UPDATES & ANALYSIS

Iowa Supreme Court holds that signed liability waiver does not protect zip line operator from claims of “gross negligence”

by Allison Adams | July 12, 2021

During a visit to the Mt. Crescent Ski Area in Honey Creek, Iowa, Thomas Lukken stepped off an elevated platform and whizzed down a zip line only to be met with a crash at the end, fracturing his neck. The Iowa Supreme Court ruled this term in Lukken v. Century, Inc. that the liability waiver he signed may not have released Mt. Crescent from all liability.

Mt. Crescent is a skiing and sledding business which offers other outdoor activities, such as ziplining, in warmer months. In April 2014, the business contracted with Challenge Quest, LLC to build and install a zip line. The zip line begins on a twenty-four-foot-high platform on the top of a ski hill and extends 1,576 feet from start to finish. Riders travel down the line reaching speeds of up to forty miles per hour before arriving on a lower platform.

Challenge Quest completed the construction of the zip line in August 2014. However, their specific braking system led to a couple of injuries by riders. Consequently, Mt. Crescent decided to consult a different contractor, Sky Line, to install a different braking system called “zipSTOP.”

Lukken rode the zip line in October 2016 after the zipSTOP braking system had been installed. Because of an employee’s mistake in operating the braking system, the zip line could not stop Lukken and he crashed into a wooden pole at the base of the zip line, suffering a neck fracture. However, before riding the zip line, Lukken signed a liability waiver that stated that Mt. Crescent was not responsible for “any and all negligence.” Regardless, Lukken filed suit in Iowa district court against Challenge Quest and Mt. Crescent for claims of negligence. The district court granted summary judgement in favor of both companies.

On appeal, the Court affirmed the district court’s judgment in favor of Challenge Quest, but reversed the summary judgment ruling in favor of Mt. Crescent. With respect to Challenge Quest, the district court found that Challenge Quest did not owe a duty of care to Lukken because Challenge Quest did not have “control” over the braking system whose operation led to Lukken’s injury. Once Mt. Crescent decided to replace the Challenge Quest braking system, the Court reasoned, “Challenge Quest’s braking system didn’t fail; it no longer existed.”

Justice Appel filed a concurrence in which he agreed with the Court’s decision to affirm summary judgment in favor of Challenge Quest, but disagreed with the majority’s reasoning. Justice Appel cited a comment in the Restatement (Third) of Torts, which provides that a contractor no longer in possession “is subject to a duty of reasonable care as provided in § 7 for any risk created by the contractor in the course of its work.” Justice Appel argued that ordinarily the question of whether the contractor remains in “control” is a fact question properly for the jury. Justice Appel would have affirmed summary judgment on causation grounds, as the allegedly defective Challenge Quest braking system was “entirely replaced” and could not have caused the accident.

With respect to the claim against Mt. Crescent, the district court found that the waiver signed by Lukken was clear and broad enough to indicate to Lukken that he would be waiving all future claims of negligence against Crescent. Lukken argued that even if the waiver’s language is “clear and unequivocal,” his claims encompass both ordinary negligence and gross negligence. Lukken argued that Iowa law does not allow exculpatory waivers that attempt to limit liability for harm caused by gross negligence, or “wanton or reckless conduct.”

The Court agreed and, while noting that “gross negligence” is not a separate cause of action but a measure of conduct in a cause of action for negligence, held that exculpatory clauses negating liability for acts that are wantonly or recklessly committed generally do violate public policy. Therefore, the contractual waiver Lukken signed was unenforceable to the extent Lukken can prove willful, wanton, or reckless conduct. The Court therefore dismissed Lukken’s “ordinary negligence” claim on the basis of his waiver and remanded in order for Mr. Lukken to pursue his claims of willful, wanton, or reckless conduct against Mt. Crescent.

Allison Adams is a student at the University of Iowa College of Law.

Tags: Iowa Supreme Court 2020-21