SAUTER et al v. PERFECT NORTH SLOPES, INC. et al

Filing 153

ENTRY ON SUMMARY JUDGMENT - 85 The Snow Tube Defendants' Motion for Summary Judgment is GRANTED. The Sauters' claims against the Snow Tube Defendants are DISMISSED with prejudice. 75 Perfect North Slopes' Motion for Summary Judg ment is DENIED. The Sauters' negligence claim may proceed. No final judgment will issue for the Snow Tube Defendants until the remaining claims against Perfect North Slopes are resolved. See Entry for details. Signed by Judge Tanya Walton Pratt on 1/3/2014. (LBT)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
JAMES STEPHEN SAUTER and
PIPER SAUTER, Individually and as the
Natural Guardians of M.S., a minor
Plaintiffs,
v.
PERFECT NORTH SLOPES, INC.,
ANDREW BROADDUS,
STEPHANIE DANIEL,
CHRISTOPHER DANIEL,
JENNY WARR, and ANTHONY WARR,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 4:12-cv-00027-TWP-WGH

ENTRY ON SUMMARY JUDGMENT
Following a tragic accident which occurred at Defendant Perfect North Slopes, Inc.
(“Perfect North Slopes”) on January 30, 2011, Plaintiffs James Stephen Sauter (“Mr. Sauter”)
and Piper Sauter (“Mrs. Sauter”) (collectively, “the Sauters”) filed this negligence action.
Perfect North Slopes is a ski resort which among other activities, offers snow tubing, a
recreational activity that involves sitting on an inner tube and sliding down a hill. The Sauters
were at Perfect North Slopes with their three children, T.S. age 8, J.S., and M.S. age 10
(collectively, “the Sauter children”), on January 30, 2011, for a Boy Scouts event. While snow
tubing, the Sauter children veered into Defendants’, Andrew Broaddus, Stephanie Daniel,1
Christopher Daniel, Jenny Warr, and Anthony Warr (collectively, “Snow Tube Defendants”),
snow tube lane, after which the Snow Tube Defendants collided into the Sauter children. As a
result of the collision, M.S. suffered a brain injury.
1

The Court notes that the Complaint and CM/ECF caption use this spelling for Stephanie Daniel’s name. However,
Snow Tube Defendants’ briefing uses the spelling, “Stephany Daniel.” If “Stephanie” is incorrect, the parties are
ordered to file a motion to correct the error.

The Sauters filed suit against both Perfect North Slopes and the Snow Tube Defendants
for negligence. Before the Court are the Defendants’ separate Motions for Summary Judgment.
The issue of Perfect North Slopes’ alleged negligence has not been briefed, and the sole issue
before the Court regarding Perfect North Slopes is the validity and applicability of the release
form signed by Mrs. Sauter. For the reasons set forth below, Perfect North Slopes’ Motion for
Summary Judgment (Dkt. 75) is DENIED and the Snow Tube Defendants’ Motion for Summary
Judgment (Dkt. 85) is GRANTED.
I. BACKGROUND
A.

Snow Tubing and Perfect North Slopes
Perfect North Slopes is a ski resort located in Lawrenceburg, Indiana. It has terrain

parks, ski slopes, and a snow tubing hill. Snow tubing involves sitting or lying inside a round
inner tube and riding at a quick speed down a snow-covered slope. To reach the top of the snow
tubing hill, patrons at Perfect North Slopes ride a moving walkway called the “magic carpet” up
to the top of the hill. The snow tube hill is divided into multiple lanes separated by packed snow
barriers approximately one foot high. On January 30, 2011, there were nine express lanes, nine
regular lanes, and four super lanes on the snow tubing hill. Express lanes were longer than
regular lanes and the super lanes were wider than regular lanes. The snow tubing hill flattens
into a gravel lot called the “run-out” area, which is approximately 180 feet long. Snow tubers
can average between 20 and 40 miles per hour down the hill.
Perfect North Slopes employees are located at the top of the snow tubing hill to direct the
flow of patrons down the hill. The employees specifically determine when it is safe for patrons
to proceed down the hill and they assist the patrons’ start by pushing or pulling the tubes into the

2

designated lane. Perfect North Slopes also has employees located at the bottom of the hill to
assist patrons exiting the snow tube area.
On January 30, 2011, Perfect North Slopes had rules and regulations governing use of the
snow tubing hill. The rules and regulations were posted throughout the park, as well as broadcast
on a loud speaker system. Only one rider was allowed per tube. Linking – allowing a number of
tubers going at one time in one lane – was allowed as conditions warranted. Linking was to be
single file and “[w]hen linking, tubers must hold on to each other’s short tube handles the entire
time.” Dkt. 85-23 at 2. Perfect North Slopes’ website FAQs stated that, “[o]n the main hill, as
many as three tubes can ‘link’ together.” Dkt. 129-10 at 2. Perfect North Slopes also
recommended that parents supervise their children at all times.
B.

The Releases
Before participating in snow tubing, all patrons were required to sign a release form

prepared by Perfect North Slopes. On January 30, 2011, Perfect North Slopes provided the
Snow Tube Defendants with a release titled “Skiing/Snowboarding/Tubing Waiver”.

Mrs.

Sauter was provided a release titled “Snow Tubing Release of Liability”. The two forms differed
in language.
The Skiing/Snowboarding/Tubing Waiver included the following language in its “YOUR
RESPONSIBILITY CODE”:
A. Always stay in control, and be able to stop or avoid other people or objects.
B. People ahead of you have the right of way. It is your responsibility to avoid
them.
C. You must not stop where you will obstruct a trail, or are not visible from
above.
D. Whenever starting downhill or merging into a trail, look uphill and yield to
others.
E. Always use devices to help prevent runaway equipment.
F. Observe all posted signs and warnings. Keep off closed trails and out of closed
areas.
3

G. Prior to using any lift, you must have knowledge and ability to load and unload
safely.
This is a partial list. Be safety conscious.
Dkt. 85-21 at 1.

This waiver also states that, “as a skier/snowboarder/slider, I have

responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1.
Each of the five Snow Tube Defendants signed this release.
Conversely, the Snow Tubing Release of Liability form did not have a personal
responsibility code. It included language releasing Perfect North Slopes of liability for claims of
personal injury, death and/or property damage. Dkt. 85-20 at 1 (under seal). It acknowledged
acceptance of risk of snow tubing as a hazardous activity and risk of injury. It specifically
stated, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an
injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). It further
stated:
I, the undersigned, acknowledge that I have read this agreement and release of
liability and I understand its contents and in the event that I am signing on behalf
of any minors, that I have full authority to do so, realizing its binding effect on
them as well as myself. I understand that my signature below expressly waives
any rights I may have to sue Perfect North Slopes, Inc. for injuries and damages.
Dkt. 85-20 at 1 (under seal). Mrs. Sauter filled in the names of her three children and signed and
dated this release.
C.

The Collision
After Mrs. Sauter signed the release, Mr. Sauter took their three children to the “magic

carpet,” where he escorted the children in line and then left. The Sauter children and Snow Tube
Defendants each made their way to the top of the snow tubing hill. The Sauter children went to
Express Lane 7 and the Snow Tube Defendants went to Express Lane 8. The Sauter children
linked their tubes and were pushed down the lane by Perfect North Slopes employee Kelsi

4

Carlson (“Ms. Carlson”). Unfortunately, at some point during their ride, the Sauter children
veered out of their lane into Express Lane 8 and came to a stop before the end of the lane 8. Two
of the Sauter children got out of their tubes and were pulling the third child in his or her tube
toward the “magic carpet”. The Snow Tube Defendants had linked their five tubes and were
pushed down lane 8 by Ms. Carlson. Stephanie Daniel went down the hill backwards in her tube
and could not see where the tube was going. The Snow Tube Defendants collided with the Sauter
children in Express Lane 8, approximately 25 feet short of the end of the snow tube slope. The
Snow Tube Defendants’ tubes continued down Express Lane 8 after the collision and came to a
stop in the gravel run-out area. Both Stephanie Daniel and Christopher Daniel suffered minor
injuries from the collision. M.S. was knocked unconscious by the collision and was seriously
injured.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476
F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court
reviews “the record in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.
2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490
(citation omitted). “In much the same way that a court is not required to scour the record in

5

search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a
paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)
(citation and internal quotations omitted). Finally, “neither the mere existence of some alleged
factual dispute between the parties nor the existence of some metaphysical doubt as to the
material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion
Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
III. DISCUSSION
As previously discussed, the Sauters’ Complaint alleges both Perfect North Slopes and
the Snow Tube Defendants were negligent. Perfect North Slopes filed a motion for summary
judgment based on the Snow Tubing Release of Liability and the Snow Tube Defendants move
for summary judgment on the bases that they acted reasonably at all times and owed no duty to
the Sauter Children. The motion's are addressed in turn.
A.

Snow Tube Defendants’ Motion for Summary Judgment
The Court must first address whether the Snow Tube Defendants owed a duty of care to

M.S., because in the absence of duty a claim of negligence necessarily fails. See Kroger Co. v.
Plonski, 930 N.E.2d 1, 6 (Ind. 2010). The Snow Tube Defendants contend they had no duty of
care toward the Sauter children, and thus should be dismissed from the suit. The Sauters contend
that the duty was assumed upon signing the Skiing/Snowboarding/Tubing Waiver. Specifically,
the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be
able to stop or avoid other people or objects,” and “[tube] safely and in control.” Dkt. 85-21 at 1.
In Indiana, “[i]f a contract affirmatively evinces an intent to assume a duty of care,
actionable negligence may be predicated upon the contractual duty.” Merrill v. Knauf Fiber
Glass GmbH, 771 N.E.2d 1258, 1268 (Ind. Ct. App. 2002). To make this determination, “it is

6

the court’s duty to ascertain the intent of the parties at the time the contract was executed as
disclosed by the language used to express their rights and duties.” Walker v. Martin, 887 N.E.2d
125, 135 (Ind. Ct. App. 2008). “Generally, only parties to a contract or those in privity with the
parties have rights under a contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314–15
(Ind. 1996). The Indiana Supreme Court has stated that:
One not a party to an agreement may nonetheless enforce it by demonstrating that
the parties intended to protect him under the agreement by the imposition of a
duty in his favor. To be enforceable, it must clearly appear that it was the purpose
or a purpose of the contract to impose an obligation on one of the contracting
parties in favor of the third party. It is not enough that performance of the
contract would be of benefit to the third party. It must appear that it was the
intention of one of the parties to require performance of some part of it in favor of
such third party and for his benefit, and that the other party to the agreement
intended to assume the obligation thus imposed.
Id. at 1315 (quoting Kirtley v. McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App. 1990)).
The Snow Tube Defendants argue that the Skiing/Snowboarding/Tubing Waiver does not
affirmatively create a duty of care of the signor of the waiver to other patrons at Perfect North
Slopes. The Court agrees. The waiver included the following general language:
A. Always stay in control, and be able to stop or avoid other people or objects.
B. People ahead of you have the right of way. It is your responsibility to avoid
them.
C. You must not stop where you will obstruct a trail, or are not visible from
above.
D. Whenever starting downhill or merging into a trail, look uphill and yield to
others.
E. Always use devices to help prevent runaway equipment.
F. Observe all posted signs and warnings. Keep off closed trails and out of closed
areas.
G. Prior to using any lift, you must have knowledge and ability to load and unload
safely.
This is a partial list. Be safety conscious.
Dkt. 85-21 at 1. This list of responsibilities appears at the beginning of the waiver and by
signing the waiver, a signor attests that he or she is “familiar with and will adhere to” the
responsibilities. The waiver also states: “as a skier/snowboarder/slider, I have responsibilities to
7

myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. This statement appears
within the first full paragraph of the waiver, in which the signor also acknowledges the risks of
the snow sports offered at Perfect North Slopes, Perfect North Slopes’ lack of duty to warn of
dangers, and that participating in snow sports is voluntary with knowledge of the aforesaid risks.
The Court is not persuaded by the Sauters’ argument that the recitation of these
responsibilities, even with the acknowledgment of the signor to adhere to them, represents an
affirmative assumption of a duty of care. First, the “Your Responsibility Code” includes basic
safety instructions and concludes with the words, “This is a partial list. Be safety conscious.”
This implies not that the list imposes affirmative duties that are actionable if ignored, but that it
is a general guideline. Second, the statement that the signor will tube safely and in control is
included as one of many acknowledgments in a paragraph that ends with the statement,
“I . . . hereby expressly agree to accept and assume all such risks of [in]jury or death associated
with the sport of snow skiing/boarding/tubing.” Dkt. 85-2 at 1. This affirmative assumption of
the risks does not mention the responsibilities listed within the same paragraph. Instead, the
language regarding the responsibilities includes the words “recognize,” “familiar,” and “agree.”
However, it does not affirmatively state the signor “assumes” those responsibilities.
Especially considering that the Sauters are third parties to the contract between the Snow
Tube Defendants and Perfect North Slopes, there is no evidence that “it was the intention of one
of the parties to require performance of some part of it in favor of such third party and for his
benefit, and that the other party to the agreement intended to assume the obligation thus
imposed.” OEC-Diasonics, Inc., 674 N.E.2d at 1315. While performance of the responsibilities
listed certainly would benefit third parties like the Sauters and M.S., there is no evidence of clear
intent as required.

8

Further, to the extent the contract language is ambiguous regarding the assumption of a
duty of care, the extrinsic evidence of record supports the Snow Tube Defendants’ position. The
Director of Snow Sports Operations at Perfect North Slopes, Mike Mettler (“Mr. Mettler”),
explained during his deposition that the “Your Responsibility Code” section of the
Skiing/Snowboarding/Tubing Waiver was derived from the “Skier’s Responsibility Code”
developed by the National Ski Areas Association as a standard code for all skiers and
snowboarders. Dkt. 85-7 at 5, 111:14–20. Mr. Mettler testified that there are not standard rules
for snow tubing, the “Your Responsibility Code” did not apply to snow tubing, and that snow
tubing is inherently distinct from skiing or snowboarding, particularly because a snow tuber
lacks the ability to steer and control the tube. Dkt. 85-7 at 5, 111:22–25; Dkt. 85-8 at 51–53,
214:22–216:21; Dkt. 85-8 at 51, 214:6–21. Perhaps also telling, the Snow Tubing Release of
Liability signed by Mrs. Sauter did not include a “Your Responsibility Code” section or any
similar language. Mr. Mettler testified that Perfect North Slopes was transitioning from the
Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers
and that it was by chance that the Snow Tube Defendants and Sauters signed different release
forms. He further stated that there were no distinction between the forms in terms of
responsibilities while snow tubing. Dkt. 85-8 at 50, 213:7–17.
Mr. Mettler’s explanations support the conclusion that the Snow Tube Defendants did not
assume a specific duty of care to other patrons. First, Perfect North Slopes did not expect or
intend for snow tubers to have the exact abilities and safety responsibilities as skiers and snow
boarders given the differences between the sport activities. Second, Perfect North Slopes was
phasing out use of the Skiing/Snowboarding/Tubing Waiver for snow tubing, and the new form,
the Snow Tubing Release of Liability, did not include any mention of responsibilities to stop and

9

give right of way to other patrons. It is illogical that Perfect North Slopes would intend for some
snow tubers to affirmatively assume a duty of care to other patrons, while other snow tubers did
not. The random nature of who signed which form is evidence that Perfect North Slopes
considered the two forms to contain the same obligations and releases.
Accordingly, the Court finds that the Sauters have not established as a matter of law that
the Snow Tube Defendants affirmatively assumed a duty of care to the Sauter children. Nor
have the Sauters established a common law duty existed. Therefore, the Snow Tube Defendants’
motion is GRANTED and they will be dismissed from the suit.
B.

Perfect North Slopes’ Motion for Summary Judgment
At first glance, Perfect North Slopes’ motion is seemingly straightforward, as it contends

that the Sauters released all claims for liability when Mrs. Sauter signed the Snow Tubing
Release of Liability form on behalf of her children. The Sauters respond with two arguments in
the alternative. First, they ask the Court to invalidate the release on public policy grounds, an
issue on which the Indiana Supreme Court has not spoken. Second, the Sauters contend the
language of the release does not contain a waiver of claims on behalf of minors. Because the
Court finds that the release is ambiguous and thus does not bar the Sauters’ claim against Perfect
North Slopes, the Court will not speculate on the public policy issue raised by the Sauters.
The Sauters contend that the Snow Tubing Release of Liability does not waive a minor’s
possible negligence claims against Perfect North Slopes. The Indiana standard of review for
contract interpretation is as follows:
“Construction of the terms of a written contract is a pure question of law for the
court, reviewed de novo.” Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002).
If an instrument’s language is unambiguous, the parties’ intent is determined from
the four corners of the instrument. City of Indianapolis v. Kahlo, 938 N.E.2d 734,
744 (Ind. Ct. App. 2010), trans. denied. If a contract is ambiguous or uncertain,
its meaning is determined by extrinsic evidence and its construction is a matter for
10

the fact-finder. Kahlo, 938 N.E.2d at 744. An ambiguity exists where a provision
is susceptible to more than one interpretation and reasonable persons would differ
as to its meaning. Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind. Ct. App. 2004).
But the fact that the parties disagree over the meaning of the contract does not, in
and of itself, establish an ambiguity. Everett Cash Mut. Ins. Co. v. Taylor, 926
N.E.2d 1008, 1013 (Ind. 2010) (citation omitted).
When interpreting a written contract, the court should attempt to determine the
parties’ intent at the time the contract was made, which is ascertained by the
language used to express their rights and duties. Kahlo, 938 N.E.2d at 744. A
court should construe the language of a contract so as not to render any words,
phrases, or terms ineffective or meaningless. Hammerstone v. Ind. Ins. Co., 986
N.E.2d 841, 846 (Ind. Ct. App. 2013).
Claire’s Boutiques, Inc. v. Brownsburg Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct.
App. 2013). Furthermore, an ambiguity may be patent or latent:
A patent ambiguity is apparent on the face of the instrument and arises from an
inconsistency or inherent uncertainty of language used so that it either conveys no
definite meaning or a confused meaning. Extrinsic evidence is not admissible to
explain or remove a patent ambiguity. Conversely, a latent ambiguity does not
emerge until one attempts to implement the words as directed in the instrument.
Extrinsic evidence is admissible to explain a latent ambiguity.
Weinreb v. Fannie Mae, 993 N.E.2d 223, 232 (Ind. Ct. App. 2013) (internal citations omitted).
If an ambiguity arises by reason of the language used, construction of the ambiguous contract is
a question of law for the court. Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d
68, 80 (Ind. Ct. App. 2010).
The Sauters present the release form as a dual-purpose document; a medical authorization
on one hand, and a release of liability on the other. They argue that nowhere does the release
explicitly release the claims of minors, and the only reference to minors is in regard to medical
authorization. The Court agrees that at best, the release is ambiguous regarding whether a
minor’s claims against Perfect North Slopes are waived.
Specifically, the release is written from the viewpoint of an adult signor. Each paragraph
and sentence references that the signor understands, accepts, or agrees to the release’s terms.
11

However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect
North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the
minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). In the seventh and final paragraph
the release also states, “I, the undersigned, acknowledge that I have read this agreement and
release of liability and I understand its contents and in the event that I am signing on behalf of
any minors, that I have full authority to do so, realizing its binding effect on them as well as
myself.” Dkt. 85-20 at 1 (under seal). Perfect North Slopes argues this final statement applies to
the entirety of the agreement, while the Sauters argue it applies only to the medical authorization.
Contract interpretation requires “the contract to be read as a whole, and the language
construed so as not to render any words, phrases, or terms ineffective or meaningless.” Stewart
v. TT Commercial One, LLC, 911 N.E.2d 51, 56 (Ind. Ct. App. 2009). Here, the release inserts a
specific reference to minors only regarding medical authorization. It does not reference minors
regarding acceptance of risk, awareness that tubing is a hazardous activity, or releasing Perfect
North Slopes from damage resulting from negligence, or any other clause. This disparity creates
a susceptibility of more than one interpretation of the release’s provisions. However, if Perfect
North Slopes’ interpretation that the final statement applies to the entire release was accepted,
the specific reference to minors regarding medical authorization would be rendered redundant or
unnecessary. Rather, it is reasonable to interpret the release as referencing minors when the
release specifically applies to them, which is reiterated at the conclusion of the release. Thus, the
Court finds the contract ambiguous. The ambiguity is a patent one, as it is inherent in the
language of the document.

In this circumstance, extrinsic evidence is not admissible or

necessary to the Court’s determination. The release does not include a clear, unambiguous

12

waiver of M.S.’s claims against Perfect North Slopes for its alleged negligence. Therefore,
Perfect North Slopes’ motion is DENIED.
IV. CONCLUSION
For the reasons set forth above, the Snow Tube Defendants’ Motion for Summary
Judgment (Dkt. 85) is GRANTED. The Sauters’ claims against the Snow Tube Defendants are
DISMISSED with prejudice. Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75)
is DENIED. The Sauters’ negligence claim may proceed. No final judgment will issue for the
Snow Tube Defendants until the remaining claims against Perfect North Slopes are resolved.

SO ORDERED.
01/03/2014
Date: ____________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Wilmer E. Goering, II
ALCORN GOERING & SAGE, LLP
[e-mail]

Paul M. De Marco
MARKOVITS, STOCK & DEMARCO, LLC
[e-mail]

Michael C. Peek
CHRISTOPHER & TAYLOR
[e-mail]

Steven P. Langdon
MCNEELY STEPHENSON THOPY &
HARROLD -NA
[e-mail]

Curtis L. Cornett
CORS & BASSETT, LLC
[e-mail]
K. Lee Cotner
COTNER LAW OFFICE
[e-mail]
Louise M Roselle
MARKOVITS, STOCK & DEMARCO, LLC
[e-mail]

David Scott Strite
O’BRYAN BROWN & TONER PLLC
[e-mail]
John Patrick Schomaker
SMITH ROLFES & SKAVDAHL
COMPANY, L.P.A.
[e-mail]
Jeremiah Robert Seebohm
SMITH ROLFES & SKAVDAHL
COMPANY, L.P.A.
[e-mail]
13