Or, “Trial Lawyer Fee”.

Your original comment complained about a waiver for intentional torts, which was not part of the ski resort’s waiver and thus had nothing to do with the court’s opinion, so I thought you were distinguishing waivers for negligence from waivers for intentional torts.

Your second comment’s dividing line provides absolutely no real-world protection to ski resorts. If the waiver doesn’t cover negligence, then your hypothetical someone who falls over and breaks their leg can still sue: the injured party can claim negligence on any of a number of grounds (just as Rothstein did here), and the ski resort is forced to litigate and defend claims over elementary injuries. It’s not clear whether your waiver would cover anything other than a failure to warn claim.

This will likely get a legislative fix, but it shouldn’t have needed one. There’s no honest way to read the statute as doing anything other than setting a baseline.

There’s either a typo in my comment or a typo in your response or my brain is buggy–we seem to be talking past each other. When I wrote “ordinary injuries,” I didn’t mean “ordinary injuries caused by negligence,” I meant “ordinary injuries from the inherent danger of skiing.” Here is the law as I understand it:

Waiver of liability for injuries sustained as a result of the inherent danger of skiing: OK (you can’t sue if you simply fall and break your leg)

Waiver of liability for injuries sustained as a result of negligence: Not OK (you can sue if the resort is allegedly negligent, e.g., in the placement of fences)

A waiver of rights in not automatically dubious, especially given some consideration (benefit.)

[Wrong on both counts. It’s the Utah Supreme Court, and the contract was signed. Read the opinion. — TF]

The legislature said that skiing was inherently dangerous and that resorts should not be liable for that.

The injury here was not due to the inherent danger of skiing (if the plaintiff had simply fallen and broken his leg, the waiver would have been upheld), but rather to the negligence of the resort with regard to the wall.

Obviously one shouldn’t be allowed to waive all liability–for deliberate or extremely reckless torts, for example, but one should be able to for ordinary injuries. The Court found the right balance here.

[The Utah Supreme Court held that one shouldn’t be allowed to waive liability for ordinary injuries allegedly caused by negligence, which is exactly what you said they shouldn’t be allowed to do, so I don’t understand why you think the Court is correct. — TF]

“Never start a land war in Asia!”

PS Ted, how does the legislature exert it’s authority and stop/turnover this farce?
Is there any power left? Checks and balances?
Beuhler?

This case seems a little different. Skiing is inherently dangerous. The fact the retaining wall is artificially constructed and not part of the natural course apparently gave enough justices pause about whether or not such a retaining wall is naturally part of the hazard one may expect while skiing, and that the liability waiver didn’t apply to that. That seems a bit on the edge of reason, in my opinion. I’d like to see how the wall looked in relation to the course.

And, as Ted Frank notes the liability waiver wasn’t just slapped on an invoice or on the back of his (and, everyone else’s) lift ticket. Apparently, it was specifically bargained for in exchange for extra privilege. That seems to give it extra weight in my opinion.

So, instead of losing on summary judgment the suit is allowed to go forward. I’d suspect the case is not a slam dunk on its merits anyway—and I bet Utah jurors may be a conservative lot.

Westley:
Truly, you have a dizzying intellect.
Vizzini:
Wait ’til I get going!