Where a plaintiff who broke his foot in a snow tubing accident brought a personal injury action against the resort, summary judgment for the resort is affirmed because the language of the contract signed by the plaintiff was not ambiguous and the exculpatory clause was bold and obvious.
Dissenting opinion by Van Amburg, J.: “I respectfully dissent because I believe the exculpatory language in this release is unclear and inconspicuous….
“Although the title clearly states the release is an agreement not to sue and a contract, nowhere in the title is there a reference to which parties may not be sued. And except for the title, which notably lacks any reference to the drafter’s own negligence, the entire release is printed in the smallest, single-spaced standard font (resembling Times New Roman’s smallest size 8). The first six paragraphs, particularly paragraph 3, set out a litany of unfortunate events that can occur while snow-tubing, which events cannot reasonably be attributable to Hidden Valley’s and Peak Resorts’ own negligence. This release is drafted in such a way that a customer might erroneously conclude that by signing the release, s/he is releasing the right to sue persons involved in any events such as those described in paragraph 3. In fact, Mr. Guthrie testified in his deposition that this was his conclusion and he failed to understand he was releasing Hidden Valley and Peak
Resorts’ own negligence.”
Judgment is affirmed.
Guthrie v. Hidden Valley Golf and Ski, Inc. (MLW No. 65031/Case No. ED98704 – 11 pages) (Missouri Court of Appeals, Eastern District, Hoff, J.) Appealed from circuit court, St. Louis County, Vincent III, J. (Thomas Cicardi DeVoto for appellant) (Thomas Joseph Magee and Margaret Lally Fowler for respondent).
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