Spencer v. Killington, Ltd.

702 A.2d 35, 167 Vt. 137, 1997 Vt. LEXIS 23
CourtSupreme Court of Vermont
DecidedMarch 14, 1997
Docket95-327
StatusPublished
Cited by23 cases

This text of 702 A.2d 35 (Spencer v. Killington, Ltd.) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Spencer v. Killington, Ltd., 702 A.2d 35, 167 Vt. 137, 1997 Vt. LEXIS 23 (Vt. 1997).

Opinions

[139]*139Johnson, J.

Plaintiff, who was injured when he collided with a post during an amateur ski race, appeals the superior court’s order granting summary judgment to defendants, the ski area and its agents, based on releases he signed. We conclude that the releases were void as contrary to public policy, and reverse.

Plaintiff, an experienced skier, purchased a pass at Killington Ski Area for the 1990-1991 season, as he had for several previous seasons. To obtain the pass, plaintiff signed a document that released Killington and its employees and agents from all liability for any injuries resulting from the ski area’s negligence. Similar release language was included on the back of the season pass signed and worn by pass holders, including plaintiff.

During the 1990-91 season, plaintiff also participated in an amateur “Ski Bum” race series held at Killington Ski Area. The recreational races were open to persons of all skiing abilities, except that skiers with collegiate or professional racing experience were barred from the competition. On January 16, 1991, after completing the second race in the competition, plaintiff signed an entry form for the race series and paid an entry fee to Killington Ski Club. The back of the entry form included language releasing Killington and its employees and agents from any liability for personal injury resulting from Killington’s usual activities.

On March 6,1991, as he was completing another race in the series, plaintiff was seriously injured when he struck a wooden post marking the finish line of the race course. Plaintiff sued Killington, Ltd., its employee Steven Miller, and the Killington Ski Club, alleging that defendants negligently designed and erected the race course by (1) installing permanent posts at the finish line, (2) laying out the course so that competitors were guided into one of the posts, (3) setting the last gate too close to the posts, and (4) failing to provide adequate padding for the posts. Following the parties’ submission of various motions, memoranda, and affidavits, the superior court granted summary judgment to defendants, ruling that the agreements plaintiff signed unambiguously released defendants from liability for injuries resulting from their negligence. Further, the court ruled that no special relationship existed between the parties, and that public policy did not require invalidation of the releases.

In his original brief on appeal, plaintiff argued that the superior court erred by granting defendants summary judgment because there were material facts in dispute as to (1) whether the language of the releases and the circumstances surrounding plaintiff’s signing of [140]*140the releases apprised plaintiff that he was releasing defendants from liability for any injuries caused by their negligence, and (2) whether the documents released Miller or the Killington Ski Club from liability. On September 8, 1995, the same day Killington filed its responsive brief, this Court issued Dalury v. S-K-I, Ltd., 164 Vt. 329, 330, 670 A.2d 795, 796 (1995), in which we held that an exculpatory agreement signed by season pass holders and relieving a ski area of all liability for injuries resulting from the ski area’s negligence was void as contrary to public policy. The parties then filed supplemental briefs concerning the applicability of Dalury to this appeal.

As a prehminary matter, we reject Killington’s argument that plaintiff waived his public policy argument on appeal by failing to raise it during the trial court proceedings. We have often stated that “[w]e will not reverse a lower court when a party’s failure to raise some matter below denied the court an opportunity to consider it.” Duke v. Duke, 140 Vt. 543, 545, 442 A.2d 460, 462 (1982). Here, however, the public policy issue was addressed, albeit briefly, and rejected by the superior court. In its motion for summary judgment, Killington argued that “[pjublic policy is not concerned with a person’s decision to go ski racing.” Plaintiff responded, in part, by arguing that contractual exclusions of negligence liability are disfavored and must be strictly construed. The superior court expressly determined that “no public policy exists which should invalidate the waivers.” In short, although the public policy issue was not debated or considered in depth by the parties or the trial court, it was raised and ruled on, and thus we may consider plaintiff’s claim of error on appeal.

We now turn to the merits of the public policy issue, which is dispositive of the appeal. Acknowledging our holding in Dalury, Killington concedes that its season pass releases are void, but contends that Dalury does not preclude enforcement of the race registration release plaintiff signed. According to defendants, Dalury does not control here because this case, like Douglass n Skiing Standards, Inc., 142 Vt. 634, 459 A.2d 97 (1983), involves ski racing rather than recreational skiing.

The plaintiff in Douglass was a professional skier injured during a professional skiing competition. As a condition to entry into the competition, the plaintiff had been required to sign an agreement releasing the defendants from liability for any injuries he might sustain as the result of his participation in the competition. We held that notwithstanding the absence of the word “negligence” in the

[141]*141release, the terms of the exculpatory agreement unambiguously demonstrated the parties’ intent that the defendants were to be held harmless for injuries to the plaintiff caused by the defendants’ negligence. Id. at 636-37, 459 A.2d at 98-99. The issue of whether the release violated public policy was neither raised by the parties on appeal nor addressed by this Court. See Dalury, 164 Vt. at 331 n.1, 670 A.2d at 797 n.1 (noting that Douglass upheld release signed by participant in freestyle skiing competition based on clarity of language rather than public policy, and declining to address whether such releases are void as contrary to public policy).

Public policy was at issue in Dalury, however. In that case, notwithstanding our acknowledgement that the ski industry does not provide an “essential public service,” we struck down as contrary to public policy exculpatory agreements requiring season pass holders to release ski areas from liability for injuries caused by the ski areas’ negligence. See Dalury, 164 Vt. at 330, 335, 670 A.2d at 796, 799. In arriving at this decision, we considered, among other factors, that (1) the ski area operated a facility open to the general public, (2) the ski area advertised and invited persons of every level of skiing ability onto its premises, (3) the ski area, and not recreational skiers, had the expertise and opportunity to foresee and control hazards and to guard against the negligence of its employees and agents, (4) the ski area was in a better position to insure against the risks of its own negligence and spread the cost of the insurance among its customers, and (5) if ski areas were permitted to obtain broad waivers of their liability, incentives for them to manage risks would be removed, with the public bearing the cost.

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Spencer v. Killington, Ltd.
702 A.2d 35 (Supreme Court of Vermont, 1997)

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Bluebook (online)
702 A.2d 35, 167 Vt. 137, 1997 Vt. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-killington-ltd-vt-1997.