinating the ski race competition. The district court, finding that the release signed by Dean Griffin released appellee from all liability, granted summary judgment to appellee.

DISCUSSION

There is no dispute that the release in question was signed by the decedent. However, appellant argues that the exculpatory language contained in the release is invalid because it is contrary to Wyoming's public policy. Exculpatory agreements, releasing parties from negligence liability for damages or injury, are valid and enforceable in Wyoming if they do not violate public policy. Schutkowski v. Carey, Wyo., 725 P.2d 1057, 1059 (1986). "Generally, specific agreements absolving participants and proprietors from negligence liability during hazardous recreational activities are enforceable, subject to willful misconduct limitations." Id.

Exculpatory agreements, also referred to as releases, are contractual in nature. Kelliher v. Herman, Wyo., 701 P.2d 1157, 1159 (1985). Interpretation and construction of contractual agreements are questions of law for the court to decide. Schutkowski v. Carey, supra; Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463 (1980).

This court recently addressed the issue of the validity and enforceability of a release in Schutkowski v. Carey, supra. In Schutkowski, a skydiving student brought a negligence action against her instructors after being injured during her first jump. This court held that a release signed by the student prior to her injuries excused her instructors from any liability for negligence. In reaching this holding, we adopted the four-part test found in Jones v. Dressel, Colo., 623 P.2d 370 (1981), to determine whether this type of release is valid and enforceable. This four-part test is applicable here. Thus, we consider:

"(1) [Whether there exists] a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language." Id. at 376.

A duty to the public exists if the nature of the business or service affects the public interest and the service performed is considered an essential service. Thus, our first inquiry is whether sponsoring, coordinating, and organizing a ski race is a business or service affecting the public interest and is considered an essential service demanding a public duty.

A release agreement affecting the public interest, giving rise to a public duty, has been described as one that

"concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it * * *. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services." (Emphasis added and footnotes omitted.) Tunkl v. Regents of University of California, 60 Cal.2d 92, 32 Cal.Rptr. 33, 383 P.2d 441, 445-46, 6 A.L.R.3d 693 (1963).

Types of services thought to be subject to public regulation, and therefore demanding a public duty or considered essential, have included common carriers, hospitals and doctors, (see Tunkl, supra, in which the California court held that an agreement between a hospital and an entering patient affects the public interest), public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities. Malecha v. St. Croix Valley Skydiving Club, Minn.App., 392 N.W.2d 727, 730 (1986). Generally, a private recreational business does not qualify as a service...