Before you don your ski jacket, put on those goggles and grip your poles, you might want to read the fine print on that liability release form.
From ski competitions to a run down the Utah Olympic Park's bobsled track, liability release forms are commonplace in this winter sports utopia.
Legal experts say the biggest mistake people can make is simply scribbling their John Hancock on a release before actually reading it and understanding the risks. Under Utah law, that form really means something.
Take the case of James Gordon Berry. In February 2001, Berry, a 26-year-old expert skier, entered the "King of the Wasatch" skiercross race at the Park City Mountain Resort.
The race involves four skiers who simultaneously descend down a course that features difficult turns and tabletop jumps. On Berry's fourth trip over the course, as he attempted to negotiate the course's first tabletop jump, he fell and fractured his neck while landing. Berry suffered permanent paralysis.
Twelve days before the race, Berry signed a release of liability and indemnity agreement, but later admitted that he did not read it. The agreement stated that Berry released Park City Mountain Resort from any claims of negligence.
After being paralyzed, Berry sued the resort, claiming its staff was not only negligent in designing the race course, but also grossly negligent in designing the tabletop jump on which he injured himself.
A state court judge dismissed Berry's suit because he was bound by the "clear and unequivocal" language of the agreement he signed and could therefore not sue the resort.
"You should be aware that if you sign a release of liability on a recreation or entertainment activity, then you are indeed expressly consenting to foregoing liability for your negligence," University of Utah law professor Wayne McCormack said.
But the resorts are not completely off the liability hook. "We don't know if it's possible whether they can waive gross negligence," McCormack said.
The Utah Supreme Court said essentially that when it ruled last October that Berry had waived his right to sue the resort for simple negligence.
Under Utah law, typical day-pass-type skiing does not require a special liability waiver form. Regular skiing is regulated by the Inherent Risk of Skiing Act, which lays out the safety standards that are expected of Utah's ski resorts and says skiers accept risks inherent to the sport.
The justices noted there was a distinction between regular skiing and ski races in that prospective racers must accept more of the inherent risk of racing. With that said, the justices also ruled that race organizers are not completely immune from suits.
"Gross negligence requires proof of conduct substantially more distant from the appropriate standard of care than does ordinary negligence," the justices wrote in their opinion.
While justices dismissed Berry's allegations that the resort did not take adequate steps for safety, they sent the case back to the trial court, saying he still could sue for gross negligence.
A spokesperson for Park City Mountain Resort and Berry's attorney Richard Van Wagoner both declined to comment.
Even the sport of everyday skiing has come under high court scrutiny. Earlier this month the Utah Supreme Court ruled that although an injured skier signed a liability waiver in obtaining a season ski pass to Snowbird, the law does not protect resorts from all liability.
In the 3-2 decision, the high court noted that resorts, while afforded some liability protection under the law, still are expected to maintain a high standard of safety for skiers. The court reinstated a suit filed by a skier who slammed into a retaining wall of stacked railroad ties that was covered by snow, suffering broken ribs, a kidney injury, liver damage and a collapsed lung.
Liability also can become a legal issue in other winter sports.
In February 2003, James Pearce, 59, thought it would be fun to go down the bobsled run with his son. The two shelled out $200 each for tickets.
While waiting for the ride, Pearce was given a document to sign. He was briefed by Utah Winter Sports Park staff about the ride and told he would experience as much as 4 or 5 Gs around some turns with speeds up to 82 miles per hour. During the ride, Pearce says, he broke his back, and he blamed the park for insufficient briefing and safety. Later, Pearce found that in the three previous months three people had suffered "serious spinal injuries," including compression fractures.
In his suit, Pearce alleges that the sports park staff had never tried to find out the cause of these back injuries and that because they knew about them, they were negligent.
According to court documents filed by the sports park, the bobsled track is routinely inspected for safety, and the public rides are staffed by "World Cup-level drivers." The staff also had created an orientation for people, which includes a video and oral presentations about safety. Part of that orientation included a warning for passengers with neck, back and spine problems. At the time, Pearce had some history of back problems.
The Utah Supreme Court has yet to rule on the case.
McCormack said waivers are a way that sports and recreation facilities can minimize their liability costs without having to take out very expensive insurance coverage. Without such waivers, McCormack said recreation costs would have to be passed on to consumers.
It boils down to assuming risk. McCormack said some people would be surprised to know that they are assuming risk under the law by not signing anything at times. "Some people might be surprised that you are assuming the risk of injury if you go to a baseball game," he said.
While there is some basic assumption of risk, the Utah Supreme Court has established that facilities still must take reasonable care for safety.
McCormack recommends that if a person is not willing to assume some risk in taking part in a potentially dangerous activity, they should think twice about doing it.Under the current legal rulings, what is considered reasonable care will be left up to jury members. "We really do leave it to the community to decide what's reasonable," McCormack said.
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