Vermont Ski Areas Urge Scott To Veto Consumer Protection Bill

May 8, 2018

Vermont lawmakers Tuesday gave final approval to a first-in-the-nation consumer protection bill, but critics say the legislation could severely disrupt the state’s outdoor recreation industry.

Here's the deal:

You know all that fine print you have to sign off on when you buy a ski pass? The legalese you’ve probably never even bothered to read?

Vermont Ski Areas Association President Molly Mahar says there’s a good reason it’s there.

“It’s very helpful for us if we have a document that someone has signed acknowledging the inherent risks,” Mahar says.

Helpful, Mahar says because it can limit the amount of financial liability a ski area faces if someone gets hurt on the slopes.

But according to Mahar, legislation approved by the Vermont Legislature on Tuesday would put a serious dent in those legal safeguards, by changing the law that governs certain contract provisions.

"It means that it's going to be difficult for us to get liability insurance. It's going to drive the cost of liability insurance up." — Molly Mahar, Vermont Ski Areas Association

Now that the legislation, called S.105, has won final passage in the Statehouse, Mahar has a clear message for Gov. Phil Scott.

“Veto this bill,” Mahar says. “This threatens the recreation industry by completely undermining all the basic principles of recreation law.”

Burlington Rep. Selene Colburn has a different request of Scott.

“I urge the governor to stand with working Vermonters and sign 105,” Colburn says.

Colburn says the bill will protect people from all manner of unfair contract practices in all sorts of different legal arenas.

Windham County Sen. Jeannette White offered up a real-life example of the kind of employment contract the legislation would prohibit.

“If you have a sexual harassment complaint, you have six hours to report it from the time it happened. You have two minutes to give a deposition. You have to go to Nevada to press your case,” White says.

The legislation discourages these kinds of terms by creating something called a “presumption of unconscionability” for certain contract provisions.

"Unconscionable" is a term of art the legal world and refers to something so unjust or unfair that no reasonable person would willingly agree to it. A contract in which someone waives the statute of limitations to file a claim, for instance, would be presumed to be unconscionable under the legislation.

Colburn says there's a reason many corporations use these sorts of provisions.

“It’s to silence consumers, workers and victims to who enter into these contracts on a take-it-or-leave-it basis,” Colburn says.

Ski areas, however,  aren’t the only ones concerned about the bill. The organization that puts on the Vermont City Marathon in Burlington, for example, and Special Olympics Vermont, have also cautioned lawmakers against the legislation.

Allow the bill to go into law and Mahar says the recreation industry could suddenly find itself on shaky ground.

“It means that it’s going to be difficult for us to get liability insurance. It’s going to drive the cost of liability insurance up,” Mahar says.

The governor’s legal counsel, Jaye Pershing Johnson, says the legislation could have a similarly disruptive impact on tech industries that offer low-cost software products, or local non-profits trying to provide recreational amenities.

“If you’re a YMCA with a pool, you know, you’re going to have somebody sign that waiver of claims,” Johnson says.

Johnson says the courts already have the latitude to decide whether a contract term is unconscionable. And she says they regularly do.

Colburn, however, says that consumers assume that once they sign these contracts, they’ve waived their right to file legitimate claims.

“In the face of such terms, most working people simply abandon their claims,” Colburn says.

Colburn attributes concern over the bill to “misinformation” about its contents. And backers of the legislation say it leaves untouched an existing statute that deals with "inherent risk."

That law, according to Wells River Rep. Chip Conquest, says that "anyone who takes part in any sport in Vermont assumes as a matter of law the risks inherent in that sport.”

But Stowe Rep. Heidi Scheuermann, who tried to rally opposition against the bill in the Vermont House, says she considered the legislation “a significant gift to the trial attorneys in the state of Vermont.”

Vermont would be the first state in the nation to enact the language in the legislation, and Johnson says that makes the bill even more problematic.

She says the governor has not decided yet whether he’ll veto the bill, or allow it to go into law.