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Releases Of Claims For Future Negligence Are Disfavored But Not Prohibited

Appellant Douglas Ferbet’s recreational outing with his family on January 25, 2013 to Respondents’ snow tubing hill in Eureka, Missouri ended abruptly when he slid down the hill seated on a large rubber inner tube, his dangling right foot engaged with the crevice in the sliding surface of the slippery slope breaking his leg in two places. Ferbet appeals the trial court’s summary judgment entered in favor of Respondents Hidden Valley and Peak Resorts (Hidden Valley) on Ferbet’s negligence claim in which he alleged that his injuries were caused by Hidden Valley’s negligent maintenance of the tubing hill. Hidden Valley sought summary judgment based on release-of-liability language in an agreement Hidden Valley required Ferbet to sign before selling snow tubing tickets to him and his family just before they headed to the hill. The Trial Court’s grant of Summary Judgment was affirmed in Ferbet v. Hidden Valley Golf and Ski Inc., No ED 108495 (Mo. App. E.D. 2020)

Hidden Valley’s snow tubing operation, located on a hillside adjacent to its ski resort, consists of a series of parallel and adjacent lanes descending down the hill. Customers slide down the lanes while perched on rubber inner tubes provided to them by Hidden Valley. Hidden Valley maintains the surface of the lanes covered in snow and ice and separates lanes from each other by raised rows of packed snow and ice.

In order to be permitted to buy tickets, customers were required to read and sign a document entitled Acknowledgement of Risk and Agreement Not to Sue. When Ferbet arrived with his family at the ticket window, he was presented with this one-page, single spaced, form agreement. He signed and dated the agreement in the spaces designated at the bottom, purchased tickets, and then proceeded to the tubing hill. Hidden Valley provided Ferbet an inner tube to use to slide down any of the tubing lanes he chose. During what would turn out to be Ferbet’s last slide of the day, his right foot lodged into a crevice in the sliding surface fracturing his tibia and fibula when his momentum carried the rest of his body forward.

Ferbet filed suit alleging that his injuries and damages were caused by Hidden Valley’s negligent maintenance and operation of the tubing hill, specifically with respect to the dangerous condition of sliding surface that he claims caused his injuries. Respondents filed their motion for summary judgment on the sole basis that Ferbet had released his claim against then by signing the agreement.

In response, Ferbet asserted that the release was unenforceable as against public policy. He also alleged that amusement park and recreational area operators such as Hidden Valley should be considered common carriers and therefore held to the highest degree of care, as opposed to ordinary care, and that an exculpatory clause should be unenforceable when the highest degree of care is owed.

Here, since Hidden Valley has asserted the release as an affirmative defense, we review de novo the legal and fact questions: (1) whether the release before us is enforceable to release Ferbet’s claims as a matter of law, and (2) whether Hidden Valley has established as a matter of undisputed fact that the injury-causing negligent conduct alleged by Ferbet is within the purview of this release. Alack v. Vic Tanny Intern. Of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. banc 1996).

While we may agree and acknowledge that there continue to be strong policy arguments why these anticipatory releases are problematic, e.g., the party best positioned to prevent the harm is relieved of liability and instead the burden of loss is placed upon the party least able to prevent it, the public policy implications of such releases have been litigated, analyzed, and largely decided by our Supreme Court. See Alack, 923 S.W. 2d at 334.

This Court has already considered this exact same release in Guthrie v. Hidden Valley Golf and Ski, Inc., 407 S.W.3d 642 (Mo. App. E.D. 2013) (Van Amburg, J., dissenting), in which a divided panel of this Court affirmed summary judgment in Hidden Valley’s favor and found that the language releasing Hidden Valley from its future negligence was sufficiently clear and conspicuous. Id. at 648.

Our Supreme Court has defined a risk that is “inherent” to an activity as something “structural” or involving the “constitution or essential character” of the activity. Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184, 202 (Mo. banc 2014). And, generally, a participant is deemed to have assumed the risk of injury from the inherent risks of an activity that are known and understood, and the defendant is not liable for injuries stemming from such inherent risks because no duty is owed as to those risks. Id. at 197.

We turn now to the crevice in the sliding surface that caused Ferbet’s injury and we find that an uneven sliding surface and the potential risks it creates for snow tubers are inherent risks of snow tubing because they are “structural” to the activity and involve the “essential character” of snow tubing. Coomer, 437 S.W. 3d at 202.

Looking to contract, specifically, we find it adequately notified Ferbet that there could be “[v]ariations in the surface upon which snow is conducted, which can vary from wet, slushy conditions to hard packed, icy conditions and everything in between.” As a result, we find that to the extent the particular variation that resulted in Ferbet’s injury was the result of Hidden Valley’s negligence, then this release extinguished that claim.

Missouri law applies a heightened degree of care only to be a very small number of well-defined activities including common carriers, such as railroads, buses, commercial airlines, streetcars, and elevator operators; electric companies; users of explosives; users of firearms; and motor vehicle operators. Chavez v. Cedar Fair, LP, 450 S.W.3d 291, 296 (Mo. banc 2014). Otherwise, the applicable standard is the ordinary degree of care. Id.

In Missouri, neither the common carrier designation nor the application of the highest degree of care has ever been extended to amusement parks or recreation areas such as ski resorts or snow tubing hills. Id at 296. And, since this activity resembles both skiing and an amusement park ride, we decline Ferbet’s invitation to do so. Hidden Valley owed Ferbet a duty of ordinary care in connection with its operation and maintenance of its snow tubing hill.

W. Dudley McCarter, a former president of The Missouri Bar, has published The Flag in the Journal of The Missouri Bar for over 25 years. This article can be found in Volume 77, Number 2 and is accessible here. Detailed drafting and reviewing of contracts is essential to protect you and your business from potential liability. Contact us today to discuss how the attorneys at Behr, McCarter & Potter, PC can protect your interests.

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