Metropolitan News-Enterprise


Tuesday, December 31, 2002


Page 3


Release Lifts Negligence Liability for Ski Lift Operator, Court Rules


By ROBERT GREENE, Staff Writer


A ski resort’s release form was enough to block a negligence lawsuit by an eight-year-old who fell off a chair lift during a lesson, an appeals court ruled yesterday.

Although the operator of June Mountain Ski Area is a common carrier barred by statute from contracting away its liability for gross negligence, the Third District Court of Appeal ruled, the release signed by Joseph Platzer’s mother setting forth the dangers of snow sports and the hazards of using the lifts validly absolved the resort of liability for ordinary negligence.

The opinion by Justice Consuelo M. Callahan underscores California’s narrowly defined departure from the long established common law rule that common carriers, unlike other private parties, can never release themselves from responsibility for their own wrongdoing.

Platzer argued that the common law rule was carried forward into California law in part by Civil Code Sec. 1668, a general contracting provision that voids on public policy grounds all contracts intended to exempt anyone from his own bad acts, “whether willful or negligent.”

Mammoth Mountain Ski Area—operator of the June Mountain resort—cited instead Civil Code Sec. 2175, which also is based on the common law principle. Mammoth acknowledged that the statute prevents contracting away common carrier liability due to gross negligence, fraud or willful wrong, but it argued that since the statute omitted ordinary negligence while expressly mentioning the other wrongs, it was free to contract away ordinary negligence liability.

In exploring the meaning of Sec. 1668, the state Supreme Court held in the1963 case of Tunkl v. Regents of University of California that a contract’s exculpatory provision was void where the contract affected the public interest—and that such a contract has several distinguishing characteristics. It concerns a business generally thought suitable for public regulation that performs an important public service, is prepared to perform it for anyone, has a bargaining advantage, uses a contract of adhesion and does not make a provision for obtaining protection against negligence for a reasonable fee.

In Tunkl, a hospital was found to be just such a business. But California have avoided viewing recreational facilities in the same light. In one case, for example, parachute jumping was rejected as an activity in the public interest. Bicycle racing was rejected in another.

Callahan placed chair lift operators squarely on the side of parachute jumping and bike racing, as opposed to running a hospital, for the purposes of determining whether the contract affects the public interest.

Still, the justice noted, there was no doubt that the chair lift operation was a common carrier and subject to the separate statutory scheme for such businesses. But just as Mammoth was unlike hospitals when it comes to offering contracts in the public interest, the court distinguished it as a common carrier from airlines, railroads, freight lines, and other more traditional common carriers.

The ruling upholds Mono Superior Court Judge Edward Forstenzer’s order granting Mammoth summary adjudication on the negligence issue.

The case is Platzer v. Mammoth Mountain Ski Area, C038663.


Copyright 2002, Metropolitan News Company