| Venue: |
VT SC
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| Facts: |
Dalury has signed a waiver along with his ski pass, and is seriously
hurt when he smashes into a metal pole. |
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| Posture: |
Summary judgment at trial. |
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| Issue: |
Is the waiver ambiguous about whose liability was waived? Is it
unenforceable as a matter of public policy? |
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| Holding: |
No. Yes. Reversed and remanded. |
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| Rule: |
It is simply wrong to put one party to a contract at the mercy of
another's negligence.
The Tunkl standard. No exculpatory clauses if:
- The business is of a type suitable for public regulation
- Service of great importance or necessity to the public
- Willing to perform this service for any member of the public
who seeks it
- Decisive advantage in bargaining strength
- Contract of adhesion
- Purchaser is placed under control of seller, or at risk due
to carlessness of seller or seller's agents
O NOES!!! Too many prongs! |
|
| Reasoning: |
Exculpatory contracts are only acceptable if they are
- Freely made
- Between parties in equal bargaining position
- Not interfering with a social interest
The Tunkl factors are relevant, but not rigid. VT business
owners have a duty of "active care" to customers. We want this
so that those who control property make it safe for those who
use it. The negligence of a property owner is not an "inherent
risk" in a sport. |
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| Dicta: |
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