Lukken v. Fleischer

Korby Fleischer, doing business as Mt. Crescent Ski Area (Mt. Crescent) (defendants) operated a ski, sledding, and zip-lining business. In 2014, Mt. Crescent contracted with one company to build and install a zip line with a certain rope-pulley braking feature. The braking feature did not always sufficiently slow down riders, leading to a handful of minor injuries. Mt. Crescent then consulted with Sky Line, a different contractor, and in July 2016 Sky Line installed a zipSTOP braking system. The zipSTOP system used a magnetic wheel to bring riders to a complete stop, but an operating technician had to manually redeploy the “brake block” in preparation for the next rider or else the system would not work for the next rider. In October 2016, Thomas Lukken (plaintiff) rode the zip line, and a Mt. Crescent employee failed to redeploy the brake block in a timely manner. Lukken crashed into a wooden pole at the base of the zip line and suffered a neck fracture. Prior to riding, Lukken had signed a release and waiver-of-liability agreement. In the agreement, Lukken acknowledged the dangerousness of the activities and that he was signing the agreement in consideration of being allowed to participate. The agreement further exculpated Mt. Crescent for “any and all acts of negligence” by Mt. Crescent, its owners, agents, and equipment manufacturers. Lukken sued Mt. Crescent, among others, and alleged that Mt. Crescent’s design and operation of the zip line were grossly negligent, reckless, wanton, and willful. The trial court granted summary judgment in favor of Mt. Crescent based on the waiver of liability. The court found that the exculpatory agreement was enforceable and clear and covered grossly negligent conduct. Lukken appealed.