Exculpatory provision electronically signed enforced in Idaho July 15, 2025

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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Exculpatory provision electronically signed enforced in Idaho
July 15,  2025
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Exculpatory provision electronically signed enforced in Idaho
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    The case involved a snow tubing accident; the Plaintiff hit a trailer parked on other side of an embankment and sued.  She purchased her ticket electronically and the terms and conditions included an exculpatory clause.
    I am often asked about using electronically signed contracts.  I am perfectly fine with this method of execution provided the same care is taken getting a contract executed, whether in person, by mail or electronically.
    I am also frequently asked about the effectiveness of having customers sign a document, a proposal or whatever it might be called, which refers the customer to terms and conditions on a website, but does not recite the terms and conditions in the document the customer is actually signing.  I am not OK with this.
    Another variation is having a customer sign electronically on a page that simply says the customer is approving the Terms and Conditions which are on another page.  The customer is not asked to sign the page with the actually terms and conditions.  I am not OK with this method.
    Signing contracts electronically is ubiquitous now, accepted in most if not all jurisdictions and situations.  Of course what is actually agreed to must still be clear and meet the same standards that a printed contract would have to meet.  
    The alarm industry relies on certain "protective provisions" in its contracts, all found in the Kirschenbaum Contracts TM, and these provisions should be enforced by all courts in all jurisdictions.  But make no mistake about it, enforcement is constrained and reluctant.  Any issue in wording or execution will give a Judge the opening to deny enforcement.  One of the crucial issues in contract enforcement is knowingly entering into an agreement and having an opportunity to read the agreement.  A signature on the contract is pretty conclusive that the customer is to be bound by the agreement.  
    But signatures on something other than the agreement is, in my opinion, risky.  Claims that one has not read the agreement terms is often met with, "you signed it", so now "you're bound by the terms".  But if the signature is not on the document with the terms is it least plausible that the party signing the agreement did not have the opportunity to read the terms.  How can that be?  How about someone who admits signing a contract but claims he could not open the website page with the terms and conditions, so he signed anyway?  Think of your own scenario, and rest assured, those claiming they should not be held to the contract protective provisions will be most inventive coming up with reasons for non-enforceability of the contract.
    Because there are other ways to get electronic contracts signed, just as easy as the ways that I think more risky, there is no reason to design your electronic process in the risky ways.  For those of you, and there are many, who prefer knocking that square peg into the round hole, be sure to keep my number handy.  
    Here's the Idaho case which enforced the exculpatory clause, waiver of suing, clause.  But be mindful that in Idaho there is a specific statute permitting these waivers in ski and snow tubing recreational areas.  In this case the Court relied on the contract terms that were in the electronic ticket.  There are no statutes protecting alarm companies, so we rely on the contracts [the Kirschenbaum Contracts TM].  That is one distinguishing factor between the recreational companies and alarm companies.  
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Supreme Court of Idaho,
Boise, October 2024 Term.
Elanore VAUGHAN, Plaintiff-Respondent-Cross Appellant,
v.
GATEWAY PARKS, LLC, an Idaho limited liability company, Defendant-Appellant-Cross Respondent.
Docket No. 50674-2023
Opinion Filed: June 26, 2025
Synopsis
Background: Patron brought action for negligence and premises liability against operator of winter tubing and skiing/snowboarding terrain park, alleging that operator maintained and operated winter sports venue at state part pursuant to concession agreement with the Idaho Department of Parks and Recreation, that patron purchased tickets from operator's website to go tubing with her family, that while tubing, patron hit angled embankment at bottom of hill and her tube left lane and hit flatbed trailer parked on other side of embankment, and that patron sustained injuries. Operator moved to dismiss for failure to state a claim. The Fourth Judicial District Court, Ada County, Samuel A. Hoagland, J., treated motion as one for summary judgment and denied it. Operator moved for leave to file permissive appeal, which the District Court, Hoagland, J., granted and the Supreme Court accepted. Patron cross-appealed.
Holdings: The Supreme Court, Zahn, J., held that:
1 electronic liability waiver that patron signed when she purchased tubing ticket precluded her claims, and
2 operator was not entitled to award of attorney fees on appeal under statute permitting award of attorney fees in civil action concerning commercial transaction.
Reversed.
Opinion
ZAHN, Justice.
*1 This permissive appeal concerns the effect of a liability waiver. Gateway Parks, LLC, operates the winter tubing and skiing/snowboarding terrain park at Eagle Island State Park. Elanore Vaughan purchased a ticket and signed an online liability waiver to go tubing at Eagle Island. The next day, Vaughan went tubing at Eagle Island and was injured after the tube she was on went over an embankment and crashed into a flatbed trailer on which snowmaking equipment was housed. Vaughan sued Gateway and asserted claims for negligence and premises liability. Gateway filed a motion to dismiss the complaint, arguing that Vaughan's claims were foreclosed by: (1) the online liability waiver she signed; and (2) the Responsibilities and Liabilities of Skiers and Ski Area Operators Act, set forth in Idaho Code sections 6-1101 through 6-1109 (“Ski Area Liability Act” or “Act”).
The district court denied Gateway's motion. Gateway thereafter filed a motion for permission to appeal the denial to this Court, which was granted. On appeal, Gateway argues the district court erred in denying its motion on both arguments. We reverse the district court's decision because Vaughan's claims are barred by the liability waiver that she signed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gateway maintains and operates a winter sports venue at Eagle Island pursuant to a concession agreement with the Idaho Department of Parks and Recreation. The primary feature of the winter sports venue is a tubing hill, and tickets are sold by Gateway to the public.
Vaughan purchased tickets from Gateway's website to go tubing with her family. When she paid for the tickets, Vaughan electronically signed a liability waiver on Gateway's website. Vaughan and her family went tubing at Gateway the following morning. According to Vaughan, she asked a Gateway employee which tubing lane was the safest and slowest. The employee assured Vaughan she was in the safest lane. Vaughan alleges that she told the employee not to push her tube, but he did so anyway, and her tube took off down the hill.
On her way down, Vaughan hit an angled embankment at the bottom of the hill and her tube left the lane and hit a flatbed trailer parked on the other side of the embankment. The flatbed trailer had snowmaking equipment on it and was covered with bright orange tarps. Following the collision, Vaughan was stuck under the trailer and her son had to help free her. Vaughan experienced significant pain from the accident. She was later diagnosed with fractures in her lumbar and thoracic spine.
Vaughan later sued Gateway, alleging claims for negligence and premises liability. Vaughan alleged that Gateway breached its duty to exercise reasonable care by failing to inspect and maintain the tubing hill in a reasonably safe condition and creating an unnecessarily dangerous hazard by placing snowmaking equipment on a flatbed trailer at the end of the tubing run.
Gateway moved to dismiss Vaughan's complaint pursuant to Idaho Rule of Civil Procedure 12(b)(6), arguing that Vaughan's claims were precluded by the Ski Area Liability Act. Gateway argued that the Act precludes claims for injuries caused by the inherent risks of snow tubing, such as plainly visible snowmaking equipment. Gateway also argued that Vaughan's claims were barred by the liability waiver she signed because she assumed the risk for injury from variable snow and weather conditions; manmade obstacles, such as snowmaking equipment; and other hazards of snow tubing.
Vaughan responded that the Act did not apply to her case because Gateway was not a ski area operator and she was not a skier under the Act. Vaughan also argued that, even if the Act applied, parking a trailer at the end of a tubing hill is not an inherent risk of skiing under the Act. Finally, Vaughan argued that the liability waiver did not preclude her claims because a flatbed trailer was not a hazard of tubing.
Gateway's motion to dismiss relied on matters outside the pleadings; therefore, the district court gave the parties notice that it intended to treat the motion as one for summary judgment pursuant to Rule 12(d). The parties thereafter submitted supplemental briefing and declarations. The court then heard oral argument and took the matter under advisement.
The district court later issued a written decision denying Gateway's motion. The district court concluded that the Act applied because Gateway was a ski area operator and Vaughan was a skier for purposes of the Act. However, the district court concluded that there was a genuine issue of material fact as to whether the placement of the snowmaking equipment on a trailer at the bottom of the tubing hill was an attempt to eliminate, alter, control, or lessen the inherent risks of tubing. Lastly, the district court concluded that the liability waiver did not preclude Vaughan's claims concerning the allegedly negligent placement of the trailer and snowmaking equipment.
Gateway moved for leave to file a permissive appeal of the denial of its motion for summary judgment, which the district court granted, and this Court accepted. Vaughan subsequently cross-appealed the district court's determination that Gateway is a ski area operator under the Act.
II. ISSUES ON APPEAL
1. Did the liability waiver preclude Vaughan's claims against Gateway?
2. Is Gateway entitled to attorney fees on appeal?
III. STANDARDS OF REVIEW
123When reviewing a district court's decision on summary judgment, “[t]his Court employs the same standard as the district court[.]” Owen v. Smith, 168 Idaho 633, 640, 485 P.3d 129, 136 (2021) (quoting Trumble v. Farm Bureau Mut. Ins. Co. of Idaho, 166 Idaho 132, 140, 456 P.3d 201, 209 (2019)). “Summary judgment is proper ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting I.R.C.P. 56(a)). “A moving party must support its assertion by citing particular materials in the record or by showing the ‘materials cited do not establish the ... presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact[s].’ ” Id. (quoting I.R.C.P. 56(c)(1)(B)). “Summary judgment is improper ‘if reasonable persons could reach differing conclusions or draw conflicting inferences from the evidence presented.’ ” Id. at 641, 485 P.3d at 137 (quoting Trumble, 166 Idaho at 141, 456 P.3d at 210). A “mere scintilla of evidence or only slight doubt as to the facts is not sufficient to create a genuine issue of material fact for the purposes of summary judgment.” Id.
IV. ANALYSIS
A. The electronic liability waiver that Vaughan signed precludes her claims against Gateway.
4The parties raise several arguments in their cross appeals, the majority of which relate to the interpretation and application of the Act. However, we decline to address those issues because we hold that the electronic waiver that Vaughan signed when she purchased her tubing ticket precludes her claims.
*3 When Vaughan purchased her ticket to go tubing, she signed an electronic liability waiver acknowledging there was a risk of collision with manmade objects while tubing, assuming the risk of injury from the collision, and agreeing not to make any claim against Gateway for harm resulting from the risk:
By purchasing or using this ticket, I agree and understand that skiing (which includes snowboarding, snowmobiling and tubing) is hazardous. Conditions Vary [sic] constantly because of weather changes and skier use, among other things. Obstacles also exist. Bare spots, bumps, moguls, stumps, forest trees, debris, rocks, ice and variations in snow and terrain are present within this area. There are also manmade obstacles such as lift towers[,] poles, roads, trail markings, and snow making equipment. Snow making and snow grooming may be in progress at any time. There are also others using the mountain. Falls and collisions do occur. It is my responsibility to ski with care and in control at all times to reduce the risk of injury[.] I will observe all signs and other warning [sic] and instructions. I expressly assure [sic] the risk that injury, damage, or death may result from these and other hazards of the sport. I further agree that I will make no claim against the area or its owners, employees or contractors for any harm resulting from these risks. I agree that this ticket may be revoked without refund at any time for misconduct or nuisance.
(Emphasis added.)
In her complaint, Vaughan alleged claims for negligence and premises liability. Vaughan alleged that Gateway breached its duty to exercise reasonable care by failing to inspect and maintain the tubing path in a reasonably safe condition. She also alleged that Gateway created an unnecessarily dangerous hazard when it placed snowmaking equipment on a flatbed trailer at the bottom of the tubing hill.
In its motion for summary judgment, Gateway argued that the liability waiver precludes Vaughan's claims because she seeks to recover damages for injuries caused by “manmade obstacles such as snowmaking equipment.” In its order denying Gateway's motion, the district court concluded that the waiver Vaughan signed was not broad enough to preclude her claims because “[t]he allegedly negligent placement of the snowmaking equipment is not necessarily a ‘hazard’ of tubing nor does the agreement waive Gateway's negligence.”
On appeal, Gateway argues that the district court erred because under this Court's decision in Morrison v. Northwest Nazarene University, 152 Idaho 660, 664, 273 P.3d 1253, 1257 (2012), hold harmless agreements for recreational activities do not need to specify the exact conduct that was allegedly negligent or caused the harm. In response, Vaughan argues that the district court correctly concluded that placing a trailer with snowmaking equipment near the end of the tubing hill was a negligent act that fell outside the scope of the waiver.
567Resolving these competing arguments requires us to construe the terms of the liability waiver that Vaughan signed. “Agreements exempting a party from liability for negligence will be upheld unless the party owes to the other party a public duty created by statute or the other party is at an obvious disadvantage in bargaining power.” Morrison, 152 Idaho at 661, 273 P.3d at 1254 (citing Lee v. Sun Valley Co., 107 Idaho 976, 978, 695 P.2d 361, 363 (1984)). “With respect to adult participants, the general rule is that releases from liability for injuries caused by negligent acts arising in the context of recreational activities are enforceable.” Id. at 662, 273 P.3d at 1255 (quoting 57A Am. Jur. 2d Negligence § 65 (2004)). “Freedom of contract is a fundamental concept underlying the law of contracts and is an essential element of the free enterprise system.” Id. at 661, 273 P.3d at 1254 (quoting Rawlings v. Layne & Bowler Pump Co., 93 Idaho 496, 499, 465 P.2d 107, 110 (1970)).
*4 In Morrison, we considered whether a hold harmless agreement released the university from an individual's claim related to injuries suffered when he fell from the university's climbing wall. Id. at 662–66, 273 P.3d at 1255–59. The agreement purported to exempt the university from “ ‘any and all past, present or future claims, demands, and causes of action which the undersigned now has or may in the future have’ for all ‘bodily injury, including death, however caused, resulting from, arising out of or in any way connected with his/her participation in or use of the Northwest Nazarene University Challenge Course Adventure Program.’ ” Id. at 663, 273 P.3d at 1256. We analyzed our prior decisions concerning the scope of liability waivers and concluded that hold harmless agreements did not need to specify the exact conduct that was allegedly negligent or caused harm. Id. at 663–66, 273 P.3d at 1256–59. “The decisions of this Court have not held that a hold harmless agreement must describe the specific conduct or omission that is alleged to be negligent in order for it to bar recovery.” Id. at 666, 273 P.3d at 1259.
Here, the electronic waiver signed by Vaughan expressly acknowledged that tubing was hazardous; that conditions varied constantly; that obstacles existed, including manmade obstacles such as snowmaking equipment; and that falls and collisions occurred in the course of tubing. Vaughan expressly assumed the risk of injury resulting from “these and other hazards of the sport.” Moreover, Vaughan agreed to “make no claim against the area or its owners, employees or contractors for any harm resulting from these risks.”
Vaughan was injured after she collided with a flatbed trailer holding snowmaking equipment. The trailer was a manmade obstacle that held equipment used to make snow for the tubing hill. As such, the trailer is similar to the enumerated examples of manmade obstacles of “lift towers[,] poles, roads, trail markings, and snow making equipment.” Moreover, the waiver is not limited to the identified examples of manmade obstacles: “[t]here are also manmade obstacles such as ... snow making equipment.”
While the signed electronic waiver did not describe the specific conduct that Vaughan alleged caused her injuries, it encompassed injuries resulting from collisions with manmade obstacles, such as the flatbed trailer holding the snowmaking equipment. Morrison holds that an exculpatory clause does not need to list the specific, allegedly negligent conduct at issue to be enforceable. The list of manmade objects in Vaughan's waiver is not exhaustive. The flatbed trailer that held the snowmaking machine was similar in nature to the examples identified in the waiver. Vaughan waived all claims against Gateway for any harm resulting from the snowmaking equipment or the flatbed trailer on which it sat. For these reasons, we hold that the unambiguous language of the waiver precludes Vaughan's claims.
8The dissent, relying primarily on out-of-state caselaw and secondary sources, asserts that we interpret the liability waiver too broadly and that whether the language of the waiver encompasses a trailer housing snowmaking equipment is a question first for the jury. However, we have routinely decided the scope of a liability waiver as a matter of law. See Morrison, 152 Idaho at 666, 273 P.3d at 1259 (2012); Jesse v. Lindsley, 149 Idaho 70, 76, 233 P.3d 1, 7 (2008); Lee, 107 Idaho at 978, 695 P.2d at 363. Determining the legal effect of an unambiguous legal instrument is a question of law for this Court. Knipe Land Co. v. Robertson, 151 Idaho 449, 455, 259 P.3d 595, 601 (2011).
We have carefully laid out why this Court's caselaw and the language of the waiver encompass Vaughan's accident. While the liability waiver Vaughan signed does not specifically reference a trailer holding snowmaking equipment, we have explained that the waiver language is not limited to the specifically-identified manmade obstacles. As previously discussed, we held in Morrison that an exculpatory clause does not need to list the specific, allegedly negligent conduct at issue to be enforceable. 152 Idaho at 666, 273 P.3d at 1259. The unambiguous language of the liability waiver acknowledged that tubing was hazardous and encompassed injuries resulting from snow conditions and collisions with manmade obstacles, such as the flatbed trailer holding the snowmaking equipment. Our holding today simply applies the language of the liability waiver that Vaughan signed.
*5 Vaughan argues that, pursuant to this Court's decision in Jesse, 149 Idaho at 75, 233 P.3d at 6, liability waivers are “disfavored” and must be “ ‘strictly’ construed” against Gateway. Vaughan argues that the waiver should be interpreted narrowly to only preclude claims arising from those hazards of tubing that are specifically identified in the waiver, which did not list the allegedly negligent placement of snowmaking equipment.
Our decision in Jesse, however, is distinguishable. In that case, we considered the enforceability of an exculpatory clause in a lease agreement that purported to “absolve a landlord from liability for accidental injuries sustained by the tenant.” 149 Idaho at 73, 233 P.3d at 4. We concluded that the lease clause was in contravention of public policy and overbroad, and was therefore unenforceable. Id. at 76–77, 233 P.3d at 7–8, . Our decision in Jesse is not applicable here because we are not considering a contractual exculpatory clause in a lease agreement.
Much more applicable is our decision in Morrison four years later. Our decision in Morrison concerned the applicability of a hold harmless agreement in a recreational context, similar to the applicability of the liability waiver that Vaughan signed prior to participating in the recreational activity of tubing. In Morrison, we did not construe the hold harmless agreement against the party that drafted it. 152 Idaho at 662, 273 P.3d at 1255. Rather, we stated that, when it comes to adults participating in recreational activities, “the general rule is that releases from liability for injuries caused by negligent acts ... are enforceable.” Id. (quoting 57A Am. Jur. 2d Negligence § 65 (2004)). Because Morrison is specific to waivers arising in the recreational activity context, we apply its general rule here and decline to construe the waiver against Gateway.
Vaughan chose to sign a liability waiver prior to engaging in tubing activity. We will not disregard this Court's precedent concerning the applicability of liability waivers to recreational activities or the “[f]reedom of contract” that “is a fundamental concept underlying the law of contracts and is an essential element of the free enterprise system.” Id. at 661, 273 P.3d at 1254 (quoting Rawlings, 93 Idaho at 499, 465 P.2d at 110). We hold that the unambiguous language of the waiver precludes Vaughan's claims. We therefore reverse the district court's denial of summary judgment. On remand, we direct the district court to grant summary judgment in favor of Gateway and dismiss Vaughan's complaint. Because Vaughan's claims are precluded by the liability waiver, we do not need to address the parties’ arguments regarding the applicability of the Act.
B. Gateway is not entitled to attorney fees on appeal.
910Vaughan does not request attorney fees on appeal. Gateway argues it is entitled to attorney fees under Idaho Appellate Rule 41 and Idaho Code section 12-120(3). However, section 12-120(3) does not apply here. “Idaho Code section 12-120(3) applies when ‘the commercial transaction comprises the gravamen of the lawsuit.’ ” Idaho Transp. Dep't v. Ascorp, Inc., 159 Idaho 138, 141, 357 P.3d 863, 866 (2015) (quoting Brower v. E.I. DuPont De Nemours & Co., 117 Idaho 780, 784, 792 P.2d 345, 349 (1990)). The gravamen of Vaughan's lawsuit is a tort, not a commercial transaction between the parties. See Genho v. Riverdale Hot Springs, LLC, 174 Idaho 894, ––––, 560 P.3d 1041, 1057 (2024) (concluding that when an independent, tortious behavior causes the tort damages and a related commercial transaction was not an element of the tort claim, attorney fees pursuant to section 12-120(3) are not proper). Therefore, we decline to award Gateway attorney fees on appeal.
V. CONCLUSION
*6 The district court's decision denying Gateway's motion for summary judgment is reversed and we direct the district court to grant summary judgment in favor of Gateway on remand. As the prevailing party, Gateway is awarded costs on appeal pursuant to Idaho Appellate Rule 40.
End of Document    © 2025 Thomson Reuters. No claim to original U.S. Government Works. [notes and dissent omitted]
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
www.KirschenbaumEsq.com