DALURY V. S-K-I case brief

 DALURY V. S-K-I

• express contract, paternalistic matter of public policy

• Dalury signed standard for releasing ski resort from any and all liability

• Dalury hurt by a metal pole protruding from the snow

• Court agrees with D that release was quite clear in its terms

• But court holds the agreement is unenforceable because it violates public policy

• Court uses Tunkl factors – p. 462: an agreement is invalid if it exhibits some or all of the following characteristics: (court will not allow affirmative defense of assumption of risk)

• suitableness of business for regulation

• importance of service to public

• service open to public

• bargaining strength of parties

• whether agreement is in the form of standard adhesion contract

• whether the victim is under control of the party offering the contract

• Contexts in which courts have invalidated these agreements – classic release for a sports activity; usually no bargaining power for participants – if they want to play they have to sign the form; is there an alternative to signing the form?

• Distinction from Jones – no duty to the public involved in air service for a parachute jump

• Court in Dalury articulates a totality of circumstances test because Tunkl asserts that the activity must be a necessity

• Is Killington a public enterprise? Not really, but the aggregate of the private transactions make up a public identity

• POLICY: Court stresses that only Killington has the ability to prevent this kind of accident from happening – loss spreading idea – pass on costs to thousands of customers

• A skier on the premises is a business invitee – there is a duty to make the premises safe; should not be able to contract yourself out of this duty

• Holding: for P