Rutherford ex rel. Rutherford v. Talisker Finance Co., LLC, 2014 UT App 190, 333 P.3d 1266
Aug 29, 2014
”The [Inherent Risks of Skiing] Act prohibits pre-injury releases of liability for negligence entirely, regardless of the age of the skier that signed the release or whether the release was signed by a parent on behalf of a child.” Id. ¶ 30. A ten-year-old boy was practicing skiing as a member of a racing club affiliated with the U.S. Ski and Snowboard Association (USSA). While skiing very fast, he hit a patch of artificial snow that was of a wetter consistency and fell, sustaining injuries. His parents filed a complaint on his behalf. At issue were (1) whether Utah’s Inherent Risks of Skiing Act (Act) contemplated the man-made snow that caused the boy’s crash and (2) whether his father could effectively waive liability for negligence on the boy’s behalf. The Act was a compromise tool to bring insurance premiums down for resorts and incentivize resorts to carry insurance. The court placed the “inherent” hazards the Act precludes from liability into two categories: (1) the type of hazards which skiers endeavor to encounter (powder, moguls, steep grades) and (2) the fact that those skiers do not want to encounter but cannot be alleviated by ordinary care (sudden changes in weather). Whether the artificial snow was within the second category was an issue of fact, and the test is whether the plaintiffs could prove the accident could have been prevented through the use of ordinary care. The liability waiver had two sub-issues: (1) whether the choice of law provision selecting Colorado law as governing was enforceable and (2) whether the Act allowed for a pre-injury waiver on behalf of a minor. The court found that the Restatement’s (Second) of Conflicts of Laws § 188(2) several factors governed this determination and that Utah has a clear interest in the case. Next, the court held that the policy behind the Act did not allow for a parent to waive a child’s pre-injury claim.