Monday, July 23, 2012

contracts - adhesion - exculpatory clause - recklessness - public policy

Tayar v. Camelback Ski Corp. - Pa. S.Ct. - July 18, 2012

Majority -  http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011mo.pdf  (21 pp.) (Todd + 4)

Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo1.pdf  (2 pp.) (Eakin)

Concur/dissent - http://www.pacourts.us/OpPosting/Supreme/out/J-50-2011codo2.pdf  (8 pp.) (Baer)

This is a case personal injury involving a ski resort. The plaintiff signed a contract containing a release from liability for the defendant.

The court held that it was against public policy for a defendant to be relieved of reckless conduct.

- Exculpatory clauses - contract of adhesion - Exculpatory provisions are generally disfavored. They are only enforceable where three conditions are met. First, the clause must not contravene public policy. Second, the contract must be between persons concerning their private affairs. Third, each party must be a free bargaining agent so the contract is not one of adhesion. Employers Liab. Assur. Corp. v. Greenville Business Men’s Ass’n, 423 Pa. 288, 224 A.2d 620 (1966).

- Public policy - Avoidance of contract terms on public policy grounds requires a showing of overriding public policy from legal precedents, governmental practice, or obvious ethical or moral standards. See Williams v. GEICO Gov’t Employees Ins. Co., __ Pa. __, 32 A.3d 1195 (2011). Public policy is more than a vague goal. It is be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy[.] . . . Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts . . . contrary to public policy. The courts must be content to await legislative action. Further, it is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring.

- A release for reckless conduct is against public policy - There is a spectrum of tortious conduct recklessness falls. At one end of that spectrum, exculpatory clauses that release a party from negligence generally are not against public policy, and are enforceable provided certain criteria are met. On the other end of the continuum are releases for intentional conduct. It is elementary and foundational to our system of criminal and tort law that parties are not permitted to intentionally harm one another. Accordingly, releases for intentional tortious conduct are likewise prohibited. Recklessness 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 suggests unconscious inadvertence. This conceptualization of recklessness as requiring conscious action or inaction not only distinguishes recklessness from ordinary negligence, but aligns it more closely with intentional conduct. As a result, we are inclined to apply the same prohibition on releasing reckless conduct as we do for intentional conduct.

This view is supported by the conclusions of courts in other jurisdictions. The overwhelming majority of our sister states find releases for reckless conduct are against public policy, and federal courts purporting to apply Pennsylvania law have barred the enforcement of releases for reckless behavior.

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 where the actor specifically intended harm to occur. There is near unanimity across jurisdictions that such releases are unenforceable, as such releases would jeopardize the health, safety, and welfare of the people by removing any incentive for parties to adhere to minimal standards of safe conduct. We therefore conclude that, even in this voluntarily recreational setting involving private parties, there is a dominant public policy against allowing exculpatory releases of reckless behavior, which encourages parties to adhere to minimal standards of care and safety.

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