1

The Honorable Lawrence L. Piersol, United States District Court for the

District of South Dakota, sitting by designation.

2

The Honorable Raymond L. Erickson, Chief United States Magistrate Judge

for the District of Minnesota, to whom the case was referred for decision by consent

of the parties pursuant to 28 U.S.C. § 636(c).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-1184

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Douglas R. Myers, *

*

Appellant, * Appeal from the United States

* District Court for the District

v. * of Minnesota.

*

Lutsen Mountains Corporation, *

*

Appellee. *

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 Submitted: October 22, 2009

 Filed: November 25, 2009

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Before COLLOTON and BENTON, Circuit Judges, and PIERSOL1

, District Judge.

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PIERSOL, District Judge.

Douglas R. Myers (“Myers”) appeals an adverse grant of summary judgment.

Myers was injured while skiing at Lutsen Mountains, a ski resort operated by Lutsen

Mountains Corporation (“Lutsen”). He sued Lutsen, and the district court2

 granted
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Lutsen’s motion for summary judgment, holding that a release signed by Myers

precluded him from pursuing his claims. This appeal followed. For the reasons set

forth below, we affirm the judgment of the district court. 

I

We review de novo a district court’s grant or denial of summary judgment.

Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 519 F.3d 466, 471 (8th Cir. 2008).

Summary judgment is appropriate when the record, viewed in the light most favorable

to the non-moving party, demonstrates that there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P.

56(c).

II

The facts of this case are essentially undisputed. On December 28, 2006, Myers

and two of his friends left their homes in Thunder Bay, Ontario, Canada, and drove

approximately two hours to Lutsen, Minnesota. The three friends arrived in time to

buy ski tickets before 9:30 a.m., when the ski lifts open at Lutsen. Myers has no

memory of that day, but he agrees that he purchased a lift ticket and signed a written

release of liability waiver. The release includes the following language:

PLEASE READ CAREFULLY BEFORE SIGNING.

THIS IS A RELEASE OF LIABILITY AND WAIVER OF

CERTAIN LEGAL RIGHTS.

I understand that skiing in its various forms, including snowboarding,

involves risks, dangers and hazards that may cause serious personal

injury or death and that injuries are a common and ordinary occurrence.

Risks include, but are not limited to, changes in terrain, weather and

snow surfaces, ice, moguls, bare spots, debris, fences, posts, trees, lift

equipment and towers, rope tows, light poles, signs, buildings, roads and
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walkways, ramps, half-pipes, padded and non-padded barriers, jumps

and other terrain features, grooming equipment, snowmobiles, collisions

with other persons and other natural and man-made hazards. I

acknowledge that the risks in the sport of Alpine skiing can be greatly

reduced by taking lessons, abiding by the Skier Responsibility Code,

(known as Your Responsibility Code), and using common sense.

In consideration of the purchase of a lift ticket for Lutsen Mountains and

use of its facilities, I RELEASE AND FULLY DISCHARGE Lutsen

Mountains Corporation, its owners, officers, shareholders, agents and

employees from any liability resulting from any personal injury to

myself, including death, or damage to my property which is caused by

the BREACH OF ANY EXPRESS OR IMPLIED WARRANTY or the

NEGLIGENT ACT OR OMISSION of Lutsen Mountains Corporation,

its owners, officers, shareholders, agents or employees in the design,

location, construction, inspection, maintenance and repair of the

conditions on or about the premises or ski area or the operations of the

ski area, including but not limited to:

• the design, location, construction, inspection, maintenance and

repair of trails, ski runs, slopes, ramps, half-pipes and other terrain

features;

• grooming, snow-making, snowmobile operation, ski-lifts, rope

tows and ski-lift and rope tow loading and unloading operations;

• padding or non-padding of natural and man-made obstacles and

hazards;

• posting or failure to post warnings, signs, fences or other barriers;

• classification and labeling of trails and ski runs; or

• maintaining or modifying variations in the surface, steepness and

pitch of trails, ski runs, slopes, ramps and terrain features.

I accept full responsibility for any injuries or damages which may result
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from the participation in the sport, and it is my intent to HOLD

HARMLESS Lutsen Mountains Corporation, its owners, officers,

shareholders, agents or employees for any injury sustained by me,

including death, while participating in the sport. I agree not to bring any

action or suit against Lutsen Mountains Corporation, its owners, officers,

shareholders, agents or employees for any injury or damage.

In accordance with Minnesota law, nothing in this Release of Liability

should be construed as releasing, discharging or waiving any claims I

may have for reckless or intentional acts on the part of Lutsen Mountains

Corporation, or its owners, officers, shareholders, agents or employees.

I HAVE CAREFULLY READ THIS RELEASE OF LIABILITY AND

UNDERSTAND ITS CONTENTS. I AM AWARE THAT BY

SIGNING THIS RELEASE OF LIABILITY, I AM WAIVING

CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE

LUTSEN MOUNTAINS CORPORATION, ITS OWNERS, OFFICERS,

SHAREHOLDERS, AGENTS OR EMPLOYEES FOR CERTAIN

CLAIMS. 

CAUTION: READ BEFORE SIGNING!

THIS DOCUMENT AFFECTS YOUR LEGAL RIGHTS 

AND WILL BAR YOUR RIGHT TO SUE!

At the bottom of the release, Myers printed his name, signed the document, and

listed his age as 32. 

At approximately 3:30 p.m. on December 28, 2006, Myers, a self-described

expert skier at the time of the accident, was on Lutsen’s Lower Meadows trail when

he skied over an edge of the course. At oral argument, Myers’ counsel indicated that

this is an intermediate slope. Myers apparently lofted into an area containing rocks

and small trees, and he was injured. He filed a personal injury lawsuit against Lutsen

in Minnesota district court based on diversity jurisdiction. The parties filed crossmotions for summary judgment. Concluding that the release Myers signed is valid

under Minnesota law, the district court granted Lutsen’s motion for summary
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judgment and dismissed Myers’ complaint with prejudice. On appeal, Myers argues

that the district court erred by holding the release is enforceable under Minnesota law.

III

Minnesota law applies in this diversity case. See Integrity Floorcovering, Inc.

v. Broane-Nutone, LLC, 521 F.3d 914, 917 (8th Cir. 2008). Exculpatory clauses are

enforceable in Minnesota as long as the clause (1) is not ambiguous, (2) does not

release intentional, willful, or wanton acts, and (3) does not violate public policy. See

Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982). 

Myers first argues the release is ambiguous because it could be interpreted as

waiving Lutsen’s liability for all types of claims and not just negligence. We disagree.

The language of the release expressly and unambiguously excludes from its coverage

claims arising from reckless or intentional acts, and the district court correctly found

the release is not ambiguous. 

Myers next asserts the release violates public policy because he had no

bargaining power; he had to sign the release or not ski at Lutsen. The Minnesota

Supreme Court considers two factors to determine whether exculpatory agreements

violate public policy: (1) whether there was a disparity of bargaining power between

the parties (a compulsion to sign the contract with an unacceptable provision and a

lack of ability to negotiate the elimination of that provision), and (2) the type of

service being offered or provided through the contract (one who provides a public or

essential service is less likely to be exempted from liability for harm caused by

negligently providing that service). See Schlobohm, 326 N.W.2d at 923. Regarding

the first factor, the Minnesota Supreme Court has explained that a disparity of

bargaining power does not exist if the offered service is not necessary or if it could

have been obtained elsewhere. See id. at 925. In Schlobohm, the court concluded

there was no disparity in bargaining power when Schlobohm voluntarily joined a
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fitness center and signed a contract containing an exculpatory clause because there

was no showing that the center’s services were necessary or that the services could not

have been obtained elsewhere. See id. 

Relying primarily on Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783

(Minn. 2005), Myers contends a disparity in bargaining power existed because it

would have taken him over two hours to drive from Lutsen to the closest ski hill. In

Yang, the Minnesota Supreme Court invalidated an exculpatory clause in the context

of a houseboat rental agreement. See id. at 786. The court suggested there was a

disparity in bargaining power because the plaintiff had paid a deposit of “a couple

thousand” dollars, had not known about the release until he arrived at the place of

business, several hours away from the plaintiff’s home, and the next nearest business

providing the same services was over 65 miles away, see id. at 789 n. 3, but the

essential nature of the service was the dispositive factor in the court’s conclusion that

houseboat rental involves a public interest sufficient to invalidate the exculpatory

agreement. See id. at 789. Yang lends little support to Myers’ argument that a

disparity of bargaining power existed in this case. As did the Minnesota Supreme

Court in Schlobohm, we find no disparity of bargaining power because the service

provided by Lutsen is not necessary, and Myers could have gone elsewhere to ski. 

This brings us to the second factor considered by Minnesota courts to determine

whether a release violates public policy: the type of service provided. Myers does not

argue that Lutsen provides a public or essential service, and we predict the Minnesota

Supreme Court would hold skiing is not a public or essential service. When

considering whether a service is public or essential in this context, “courts consider

whether it is the type [of service] generally thought suitable for public regulation.

Types of services thought to be subject to public regulation have included common

carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen,

employers and services involving extra-hazardous activities.” Schlobohm, 326

N.W.2d at 925. In Schlobohm, the Minnesota Supreme Court held the services
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furnished by the health club are not the type generally thought suitable for public

regulation and do not involve an activity of great importance or of practical necessity.

See id. at 925-26. 

Yang is instructive on this issue. The Minnesota Supreme Court held the rental

company was acting both as a resort and as an innkeeper providing a public service

when it offered houseboats for daily and weekly rentals. See Yang, 701 N.W.2d at

790. As a matter of public policy, the company could not circumvent its duty to

protect guests by requiring them to release the company from liability for its

negligence. See id. at 791. The court distinguished these types of services from those

involving recreational activities which courts generally have held “do not fall within

any of the categories where the public interest is involved.” Id. at 789 (quoting

Schlobohm, 326 N.W.2d at 925-26). The court specifically rejected the argument that

renting houseboats is a purely recreational activity and is not a necessary or public

service. See id. at 790. 

Whether recreational activities involve a public interest is a question the

Minnesota Supreme Court has not yet squarely addressed. If the Minnesota Supreme

Court has not spoken on an issue, the federal court must determine what decision the

state court would make if faced with the same facts and issue. See Kovarik v.

American Family Ins. Group, 108 F.3d 962, 964 (8th Cir. 1997). The federal court

should consider relevant state court decisions, “analogous decisions, considered dicta,

. . . and any other reliable data.” Id. at 964 (quoting Ventura v. Titan Sports, Inc., 65

F.3d 725, 729 (8th Cir. 1995)). The Minnesota Court of Appeals has upheld liability

releases in contracts for various types of recreational activities, finding the activities

are not of great importance to the public or of practical necessity to anyone. See, e.g.,

Beehner v. Cragun Corp., 636 N.W.2d 821, 828 (Minn. App. 2001) (horseback

riding); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 731

(Minn. App. 1986) (sky diving). We recognize that skiing is an activity enjoyed by

many, but we believe the Minnesota Supreme Court would conclude it is not a
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necessary or public service and would find the release signed by Myers does not

violate public policy. 

Finally, we disagree with Myers’ arguments that the release is invalidated by

two Minnesota statutes, the Plain Language Contract Act and the Consumer Credit

Sales Act.

Myers does not contest that the release, if valid, encompasses his claims against

Lutsen. The release is valid under Minnesota law and, thus, we affirm the district

court’s summary judgment for Lutsen. 

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