                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1184
                                   ___________

Douglas R. Myers,                   *
                                    *
      Appellant,                    * Appeal from the United States
                                    * District Court for the District
      v.                            * of Minnesota.
                                    *
Lutsen Mountains Corporation,       *
                                    *
      Appellee.                     *
                              _____________

                               Submitted: October 22, 2009
                                   Filed: November 25, 2009
                                 _____________

Before COLLOTON and BENTON, Circuit Judges, and PIERSOL1, District Judge.
                         _____________

PIERSOL, District Judge.

     Douglas R. Myers (“Myers”) appeals an adverse grant of summary judgment.
Myers was injured while skiing at Lutsen Mountains, a ski resort operated by Lutsen
Mountains Corporation (“Lutsen”). He sued Lutsen, and the district court2 granted


      1
        The Honorable Lawrence L. Piersol, United States District Court for the
District of South Dakota, sitting by designation.
      2
        The Honorable Raymond L. Erickson, Chief United States Magistrate Judge
for the District of Minnesota, to whom the case was referred for decision by consent
of the parties pursuant to 28 U.S.C. § 636(c).
Lutsen’s motion for summary judgment, holding that a release signed by Myers
precluded him from pursuing his claims. This appeal followed. For the reasons set
forth below, we affirm the judgment of the district court.

                                          I

       We review de novo a district court’s grant or denial of summary judgment.
Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 519 F.3d 466, 471 (8th Cir. 2008).
Summary judgment is appropriate when the record, viewed in the light most favorable
to the non-moving party, demonstrates that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Id.; Fed.R.Civ.P.
56(c).

                                          II

       The facts of this case are essentially undisputed. On December 28, 2006, Myers
and two of his friends left their homes in Thunder Bay, Ontario, Canada, and drove
approximately two hours to Lutsen, Minnesota. The three friends arrived in time to
buy ski tickets before 9:30 a.m., when the ski lifts open at Lutsen. Myers has no
memory of that day, but he agrees that he purchased a lift ticket and signed a written
release of liability waiver. The release includes the following language:

              PLEASE READ CAREFULLY BEFORE SIGNING.
            THIS IS A RELEASE OF LIABILITY AND WAIVER OF
                        CERTAIN LEGAL RIGHTS.

      I understand that skiing in its various forms, including snowboarding,
      involves risks, dangers and hazards that may cause serious personal
      injury or death and that injuries are a common and ordinary occurrence.
      Risks include, but are not limited to, changes in terrain, weather and
      snow surfaces, ice, moguls, bare spots, debris, fences, posts, trees, lift
      equipment and towers, rope tows, light poles, signs, buildings, roads and

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walkways, ramps, half-pipes, padded and non-padded barriers, jumps
and other terrain features, grooming equipment, snowmobiles, collisions
with other persons and other natural and man-made hazards. I
acknowledge that the risks in the sport of Alpine skiing can be greatly
reduced by taking lessons, abiding by the Skier Responsibility Code,
(known as Your Responsibility Code), and using common sense.

In consideration of the purchase of a lift ticket for Lutsen Mountains and
use of its facilities, I RELEASE AND FULLY DISCHARGE Lutsen
Mountains Corporation, its owners, officers, shareholders, agents and
employees from any liability resulting from any personal injury to
myself, including death, or damage to my property which is caused by
the BREACH OF ANY EXPRESS OR IMPLIED WARRANTY or the
NEGLIGENT ACT OR OMISSION of Lutsen Mountains Corporation,
its owners, officers, shareholders, agents or employees in the design,
location, construction, inspection, maintenance and repair of the
conditions on or about the premises or ski area or the operations of the
ski area, including but not limited to:

•     the design, location, construction, inspection, maintenance and
      repair of trails, ski runs, slopes, ramps, half-pipes and other terrain
      features;

•     grooming, snow-making, snowmobile operation, ski-lifts, rope
      tows and ski-lift and rope tow loading and unloading operations;

•     padding or non-padding of natural and man-made obstacles and
      hazards;

•     posting or failure to post warnings, signs, fences or other barriers;

•     classification and labeling of trails and ski runs; or

•     maintaining or modifying variations in the surface, steepness and
      pitch of trails, ski runs, slopes, ramps and terrain features.

I accept full responsibility for any injuries or damages which may result


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      from the participation in the sport, and it is my intent to HOLD
      HARMLESS Lutsen Mountains Corporation, its owners, officers,
      shareholders, agents or employees for any injury sustained by me,
      including death, while participating in the sport. I agree not to bring any
      action or suit against Lutsen Mountains Corporation, its owners, officers,
      shareholders, agents or employees for any injury or damage.

      In accordance with Minnesota law, nothing in this Release of Liability
      should be construed as releasing, discharging or waiving any claims I
      may have for reckless or intentional acts on the part of Lutsen Mountains
      Corporation, or its owners, officers, shareholders, agents or employees.

      I HAVE CAREFULLY READ THIS RELEASE OF LIABILITY AND
      UNDERSTAND ITS CONTENTS. I AM AWARE THAT BY
      SIGNING THIS RELEASE OF LIABILITY, I AM WAIVING
      CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE
      LUTSEN MOUNTAINS CORPORATION, ITS OWNERS, OFFICERS,
      SHAREHOLDERS, AGENTS OR EMPLOYEES FOR CERTAIN
      CLAIMS.

                   CAUTION: READ BEFORE SIGNING!
            THIS DOCUMENT AFFECTS YOUR LEGAL RIGHTS
                  AND WILL BAR YOUR RIGHT TO SUE!

       At the bottom of the release, Myers printed his name, signed the document, and
listed his age as 32.

        At approximately 3:30 p.m. on December 28, 2006, Myers, a self-described
expert skier at the time of the accident, was on Lutsen’s Lower Meadows trail when
he skied over an edge of the course. At oral argument, Myers’ counsel indicated that
this is an intermediate slope. Myers apparently lofted into an area containing rocks
and small trees, and he was injured. He filed a personal injury lawsuit against Lutsen
in Minnesota district court based on diversity jurisdiction. The parties filed cross-
motions for summary judgment. Concluding that the release Myers signed is valid
under Minnesota law, the district court granted Lutsen’s motion for summary

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judgment and dismissed Myers’ complaint with prejudice. On appeal, Myers argues
that the district court erred by holding the release is enforceable under Minnesota law.

                                           III

       Minnesota law applies in this diversity case. See Integrity Floorcovering, Inc.
v. Broane-Nutone, LLC, 521 F.3d 914, 917 (8th Cir. 2008). Exculpatory clauses are
enforceable in Minnesota as long as the clause (1) is not ambiguous, (2) does not
release intentional, willful, or wanton acts, and (3) does not violate public policy. See
Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 923 (Minn. 1982).

       Myers first argues the release is ambiguous because it could be interpreted as
waiving Lutsen’s liability for all types of claims and not just negligence. We disagree.
The language of the release expressly and unambiguously excludes from its coverage
claims arising from reckless or intentional acts, and the district court correctly found
the release is not ambiguous.

       Myers next asserts the release violates public policy because he had no
bargaining power; he had to sign the release or not ski at Lutsen. The Minnesota
Supreme Court considers two factors to determine whether exculpatory agreements
violate public policy: (1) whether there was a disparity of bargaining power between
the parties (a compulsion to sign the contract with an unacceptable provision and a
lack of ability to negotiate the elimination of that provision), and (2) the type of
service being offered or provided through the contract (one who provides a public or
essential service is less likely to be exempted from liability for harm caused by
negligently providing that service). See Schlobohm, 326 N.W.2d at 923. Regarding
the first factor, the Minnesota Supreme Court has explained that a disparity of
bargaining power does not exist if the offered service is not necessary or if it could
have been obtained elsewhere. See id. at 925. In Schlobohm, the court concluded
there was no disparity in bargaining power when Schlobohm voluntarily joined a

                                          -5-
fitness center and signed a contract containing an exculpatory clause because there
was no showing that the center’s services were necessary or that the services could not
have been obtained elsewhere. See id.

      Relying primarily on Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d 783
(Minn. 2005), Myers contends a disparity in bargaining power existed because it
would have taken him over two hours to drive from Lutsen to the closest ski hill. In
Yang, the Minnesota Supreme Court invalidated an exculpatory clause in the context
of a houseboat rental agreement. See id. at 786. The court suggested there was a
disparity in bargaining power because the plaintiff had paid a deposit of “a couple
thousand” dollars, had not known about the release until he arrived at the place of
business, several hours away from the plaintiff’s home, and the next nearest business
providing the same services was over 65 miles away, see id. at 789 n. 3, but the
essential nature of the service was the dispositive factor in the court’s conclusion that
houseboat rental involves a public interest sufficient to invalidate the exculpatory
agreement. See id. at 789. Yang lends little support to Myers’ argument that a
disparity of bargaining power existed in this case. As did the Minnesota Supreme
Court in Schlobohm, we find no disparity of bargaining power because the service
provided by Lutsen is not necessary, and Myers could have gone elsewhere to ski.

       This brings us to the second factor considered by Minnesota courts to determine
whether a release violates public policy: the type of service provided. Myers does not
argue that Lutsen provides a public or essential service, and we predict the Minnesota
Supreme Court would hold skiing is not a public or essential service. When
considering whether a service is public or essential in this context, “courts consider
whether it is the type [of service] generally thought suitable for public regulation.
Types of services thought to be subject to public regulation have included common
carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen,
employers and services involving extra-hazardous activities.” Schlobohm, 326
N.W.2d at 925. In Schlobohm, the Minnesota Supreme Court held the services

                                          -6-
furnished by the health club are not the type generally thought suitable for public
regulation and do not involve an activity of great importance or of practical necessity.
See id. at 925-26.

      Yang is instructive on this issue. The Minnesota Supreme Court held the rental
company was acting both as a resort and as an innkeeper providing a public service
when it offered houseboats for daily and weekly rentals. See Yang, 701 N.W.2d at
790. As a matter of public policy, the company could not circumvent its duty to
protect guests by requiring them to release the company from liability for its
negligence. See id. at 791. The court distinguished these types of services from those
involving recreational activities which courts generally have held “do not fall within
any of the categories where the public interest is involved.” Id. at 789 (quoting
Schlobohm, 326 N.W.2d at 925-26). The court specifically rejected the argument that
renting houseboats is a purely recreational activity and is not a necessary or public
service. See id. at 790.

        Whether recreational activities involve a public interest is a question the
Minnesota Supreme Court has not yet squarely addressed. If the Minnesota Supreme
Court has not spoken on an issue, the federal court must determine what decision the
state court would make if faced with the same facts and issue. See Kovarik v.
American Family Ins. Group, 108 F.3d 962, 964 (8th Cir. 1997). The federal court
should consider relevant state court decisions, “analogous decisions, considered dicta,
. . . and any other reliable data.” Id. at 964 (quoting Ventura v. Titan Sports, Inc., 65
F.3d 725, 729 (8th Cir. 1995)). The Minnesota Court of Appeals has upheld liability
releases in contracts for various types of recreational activities, finding the activities
are not of great importance to the public or of practical necessity to anyone. See, e.g.,
Beehner v. Cragun Corp., 636 N.W.2d 821, 828 (Minn. App. 2001) (horseback
riding); Malecha v. St. Croix Valley Skydiving Club, Inc., 392 N.W.2d 727, 731
(Minn. App. 1986) (sky diving). We recognize that skiing is an activity enjoyed by
many, but we believe the Minnesota Supreme Court would conclude it is not a

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necessary or public service and would find the release signed by Myers does not
violate public policy.

      Finally, we disagree with Myers’ arguments that the release is invalidated by
two Minnesota statutes, the Plain Language Contract Act and the Consumer Credit
Sales Act.

      Myers does not contest that the release, if valid, encompasses his claims against
Lutsen. The release is valid under Minnesota law and, thus, we affirm the district
court’s summary judgment for Lutsen.

                       ______________________________




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