Lee v. Sun Valley Co. , 107 Idaho 976 ( 1984 )

BAKES, Justice.

This case involves the legal effect of an exculpatory contract releasing the Sun Valley Co., a licensed outfitter and guide, from any liability arising out of an injury to one of its guests.¹

In October, 1981, plaintiff was attending a National Transportation Educational Fraternity convention in Sun Valley, Idaho. A horseback trail ride was one of the activities provided by the Sun Valley Company for the fraternity members, and a group of ten, including the plaintiff, elected to participate in the trail ride. Each member signed a form entitled “Rental Agreement — Saddle Animals For Hire” which stated:

“Upon my acceptance of horse and equipment, I acknowledge that I assume full responsibility for my safety. I further understand that I ride at my own risk, and I agree to hold the above entity, its officers, employees, etc., harmless from every and all claim which may arise from injury, which might occur from use of said horse and/or equipment, in favor of myself, my heirs, representatives or dependents. I understand that the stable does not represent or warrant the quality or character of the horse furnished.”

Before the plaintiff mounted his assigned horse, the guide for defendant Sun Valley Company readjusted the cinch on the horse’s saddle. Approximately halfway through the trail ride, as the trail turned and headed back down the mountain, the plaintiff’s saddle loosened and began to slide forward on the horse. The plaintiff was riding the last horse in the group, and his calls for help were not heard by the trail guide who rode the first horse in the group. Plaintiff stopped the horse and, while attempting to dismount, the saddle rotated on the horse. The horse reared and threw the plaintiff to the ground causing injuries to his back.

The plaintiff sued for damages including medical expenses, pain and suffering, incapacity, and mental anguish. The district court granted summary judgment to the defendant on the basis that the release form signed by the plaintiff absolved the defendant from any liability arising out of the accident.

We have previously held that parties to a transaction may agree by contract to limit liability for negligence or contractually waive rights and remedies, subject to certain exceptions. See Steiner Corp. v. American District Telegraph, 106 Idaho 787, 683 P.2d 435 (1984); Anderson & Nafziger v. G. T. Newcomb, Inc., 100 Idaho 175, 595 P.2d 709 (1979); Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 465 P.2d 107 (1970). The validity of the exculpatory contract in the present case is not attacked on the basis of defects in formation since plaintiff admits that he read and signed the contract, and he alleges no failure of consideration. Plaintiff does argue that the language of the contract is ambiguous and should be construed against Sun Valley; however, we find no merit in this argument. The agreement clearly and simply states that Sun Valley should be held “harmless for every and all claim which may arise from injury, which might occur from use of said horse and/or equipment,” which is both unambiguous and applicable to the facts alleged by plaintiff. Therefore, it appears that unless the exculpatory contract falls within some exception to the general rule set out in the Steiner, Anderson & Nafziger, and Rawlings cases, supra, the agreement signed by the plaintiff absolves Sun Valley of any liability.

The general rule that “express agreements exempting one of the parties for negligence are to be sustained” is subject to exceptions where: “(1) one party is at an obvious disadvantage in bargaining power; (2) a public duty is involved (public utility companies, common carriers).” Rawlings v. Layne & Bowler Pump Co., 93 Idaho at 499-500, 465 P.2d at 110-111. Plaintiff concedes that he had no disadvantage in bargaining power, but argues that the second exception applies on the theory that the statutes regulating outfitters and guides impose a public duty upon Sun Valley. Utilities and carriers were named in the Rawlings case as obvious examples of parties owing a public duty, but there may be others who also owe a public duty in Idaho. The idea of a public duty is closely related to the idea of public policy and it is within the domain of the legislature, elected by the public, to determine such duties and policies.

Chapter .21 of Title 36, Idaho Code, sets out a licensing scheme for outfitters and guides which does not impose any duties upon Sun Valley other than the payment of fees and general business worthiness. The mere fact that Sun Valley is licensed by the state does not impose a public duty limiting Sun Valley from entering an agreement to exempt its liability for negligence. However, subsequent to the licensing statute, the legislature enacted Chapter 12, Title 6, Idaho Code, with the following policy and purpose:

“6-1201. Legislative purpose. — Every year, in rapidly increasing numbers, the inhabitants of the state of Idaho and nonresidents are enjoying the recreational value of Idaho’s mountains, rivers, and streams, many of which are remote and far removed for ordinary auto travel. The tourist trade is of vital importance to the state of Idaho, and the services offered by licensed outfitters and guides significantly contribute to the economy of the state of Idaho. The legislature recognizes that there are inherent risks in the recreational activities provided by outfitters which should be understood by each participant. These risks are essentially impossible to eliminate by outfitters and guides. It is the purpose of this chapter to define those areas of responsibility and affirmative acts for which outfitters and guides shall be liable for loss, damage, or injury, and to define those risks which the participant expressly assumes and for which there can be no recovery. ” (Emphasis added.)

In the same chapter, I.C. § 6-1206 provides:

“No licensed outfitter or guide acting in the course of his employment shall be liable to a participant for damages or injuries to such participant unless such damage or injury was directly or proximately caused by failure of the outfitter or guide to comply with [1] the duties placed on him by chapter 21, title 36, Idaho Code, or [2] by the rules and regulations of the Idaho outfitters and guides board, or [3] by the duties placed on such outfitter or guide by the provisions of this chapter.”

The record in the present case contains no allegations or credible argument that Sun Valley violated any duties contained in Chapter 21, Title 36, Idaho Code, or the rules and regulations. The only possible violation of Chapter 12, Title 6, Idaho Code, is contained in I.C. § 6-1204 which requires Sun Valley’s guide[s] to “conform to the standard of care expected of members of his profession.”

The issue then becomes whether this duty imposed by I.C. § 6-1204 is also exempted by the contract. There are some statutory rights and duties which may be waived or exempted by contract. E.g., Leventhal v. Atlantic Finance Corp., 316 Mass. 194, 55 N.E.2d 20 (1944) (stockholders’ right to seek dissolution may be waived); Newey v. Newey, 161 Colo. 395, 421 P.2d 464 (1966) (antenuptial agreement is binding as waiver of property, alimony and support rights); Perry v. Perry, 551 P.2d 256 (Okla.1976) (property, alimony and support statutory rights may be waived by contract); Matter of Burgess’Estate, 646 P.2d 623 (Okla.App.1982) (statutory inheritance rights may be waived by contract); Dunbabin v. Brandenfels, 18 Wash.App. 9, 566 P.2d 941 (1977) (rights of usury defense may be waived by contract).

Other statutory rights and duties may not be waived or exempted by contract. Sherba Bros., Inc. v. Campbell, 361 So.2d 814 (Fla.App.1978) (minimum wage); Iowa Mutual Ins. Co. v. Parr, 189 Kan. 475, 370 P.2d 400 (1962) (property exemptions from attachment and execution); Egy v. U.S. Fidelity & Guaranty Co., 8 Kan.App.2d 144, 651 P.2d 954 (1982), affd, 233 Kan. 234, 661 P.2d 1239 (1983) (property exemption for workmen’s compensation benefits); Fireman’s Fund Ins. Co. v. Sand Lake Lounge, Inc., 514 P.2d 223 (Alaska 1973) (statute of limitations); Southwestern Bell Tel. Co. v. Employment Sec. Bd. of Review, 210 Kan. 403, 502 P.2d 645 (1972) (unemployment compensation); Elson Development Co. v. Arizona Savings & Loan Ass’n, 99 Ariz. 217, 407 P.2d 930 (1965) (statutory right of redemption).² In the case of workmen’s compensation, I.C. § 72-318 invalidates any agreement between an employer and employee exempting the employer from its duties under the workmen’s compensation statute. “Even though no express provisions be contained in the [worker’s compensation] statute, it would seem that any attempt to nullify or limit the operation of law must be held to be invalid as being against public policy.” 81 Am.Jur.2d Workmen’s Compensation § 51, p. 741 (1976).

We do not attempt to articulate a general rule applicable to all statutes. However, we do hold that where the legislature has addressed the rights and duties pertaining to personal injuries arising out of the relationship between two groups, i.e., employers/employees, outfitters and guides/participants, and has granted limited liability to one group in exchange for adherence to specific duties, then such duties become a “public duty” within the exception to the general rule validating exculpatory contracts. Therefore, while the agreement between Sun Valley and plaintiff does absolve Sun Valley from common law liabilities, it does not absolve Sun Valley from liability for possible violation of the public duty imposed by I.C. § 6-1204.

Having concluded that the agreement between the parties does not absolve Sun Valley of a possible violation of I.C. § 6-1204, we must determine whether or not the factual record presented by the plaintiff establishes a triable issue of fact on the issue of whether or not the defendant Sun Valley violated “the duties placed upon such outfitter or guide by the provisions of [I.C. § 6-1204].” I.C. § 6-1206. Since the record reflects that the parties were not aware of the applicability of the foregoing sections of the code,³ the evidence did not focus on the “standard of care” expected of members of the outfitters and guides profession. The defendant’s motion for summary judgment was supported by depositions of the employee guides which disclosed that the horse in question had returned from a previous trail ride and that the guide retightened the saddle prior to plaintiff’s mounting the horse. Plaintiff made no showing that the “standard of the profession” required more. The plaintiff filed no affidavits, and the plaintiff’s own deposition contained no allegation or testimony in opposition that the guide failed to perform his or her professional duties. Rather, the deposition of the plaintiff actually supports the defendant’s motion in that the plaintiff testified that the guide adjusted and tightened the cinch on the saddle prior to the trail ride. The mere fact that the saddle loosened or rotated on the horse does not establish that the “standard of the profession” required more than was done. Therefore, the plaintiff did not establish a factual claim that the defendant failed to satisfy the “standard of care expected of members of his profession,” and therefore the trial court did not err in granting summary judgment to the defendant.

Affirmed.

DONALDSON, C.J., and SHEPARD, J., concur.

1 . The defendant and its employees at the time of the accident were licensed by the self-governing agency of the Idaho Outfitters & Guides Board.

2 . The citations above are merely examples of other jurisdictions’ treatment of specific contractual waivers of statutory rights. They are not necessarily precedent for the same disposition in Idaho.

3 . At oral argument defendant’s counsel claimed that this chapter was not indexed in the Idaho Code. We have verified that claim and note that the chapter was not included in the index until the latest index volume, received by this Court in July, 1984.