William Rothstein, an expert skier, suffered broken ribs, an injured kidney, a bruised heart, a damaged liver, and a collapsed lung as a result of a collision with a retaining wall at Snowbird Resort. The wall, made of stacked railroad ties, was camouflaged by a light layer of snow. Photographs showed, and a resort official admitted, the wall was unmarked and no measures had been taken to alert skiers to its presence.

Mr. Rothstein, a season pass holder, had signed two waivers in conjunction with the purchase of his pass. In both, Mr. Rothstein waived any personal injury claims against Snowbird, "including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees."

The Utah Supreme Court ruled that the waiver was impermissible as contrary to the policy rationales behind the Utah Inherent Risks of Skiing Act ("the Act"). The legislative declaration made a part of the Act states that the Act’s purpose is to limit ski areas’ liability to make insurance affordable. The Court reasoned that the implied bargain of the legislation was that in exchange for statutorily limited liability lowering the cost of insurance, the ski areas would in turn purchase insurance to cover themselves for any remaining exposure. Because of the policy rationale expressed in the Act, the Court held that pre-injury releases, as applied to recreational skiers, are unenforceable.

Two other important Utah developments regarding pre-injury waivers warrant mention. As applied to race participants who must sign a waiver to be eligible, pre-injury releases are enforceable. Berry v. Greater Park City Co., 171 P.3d 442 (Utah 2007). Also, parents may not waive the rights of their children, nor may they be required to indemnify others against negligence claims of their children. Hawkins v. Peart, 37 P.3d 1062 (Utah 2002).

To read the Utah Supreme Court Opinion click here.

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