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
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