February 8, 2008
Washington Skiers:  Read the fine print on your ski pass

By ANDREW BERGH
Special to the Journal

I am honestly not a shill for the Utah Office of Tourism.

Despite abundant snowfall in the Cascades, recreational skiers in Washington should strongly consider Snowbird, Park City or like resorts in Utah. Because even if the conditions on the ground are the same, the legal climate in the Beehive State is unquestionably more favorable to skiers.

Rothstein v. Snowbird Corp. provides my case in point.

An expert skier, William Rothstein bought a season pass to the Snowbird Ski Resort, which is only 25 miles from Salt Lake City. While shushing down the slopes one day, the skier accidentally collided with an unmarked retaining wall that was camouflaged from his view by a light layer of snow.

The retaining wall, which was made of stacked railroad ties partially embedded in the mountain, came out unscathed. Not so Rothstein, whose injuries included a bruised heart, a collapsed lung, a damaged kidney and broken ribs.

Rothstein later sued the ski resort owner, Snowbird Corp., for damages, claiming its negligence had caused his injuries. (Though the exact allegations are unclear, the suit likely said the company negligently created and maintained a dangerous condition, and failed to adequately warn skiers about its existence.)

When he bought the season pass, Rothstein had signed two release agreements containing similar language. In one provision, he agreed to assume all risks of injury, including not only the “inherent risks” of skiing but also those caused by Snowbird's negligence. Elsewhere, Rothstein expressly agreed to waive any and all claims against the resort owner, even those arising from the company's own negligence.

To probably nobody's surprise, Snowbird later moved for summary judgment. The skier's claims should be dismissed, said the defendant, given the exculpatory wording of the so-called “preinjury releases.” Siding with Snowbird, the trial court ruled that by virtue of the agreements, the plaintiff had surrendered his right to recover damages on account of the resort owner's negligence. In his timely appeal, Rothstein argued that the releases were unenforceable because they violated public policy.

Under Washington law, Snowbird would've prevailed.

That's because a Washington appeals court, in a case involving similar facts, held in 2001 that an injured skier's claims against a ski area operator were barred by the preinjury release that he signed. There was no violation of public policy, said the court, because skiing, notwithstanding its recreational appeal, is only a “private and nonessential activity.”

Not quite so in Utah.

At the outset, the Utah high court acknowledged that preinjury releases are generally enforceable, and that the public policy exception should be used with caution. But by a slim 3-2 margin, a majority of the justices ultimately ruled for Rothstein. (That's no typo, the Utah Supreme Court has only five justices, compared to nine in Washington.)

The majority essentially hung its hat on a Utah statute, enacted in 2002, that immunized ski area operators from liability for injuries resulting from the inherent risks of skiing.

So why was the law passed? No issues there, said the majority, since the Utah legislature clearly expressed its intentions in certain findings set forth in the act.

First of all, the measure noted that the sport of skiing is popular with both residents and nonresidents alike, and significantly contributes to Utah's economy.

The legislature also found that few insurers were willing to provide liability insurance to ski area operators, and that premiums had skyrocketed in recent years.

The cause of this insurance crisis, said the lawmakers, was “confusion” as to whether skiers assume the inherent risks of skiing. The express purpose of the act, they continued, was to “clarify” Utah law on this point by specifically identifying such risks, and to provide as a “matter of public policy” that no skier could recover damages from a ski operator for injuries resulting from an inherent risk of skiing.

According to Snowbird, the 2002 enactment was intended to insulate ski area operators from any liability. Since its preinjury releases were “wholly compatible” with this goal, said the defendant, they didn't violate public policy.

But the majority disagreed.

The “core purpose” of the law, said the justices, was to make liability coverage more affordable so ski area operators could better insure themselves against the risk of loss occasioned by their own negligence. Snowbird had “breached” this public policy bargain, the majority said, by extracting preinjury releases from Rothstein for liability caused not only by the inherent risks of skiing, but also its own negligent acts.

In short, Rothstein will have his day in court (albeit one in Utah).

The bottom line for recreational skiers in Washington? Before you next hit the slopes, read the fine print in your ski pass. After all, if you have to “waive” bye-bye to all potential claims against the ski resort owner, you might want to know that beforehand.