Although it is well established that parties are free to contract for whatever terms on which they may agree, it is equally well established that contracts that violate public policy are unenforceable. The question of whether a contract is against public policy is a question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review.
Defendant facility operators invited the public, in exchange for a fee, to ski, snowboard and snowtube. Plaintiff brought his three children and another child to snowtube and signed a "Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability." While snowtubing, plaintiff's foot became caught between his snow tube and the man-made bank of the snowtubing run, resulting in serious injuries that required multiple surgeries to repair. Plaintiff sued and the trial court granted summary judgment in favor of defendant. On appeal, judgment was reversed.
Did the trial court err in granting summary judgment, which released the defendants from liability for negligence?
The appellate court concluded that the agreement expressly and unambiguously purported to release the facility operators from prospective liability for negligence. However, the agreement violated public policy because, among other things, the operators invited the public generally to snowtube at their facility regardless of snowtubing ability, snowtubers were under the care and control of the operators as a result of an economic transaction, the agreement was a standardized adhesion contract offered to snowtubers on a "take it or leave it" basis, and without the opportunity to purchase protection against negligence at an additional, reasonable fee, and the operators had superior bargaining authority.