Liability of Ski Rental Shop ?

[michelleag]

Hello,

I was recently injured in a skiing accident in Washington state. I fell and my ankle was broken severely because my ski did not release from the binding. I was wearing skis and boots that I had rented from the ski resort's rental shop. I believe the binding did not release because the resort's rental shop did not adjust them properly.

Does the fact that I signed a Liability Release Agreement for the rental equipment mean the resort and/or rental shop are COMPLETELY free from liability, even if they did something wrong? I know that's what it says on the agreement, but I'm wondering if there are any loopholes or exceptions.

Thanks very much!


P.S. -- F.Y.I., here is an excerpt from the release form:

"...I agree to release (Ski Resort Name), its shops, employees, owners, directors, and their successors in interest, and any equipment manufacturers and distributors (collectively "Providers"), from all liability for injury, death, and property loss and damage that results from participation in recreational activities, is in any way related to the use of the equipment, or is related to any other activity at this ski/recreational area including all liability that results from the negligence of providers, or any other person or cause...."

 

[I AM ALWAYS LIABLE]

Hello,

I was recently injured in a skiing accident in Washington state. I fell and my ankle was broken severely because my ski did not release from the binding. I was wearing skis and boots that I had rented from the ski resort's rental shop. I believe the binding did not release because the resort's rental shop did not adjust them properly.

Does the fact that I signed a Liability Release Agreement for the rental equipment mean the resort and/or rental shop are COMPLETELY free from liability, even if they did something wrong? I know that's what it says on the agreement, but I'm wondering if there are any loopholes or exceptions.

Thanks very much!


P.S. -- F.Y.I., here is an excerpt from the release form:

"...I agree to release (Ski Resort Name), its shops, employees, owners, directors, and their successors in interest, and any equipment manufacturers and distributors (collectively "Providers"), from all liability for injury, death, and property loss and damage that results from participation in recreational activities, is in any way related to the use of the equipment, or is related to any other activity at this ski/recreational area including all liability that results from the negligence of providers, or any other person or cause...."

My response:

Depending on your knowledge, or experience, in the use of such equipment, their disclaimer may not be a complete bar to their negligence in adjusting the bindings.

While the act of, and the sport of, skiing has it's own inherent pitfalls and known or assumed risks, the ski shop cannot hide behind a "disclaimer" when it "increases" the risk of the sport. By failing to adequately adjust the bindings, they created an "increased risk" that you did not accept or assume.

California’s assumption of risk doctrine evolved in much the same manner as did contributory negligence. In the past, all claims by plaintiffs who were injured as a result of a risk they had assumed were completely barred. [See, for example, Fonseca v County of Orange (1972, 4th Dist) 28 Cal App 3d 361, 104 Cal Rptr 566] That system was essentially abolished along with contributory negligence. [Li v Yellow Cab Co. (1975) 13 Cal 3d 804, 119 Cal Rptr 858, 532 P2d 1226, 78 ALR3d 393] However, the Li court hinted that in certain situations, which were not clearly defined in the opinion, the assumption of risk defense remained as a complete bar to plaintiffs’ claims.

In an attempt to resolve this ambiguity, California recently adopted a duty analysis for assumption of risk cases. [See Knight v Jewett (1992) 3 Cal 4th 296, 11 Cal Rptr 2d 2; see also Ford v Gouin (1992) 3 Cal 4th 339, 11 Cal Rptr 2d 30, 834 P2d 724] Under this analysis, courts now distinguish between primary assumption of risk and secondary assumption of risk. Primary assumption of risk pertains to those instances in which the defendant has no duty to protect the plaintiff from a particular risk. On the other hand, secondary assumption of risk applies to situations where such a duty does exist, but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty. [Knight v Jewett (1992) 3 Cal 4th 296, 11 Cal Rptr 2d 2, 834 P2d 696]

The distinction between primary and secondary assumption of risk is significant. In primary assumption of risk cases, a plaintiff’s recovery continues to be completely barred. This is the category of assumption of risk cases that did not merge into the comparative negligence system after Li. Secondary assumption of risk cases, however, did merge into comparative fault; thus, in those cases the trier of fact may consider the parties’ relative responsibility in apportioning the loss. [Knight v Jewett (1992) 3 Cal 4th 296, 11 Cal Rptr 2d 2, 834 P2d 696; for further discussion of assumption of the risk, see TORTS: Negligence Ch 1

Thus, the key inquiry is whether or not the defendant owes the plaintiff a legal duty for a particular risk of harm.

Good luck to you.

IAAL

 

[michelleag]

Dear IAAL,

Thank you very much for your response to my question. I appreciate the information!

michelleag