Nature of the Case
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Facts
P purchased a season pass from D for use at D's ski area. Plaintiff was a skilled and experienced snowboarder, having purchased season passes from D for each of the preceding three years and having classified his skill level as of early 2006, before being injured, as an 'advanced expert.' P executed a written 'release and indemnity agreement' that D required of all its patrons. “The release was from any and all claims for property damage, injury, or death which I/we may suffer or for which I/we may be liable to others, in any way connected with skiing, snowboarding, or snow riding. This release and indemnity agreement shall apply to any claim even if caused by negligence. The only claims not released are those based upon intentional misconduct.” Signs were posted at each of D's ski lift terminals that detailed the terms of the release. P used his season pass to ride D's lifts at least 119 times over the 26 days that he spent snowboarding at the ski area. On February 16, 2006, while snowboarding over a human-made jump in D's 'air chamber' terrain park, P sustained serious injuries resulting in his permanent paralysis. P brought this action alleging negligence on D's part in designing, constructing, maintaining, and inspecting the jump on which P was injured. D invoked the release and moved for summary judgment. P asserted that the release was unenforceable because it was contrary to public policy and was 'both substantively and procedurally unconscionable.' The trial court reasoned that '[s]now riding is not such an essential service which requires someone such as P to be forced to sign a release in order to obtain the service.' The court granted D's motion and the appeals court affirmed. It concluded that the release was not procedurally unconscionable in that it did not surprise P (that is, it was conspicuous and unambiguous) and it was not impermissibly oppressive, because, even though offered on a 'take it or leave it basis,' P always could choose not to engage in the non-essential recreational activity that defendant offered. The court also concluded that the release was not essentially unfair and, therefore, was not substantively unconscionable. It reasoned that a person does not need to ski or snowboard, but rather merely desires to do so. That is, the patron is free to walk away rather than accept unjust terms. P appealed.
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