This section contains the nature of the case and procedural background.

P died of an altitude-related illness while on a D expedition up Mount Kilimanjaro with his mother. D's limitation of liability and release form signed as a requirement of participating in the expedition provided that each of them released D from all liability in connection with the trek and waived any claims for liability “to the maximum extent permitted by law.” It required that the parties would submit any disputes first to mediation and then to binding arbitration. The maximum amount of recovery was also limited to the land and air cost of the trip. D explained that the form was mandatory and that, on this point, “our lawyers, insurance carriers and medical consultants give us no discretion. A signed unmodified release form is required before any traveler may join one of our trips. Ultimately, we believe that you should choose your travel company based on its track record, not what you are asked to sign. … My review of other travel companies' release forms suggests that our forms are not a whole lot different from theirs.” P sued D for wrongful death, fraud, gross negligence and recklessness, and intentional infliction of emotional distress. D moved to compel arbitration. The trial court found the arbitration provision was both procedurally and substantively unconscionable. The agreement was presented as a Take It Or Leave It proposition and was also represented to be consistent with industry practice. It was also substantively unconscionability for the limitation on damages, the indemnity of D, the requirement that D's costs and attorneys' fees be paid if suit is filed related to certain claims, splitting the costs of mediation, the absence of an agreement on the cost of arbitration and the lack of mutuality as to each of these terms. D appealed.

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