Have you ever wondered how effective the releases you sign at a ski resort, wall climbing facility, horseback riding operation or other activity which may be hazardous would be in the event that you were injured due to the improper and careless conduct of the operator of the facility or the operator’s employees? If you could articulate a theory upon which your injury was caused by the reckless conduct of the employees operating the activity, the answer is that the release would probably not provide protection to the operator.
Recently in the case of Tayar v. Camelback Ski Corporation, Inc., 47 A.3d 1190 (Pa. 2012), the Pennsylvania Supreme Court was confronted with a patron of a snow tubing facility who was injured by a second snow tuber sent down the slope before the first patron had cleared the area where he could be injured. The Court held that it is against public policy for a pre-injury release to relieve a party of liability of reckless conduct on its part or on the part of its employees.
Before tubing, the patron had signed a release that said, in part:
“. . . I agree that I will not sue and will release from any and all liability Camelback Ski Corporation if I or any member of my family is injured while using any of the snow tubing facilities or while being present at the facilities, even if I contend that such injuries are the result of negligence or other improper conduct on the part of the snow tubing facility.”
Camelback attempted to obtain summary judgment based, in large part, on the language of the release. Camelback asserted that the law, by public policy, does not prohibit such releases where the parties are not employer and employee; where the party is not charged with a duty of public service; where the release does not relieve liability for statutory violations and; where the release does not involve consequential damages. Camelback also argued that this is a recreational sporting activity and parties are free to either participate or not.
Justice Todd, writing for the Court, noted that exculpatory clauses are enforceable if not in contravention of public policy; if between persons concerning their private affairs and; if each party is a free bargaining agent so that the contract is not one of adhesion. The Court focused on whether or not a release such as that offered by Camelback contravened the public policy. To avoid a contract term on the basis of public policy requires a showing of overriding public policy concern.
A release which merely waives the right to sue for ordinary negligence is not against public policy and such a release would be enforceable. But, the Court found, where a case of “recklessness” is made out, such a release is against public policy.
Recklessness is more than mere negligence and less culpability than intentional conduct. The Court found,
“Reckless is distinguishable from negligence on the basis that recklessness requires conscious action or inaction which creates a substantial risk of harm to others, whereas negligence suggest unconscious inadvertence.”
The Court went on to state, “. . . were we to sanction releases for reckless conduct, parties would escape liability for consciously disregarding substantial risks of harm to others; indeed, liability would be waivable for all conduct except for where the actor specifically intended harm to occur.” Justice Todd’s opinion was joined by Chief Justice Castille and Justices Saylor and McCaffery. Justice Eakin and Justice Baer filed a separate concurring and dissenting opinions.