Kearney v. Okemo Limited Liability Company et al

Filing 83

OPINION AND ORDER denying Defendant's 58 Motion for Summary Judgment. Signed by Judge Geoffrey W. Crawford on 8/11/2016. (esb)

U.S. DISTRiCT COURT

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

BRIAN J. KEARNEY,
Plaintiff,
v.
OKEMO LIMITED LIABILITY
COMPANY, d/b/a Okemo Mountain Resort,
and THE UNITED STATES SKI AND
SNOWBOARD ASSOCIATION,
Defendants.

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2016 AUG II AM II: 52

Case No. 5:15-cv-00166

OPINION AND ORDER RE:
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(Doc. 58)

Plaintiff Brian J. Kearney brings this personal injury action against Defendants Okemo
Limited Liability Company, doing business as Okemo Mountain Resort, and the United States
Ski and Snowboard Association ("USSA"), alleging negligent installation of safety netting
during a downhill alpine ski race in February 2015. Defendants seek summary judgment on the
ground that Plaintiff signed a release prior to his participation in the race. The court heard
argument on Defendants' Motion on July 25, 2016. For the reasons discussed below,
Defendants' Motion for Summary Judgment (Doc. 58) is DENIED.
Background

The court considers only those facts relevant to the pending motion.
Plaintiff was seriously injured while competing in an amateur downhill ski race at Okemo
Mountain Resort ("Okemo") in Ludlow, Vermont in February 2015. USSA sanctioned the
competition. To be eligible to participate, individuals had to have a USSA membership and
proper ski equipment. Participants also had to conduct a visual inspection of the course and take
at least two official training runs prior to the race.

1

Plaintiffbecame a USSA member on December 16, 2014 for the 2014-2015 ski season
through USSA's website. As part ofthe USSA membership registration process, registrants
were required to acknowledge and agree to be bound by the terms ofUSSA's Assumption of
Risk and Release ofLiability agreement (the "release"). (Doc. 61-16 at 10-11.)
The release contained the following exculpatory provision:
Member hereby unconditionally W AlVES AND RELEASES ANY AND ALL
CLAIMS, AND AGREES TO HOLD HARMLESS, DEFEND AND
INDEMNIFY USSA FROM ANY CLAIMS, present or future, to Member or
his/her property, or to any other person or property, for any loss, damage,
expensive, or injury (including DEATH), suffered by any person from or in
connection with Member's participation in any Activities in which USSA is
involved in any way, due to any cause whatsoever, INCLUDING NEGLIGENCE
and/or breach of express or implied warranty on the part of US SA.
(Doc. 58-5 at 2.) As used in the release, "USSA" referred to USSA and "its subsidiaries,
affiliates, officers, directors, volunteers, employees, coaches, contractors and representatives,
local ski clubs, competition organizers and sponsors, and ski and snowboard facility operators."

(Id.) The term "Activities" included "skiing and snowboarding in their various forms, as well as
preparation for participation in, coaching, volunteering, officiating and related activities in
alpine, nordic, freestyle, adaptive, and snowboarding competitions and clinics." (Id.) The
release also contained a choice-of-law provision, which stated that it would be "construed in
accordance with, and governed by the substantive laws of the State of Colorado, without
reference to principles governing choice or conflict of laws." (Id.)
Analysis
I.

Summary Judgment Standard
A party is entitled to summary judgment when it shows "that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56( a). "Material facts" are those that, under the applicable substantive law, "might affect the
outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over
a "material fact" is "genuine" only if "the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. A party opposing a properly pleaded summary judgment
motion "may not rest upon mere allegation or denials of his pleading, but must set forth specific
2

facts showing that there is a genuine issue for trial." Id. at 256 (citations omitted). If the
nonmovant offers evidence that "is merely colorable, or is not significantly probative, summary
judgment may be granted," id. at 249-50 (citations omitted), but "all ambiguities must be
resolved and all inferences drawn in favor of the party against whom summary judgment is
sought." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994)
(citation omitted).

II.

Plaintiff's Acceptance of Click-Wrap Release
The type of release at issue in this case is commonly referred to as a "click-wrap"
1

agreement. See Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236 (E.D. Pa. 2007) (leading
case discussing click-wrap agreements). Courts routinely find these types of agreements
enforceable. See id. at 236-43; see also Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 837
(S.D.N.Y. 2012); TradeComet.com LLC v. Google, Inc., 693 F. Supp. 2d 370, 377-78 (S.D.N.Y.
2010). Because the click-wrap technology does not permit the customer to continue to use the
website unless he or she clicks on the required box on the screen, courts have accepted proof of
use at the site as evidence of the customer's agreement. See Feldman, 513 F. Supp. 2d at 23233, 235; Fteja, 841 F. Supp. 2d at 834-35, 841.
Plaintiff admits that he applied for a USSA membership online, but states that he has no
recollection of seeing or acknowledging the release. (Doc. 61-27 at ,-r 11.) He attempts to create
a factual dispute by asserting that Defendants have yet to produce a release signed or initialed by
him. However, unlike when a person physically signs a paper contract, such documentation does
not necessarily exist in the click-wrap context. (See Doc. 61-16 at 27 (noting that screenshot
images for each step of membership process are not saved in USSA's computer database).)
Nevertheless, courts frequently enforce such agreements. For example, in Feldman, the plaintiff
challenged the validity of a forum selection clause in an electronic click-wrap agreement. 513 F.
Supp. 2d at 231. In support of the agreement's enforceability, the defendant relied upon an
affidavit from an information technology representative familiar with the steps that the plaintiff
1

Click-wrap agreements "require a user to affirmatively click a box on the website
acknowledging awareness of and agreement to the terms of service before he or she is allowed to
proceed with further utilization of the website." United States v. Drew, 259 F.R.D. 449, 462 n.22
(C.D. Cal. 2009) (citation omitted).
3

would have needed to go through in order to create the online account that plaintiff indisputably
had created. See id. at 232-33. The representative testified that in order to complete the account
sign-up process, the plaintiff would have been required to accept certain terms and conditions by
checking a "Yes, I agree" box. See id. If plaintiff had failed to check this box, he would not
have been able to complete his application, activate his account, or incur charges. See id. The
representative testified that plaintiff did activate his account and had incurred charges, and the
court found this evidence sufficient to authenticate the click-wrap agreement. See id. at 232-33.
235; see also Fteja, 841 F. Supp. 2d at 831, 834-35,841 (to counter plaintiffs argument that
there was no proof he agreed to forum selection clause, defendant offered similar evidence
showing that plaintiff was Facebook user and could not have become one unless agreeing to
Facebook's terms ofuse ).
Here, USSA's information technology representative and software developer, Dana
Alexandrescu, was deposed and offered testimony regarding USSA's online membership process
and Plaintiffs application. Ms. Alexandrescu testified that she has been familiar with USSA's
website and the online membership process since its inception in 2008. She produced
demonstrative exhibits ofthe release currently in use by USSA and testified that the same
agreement has been used in USSA's online membership process since 2008. All online
registrants since 2008 have been required to read and acknowledge the release by checking a box
that states, "I HAVE CAREFULLY READ THE FOREGOING AND UNDERSTAND IT TO
BE A LEGALLY BINDING RELEASE AND INDEMNITY AGREEMENT." (Doc. 61-16 at
10; Doc. 61-17 at 13.) Ms. Alexandrescu testified that the USSA website has never permitted a
registrant to become a USSA member without checking this box. If a registrant were to not
agree to the release and leave the box unchecked, the page with the release would continuously
reload and prompt the registrant to check the box. Only after checking the box would the
registrant be permitted to complete the membership process? Upon completion of the process,
the registrant receives a confirmation receipt, welcome letter, and USSA membership number.

2

Plaintiff attempts to argue that an individual could choose to not accept the terms of the release
and still become a USSA member, basing his argument on a demonstrative exhibit provided at
Ms. Alexandrescu's deposition. The exhibit consisted of a screenshot of the online enrollment
process captured prior to the "I agree" box being checked. (See Doc. 61-17 at 13.) It shows the
application as Plaintiff would have seen it before he clicked on the box to demonstrate his
4

It is undisputed that Plaintiff applied for and received his USSA membership online in

December 2014. Plaintiff admits that he received a confirmation email from USSA and that his
credit card statement reflects a payment for his USSA membership. (Doc. 71-2 at 3 .) Though he
does not remember whether he saw or acknowledged the release, Plaintiff has offered no
evidence and asserted no specific facts to rebut Defendants' evidence that one cannot receive a
USSA membership, as Plaintiff did, without first accepting the release. See Fteja, 841 F. Supp.
2d at 834, 841 (rejecting plaintiffs argument that forum selection clause was unenforceable
because he did not remember agreeing to it); see also Feldman, 513 F. Supp. 2d at 236 ("Absent
a showing of fraud, failure to read an enforceable click[-]wrap agreement, as with any binding
contract, will not excuse compliance with its terms." (citations omitted)). The court finds that no
triable issue exists concerning Plaintiffs acceptance of the release.
III.

Choice-of-Law Provision in Release
Plaintiff urges the court to disregard the Colorado choice-of-law clause in the release and

apply Vermont law to the instant dispute. Defendants submit that the court ought to apply
Colorado law, as provided for in the parties' contract.
"The validity of a contractual choice-of-law clause is a threshold question that must be
decided not under the law specified in the clause, but under the relevant forum's choice-of-law
rules governing the effectiveness of such clauses." Fin. One Pub. Co. v. Lehman Bros. Special
Fin., Inc., 414 F.3d 325, 332 (2d Cir. 2005) (citation omitted). As this is a diversity action, the
court looks to Vermont's choice-of-law rules to determine which law applies. See Thea v.
Kleinhandler, 807 F.3d 492, 497 (2d Cir. 2015) ("Where jurisdiction is predicated on diversity of
citizenship, a federal court must apply the choice-of-law rules of the forum state." (citations
omitted)).
Exculpatory clauses in release agreements are evaluated under principles of contract law.
See Colgan v. Agway, Inc., 150 Vt. 373, 553 A.2d 143 (1988). The Vermont Supreme Court has
adopted the Restatement (Second) of Conflict of Laws (the "Restatement") for choice-of-law

consent. Any screenshot can be captured and printed, but printing the screen before acceptance
does not demonstrate that acceptance is not required to join USSA.
5

questions in contract matters. See McKinnon v. F.H Morgan & Co., Inc., 170 Vt. 422,423,
750 A.2d 1026, 1028 (2000) (citation omitted). Section 187 of the Restatement provides:
(1) The law of the state chosen by the parties to govern their contractual rights
and duties will be applied if the particular issue is one which the parties could
have resolved by an explicit provision in their agreement directed to that
ISSUe.

(2) The law of the state chosen by the parties to govern their contractual rights
and duties will be applied, even if the particular issue is one which the parties
could not have resolved by an explicit provision in their agreement directed to
that issue, unless either
a. the chosen state has no substantial relationship to the parties or the
transaction and there is no other reasonable basis for the parties'
choice, or
b. application of the law of the chosen state would be contrary to a
fundamental policy of a state which has a materially greater interest
than the chosen state in the determination of the particular issue and
which, under the rule of § 188, 3 would be the state of the applicable
law in the absence of an effective choice oflaw by the parties.
The court finds that the issue before it, whether the exculpatory clause is valid or void
under public policy, is not one which the parties could have resolved by an explicit provision in
their agreement. It does not lie within their contractual capacity. See Restatement (Second) of
Conflict § 187 cmt. d (noting that issues of contractual validity cannot be determined by explicit
agreement). The court therefore considers the law specified in the release under§ 187(2) of the
Restatement, and finds that both exceptions to its application have been met.

3

Section 188 of the Restatement provides, "The rights and duties of the parties with respect to an
issue in contract are determined by the local law of the state which, with respect to that issue, has
the most significant relationship to the transaction and the parties under the principles stated in
§ 6." The policy factors set out in§ 6 include: (1) the needs of the interstate and international
systems, (2) the relevant policies ofthe forum, (3) the relevant policies of other interested states
and the relative interests ofthose states in the determination of the particular issue, (4) the
protection of justified expectations, (5) the basic policies underlying the particular field oflaw,
(6) certainty, predictability, and uniformity of result, and (7) ease in the determination and
application of the law to be applied. With the exception of the protection of justified
expectations, the court finds that the other factors either do not tip in any particular direction or
favor the application ofVermont law.
6

A.

No Substantial Relationship or Reasonable Basis Exception

The chosen state of Colorado has no "substantial relationship" to the parties or the
transaction. Plaintiff is a resident ofN ew York. USSA is a Utah corporation and Okemo is a
Vermont entity. The incident in question did not occur in Colorado. The only facts Defendants
have offered in support of applying Colorado law to this case are: (1) Colorado is home to more
USSA member clubs than any other state and hosts the majority of US SA's major events, and (2)
there was a possibility that Plaintiff could have competed in Colorado at some point during the
relevant ski season. The court finds that such a tenuous and hypothetical connection does not
vest in the state of Colorado a substantial relationship to the parties or specific transaction at
issue in this case. See Rutherford ex ref. Rutherford v. Talisker Canyons Fin. Co., 2014 UT App
190, ~ 24, 333 P.3d 1266.
In contrast, Vermont's relationship to the parties and transaction is significant. Okemo is
a Vermont corporation, the competition was held in Vermont, Plaintiff was issued a lift ticket by
Okemo requiring all disputes to be litigated in Vermont, Plaintiff participated in inspection and
training runs in Vermont, and Plaintiffs injury occurred in Vermont.
Colorado has no substantial relationship to the parties or the transaction. Moreover, the
minimal facts offered in support ofthe choice-of-law provision do not clearly establish a
"reasonable basis" for choosing Colorado law. In any event, the court need not decide this issue
because the choice-of-law provision also fails under the second exception to§ 187(2) ofthe
Restatement, as discussed below.
B.

Public Policy Exception

First, applying Colorado law would undoubtedly produce a result contrary to a
fundamental policy ofVermont. Whereas exculpatory clauses in ski contracts have been held to
be enforceable under Colorado law, see, e.g., Brush v. Jiminy Peak Mountain Resort, Inc.,
626 F. Supp. 2d 139, 149-51 (D. Mass. 2009) (applying Colorado law), courts applying Vermont
law consistently hold such releases to be void as contrary to important public policies ofthe
state. See, e.g., Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35 (1997); Dalury v. S-K-L
Ltd., 164 Vt. 329, 670 A.2d 795 (1995).

7

Second, Vermont has a "materially greater interest" than Colorado in the determination
of this issue. 4 Colorado's interest in this case is minimal. The fact that Plaintiff may have
competed there in the course of the relevant ski season and that USSA hosts many events in that
state does not create a significant interest in a case concerning a Vermont ski race. Conversely,
Vermont's interest is plain. Vermont has a general interest in having its laws apply to contracts
governing transactions taking place within the state. Vermont also has a significant interest in
the conduct at issue here. Skiing is an important recreational activity for Vermonters and those
visiting the state, and the Vermont Supreme Court has repeatedly noted its interest in holding ski
resorts responsible for skier safety. See, e.g., Spencer, 167 Vt. at 140-43, 702 A.2d at 36-38 (ski
race open to public implicates public interest and policy considerations); Dalury, 164 Vt. at 33136, 670 A.2d at 797-800. This court has specifically recognized Vermont's "special interest in
this kind oflitigation" given "the serious nature ofthe[se] claim[s] and the potential that future
such events could result in injuries to Vermonters and visitors to the state." Umali v. Mount

Snow Ltd., 247 F. Supp. 2d 567, 572 (D. Vt. 2003). As entities like USSA "will undoubtedly
continue to sponsor and run events in Vermont," Vermont must "be able to regulate events like
the race in question and to develop consistent and specific legal doctrine to protect both the
mountain sports industry and its component parts, including its racing participants." !d.
The choice-of-law provision does not control in this case and we rely on Vermont law to
determine the enforceability of the release. 5

4

As discussed previously, the court notes, pursuant to§ 187(2)(b) of the Restatement, that
Vermont would be the state of applicable law under§ 188 in the absence of the choice-of-law
provision given that it has the most "significant relationship" to the transaction and the parties.
5

Defendants cite to Stamp Tech, Inc. ex rel. Blair v. Lydall/Thermal Acoustical, Inc., 2009 VT
91, ~ 23, 186 Vt. 369, 987 A.2d 292, as evidence that Vermont choice-of-law rules require
Colorado law to be applied. The court finds this argument unpersuasive. In Stamp Tech, the
Vermont Supreme Court noted that "[i]n the absence of a statute in the forum state providing
otherwise, it is well-settled that it would be contrary to the justified expectations of the parties
for a court to interpret their agreement by the laws of any jurisdiction other than that specified in
the contract." !d. (citing Restatement (Second) of Conflict § 187 cmt. c). However, that case
involved an indemnification claim arising out of a contract for the installation of safety guards
between two commercial parties. See id. at~~ 2-6. The court does not read Stamp Tech as
governing the enforceability of contractual provisions that waive an individual's right to sue a
corporate entity for negligence.
8

IV.

Release Void as Contrary to Vermont's Public Policy
The leading Vermont Supreme Court case governing the enforceability of contract

provisions waiving negligence claims is Dalury v. S-K-L Ltd., 164 Vt. 329, 670 A.2d 795 (1995).
In Dalury, the Court rejected the exculpatory language in ski tickets issued to customers as being
"contrary to public policy." Id. at 330, 670 A.2d at 796. The Court concluded that ''ultimately
the determination of what constitutes the public interest must be made considering the totality of
the circumstances of any given case against the backdrop of current societal expectations." Id. at
333-34, 670 A.2d at 798 (internal quotation marks and citation omitted). It then went on to
make its public policy determination largely on the basis of two factors derived from the seminal
case of Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963): (1) ski areas are
open to the general public without regard to special training or ability, and (2) the longstanding
rule that premises owners are in the best position to assure for the safety oftheir visitors. 6 See

Dalury, 164 Vt. at 332-35, 670 A.2d at 797-99. As noted by this court in Littlejohn v.
TimberQuest Park at Magic, LLC, 116 F. Supp. 3d 422, 426 (D. Vt. 2015), "[t]hese principles
have remained unchanged in the cases which have followed Dalury."
In Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35 (1997), the Vermont Supreme
Court considered whether a participant in an amateur ski race series was sufficiently different
from the recreational skier in Dalury such that an exculpatory clause could be enforced against
him. The Court ultimately held that the same public policy concerns underlying Dalury
"appl[ied] with equal force" to the amateur ski racer. Id. at 142-43, 702 A.2d at 37-38. In so
ruling, the Spencer Court relied on the same two principles it had emphasized in Dalury: (1) the
race was open to the general public, including persons with limited or no experience in
competitive skiing, and (2) the defendants, as opposed to the race participants, had:
the expertise and opportunity to maintain and inspect their premises, to foresee
and control hazards, to train their employees in risk management, to guard against
the negligence of their agents and employees, and to insure against the risks and
spread the increased cost of insurance among race participants or all skiing
customers.
6

In making its determination, the Dalury Court did not depend upon the Tunkl factor of whether
skiing was an essential industry or service. The Court explained that "[ w ]hether or not [the ski
resort] provide[ s] an essential public service does not resolve the public policy question in the
recreational sports context." Dalury, 164 Vt. at 334, 670 A.2d at 799.

9

!d. at 142, 702 A.2d at 37. The Court saw "no salient distinctions between [its case] and
Dalury," id. at 143, 702 A.2d at 38, making clear that, under Vermont law, ski areas and sport
event organizers will not be absolved from liability by virtue of an exculpatory clause even in the
context of amateur racing.
While Dalury and subsequent cases identify other factors that courts might consider when
weighing exculpatory clauses against public policy, those "most consistently applied" in cases
resembling the instant matter continue to be "whether the defendant was in control of the
location where the injury occurred" and "whether these premises were open to the general
public." Littlejohn, 116 F. Supp.3d at 427. Here, the parties do not dispute that Defendants were
in control of the premises. Rather, the parties focus their dispute on whether the race was open
to the general public. While Plaintiff submits that it was, Defendants disagree. In support of
their position, Defendants point out that individuals could only compete in the event if: (1) they
had an active USSA membership, (2) they conducted both a visual inspection of the course and
took at least two official training runs, and (3) they had proper ski equipment.
The court finds that, like the race in Spencer, the race here was open to the general
public. While it is undisputed that a USSA membership was required to compete, any member
of the public could register for such a membership, even on the day of the event. Being a USSA
member is not exclusive nor does it require any level of skill. The organization consists of
approximately 30,000 members. Cf Provoncha v. Vt. Motocross Ass 'n, 2009 VT 29, ,-r 20, 185
Vt. 473, 974 A.2d 1261 (exculpatory clause enforced where general public not permitted to race
in motorcycling club's event and club consisted of only 300 members). The race was open to
participants of varying skill levels, including beginners with no race experience, and anyone
between the ages of eighteen and ninety. See Umali, 24 7 F. Supp. 2d at 574-7 5 (exculpatory
release void as contrary to public policy where plaintiff competed in ski race open to participants
of all skill levels). That all racers were required to conduct a visual inspection and take training
runs before the competition does not change the court's analysis. As these pre-race measures
took place on the same course as the event itself, it remains undisputed that skiers of all levels of
ability could show up and get on the course without training elsewhere first. Lastly, while proper
ski equipment was a necessary prerequisite, no specific racing gear was required. Rather, any
participant with skis and a helmet would meet the eligibility requirements. In other words, all
10

barriers to entry were largely superficial. Nothing prohibited a novice skier from arriving at
Okemo on the day of the race, signing up for a USSA membership, renting skis and a helmet,
and having immediate access to the race course.
Though Defendants urge the court to enforce the exculpatory clause by citing two other
Vermont Supreme Court cases, Provoncha and Thompson v. Hi Tech Motor Sports, Inc., 2008
VT 15, 183 Vt. 218, 945 A.2d 368, the court finds these cases distinguishable. In Thompson, the
Court held that a liability waiver signed by an individual injured during a motorcycle test ride did
not contravene public policy. 7 See 2008 VT 15 at ,-r 7. In so doing, the Court specifically
distinguished the premises liability concerns at issue in Dalury. The Court noted that "whereas
public policy places the burden of maintaining safe premises on a landowner, public policy
concerning motorcycle safety places the burden of safe driving on the operator of the
motorcycle." Id. at ,-r 9. And unlike skiers who "are not in a position to discover and correct
risks of harm" on a trail, a motorcycle test driver has "the ability to undertake precautions to
avoid hazards associated with operation" and it was "logical to place the incentive for safe
driving on the party who has actual control of the vehicle." Id. at ,-r,-r 9, 12. Provoncha enforced
an exculpatory clause in the motorcycling racing context, relying in large part on the fact that
only members of a small motorcycling club were permitted to race in the event. See 2009 VT 29
at ,-r 20.
While it is true that this court in Littlejohn noted that the debate surrounding the
enforceability of release agreements appeared to be split between recreational activities and
"more risky pursuits" such as motorcycling, skydiving, scuba diving, and mountaineering, see
116 F. Supp. 3d at 428, the fact that the race at issue here was a high-risk activity does not
automatically place it within the scope of Thompson and Provoncha. Those cases do not stand
for the proposition that exculpatory waivers in the context of high-risk sports automatically
satisfy public policy concerns. Instead, they note that such waivers are unlikely to contravene
public policy because specialized, risky activities are commonly not open to all, but rather
require special skill and prior experience, and frequently take place in settings that are not under
the control ofbusiness operators. Neither of those things is true in this case. That the race at
7

Though the agreement was consistent with public policy, the Court ultimately found that the
release was insufficiently clear to exculpate the defendant from its own negligence. See
Thompson, 2008 VT 15 at ,-r,-r 16, 20.
11

issue here was a high-risk activity does not change the fact that it was also open to the general
public and that Defendants, like those in Dalury and Spencer, not Plaintiff, were the ones with
both the expertise and opportunity to inspect the premises and control for hazards. If the court
enforced the exculpatory clause at issue here, it would remove the incentive for Defendants to
manage the risks posed by their ski areas and events to the general public, an outcome plainly
contrary to the principles underlying Dalury. See Spencer, 167 Vt. at 142, 702 A.2d at 37 ("[I]f
defendants were permitted to obtain broad waivers of their liability, an important incentive for
ski areas to manage risk would be removed, with the public bearing the cost of the resulting
injuries." (quotingDalury, 164 Vt. at 335,670 A.2d at 799)). As individuals engaged in
recreational activities open to the general public in the state ofVermont continue to be entitled to
expect that the activity will be made reasonably safe and that business owners will be responsible
for the safety of their premises, the court will not enforce the exculpatory language of the release
agreement on public policy grounds.
Conclusion
For the reasons stated above, Defendants' Motion for Summary Judgment (Doc. 58) is
DENIED.
Dated at Rutland, in the District of Vermont, this 11th day of August, 2016.

~~;~

Ged-ffey . Crawford, Judge
United States District Court

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