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Case tests liability releases

Kelly Evertsen, Of the Record Staff

In what may be the first case in Utah to deal with pre-injury release forms for adults participating in commercial recreational activities or events, a jury will get to decide if a pre-injury liability form is enough to prevent a lawsuit against Park City Mountain Resort.

On Tuesday, the Utah Supreme Court decided to enforce pre-injury release agreements in a lawsuit brought against Park City Mountain Resort by "V.J." James Berry, a ski racer who was severely injured and became paralyzed during a "King of the Wasatch" skicross event held at PCMR in February, 2001.

Berry, an "expert skier," raced in the "King of the Wasatch" competition when he was 26 years old with four other racers on a course that had difficult turns and tabletop jumps, the court document states.

Berry said the skicross event is similar to a motocross event, where multiple athletes race at one time.

Twelve days before the event, Berry signed a pre-injury release form prepared by PCMR. While Berry did not read the agreement, his attorney, Julie Blanch, argued he only wanted to compete in the race and did not have the time to investigate the conditions of the course before signing it. The pre-injury release form stated participants "agree[d] to release from any legal liability, agree[d] not to sue and further agree[d] to defend, indemnify and hold harmless Park City Mountain Resort" and all its employees "regardless of the cause, including the negligence [of employees or other agents]" if injury or death resulted in participating in the ski racing event.

Blanch said all four of the jumpers jumped off one jump at the same time during the race. She said the base area after that particular jump was not large enough on Berry’s side for him to land.

During his fourth trip down the course, Berry fell and fractured his neck – causing him to become paralyzed from the neck down.

"He landed on a flat area instead of decline, so that put extra stress on his back and body," Blanch explained.

"When I went off [that] jump, I flew 60 feet past the landing," Berry said.

After years of rehabilitation, Berry has now gained movement in his arms and fingers and can drive, but is still in a wheelchair.

In 2003, Berry filed a lawsuit in the Third District Court against PCMR for regular negligence, strict liability and gross negligence, for allowing skiers to race on an unsafe course.

"What happened to me doesn’t happen anymore," Berry said. "The courses are designed with a lot more intent [now] and just a lot more physics behind everything they’re doing. When I got hurt, it wasn’t as calculated as it is now. This was just a fluke thing. I blame the person that designed it. They were just a little sloppy in their design that day."

When the case first went to trial, a district court judge dismissed all of Berry’s claims, ruling in favor of PCMR. However, after appealing the case to the Utah Supreme Court, the court reversed the district court’s decision and did not affirm the dismissal of gross negligence against PCMR because, the judges said, the resort did not have enough evidence to dismiss gross negligence. The Supreme Court did, however, affirm the dismissal of the regular negligence and strict liability claims against PCMR because Berry had signed the pre-injury release prior to participating in the event.

PCMR’s Attorney Kevin J. Simon said he sees the Supreme Court’s decision to dismiss the first two claims brought against PCMR as "a significant victory for Utah’s ski resorts and other recreational providers." He said he is confident that if the case goes before a jury, PCMR will prevail. Simon argued PCMR has the necessary evidence to prove the resort took the proper measures to assure the race course was safe enough for skiers to race on. He also argued Berry, as a professional skier, knew of the risks and consequences of competing in such an event before he signed the release form.

"We remain very confident in the defense of this case," Simon said.

Simon said PCMR will bring all the evidence against the gross negligence claim in this case if and when it goes before a jury. He said gross negligence means the resort took "no reasonable care" to ensure the course was safe enough for participants and he said Berry does not have substantial evidence pointing to the contrary.

However, Berry’s attorneys argued the opposite. Blanch said the plaintiff has plenty of evidence that PCMR did in fact have knowledge that the race course was unsafe for ski racers that day. She said the "King of the Wasatch" skicross course had actually been designed for a snowboarding race earlier that month and said no adjustments had been made for skiers. Blanch also reiterated that the landing point after the jump was unsafe, which caused Berry to crash.

Blanch said she doesn’t see the Supreme Court’s decision to dismiss two out of the three claims as a significant victory for resorts in Utah.

"We think it was a fair decision and we’re very pleased with the outcome because this allows us to proceed in litigation against PCMR," Blanch said. "We feel very strong about the evidence that we have."

Until a new district court attorney is assigned, Blanch said the case will go to a jury. She said Berry also has plans to sue the Ski Federation after PCMR.

Blanch said she hopes jurors will recognize the substantive evidence Berry has against PCMR.

"You can’t release someone from liability for gross negligence through a release form," Blanch said. "That is something we are probably going to be arguing to the jury. The jury will ultimately get to decide what gross negligence will be."

Berry says he is doing well under the circumstances and is healing more and more everyday.

"It’s fine, the lawsuit’s going well and my life is fine," he said. "[All] I’ve been doing the last seven years is rehabilitating myself It’s just been a very eye-opening experience. It’s hard to say what the end result will be."


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