James L. Guthrie v. Hidden Valley Golf and Ski, Inc.

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:



ï‚· Variations in the steepness and configuration of the snow tubing

chutes and run-out area;



ï‚· 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;



ï‚· 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;



ï‚· 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;



ï‚· The chance that a patron can fall out, be thrown out or otherwise

leave the snow tube;



ï‚· 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;



ï‚· The chance that a snow tube can go up the run-out hill and then slide

into the general run-out area;



ï‚· 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;



ï‚· The use of the snow tubing carpet lift or tow, including falling out of



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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 or likeness incidental in any

photograph, live recorded video display or other transmission or

reproduction of the event in any form to which this agreement admits me.



7. IN CONSIDERATION OF THE ABOVE AND OF BEING ALLOWED

TO PA[R]TICIPATE IN THE SPORT OF SNOWTUBING, I AGREE

THAT I WILL NOT SUE AND WILL RELEASE FROM ANY AND

ALL LIABILITY, HIDDEN VALLEY GOLF AND SKI, INC. OR

PEAK RESORTS, INC., THEIR OWNERS, OPERATIONS,

LESSORS, LESSEES, OFFICERS, AGENTS, AND EMPLOYEES IF I

OR ANY MEMBER OF MY FAMILY IS INJURED WHILE USING

ANY OF THE SNOWTUBING FACILITIES OR WHILE BEING

PRESENT AT THE FACILITIES, EVEN IF I CONTEND THAT

SUCH INJURIES ARE THE RESULT OF NEGLIGENCE ON THE

PART [OF] THE SNOWTUBING FACILITY.



8. I further agree that I WILL INDEMNIFY AND HOLD HARMLESS

HIDDEN VALLEY GOLF AND SKI, INC. AND PEAK RESORTS,

INC. THEIR OWNERS, OPERATORS, LESSORS, LESSEES,

OFFICERS, AGENTS, AND EMPLOYEES from any loss, liability,

damages or cost of any kind that it may incur as the result of any injury

to myself or to any member of my family or to any person for whom I

am explaining that meaning of this agreement, even if it is contended

that any such injury was caused by the negligence of the part of the

snow tubing facility.



9. I understand and agree that this Agreement is governed by the laws of the

State of Missouri. I further agree that if any part of this Agreement is

determined to be unenforceable, all other parts shall be given full force and

effect.



10. I have read and understand the foregoing Acknowledgement of Risks and

Agreement Not to Sue. I understand by reading this that I may be giving up

the rights of my child and spouse to sue as well as giving up my own right to

sue.



(Emphasis in original.)



On January 29, 2011, Guthrie purchased a ticket for Polar Plunge Snow Tubing and was



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given the Contract. Guthrie printed his name and the date at the bottom of the Contract in the

spaces designated "Printed Name” and "Date.” Guthrie signed his name at the bottom of the

Contract in the space designated "Signature.” Guthrie's ticket allowed him to participate in

Polar Plunge Snow Tubing for two hours. Guthrie then began descending the Polar Plunge Snow

Tubing hill. When Guthrie had approximately 30 minutes left of his allotted two hours, he and

his friends, Zach and Skyler, began descending the hill together with all three of them sitting on

their snow tubes and facing forward. At some point during the descent, Skyler became separated

from Guthrie and Zach. As Guthrie and Zach slowed and stopped in the run-off area of the hill,

Skyler slid into Guthrie's and Zach's tubes and pushed them over, breaking Guthrie's foot.



Guthrie subsequently filed his petition for damages against Defendants alleging that he

had sustained serious bodily injuries and damages as result of Defendants' negligent

maintenance, operation, and control of the Polar Plunge Snow Tubing area. Defendants

thereafter filed their answer and affirmative defenses alleging that Guthrie assumed the risk of

injury by participating in Polar Plunge Snow Tubing, that the conditions of the snow tubing run

were open and obvious and inherent to the sport, and that Guthrie had signed the Contract

releasing Defendants from any and all liability, including injuries caused by Defendants' or their

employees' negligence.



Defendants thereafter filed their Motion for Summary Judgment, Memorandum of Law in

Support of Their Motion for Summary Judgment, Statement of Uncontroverted Material Facts in

Support of Their Motion for Summary Judgment, and exhibits. Defendants alleged that no

material facts were in dispute. Guthrie had sustained injury after he descended the Polar Plunge

Snow Tubing hill, came to a stop, and Skyler slid into Guthrie, causing Guthrie's foot to break.

Defendants further alleged that they were entitled to judgment as a matter of law because Guthrie



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had released Defendants of any and all liability given that Guthrie had received the Contract at

the time he purchased his ticket for the Polar Plunge Snow Tubing and had signed it before

participating in the Polar Plunge Snow Tubing. Defendants alleged that the language of the

Contract was clear, unambiguous, unmistakable, and conspicuous and, thus, should be enforced.

Guthrie subsequently filed his Memorandum of Law in Opposition to Defendants'

Motion for Summary Judgment, his Response to Defendants' Statement of Uncontroverted

Material Facts in Support of Their Motion for Summary Judgment, his Statement of

Controverted Facts, and exhibits. Guthrie alleged that the language of the Contract was "barely

bolded and [was] not obvious to [Guthrie].” Guthrie further alleged that he did not read the

Contract in its entirety but "merely read the top language and the so-called bold language,” then

skimmed to the bottom of the page where he signed it. Guthrie alleged that the Contract was

"susceptible to multiple different interpretations by lay people, including a reasonable

interpretation that Guthrie would not be excluded from being able to sue for Defendants'

negligence in operating the Polar Plunge Snow Tubing.



Following a hearing in which the parties argued their respective positions on Defendants'

motion for summary judgment, the trial court entered judgment in favor of Defendants, finding

that no material facts were in dispute and that Defendants were entitled to judgment as a matter

of law. This appeal followed. Additional facts will be discussed as necessary to our analysis of

the issues on appeal



Standard of Review



Whether the trial court's grant of summary judgment was proper is a question of law that

we review de novo. Todd v. Missouri United School Ins. Council, 223 S.W.3d 156, 160 (Mo.

banc 2007); ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371,



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376 (Mo. banc 1993). Summary judgment is proper when the movant establishes that there is no

genuine issue of material fact and that it is entitled to judgment as a matter of law. Rule

74.04(c); Todd, 223 S.W.3d at 160. Where the defending party is the movant, it may establish a

right to judgment by showing: 1) facts negating any one of the non-movant's elements facts; 2)

that the non-movant, after an adequate period of discovery, has not been able and will not be able

to produce evidence sufficient to allow the trier of fact to find the existence of any one of the

non-movant's elements; or 3) that there is no genuine dispute as to the existence of each of the

facts necessary to support the movant's properly-pleaded affirmative defense. ITT, 854 S.W.2d

at 381. We review the record in the light most favorable to the party against whom summary

judgment was entered. ITT, 854 S.W.2d at 376.



Discussion



Guthrie presents five points on appeal. However, because our analysis of Guthrie's first

and second points are dispositive of the appeal, we need only address those points.1 In his first

and second points, Guthrie essentially claims the trial court erred in granting summary judgment

for Defendants because the court misapplied the law in that (1) the Contract's language is

susceptible to two separate constructions and, therefore, is ambiguous, and such ambiguity must

be resolved in favor of Guthrie and not Hidden Valley; and (2) the Contract's exculpatory clause

language did not contain the word "negligence” and was not sufficiently bold and obvious.



"Whether a release is ambiguous is a question of law.” Holmes v. Multimedia KSDK,

Inc., 2013 WL 150809 (Mo. App. E.D. 2013) at 2. "Interpretation of a release or settlement

agreement is governed by the same principles as any other contract.” Holmes, 2013 WL 150809

at *2, quoting Mid Rivers Mall, L.L.C. v. McManmon, 37 S.W.3d 253, 255 (Mo. App. E.D.



______________________



1 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.



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2000). Absent fraud, accident, mistake, or duress, and unless the terms of the agreement are

themselves ambiguous, we will not consider extrinsic evidence contradicting the terms of the

agreement. Holmes, 2013 WL 150809 at *2. "Contract terms are ambiguous only if the

language may given more than one reasonable interpretation.” Id. (internal quotation omitted).



Just because parties disagree over the meaning of a contract does not make it ambiguous. Id.

We focus on the plain language of the contract rather than speculating on the intent of the parties.

Id.



Although exculpatory clauses in contracts releasing one party from its own future

negligence are disfavored, such clauses are not prohibited as against public policy. Alack v. Vic

Tanny International, Inc., 923 S.W.2d 330, 334 (Mo. banc 1996); Milligan v. Chesterfield

Village GP, LLC, 239 S.W.3d 613, 616 (Mo. App. S.D. 2007). "It is a 'well-established rule of

construction that a contract provision exempting one from liability for his or her negligence will

never be implied but must be clearly and explicitly stated.'” Alack, 923 S.W.2d at 334, quoting

Poslosky v. Firestone Tire and Rubber Co., 349 S.W.2d 847, 850 (Mo. 1961). Furthermore,

contracts exonerating one party from acts of future negligence are to be "strictly construed

against the party claiming the benefit of the contract.” Id. at 336. Additionally, clear,

unambiguous, unmistakable, and conspicuous language is required to release a party from his or

her future negligence. Abbott v. Epic Landscape Productions, L.C., 361 S.W.3d 13, 17 (Mo.

App. W.D. 2011), citing Alack, 923 S.W.2d at 337. Exculpatory language must effectively

notify an individual that he is releasing another party from claims arising from the other party's

own negligence. Abbott, 361 S.W.3d at 17, quoting Alack, 923 S.W.2d at 337. "There must be

no doubt that a reasonable person agreeing to an exculpatory clause actually understands what

future claims he or she is waiving.” Abbott, 361 S.W.3d at 17, quoting Alack, 923 S.W.2d at



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337-38. The word "negligence” must be clearly stated in a release of future negligence.

Holmes, 2013 WL 150809 *4.



Here, no genuine issue of material facts exists. The Contract's language was not

ambiguous and the exculpatory clause was sufficiently bold and obvious.

First, the Contract clearly informed Guthrie in plain language that he was entering into a

contract and agreeing not to sue Defendants. The Contract's title stated, in plain language, that it

was, in fact, an "ACKNOWLEDGMENT OF RISK AND AGREEMENT NOT SUE.”



Significantly, Paragraph 5 of the Contract stated that participating in Polar Plunge Snow Tubing

is a "purely, voluntary, recreational activity” and that if an individual is "not willing to

acknowledge the risk and agree not to sue” Defendants, the individual "should not go snow

tubing.” Furthermore, Paragraph 7, the exculpatory clause, clearly included the word

"negligence.” Paragraph 7 explicitly stated that, in exchange for being allowed to participate in

Polar Plunge Snow Tubing, participants would release Defendants for "any and all liability” due

to injury that might result from participation, even if a participant's injuries were "the result of

negligence on the part of [Defendants].” The language of the Contract's title and terms could

have only one reasonable interpretation: an individual wishing to participate in Polar Plunge

Snow Tubing was required to first agree to the terms of the Contract, which provided that the

individual would not sue Defendants if he were injured while participating in Polar Plunge Snow

Tubing. Thus, the Contract notified Guthrie that he was releasing Defendants from any future

claims Guthrie might have against Defendants, even if those claims were based on Defendants'

negligence.



Second, the Contract's exculpatory language was sufficiently conspicuous. The entire

Contract appeared on a single page, and the Contract contained only 10 paragraphs. The title of



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the Contract, which stated that Guthrie was acknowledging the risk of snow tubing and agreeing

not to sue Defendants, was printed in all capital letters at the top of the page in large, readable

type. The exculpatory clause in Paragraph 7 was printed approximately two-thirds from the top

of the page and was visually distinct from other paragraphs in the Contract because it was printed

in capitalized, bold print. Thus, the Contract's exculpatory language was conspicuous and

obvious to Guthrie and sufficient to uphold Guthrie's agreement not to sue Defendants.



The trial court did not err in granting summary judgment in favor of Defendants. Point

denied.





* * *





Before Kathianne Knaup Crane, P.J., Mary K. Hoff, J., and Lisa S. Van Amburg, J.



DISSENT



I respectfully dissent because I believe the exculpatory language in this release is

unclear and inconspicuous.



A photocopy of the actual release Mr. Guthrie signed is appended hereto.

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



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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.



It is not until later in the single-spaced, small font document at the end of

Paragraph 7 that the customer reads that s/he is releasing Hidden Valley's and Peak

Resorts' own negligence. The pertinent phrase does not stand out because the whole

paragraph is capitalized and single-spaced. Paragraph 8 suffers a similar deficiency.

If as Alack teaches, exculpatory clauses in contracts releasing a party from its own

future negligence are disfavored under Missouri law, then such releases should be

presented to the reader in a clear and conspicuous manner. 1 I dissent because in my

opinion, this release fails that test.



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1 See dissents in Alack v. Vic Tanny Intern. of Missouri, Inc., 923 S.W.2d 330, 339-

340 (Mo. banc 1996), Warren v. Paragon Technologies Group, Inc., 950 S.W.2d 844,

848-850 (Mo. banc 1997.)



POLAR PLUNGE SNOW TUBING

HfODEN VALLEY SKI~TUBE·RIDE AREA, WILDWOOD, MiSSOURI

ACKNOWLEDGMENT OF RISK AND AGREEMENT NOT TO SUE



THIS IS ACONTRACT! **"*"'***"'. PLEASE READ!



I . I undermand Elnd ,gcknowl~9a that snow tUbing [s adangerous. risky sport and thatlhcre are inherent and other rtsks ::I$$ocialed with I.he sport

and that all of these risks can cause serIous and even fatal injuries.



2. I Imderstand thaI part ofthe thrill, excitement and risks of snow tubing is that the snow lubes

The trial court’s grant of summary judgment is affirmed.