Opinion
No. ED 98704.
2013-10-1
James L. GUTHRIE, Plaintiff/Appellant, v. HIDDEN VALLEY GOLF AND SKI, INC., Defendant/Respondent, and Peak Resorts, Inc., Defendant/Respondent.
Thomas Cicardi Devoto, St. Louis, MO, for appellant. Thomas Joseph Magee, Margaret Lally Fowler, Co–Counsel, Heplerbroom, LLC, St. Louis, MO, for respondent.
Thomas Cicardi Devoto, St. Louis, MO, for appellant. Thomas Joseph Magee, Margaret Lally Fowler, Co–Counsel, Heplerbroom, LLC, St. Louis, MO, for respondent.
Before KATHIANNE KNAUP CRANE, P.J., MARY K. HOFF, J., and LISA S. VAN AMBURG, J.
OPINION
MARY K. HOFF, Judge.
James L. Guthrie (Guthrie) appeals from the trial court's entry of summary judgment in favor of Hidden Valley Golf and Ski, Inc., (Hidden Valley) and Peak Resorts, Inc., (Peak Resorts) (collectively referred to as Defendants) on Guthrie's claim for personal injuries following an accident while snow tubing on Defendants' property. We affirm.
Factual and Procedural Background
Defendants owned and operated a golf and ski resort in St. Louis County. The resort included the Polar Plunge Snow Tubing run. Before participating in Polar Plunge Snow Tubing, patrons of the resort were required to purchase a ticket and to read and sign a contract (the Contract) acknowledging the risk of injury posed and agreeing not to sue Defendants if injury occurred. The Contract specifically provided
POLAR PLUNGE SNOW TUBING
HIDDEN VALLEY SKI–TUBE–RIDE AREA, WILDWOOD, MISSOURI
ACKNOWLEDGMENT OF RISK AND AGREEMENT NOT TO SUE
THIS IS A CONTRACT! ********** PLEASE READ!
1. I understand and acknowledge that snow tubing is a dangerous, risky sport and that there are inherent and other risks associated with the sport and that all of these risks can cause serious and even fatal injuries.
2. I understand that part of the thrill, excitement and risks of snow tubing is that the snow tubes all end up in a common, run-out area at various times and speeds and that is my responsibility to try to avoid hitting another snow tuber, and it is also my responsibility to try to avoid being hit by another snow tuber, but that notwithstanding these efforts by myself and other snow tubers, there is a risk of collisions.
3. I acknowledge that the risks of snow tubing include, but are not limited to, the following:
• Variations in the steepness and configuration of the snow tubing chutes and run-out area;
• Variations in the surface upon which snow tubing is conducted, which can vary from wet, slushy conditions to hard packed, icy conditions and everything in between;
• Fence and/or barriers at or along portions of the snow tubing area, the absence of such fence and/or barriers and the inability of fences and/or barriers to prevent or reduce injury;
• Changes in the speed at which snow tubers travel depending on surface conditions, the weight of snow tubers and the inter-linking of snow tubers together to go down the snow tube runs;
• The chance that a patron can fall out, be thrown out or otherwise leave the snow tube;
• The chance that a snow tube can go from one run to another run, regardless of whether or not there is a barrier between runs, and the chance that a snow tube can go beyond the run-out area;
• The chance that a snow tube can go up the run-out hill and then slide into the general run-out area;
• Collisions in the run-out area and other locations of the snow tubing facility, with such collisions happening between snow tubes, between a snow tube and another patron, between a snow tube and a snow tubing facility attendant, between a snow tubing patron who may or may not be in or on a snow tube at the time of the collision and other sorts of collisions; collisions with fixed objects, obstacles or structures located within or outside of the snow tube facility;
• The use of the snow tubing carpet lift or tow, including falling out of
4. I also acknowledge and understand that I am accepting AS IS the snow tube and any other equipment involved with the snow tubing activity, including lifts and tows, and further acknowledge and understand that NO WARRANTIES are being extended to me with respect to any aspect of the snow tubing facility.
5. I agree and understand that snow tubing is a purely, voluntary, recreational activity and that if I am not willing to acknowledge the risk and agree not to sue, I should not go snow tubing.
6. I agree to allow the use of my IMAGE
Given the standing legal precedent, we decline to review Guthrie's public policy and due process points and find any common carrier analysis not applicable to snow tubing.