Dalury v. S-K.I, Ltd., and Killington, Ltd.
670 A.2d 795 (1995)
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Rule of Law:
An exculpatory agreement that releases a commercial operator of a recreational facility open to the public from liability for its own negligence is void as contrary to public policy.
Facts:
- Robert Dalury purchased a midweek season pass to ski at Killington Ski Area, which is operated by S-K-I, Ltd. and Killington, Ltd.
- As a condition of receiving the pass, Dalury signed a form titled "RELEASE FROM LIABILITY AND CONDITIONS OF USE."
- The release stated that he accepted skiing as a hazardous sport and released Killington from any and all liability for personal injury resulting from negligence or conditions of the premises.
- Dalury also signed a photo identification card that contained the same release language.
- While skiing at Killington, Dalury collided with a metal pole that formed part of the control maze for a ski lift line.
- Dalury sustained serious injuries as a result of the collision.
Procedural Posture:
- Robert Dalury and his wife filed a complaint against S-K-I, Ltd. and Killington, Ltd. in the trial court, alleging negligence.
- Defendants moved for summary judgment, arguing that the signed liability release barred the action.
- The trial court found the release to be clear and unambiguous and granted summary judgment for the defendants.
- Plaintiffs (the Dalurys) appealed the trial court's decision to the Vermont Supreme Court.
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Issue:
Does a pre-injury exculpatory agreement, required as a condition of using a commercial ski resort, which purports to release the resort from liability for its own negligence, violate public policy?
Opinions:
Majority - Johnson, J.
Yes, such an exculpatory agreement violates public policy and is unenforceable. The determination of whether an exculpatory agreement violates public policy requires a consideration of the totality of the circumstances against the backdrop of current societal expectations, not a rigid adherence to whether the service provided is 'essential.' When a business opens its premises to the public for recreational use, a legitimate public interest arises based on the law of premises liability, which places a duty of active care on the business owner to keep the premises safe for customers. The ski area operator, not the skier, has the expertise and opportunity to foresee and control hazards, maintain the premises, and insure against risks. Allowing operators to obtain broad waivers of liability would remove a critical incentive to manage risk and would illogically place the burden of the operator's negligence on the public.
Analysis:
This decision marks a significant limitation on the enforceability of liability waivers for commercial recreational businesses. By shifting the focus from whether a service is 'essential' to a broader 'totality of the circumstances' analysis grounded in premises liability, the court expands public policy protections for consumers. This precedent makes it difficult for businesses that open their doors to the general public to contract away their duty to maintain reasonably safe conditions. The ruling strengthens the incentive for such businesses to prioritize safety and risk management, as they can no longer rely on standardized waivers to shield themselves from liability for their own negligence.
