Alaskan Supreme Court upholds releases for climbing gym and sets forth requirements on how releases will be upheld in AKPosted: September 1, 2014
Decision points out what not to do in a release which has great information for everyone.
Plaintiff: Claire A. Donahue
Defendant: Ledgends, Inc. d/b/a Alaska Rock Gym
Plaintiff Claims: negligent failure to adequately train and supervise its instructors and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA)
Defendant Defenses: release
Holding: for the defendant
In three prior cases, the Alaskan Supreme Court had stated that releases were valid under Alaskan law; however, the releases in front of the court for review, failed for specific reasons. In this case, all the requirements to write a release according to the court were present.
The plaintiff in this case had decided that learning to climb was her next goal. The plaintiff’s second class was bouldering. At one point, she was 3-4’ off the ground and told to jump down by a gym instructor. The gym used mats for its landing padding. She jumped breaking her tibia in four places.
The plaintiff then sued the climbing gym for negligence and violation of the Uniform Trade Practices and Protection Act (UTPA). The trial court upheld the release and dismissed the claims of the plaintiff, and the plaintiff appealed.
Summary of the case
This case is full of interesting and useful information. I’ll tackle it by subject matter rather than the order the court goes through it.
The UTPA as identified in Alaska can be found in some form in all states. It is a consumer protection statute to provide consumers with greater benefits and damages if they are ripped off by someone or a business. Most are called consumer protection acts. Alaska joined the majority of states and said that consumer protection statutes did not apply to personal injury claims. The court dismissed this claim.
Offer of Judgment
The court also looked at the offer of judgment made by the defendant and resulting attorney fees awarded to the defendants. In Colorado and Alaska and probably most states, if the defendant makes an offer of settlement or offer of judgment, they are stating we will give the plaintiff $XX in this amount, and the case ends. However, if the plaintiff does not win that amount or a percentage of that amount, then the defendant can be awarded attorney fees or a percentage of its attorney fees.
The statute has a two-prong approach. First, it eliminates a lot of lawsuits quite quickly when the damages are close enough to the offer made by the defendant to get the plaintiff to think. It also makes the plaintiff to do an honest evaluation of the amount of money they can realistically receive in a lawsuit.
Here the plaintiff did not recover any money so the defendant was awarded 20% of their attorney fees per the statute.
Relevant Facts of the Case
The actual facts are stated in the decision are important.
Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. During this time, she saw other people drop from the wall without injury. After another successful ascent at the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.
The court pointed out several facts surrounding the case. The ones in favor of the defendant were:
There were signs posted around the gym warning of the dangers of climbing. The plaintiff had never climbed before, but she was a runner, cyclists, kite boarder and had worked as a commercial river guide in Colorado. The plaintiff testified that she understood the risks of the activities and felt competent to make decisions about that risk for herself.
The ones in favor of the plaintiff were: Advertising of the gym gave the impression to the plaintiff that learning with the defendant was a safe way to learn how to climb. The defendant had run ads in the newspaper that stated:
[T]the only safe place in town to hang out.
Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.
[Y]ou have nothing to lose and everything to gain.
(Marketing makes promises that risk management must pay for?)
Analysis of Prior Release law by the Court
The court outlined the three reasons it had thrown out releases in three earlier cases. The first decision, a release was used as a defense to a claim by a passenger in a plane that crashed.
We ruled that “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.” We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do. Further, since liability for “death” was not specifically disclaimed and the term “injury” was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.
The second release was thrown out in a case involving driving all-terrain vehicles. The public policy argument was reviewed in this case, and the court found a recreational release did not violate public policy. The court did find, however:
We did decide, however, that the release did not conspicuously and unequivocally express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass. The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.” We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore, improper.
The third decision involved the same defendant as in the present case, Ledgends, Inc. In that case the plaintiff fell and her foot slipped through two floor mats injuring her.
…language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.
This last issue is critical to review when writing a release. See below.
Requirements for a Release to be Valid under Alaskan law
The court then outlined the six things a release under Alaskan law must meet to be valid.
(1) the risk being waived must be specifically and clearly set forth (e.g. death, bodily injury, and property damage);
(2) a waiver of negligence must be specifically set forth using the word “negligence”;
(3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters;
(4) the release must not violate public policy;
(5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and
(6) the release agreement must not represent or insinuate standards of safety or maintenance.
Simply put the requirements of a release in Alaska are simple clear and very precise. I would surmise that 90% of the releases written in the US would fail to meet one or more of the requirements required in Alaska.
A review of the specifics required by the court is educational.
1. You can’t just have a one-paragraph release waiving negligence. Under Alaskan law, you have to list the possible risks. Here the court found the list describing what can happen to you in a climbing gym adequate. Falling is an obvious one for rock climbing but you probably also have to list rope burns, different ways you can fall, belayer issues as well as equipment failure.
You also cannot use one release to cover a multitude of risks anymore. The risks of rock climbing do not include drowning (outside of Thailand) which are a part of rafting. You will have to have a release for each group of risks to identify those risks.
2. You have to have a release that releases the defendant from negligence. Alaska is not going to allow you to skirt the issue. Your release must use the word negligence and have the signor, sign away their right to sue for your negligent acts.
3. The important language cannot be hidden, small type, etc. More importantly; the entire document must be a standalone document, and the releasing language set out, emphasized and capitalized.
Under Alaskan law, I would suspect that most “health club” releases found in the membership sign up may not meet these requirements. Those are documents were the majority of the language covers your promise to pay and there is a paragraph or two in the middle waiving any claims you may have.
(The language concerning payment allows the health club to sell the contract to a third party. The health club receives a fixed amount, usually about 50% of the total value immediately. The third party is then the one sending you the demand letter and trying to collect from you when you quit going to the club.)
4. The release of liability language must be specific. This issue is similar to the first issue, but it requires specific action in the release. You must state you are not liable for negligence AND the risks you outline in the release and others. This requires you to have more than a simple negligence clause. Your negligence clause must be written to cover all aspects of the risk you are required to put in your release.
5. The Fifth and Sixth requirements are similar. This is one I’ve been arguing for years. You can’t promise one thing and then not meet the promise. The court specifically stated you cannot say your state you follow a standard and then fail to meet that standard. (Sound familiar?)
If you say you follow the standards of the ACA, AEE, CWA or any other organization that writes standards for your activity you must meet those standards! You cannot say your equipment is kept up to date and then have shoddy equipment. You can’t say your employees are all trained in first aid and have a custodian who is not. No longer can you say you meet 80% of the standards or hope your release will get you out of those you don’t meet. If you state you meet the standards, yours or others, Alaska release law (contract law) states you must meet the standards.
If you marketing is making a promise that you fail to meet, in Alaska your release cannot get you out of failing to meet the promise. Whether or not this applies to advertising not found in the release will be interesting. However, I suspect if the plaintiff says I want to the defendant because their door said they meet the standards of ABC, and they failed to meet those standards; the defense in Alaska may not include a release.
The defendant was successful; the plaintiff’s claims were dismissed, and we have a decision providing an outline on how releases should be written in Alaska.
So Now What?
Many times in an effect to “soften” the way the release sounds to your clients you may make statements or promises in the release about how you or your equipment will operate or be maintained. In this decision, the court pointed out in its prior decision that those promises in a release will void the release if they are not kept.
There is no way to “soften” a release. Any time you do you are creating a contract with cross purposes. On one hand, you are attempting to prevent a lawsuit if someone is injured. On the other hand, you are promising that people won’t be injured. If you are promising someone won’t be injured why have the release? More importantly the courts have found that you can’t promise safety and when you fail to meet your promise, use the release to prevent the lawsuit over your promise.
A release is a contract. This court looked at the entire contract and found that promises in the contract were met. Promises in prior contracts that were not met voided the release.
This decision places stricter requirements on releases then in several other courts; however, the decision outlines how to be successful when writing a release in Alaska and all other states.
What do you think? Leave a comment.
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Donahue v. Ledgends, Inc., 2014 Alas. LEXIS 153
Claire A. Donahue, Appellant and Cross-Appellee, v. Ledgends, Inc. d/b/a Alaska Rock Gym, Appellee and Cross-Appellant.
Supreme Court Nos. S-14910/14929, No. 6932
SUPREME COURT OF ALASKA
2014 Alas. LEXIS 153
August 1, 2014, Decided
THIS OPINION IS SUBJECT TO CORRECTION BEFORE PUBLICATION IN THE PACIFIC REPORTER. READERS ARE REQUESTED TO BRING ERRORS TO THE ATTENTION OF THE CLERK OF THE APPELLATE COURTS.
PRIOR HISTORY: [*1] Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Andrew Guidi, Judge. Superior Court No. 3AN-10-07305 CI.
OVERVIEW: HOLDINGS: -Plaintiff alleged injured party’s negligence claim failed because a release stated waived risks, used “negligence,” stated important factors in emphasized language, specifically disclaimed liability, did not imply safety standards conflicting with a release, was not contested on public policy grounds, and was not modified by advertising; -The Uniform Trade Practices and Consumer Protection Act, AS 45.50.471 et seq., did not apply because conflicts with a personal injury claim barred assuming such a legislature intent, which “ascertainable loss of money or property” in AS 45.50.531(a) did not state; -It was no clear error to find defendant gym waived Alaska R. Civ. P. 68 attorney’s fees because it only raised its offer of judgment when seeking fees under an indemnity clause, and only raised enhanced fees under Alaska R. Civ. P. 82, before its reconsideration motion.
OUTCOME: Judgment affirmed.
COUNSEL: Christine S. Schleuss, Law Office of Christine S. Schleuss, Anchorage, for Appellant and Cross-Appellee.
Tracey L. Knutson, Girdwood, for Appellee and Cross-Appellant.
JUDGES: Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and Bolger, Justices.
OPINION BY: MAASSEN
This case arises from an injury at a climbing gym. Claire Donahue broke her tibia during a class at the Alaska Rock Gym after she dropped approximately three to four-and-a-half feet from a bouldering wall onto the floor mat. Before class Donahue had been required to read and sign a document that purported to release the Rock Gym from any liability for participants’ injuries.
Donahue brought claims against the Rock Gym for negligence and violations of the Uniform Trade Practices and Consumer Protection Act (UTPA). The Rock Gym moved for summary judgment, contending that the release bars Donahue’s negligence claim. It also moved to dismiss the UTPA claims on grounds that the act does not apply to personal injury claims and that Donahue failed to state a prima facie [*2] case for relief under the act. Donahue cross-moved for partial summary judgment on the enforceability of the release as well as the merits of her UTPA claims. The superior court granted the Rock Gym’s motion and denied Donahue’s, then awarded attorney’s fees to the Rock Gym under Alaska Civil Rule 82.
Donahue appeals the grant of summary judgment to the Rock Gym; the Rock Gym also appeals, contending that the superior court should have awarded fees under Alaska Civil Rule 68 instead of Rule 82. We affirm the superior court on all issues.
II. FACTS AND PROCEEDINGS
Ledgends, Inc. does business as the Alaska Rock Gym, a private indoor facility that is open to the public. Its interior walls have fixed climbing holds and routes; for a fee, it provides classes and open gym or free climbing time. There are signs posted around the Rock Gym warning of the dangers of climbing, including falling; at her deposition Donahue did not dispute that the signs were there when she visited the gym.
Donahue had been thinking about trying rock climbing for several years, and she finally decided in March 2008 to attend a class at the Rock Gym called “Rockin’ Women.” She testified that she chose the class because she thought it could be tailored to specific [*3] skill levels, and because she “got the impression [from the advertisements] that that is the type of group it was, that it was a . . . safe way to learn to climb.” She also testified she understood that the essential risk of climbing is falling.
Donahue had no rock climbing experience, but she was an occasional runner and cyclist and had pursued other high-risk athletic activities such as kite-boarding. She had been a river guide on the Colorado River after college. She had engaged in physical occupations such as commercial fishing and construction. She testified that she understood the nature of risky activities and felt competent to decide about them for herself. In connection with other recreational activities, she had signed releases and waivers similar to the one she signed at the Rock Gym. She testified that she understood that parties who sign contracts generally intend to be bound by them.
When Donahue arrived at the Rock Gym for her first class, she was given a document entitled “Participant Release of Liability, Waiver of Claims, Assumption of Risks, and Indemnity Agreement — Alaska Rock Gym.” She was aware of the document’s nature and general intent but testified that although [*4] she signed it voluntarily, she did not read it closely.
The release contains nine numbered sections on two single-spaced pages. There is also an unnumbered introductory paragraph; it defines the Rock Gym to include, among others, its agents, owners, participants, and employees, as well as “all other persons or entities acting in any capacity on its behalf.”
Section one of the release contains three paragraphs. The first recites the general risks of rock climbing, including injury and death, and explains that these risks are essential to the sport and therefore cannot be eliminated. The second paragraph lists about a dozen specific risks inherent in rock climbing, including “falling off the climbing wall,” “impacting the ground,” “the negligence of other[s],” and “my own negligence[,] inexperience, . . . or fatigue.” The third paragraph asserts that the gym and its instructors “seek safety, but they are not infallible.” It describes some errors instructors might make, including being ignorant of a participant’s abilities and failing to give adequate warnings or instructions. The final sentence in the third paragraph reads, “By signing this [release], I acknowledge that I AM ULTIMATELY RESPONSIBLE [*5] for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals, or activities.”
Section two begins, “I expressly agree and promise to accept and assume all the risks . . .”; it then highlights the voluntary nature of participation in Rock Gym activities.
Section three is the clause that releases the Rock Gym from liability (the releasing clause). It reads in full,
I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym's] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].
The next six sections of the release address other issues: indemnification for attorney’s fees, certification that the participant is fit to climb, permission to provide first aid, permission to photograph for promotional purposes, the voluntariness of participation and signing the release, and jurisdiction for claims arising from the release.
The ultimate paragraph is printed in bold. It reads in part,
By signing this [*6] document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.
Finally, centered on the second page, in bold capital letters directly above the signature line, the release reads: “I HAVE HAD SUFFICIENT OPPORTUNITY TO READ THIS ENTIRE DOCUMENT. I HAVE READ AND UNDERSTOOD IT, AND I AGREE TO BE BOUND BY ITS TERMS.”
Donahue’s hand-printed name and the date appear on the first page of the release, and her initials are at the bottom of the page; her signature appears on the second page, along with her printed name, her contact information, and the date.
Donahue completed her first class on harnessed climbing on March 23, 2008, and returned for a second class on May 11. When class began she was told that the day’s focus would be on bouldering, or unharnessed climbing on low walls. She did not express any hesitation. She climbed for almost two hours, successfully ascending and descending a number of routes. [*7] During this time she saw other people drop from the wall without injury. After another successful ascent near the end of the lesson, she felt unable to climb down using the available holds. Her feet were somewhere between three and four-and-a-half feet from the ground. Her instructor suggested that she drop to the mat and told her to be sure to bend her knees. Donahue landed awkwardly and broke her tibia in four places. She was attended to immediately by Rock Gym personnel and a physician who happened to be present.
The Rock Gym had run various advertisements during the two years preceding Donahue’s accident, using a number of different slogans. One newspaper ad, running on at least three occasions, stated: “[T]the only safe place in town to hang out.” Another Rock Gym ad showed an adult bouldering and a child climbing while harnessed; its text contained the same slogan and added, in part, “Trust us, it still exists. . . . [E]very child in your family will be reminded of what it’s all about — friends and fun.” A third ad described climbing programs for everyone in the family and said, “[Y]ou have nothing to lose and everything to gain.” In an affidavit, Donahue testified she had read these ads.
Donahue [*8] sued the Rock Gym for negligent failure to adequately train and supervise its instructors. She alleged that the Rock Gym was liable for its employee’s negligent instruction to drop from the bouldering wall. She also alleged a violation of the Unfair Trade Practices and Consumer Protection Act, contending that the Rock Gym’s advertisements “misleadingly advertised [the gym] as a safe place where users of its services had nothing to lose and everything to gain.”
The Rock Gym moved for summary judgment on all of Donahue’s claims. She opposed the motion and cross-moved for partial summary judgment herself, arguing that the Rock Gym had violated the UTPA as a matter of law and that the release she had signed was null and void.
The superior court granted the Rock Gym’s motion and denied Donahue’s cross-motion. It then granted the Rock Gym, as prevailing party, partial attorney’s fees under Civil Rule 82(a)(3).
III. STANDARDS OF REVIEW
[HN1] We review grants of summary judgment de novo, determining whether the record presents any genuine issues of material fact.1 In making this determination, we construe the facts in favor of the non-moving party.2 If the record fails to reveal a genuine factual dispute and the moving [*9] party was entitled to judgment as a matter of law, the trial court’s grant of summary judgment must be affirmed.3
1 Hill v. Giani, 296 P.3d 14, 20 (Alaska 2013) (citing Yost v. State, Div. of Corps., Bus. & Prof’l Licensing, 234 P.3d 1264, 1272 (Alaska 2010)).
2 Id. (citing McCormick v. City of Dillingham, 16 P.3d 735, 738 (Alaska 2001)).
3 Kelly v. Municipality of Anchorage, 270 P.3d 801, 803 (Alaska 2012).
[HN2] We decide questions of law, including statutory interpretation, using our independent judgment.4 We will adopt the most persuasive rule of law in light of precedent, reason, and policy.5 This requires us, when interpreting statutes, to “look to the meaning of the language, the legislative history, and the purpose of the statute.”6
4 Therchik v. Grant Aviation, Inc., 74 P.3d 191, 193 (Alaska 2003).
5 ASRC Energy Servs. Power & Commc’ns, LLC v. Golden Valley Electric Ass’n, 267 P.3d 1151, 1157 (Alaska 2011).
[HN3] “A superior court’s determination whether waiver occurred is a question of fact that we review for clear error.”7
7 Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).
A. The Release Is Enforceable And Bars Donahue’s Negligence Claims.
Three cases define Alaska law on pre-activity releases from liability.8 [HN4] These cases consistently state that such releases are not per se invalid;9 in each of the cases, however, we concluded that the release at issue did not bar the plaintiff’s claim.
8 Ledgends, Inc. v. Kerr, 91 P.3d 960 (Alaska 2004); Moore v. Hartley Motors, Inc., 36 P.3d 628 (Alaska 2001); Kissick v. Schmierer, 816 P.2d 188 (Alaska 1991).
9 Kerr, 91 P.3d at 961-62 (noting that “under Alaska law pre-recreational exculpatory releases are held to a very high standard of clarity”); Moore, 36 P.3d at 631 (noting that “an otherwise valid release is ineffective when releasing a defendant from liability would violate public policy” (emphasis added)); Kissick, 816 P.2d at 191 (“A promise not to [*10] sue for future damage caused by simple negligence may be valid.” (quoting 15 Samuel Williston, A Treatise on the Law of Contracts § 1750A, at 143-45 (3d ed. 1972)); see also Mitchell v. Mitchell, 655 P.2d 748, 751 (Alaska 1982) (upholding provision not to sue in settlement agreement and noting that, “[a]s a matter of law, . . . a valid release of all claims will bar any subsequent claims covered by the release”).
Kissick v. Schmierer involved a plane crash that caused the deaths of all four people aboard.10 The three passengers had signed a covenant not to sue before they boarded the plane.11 They agreed in the release not to bring a claim “for any loss, damage, or injury to [their] person or [their] property which may occur from any cause whatsoever.”12 When the passengers’ surviving spouses filed wrongful death claims against the pilot, their claims were allowed to proceed despite the release.13 We ruled that [HN5] “[i]ntent to release a party from liability for future negligence must be conspicuously and unequivocally expressed.”14 We also held that a release must use the word “negligence” to establish the required degree of clarity, something the release in Kissick did not do.15 Further, since liability for “death” was not specifically disclaimed and the term “injury” [*11] was ambiguous, we held that the release did not apply to claims for wrongful death, construing it against the drafter.16
10 Kissick, 816 P.2d at 188.
11 Id. at 189.
14 Id. at 191 (citations omitted).
15 Id. (citing W.Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 483-84 (5th ed.1984) (footnotes omitted)).
16 Id. at 191-92.
The second case, Moore v. Hartley Motors, involved an injury during a class on driving all-terrain vehicles (ATVs).17 We first addressed whether the plaintiff’s signed release violated public policy.18 We noted that the type of service involved was neither essential nor regulated by statute;19 these factors, along with the voluntariness of the plaintiff’s participation, persuaded us that the defendants 20 had no “decisive advantage in bargaining strength.”21 We therefore held that the release did not violate public policy.22
17 36 P.3d 628, 629 (Alaska 2001).
18 Id. at 631-32.
19 Id. at 631-32 (noting that ATV riding is similar to parachuting, dirt biking, and scuba diving, for which releases have been upheld in other jurisdictions).
20 The defendants included the dealer that sold the plaintiff the ATV and referred her to the safety course, the ATV Safety Institute that developed the curriculum, and the individual instructor. Id. at 629.
21 Id. at 631-32.
We did decide, however, that the release did not conspicuously and unequivocally [*12] express an intent to release the defendants from liability for the cause of the exact injury that occurred — a rollover when the plaintiff drove over a big rock hidden in tall grass.23 The release covered the inherent risks of ATV riding, but we found that it also included “an implied and reasonable presumption that the course [was] not unreasonably dangerous.”24 We found there to be fact questions about whether “the course posed a risk beyond ordinary negligence related to the inherent risks of off-road ATV riding assumed by the release,” and we held that summary judgment for the defendants on the basis of the release was therefore improper.25
23 Id. at 632.
25 Id. at 633-34.
The third case, Ledgends, Inc. v. Kerr, involved the same rock gym as this case.26 It involved a similar injury as well, sustained when the plaintiff fell from a bouldering wall.27 Unlike Donahue, however, who landed squarely on the floor mat, the plaintiff in Kerr was allegedly injured when her foot slipped through the space between two floor mats.28 The plaintiff alleged the gym knew of the defect in the landing area but had failed to fix it.29
26 91 P.3d 960 (Alaska 2004).
27 Id. at 961.
The superior court, whose order we approved and attached as an appendix to our opinion, cited Kissick [*13] for the notion that a pre-activity release for tortious conduct must be “clear, explicit, and comprehensible in each of its essential details.”30 The superior court also noted the requirement that “such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the release.”31 With these principles in mind, the superior court pointed to language in the release that was problematic because it was internally inconsistent: the release stated that the gym would try to keep its facilities safe and its equipment in good condition, but it simultaneously disclaimed liability for actions that failed to meet such standards.32 The superior court construed this ambiguity against the drafter and held that the release was not valid as a bar to the plaintiff’s negligence claims, a holding we affirmed.33
30 Id. at 961-62 (quoting Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991)) (internal quotation marks omitted).
31 Id. at 962 (quoting Kissick, 816 P.2d at 191) (internal quotation marks omitted).
32 Id. at 963.
In this case, the superior court concluded that Kissick, Moore, and Kerr, considered together, meant that [HN6] “an effective liability release requires six characteristics.” We agree with the superior court’s formulation of the list:
(1) the risk being waived must [*14] be specifically and clearly set forth (e.g. death, bodily injury, and property damage); (2) a waiver of negligence must be specifically set forth using the word “negligence”; (3) these factors must be brought home to the releasor in clear, emphasized language by using simple words and capital letters; (4) the release must not violate public policy; (5) if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so; and (6) the release agreement must not represent or insinuate standards of safety or maintenance.
The superior court found that each of these characteristics was satisfied in this case, and again we agree.34
34 Donahue does not challenge the release on public policy grounds, so the fourth characteristic of a valid release is satisfied here. Alaska recognizes that recreational releases from liability for negligence are not void as a matter of public policy, because to hold otherwise would impose unreasonable burdens on businesses whose patrons want to engage in high-risk physical activities. Kissick, 816 P.2d at 191 (“A promise not to sue for future damage caused by simple negligence may be valid.” (internal citations [*15] and quotation marks omitted)). The New Jersey Supreme Court, in a case involving claims against a health club, held that liability releases in gym cases do not violate public policy in part because gyms remain liable for their gross negligence or recklessness — levels of culpability not alleged in this case. Stelluti v. Casapenn Enters., 203 N.J. 286, 1 A.3d 678, 681 (N.J. 2010); see also City of Santa Barbara v. Super. Ct., 41 Cal. 4th 747, 62 Cal. Rptr. 3d 527, 161 P.3d 1095, 1102-03 (Cal. 2007) (surveying jurisdictions and concluding that “[m]ost, but not all” hold that releases of ordinary negligence in recreational activities do not violate public policy but “the vast majority of decisions state or hold that such agreements generally are void” if they attempt to release “aggravated misconduct” such as gross negligence).
1. The risks being waived (falling and instructor negligence) are specifically and clearly set forth.
[HN7] A conspicuous and unequivocal statement of the risk waived is the keystone of a valid release.35 Here, the release clearly and repeatedly disclosed the risk of the specific injury at issue: injury from falling while climbing. The following are excerpts from the Rock Gym’s release:
I specifically acknowledge that the inherent risks associated with rock climbing . . . include, but [are] not limited to: falling off of the climbing wall, . . . impacting [*16] the ground . . . , general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant’s limits, . . . my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue . . . .
To the extent that the risk at issue is the risk of hitting the ground after falling (or dropping in what is essentially an intentional fall), the first characteristic of a valid release is satisfied by this language.
35 Kerr, 91 P.3d at 961; Moore v. Hartley Motors, Inc., 36 P.3d 628, 632 (Alaska 2001); Kissick, 816 P.2d at 191.
Rather than focusing on her injury, however, Donahue focuses on its alleged cause, which she argues was the negligent training and supervision of Rock Gym instructors and the consequently negligent instructions she was given. She claims that the release did not specifically and clearly set forth this risk, and that she was therefore unaware that she was waiving the right to sue for instructor negligence.
But the release did cover this risk. The first paragraph expressly incorporates “employees” into the definition of the entity being released. The release further warns that Rock Gym “instructors, [*17] employees, volunteers, agents or others . . . are not infallible” and that “[t]hey may give inadequate warnings or instructions.” In its on-site interactions with the public, the Rock Gym necessarily acts through its instructors and other employees; Donahue knew she would be taking a class and that classes require instructors. It would not be reasonable to conclude that the Rock Gym sought a release only of those claims against it that did not involve the acts or omissions of any of its employees, and we cannot construe the release in that way.36 We agree with the superior court’s conclusion that “the Release clearly expresses that it is a release of liability for the negligence of the releasor-participant, other participants, climbers, spotters or visitors, as well as [the Rock Gym's] negligence, including [Rock Gym] employees.”
36 See Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 4 Cal. Rptr. 3d 103, 75 P.3d 30, 40 (Cal. 2003) (holding that “the risks associated with learning a sport may themselves be inherent risks of the sport. . . . [A]nd . . . liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities” (internal citations and quotation marks omitted)).
Donahue also argues that [*18] she could not understand the risks involved due to the release’s appearance and presentation. However, even viewing the facts in the light most favorable to her, the record does not support her argument. Although Donahue did not carefully read the release before signing it,37 she was aware she was signing a liability release. She has signed a number of such documents in the past and was familiar with their general purpose. When asked to read the release at her deposition, she testified that she understood the pertinent risks it described. There is no reason to believe that she would have found it less comprehensible had she read it at the time she signed it.
37 [HN8] Failure to read a contract in detail before signing it is no defense to its enforceability. Lauvetz v. Alaska Sales & Serv., 828 P.2d 162, 164-65 (Alaska 1991).
2. The waiver of negligence is specifically set forth using the word “negligence.”
Kissick and Kerr both emphasize that a valid release from liability for negligence claims requires use of the word “negligence.”38 This requirement is met here.
38 Kerr, 91 P.3d at 961; Kissick, 816 P.2d at 191.
The Rock Gym’s release first lists negligence among the inherent risks of climbing (“the negligence of other climbers or spotters or visitors or participants” and “my own negligence”). It then provides: [*19] “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, . . . including any such claims which allege negligent acts or omissions of [the Rock Gym].” (Emphasis added.) The phrase “any and all claims” is thus expressly defined to include claims for negligence.
Cases from other jurisdictions support the conclusion that the language in the Rock Gym’s release covers all of Donahue’s negligence claims. In Rosencrans v. Dover Images, Ltd., the plaintiff was injured on a motocross track after falling from his bike and being struck by two other riders.39 A California Court of Appeal concluded that the signed waiver releasing the track from liability for “any losses or damages . . . whether caused by the negligence of [the Releasees] or otherwise” precluded the plaintiff’s claim “for ordinary negligence as well as negligent hiring and supervision” of employees at the racetrack (though it did not release the track from liability for gross negligence — a claim not made here).40
39 192 Cal. App. 4th 1072, 122 Cal. Rptr. 3d 22, 27 (Cal. App. 2011).
40 Id. at 30. See also Morris v. JTM Materials, Inc., 78 S.W.3d 28, 49 (Tex. App. 2002) (“Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an [*20] employer’s direct negligence rather than on vicarious liability.” (citations omitted)).
In short, the requirement that a waiver of negligence be specifically set out using the word “negligence” is satisfied by the Rock Gym’s release.
3. The important factors are brought home to the releasor in clear, emphasized language with simple words and capital letters.
Donahue argues that although “negligence” is expressly mentioned and disclaimed in the release, its placement at the end of long sentences written in small font rendered its presence meaningless to her. Quoting a California case, she argues that when the risk of negligence is shifted, a layperson “should not be required to muddle through complex language to know that valuable, legal rights are being relinquished.”41 Donahue also cites New Hampshire and Washington cases in which the structure and organization of releases obscured the language that purported to shield the defendants from claims.42 These cases considered factors such as “whether the waiver is set apart or hidden within other provisions, whether the heading is clear, [and] whether the waiver is set off in capital letters or in bold type.”43 In one Washington case, a release [*21] was invalidated because the releasing language was in the middle of a paragraph.44
41 Conservatorship of the Estate of Link v. Nat’l Ass’n for Stock Car Auto Racing, Inc., 158 Cal. App. 3d 138, 205 Cal. Rptr. 513, 515 (Cal. App. 1984).
42 See Wright v. Loon Mtn. Recreation Corp., 140 N.H. 166, 663 A.2d 1340, 1342 (N.H. 1995); Johnson v. UBAR, LLC, 150 Wn. App. 533, 210 P.3d 1021, 1023 (Wash. App. 2009).
43 Johnson, 210 P.3d at 1023 (citing Baker v. City of Seattle, 79 Wn.2d 198, 484 P.2d 405 (Wash. 1971)).
44 Baker, 484 P.2d at 407.
Fundamentally, Donahue argues that the Rock Gym’s release was so ambiguous and laden with legalese that she lacked any real ability to understand that she was agreeing to release the Rock Gym from the negligence of its instructors. She complains of the release’s “lengthy, small-printed, and convoluted” language which required a “magnifying glass and lexicon” to decipher. She points out that the clause purporting to release the Rock Gym from liability is not obvious or emphasized through bold print or capital letters. She testified at her deposition that she believed the waiver shielded the gym only “from frivolous lawsuits, from people blaming them for something that’s not their fault.”
It is true that the release’s text is small and the releasing clause is in the middle of the document toward the bottom of the first page. But the clauses addressing negligence do not appear to be “calculated to conceal,” as Donahue argues. Though not highlighted, they are in a logical place where they cannot be missed by someone who reads the release. The clause releasing the Rock Gym from liability is [*22] a single sentence set out as its own numbered paragraph, and it is not confusing or needlessly wordy.45 The inherent risks of climbing are enumerated in great detail but using ordinary descriptive language that is easy to understand.46 Several sentences are devoted to the role of the gym’s “instructors, employees, volunteers, agents or others,” stating that they “have difficult jobs to perform,” that they “seek safety, but they are not infallible,” and that they may “be ignorant of mine or another participant’s fitness or abilities” and “may give inadequate warnings or instructions.”
45 Paragraph 3 of the release reads: “I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the [Rock Gym] from any and all claims, demands, or causes of action, which are in any way connected with my participation in these activities or my use of [the Rock Gym's] equipment, rentals or facilities, including any such claims which allege negligent acts or omissions of [the Rock Gym].”
46 Paragraph 1 of the release lists the inherent risks of climbing as including “but . . . not limited to”:
falling off of the climbing wall, being fallen on or impacted by other participants, poor or [*23] improper belaying, the possibility that I will be jolted or jarred or bounced or thrown to and fro or shaken about while climbing or belaying, entanglement in ropes, impacting the ground and/or climbing wall, loose or dropped or damaged ropes or holds, equipment failure, improperly maintained equipment which I may or may not be renting from [the Rock Gym], displaced pads or safety equipment, belay or anchor or harness failure, general slips/trips/falls or painful crashes while using any of the equipment or walls or bouldering areas or landing pits or work-out areas or the climbing structures or the premises at large, climbing out of control or beyond my or another participant['s] limits, the negligence of other climbers or spotters or visitors or participants who may be present, participants giving or following inappropriate “Beta” or climbing advice or move sequences, mine or others’ failure to follow the rules of the [Rock Gym], my own negligence or inexperience, dehydration or exhaustion or cramps or fatigue — some or all of which may diminish my or the other participants’ ability to react or respond.
Because [HN9] releases should be read “as a whole” in order to decide whether they “clearly [*24] notify the prospective releasor or indemnitor of the effect of signing the agreement,”47 we consider these provisions in the context of the entire document. Three other sections of emphasized text mitigate Donahue’s complaints about ambiguity and incomprehensibility. First, section one reads in part, “I AM ULTIMATELY RESPONSIBLE for my own safety during my use of or participation in [Rock Gym] facilities, equipment, rentals or activities” (bold in original). This alone makes it clear to the reader that the Rock Gym, to the extent it is allowed to do so, intends to shift responsibility to the climber regardless of the actions of anyone else. Second, a final unnumbered paragraph, set out in bold letters, reads in part: “By signing this document, I acknowledge that if anyone is hurt or killed or property is damaged during my participation in or use of [Rock Gym] activities or premises or facilities or rental equipment, I may be found by a court of law to have waived my right to maintain a lawsuit against [the Rock Gym] on the basis of any claim from which I have released them herein.” And finally, directly above the lines where Donahue entered her signature, her printed name, her contact [*25] information, and the date, the release reads, in bold and capital letters, “I HAVE READ AND UNDERSTOOD [THE RELEASE], AND I AGREE TO BE BOUND BY ITS TERMS.” If Donahue had read the release and found herself genuinely confused about any of its terms, she was prominently notified that she should inquire about it before signing.
47 Kissick v. Schmierer, 816 P.2d 188, 191 (Alaska 1991).
The New Hampshire case on which Donahue relies, Wright v. Loon Mountain Recreation Corp., examined the release in question to determine whether “a reasonable person in the position of the plaintiff would have understood that the agreement clearly and specifically indicated the intent to release the defendant from liability for its own negligence.”48 Applying that test here, we conclude that a reasonable person in Donahue’s position could not have overlooked or misunderstood the release’s intent to disclaim liability. Our case law’s third characteristic of a valid release is therefore satisfied.
48 140 N.H. 166, 663 A.2d 1340, 1343-44 (N.H. 1995); see also Johnson, 210 P.3d at 1021 (holding reasonable persons could disagree about the conspicuousness of the release provision in the waiver, and remanding for trial).
4. Regardless of whether falling and instructor negligence are inherent risks of rock climbing, the release specifically disclaims [*26] liability for them.
The fifth characteristic set forth by the superior court 49 is that “if a release seeks to exculpate a defendant from liability for acts of negligence unrelated to inherent risks, the release must suggest an intent to do so.”50 This requirement stems from the release’s ill-defined scope in Moore; the injury that occurred — arguably caused by an unreasonably dangerous ATV training course — was not obviously included in the inherent risks of riding ATVs, which the signed release did intend to cover.51 Here, in contrast, the injury and its alleged causes are all expressly covered by the release, as explained above. Negligence claims are specifically contemplated, as are “falls,” “impact” with the ground, and “inadequate warnings or instructions” from Rock Gym instructors. Regardless of whether these are inherent risks of climbing, they are specifically covered by the release. This characteristic of a valid release is therefore satisfied.
49 As noted above, the fourth characteristic of a valid release — that it not violate public policy — is not at issue on this appeal. See supra note 34.
50 See Moore v. Hartley Motors, Inc., 36 P.3d 628, 633-34 (Alaska 2001).
5. The release does not represent or imply standards of safety or maintenance that [*27] conflict with an intent to release negligence claims.
The sixth characteristic of a valid release is that it does not imply standards of safety or maintenance that conflict with an intent to waive claims for negligence.52 The Rock Gym argues that nothing in the release confuses its purpose, unlike the release at issue in Kerr, which at least implicitly promised that equipment would be kept “in good condition.”53 We agree. In fact, far from providing assurances of safety, the release highlights the fallibility of the Rock Gym’s employees, equipment, and facilities, explicitly stating that the equipment may “fail,” “malfunction[,] or be poorly maintained” and that the staff is “not infallible,” may be ignorant of a climber’s “fitness or abilities,” and “may give inadequate warnings or instructions.”
52 See Ledgends, Inc. v. Kerr, 91 P.3d 960, 962-63 (Alaska 2004).
53 Id. at 963.
Donahue agrees that the release is not internally inconsistent, but she argues that the advertisements run by the Rock Gym had the same confounding impact on her understanding of it as the release’s language about equipment maintenance had in Kerr. She contends that she relied on the ads’ assurances that the gym was “a safe place” and the class “would be a safe way to learn to climb” when [*28] she enrolled in the climbing class. She argues that these assurances created ambiguity that, as in Kerr, requires that the release be interpreted in a less exculpatory way.
Although extrinsic evidence may be admissible as an aid to contract interpretation,54 the release here clearly defines climbing as an inherently risky activity. And we have said that
[HN10] where one section deals with a subject in general terms and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible; but if there is a conflict, the specific section will control over the general.55
Were we to give the Rock Gym’s advertisements any weight in our analysis of the release, we would not find that their use of the word “safe” overrode the release’s very clear warnings about the specific risks of climbing.
54 Norville v. Carr-Gottstein Foods Co., 84 P.3d 996, 1004 (Alaska 2004) (citing Municipality of Anchorage v. Gentile, 922 P.2d 248, 256 (Alaska 1996)).
55 Id. (quoting Estate of Hutchinson, 577 P.2d 1074, 1075 (Alaska 1978)).
Because the advertisements cannot reasonably be considered as modifications to the release, and because the release does not otherwise contain implicit guarantees of safety or maintenance that could confuse its purpose, we find the final requirement of a valid release to be satisfied. The release thus satisfies all characteristics of a valid release [*29] identified by our case law, and we affirm the superior court’s grant of summary judgment to the Rock Gym on this issue.
B. The UTPA Does Not Apply To Personal Injury Claims.
[HN11] Under the UTPA, “[a] person who suffers an ascertainable loss of money or property as a result of another person’s act or practice declared unlawful by AS 45.50.471 may bring a civil action to recover for each unlawful act or practice three times the actual damages . . . .”56 Donahue alleges that, by publishing ads that gave the impression the Rock Gym was safe, the Rock Gym engaged in “unfair methods of competition and unfair or deceptive acts or practices in the conduct of trade or commerce” which are unlawful under the statute.57 [HN12] We have not yet decided whether the statutory phrase “loss of money or property” includes personal injury claims. We now hold that it does not.
56 AS 45.50.531(a) (emphasis added).
57 AS 45.50.471(a).
[HN13] The UTPA was “designed to meet the increasing need in Alaska for the protection of consumers as well as honest businessmen from the depredations of those persons employing unfair or deceptive trade practices.”58 The act protects the consumer from deceptive sales and advertising practices,59 and it protects honest businesses from their unethical [*30] competitors.60 Donahue concedes that we have limited the UTPA to “regulating practices relating to transactions involving consumer goods and services.”61 She contends, however, that because we have never restricted the types of damages available for conduct within the UTPA’s reach, damages for personal injury should be recoverable.
58 W. Star Trucks, Inc. v. Big Iron Equip. Serv., Inc., 101 P.3d 1047, 1052 (Alaska 2004) (quoting House Judiciary Committee Report on HCSCS for S.B. 352, House Journal Supp. No. 10 at 1, 1970 House Journal 744) (court’s emphasis and internal quotation marks omitted).
59 See, e.g., Kenai Chrysler Ctr., Inc. v. Denison, 167 P.3d 1240, 1244-45 (Alaska 2007) (affirming superior court’s award of treble damages against a car dealer for its insistence on enforcing an invalid contract); Pierce v. Catalina Yachts, Inc., 2 P.3d 618, 624 (Alaska 2000) (holding unconscionable sailboat manufacturer’s warranty in favor of buyers).
60 See, e.g., Garrison v. Dixon, 19 P.3d 1229, 1230-31, 1236 (Alaska 2001) (holding suit to be frivolous where real estate buyer’s agents sued competitors, alleging false and misleading advertising); Odom v. Fairbanks Mem’l Hosp., 999 P.2d 123, 127, 131-32 (Alaska 2000) (holding viable physician’s claims against hospital for retaliatory and anticompetitive behavior).
61 See Roberson v. Southwood Manor Assocs., LLC, 249 P.3d 1059, 1062 (Alaska 2011) (holding the UTPA does not apply to residential leases) (citing Aloha Lumber Corp. v. Univ. of Alaska, 994 P.2d 991, 1002 (Alaska 1999) (holding the UTPA does not apply to the sale of standing timber because it is real property rather than a consumer good)).
The superior court observed that there is nothing [*31] in the UTPA’s legislative history to support Donahue’s contention that the Alaska Legislature intended the act “to expand liability for personal injury or wrongful death or to supplant negligence as the basis for such liability.” The superior court identified “significant incongruities between the elements of common law personal injury claims and the UTPA, which suggest that the two claims cannot be reconciled.” The court explained:
For most of the past twenty years the Alaska Legislature has enacted and amended, in various forms, multiple iterations of tort reform aimed at reducing, not expanding, the scope of civil liability for personal injury and wrongful death. Expanding UTPA liability to personal injury and wrongful death would contradict many of the tort reform provisions enacted by the legislature in AS 09.17.010-080. For example, AS 09.17.020 allows punitive damages only if the plaintiff proves defendant’s conduct was outrageous, including acts done with malice or bad motives, or with reckless indifference to the interest of another person. The UTPA, on the other hand, does not require such a culpable mental state and almost as a matter of course allows a person to receive trebled actual damages. [*32] AS 09.17.060 limits a claimant’s recovery by the amount attributable to the claimant’s contributory fault; the UTPA, in contrast, does not provide a contributory fault defense. Moreover, AS 09.17.080 apportions damages between multiple tortfeasors whereas the UTPA does not permit apportionment of damages. A UTPA cause of action for personal injury or wrongful death would sidestep all of these civil damages protections.
We agree with the superior court that [HN14] the private cause of action available under the UTPA conflicts in too many ways with the traditional claim for personal injury or wrongful death for us to assume, without clear legislative direction, that the legislature intended the act to provide an alternative vehicle for such suits. The language of AS 45.50.531(a) — “ascertainable loss of money or property” — does not provide that clear direction. The legislature is well aware of how to identify causes of action involving personal injury and wrongful death, does so in other contexts,62 and declined to do so in this statute.
62 See, e.g., AS 04.21.020(e) (for purposes of statute governing civil liability of persons providing alcoholic beverages, ” ‘civil damages’ includes damages for personal injury, death, or injury to property of a person”); [*33] AS 05.45.200(4) (in statutes governing liability of ski resorts, “‘injury’ means property damage, personal injury, or death”); AS 09.10.070(a) (providing general statute of limitations for “personal injury or death”); AS 09.17.010 (limiting noneconomic damages recoverable “for personal injury or wrongful death”); AS 46.03.825(b)(1) (providing that limitations on oil spill damages do not apply to “an action for personal injury or death”).
Other states have similar laws, and their courts’ interpretations are helpful. Section 531(a) has a counterpart in Oregon’s UTPA, which likewise allows private actions by those who suffer a “loss of money or property.”63 The Oregon Court of Appeals, considering an action for personal injuries occurring after a mechanic allegedly misrepresented the state of a car’s brakes, held that the UTPA was not a vehicle for the pursuit of personal injury claims.64 It held that the Act plainly had a restitutionary purpose — “i.e., restitution for economic loss suffered by a consumer as the result of a deceptive trade practice.”65 It noted the lack of any legislative history “to the effect that by the adoption of that provision the legislature intended to confer upon private individuals a new cause of action for personal injuries, including [*34] punitive damages and attorney fees,” or of “any decisions to that effect by the courts of any of the many other states which have adopted similar statutes.”66 It emphasized the availability of common law remedies, which provided a range of possible causes of action for personal injury — negligence, breach of warranty, and strict products liability — and noted that these remedies provide for a more expansive range of damages, such as pain and suffering, not available under the UTPA.67
63 ORS 646.638(1); ORS 646.608.
64 Gross-Haentjens v. Leckenby, 38 Ore. App. 313, 589 P.2d 1209, 1210-11 (Or. App. 1979).
65 Id. at 1210; see also Fowler v. Cooley, 239 Ore. App. 338, 245 P.3d 155, 161 (Or. App. 2010).
66 Gross-Haentjens, 589 P.2d at 1210-11.
67 Id. at 1211. Other courts have reached similar conclusions. See Beerman v. Toro Mfg. Corp., 1 Haw. App. 111, 615 P.2d 749, 754 (Haw. App. 1980) (“[T]hough individual actions based on damage to a consumer’s property may be within the purview of [the Hawaii consumer protection act], the scope of the statutes does not extend to personal injury actions.”); Kirksey v. Overton Pub, Inc., 804 S.W.2d 68, 73 (Tenn. App. 1990) (“We must hold that the General Assembly intended for the Consumer Protection Act to be used by a person claiming damages for an ascertainable loss of money or property due to an unfair or deceptive act or practice and not in a wrongful death action.”); Stevens v. Hyde Athletic Indus., Inc., 54 Wn. App. 366, 773 P.2d 871, 873 (Wash. App. 1989) (“We hold actions for personal injury do not fall within the coverage of the [Washington consumer protection act].”).
We agree with the reasoning of the Oregon court and conclude that Alaska’s [*35] UTPA does not provide the basis for a claim for personal injury.
C. The Superior Court Did Not Clearly Err In Finding That The Rock Gym Waived Any Claim For Rule 68 Attorney’s Fees.
The superior court granted the Rock Gym, as the prevailing party, 20 percent of its reasonable, actual attorney’s fees under Civil Rule 82(b)(2). [HN15] Twenty percent of “actual attorney’s fees which were necessarily incurred” is the presumptively reasonable award for a party who prevails in a case resolved short of trial but who does not recover a money judgment.68
68 See Williams v. Fagnani, 228 P.3d 71, 77 (Alaska 2010) (“Awards made pursuant to the schedule of Civil Rule 82(b) are presumptively correct.”).
The Rock Gym contends that it should have been awarded fees under Civil Rule 68 instead. [HN16] Rule 68 provides that (a) where an adverse party makes an offer to allow judgment entered against it in complete satisfaction of the claim, and (b) the judgment finally entered is at least five percent less favorable to the offeree than the offer, the offeree shall pay a percentage of the reasonable actual attorney’s fees incurred by the offeror from the date of the offer, the percentage depending on how close the parties are to trial when the offer is made. The Rock Gym made a Rule 68 offer of judgment on February 7, 2012, over two months before [*36] the April trial date. Donahue rejected the offer. Under these facts, once judgment was granted in the Rock Gym’s favor, the conditions for an award of 30 percent of “the offeror’s reasonable actual attorney’s fees” under the Rule 68 schedule were satisfied.69
69 Alaska R. Civ. P. 68(b)(3). We note that the award of fees under Rule 68 was likely to be only nominally greater than that under Rule 82. Rule 68 affects only fees incurred after the date the offer is made, here February 7, 2012. The parties had already completed their summary judgment briefing by that time, and summary judgment was entered a month later.
The question presented here, however, is whether the Rock Gym waived any request for Rule 68 fees. The Rock Gym initially argued to the superior court that it should be awarded full fees because of express language in the release, which reads:
Should [the Rock Gym] or anyone acting on their behalf, be required to incur attorney’s fees and costs to enforce this agreement, I agree to indemnify and hold them harmless for all such fees and costs.
While arguing this point, the Rock Gym noted in a footnote that it was eligible for full fees under AS 09.30.065 (the statute authorizing the Rule 68 procedure). But it made that observation only in support of its argument [*37] for full fees under the release. Its motion did not otherwise mention Rule 68; rather, as an alternative to fees under the indemnity clause, the Rock Gym asked the court to use its discretion to award up to 80 percent of its fees under Rule 82 — far more than the scheduled award of 20 percent — in light of Donahue’s “vexatious” behavior, particularly having complicated the case with claims under the UTPA.
The superior court denied the Rock Gym’s request for full fees based on the release and ordered it to submit an affidavit detailing its counsel’s billings. The order also stated, “Plaintiff should address the effect, if any, of defendant’s Rule 68 offer on the amount of fees that may be awarded.” The Rock Gym submitted the required fee affidavit and also moved for reconsideration, again arguing that full fees should be awarded under the release’s indemnity clause; again relying on Rule 82 as an alternative; and failing to mention Rule 68 at all. Donahue submitted no response.
The superior court again rejected the Rock Gym’s argument based on the release’s indemnity clause and ordered the Rock Gym to submit a more detailed fee affidavit. The Rock Gym filed another affidavit which did not address the offer of judgment. [*38]
In its third order, the superior court again rejected the Rock Gym’s request for full attorney’s fees and awarded 20 percent of its fees under Rule 82(b)(2). The Rock Gym again moved for reconsideration. This time the Rock Gym argued that it was entitled to 30 percent of its fees under Rule 68, relying on the footnote in its first motion to contend that the argument was not waived.70
70 As noted above, the increased percentage of attorney’s fees would only apply to those fees incurred after the date the offer of judgment was made; the amount at issue thus appears to be minimal.
The superior court then issued its fourth order on fees. It reaffirmed its Rule 82 award, finding that the Rock Gym had not adequately or timely made a claim under Rule 68. The court observed that the Rock Gym’s failure to make the claim earlier was likely a “tactical decision, initially, to pursue full attorney fees based on indemnity rather than present all of its alternative fee award theories at once.”
[HN17] The superior court’s finding that the Rock Gym waived a request for fees under Rule 68 is reviewed for clear error.71 We see no clear error here. The Rock Gym’s reference to its offer of judgment in its motion for attorney’s fees was made only to support its [*39] request for full fees under the indemnity provision of the release; the only alternative it expressly requested was an award of enhanced fees under Rule 82. As the superior court observed, it was not the court’s duty in this context “to solicit additional arguments for a moving party.”72 Nor was the superior court obliged to consider the Rule 68 argument when it was raised for the first time in motions for reconsideration.73 And under the circumstances of this case, including the modest difference between fee awards under Rule 82 and Rule 68 and an apparent deficiency in the Rule 68 offer itself,74 we cannot see plain error.75
71 See Sengul v. CMS Franklin, Inc., 265 P.3d 320, 324 (Alaska 2011).
72 See, e.g., Forshee v. Forshee, 145 P.3d 492, 498 (Alaska 2006).
73 See Haines v. Cox, 182 P.3d 1140, 1144 (Alaska 2008) (holding that the plaintiff’s submission of evidence only when she moved for reconsideration forecloses her claim that the court abused its discretion by failing to rely on that evidence); Koller v. Reft, 71 P.3d 800, 805 n.10 (Alaska 2003) (noting that superior court is not obliged to consider documents presented for the first time with a motion for reconsideration).
74 The offer did not encompass the Rock Gym’s counterclaim against Donahue for contractual indemnity. See Progressive Corp. v. Peter ex rel. Peter, 195 P.3d 1083, 1089 (Alaska 2008) (“Both Rule 68 and AS 09.30.065 . . . implicitly require that an offer of judgment include all claims between the parties and be capable of completely resolving the case by way of a final [*40] judgment if accepted.”).
75 [HN18] The plain error doctrine requires a party to prove that the error waived below was “so prejudicial that failure to correct it will perpetuate a manifest injustice.” Forshee, 145 P.3d at 500 n.36 (quoting Hosier v. State, 1 P.3d 107, 112 n.11 (Alaska App. 2000)) (internal quotation marks omitted).
The judgment of the superior court is AFFIRMED.
Herberchuk v. Essex County 4H Club Camp, Inc. et al., 1999 Mass. Super. LEXIS 99
Alicia Herberchuk v. Essex County 4H Club Camp, Inc. et al.
SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX
1999 Mass. Super. LEXIS 99
March 11, 1999, Decided
JUDGES: [*1] Raymond J. Brassard, Justice of the Superior Court.
OPINION BY: RAYMOND J. BRASSARD
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Plaintiff, Alicia Herberchuk (“Ms. Herberchuk”), brought this action for recovery of damages for injuries sustained while on land owned by defendant, Essex County 4H Club Camp, Inc. (“4H”), while attending an outing accompanied by co-workers employed by defendant, Teleglobe Communications, Inc. (“Teleglobe”). The plaintiff alleges that the injuries were caused by the negligence of the defendants and that there are genuine issues of material fact which preclude the entry of summary judgment on the issue of liability. For the reasons set forth below, defendants’ motions for summary judgment are ALLOWED.
Viewing the facts available at this summary judgment stage in the light most favorable to the nonmoving party, Ms. Herberchuk, the undisputed facts are as follows.
On August 28, 1993, Ms. Herberchuk attended an employee outing at a campground owned by 4-H. The campground had been rented through a third party under the name of Teleglobe by certain of its employees, but not by Teleglobe itself. At the cookout [*2] Ms. Herberchuk observed other guests using an apparatus known as a zipwire. The zipwire was used by children who attended the 4H’s camp during the summer months. Using the zipwire involved climbing up a ladder which reached to a platform mounted on a tree, and then leaving the platform to traverse the entire length of the wire. Proper use of the zipwire required a safety helmet, a safety harness, a drag line, and several people assisting the rider. The zipwire also included an 8 inch square 2,000 pound-test pulley to which the safety harness was attached. At the end of the camping season all removable equipment, including the safety equipment, was required to be removed from the zipwire, leaving only the cable and the platform.
On the date in question, a ladder found on or near the campground was propped against the tree upon which the platform was mounted by unidentified parties allowing guests to access the zipwire. Hanging from the zipwire was a nylon rope described as green in color which other guests were using to slide down the wire. No rules or instructions on how to use the zipwire were posted on or near the apparatus on the day in question. After watching several other [*3] people use the zipwire, Ms. Herberchuk decided she wanted to use the apparatus. In order to reach the zipwire, the plaintiff climbed the ladder. Although the ladder did not reach the platform at the end of the wire, Ms. Herberchuk was able to reach the platform by pulling herself up by her hands. Once on the platform Ms. Herberchuk wrapped the rope around her hands as she had seen others do and pushed herself off. Instead of traveling down the wire, however, Ms. Herberchuk fell to the ground sustaining serious injuries, including two elbow fractures and a fractured jaw. As result of these events Ms. Herberchuk commenced this lawsuit against 4H and Teleglobe. Both 4H and Teleglobe have moved for summary judgment on the issue of liability.
[HN1] Summary judgment shall be granted where there are no issues of material fact and the moving party is entitled to as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991); Cassesso v. Comm’r of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating the [*4] absence of a triable issue and that, therefore, she is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17, 532 N.E.2d 1211 (1989). If the moving party establishes the absence of a triable issue, in order to defeat a motion for summary judgment, the opposing party must respond and allege facts which would establish the existence of disputed material facts. Id.
[HN2] A judge, when ruling on a motion for summary judgment must consider “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, in determining whether summary judgment is appropriate.” Flesner v. Technical Communications Corporation et al., 410 Mass. 805, 807, 575 N.E.2d 1107 (1991). Where no genuine issue of material fact exists, “the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” Id. citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
1. The Claim Against 4-H.
[HN3] A property owner has a duty to maintain its property [*5] “in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk.” Mounsey v. Ellard, 363 Mass. 693, 708, 297 N.E.2d 43 (1973). A defendant is not required to “supply a place of maximum safety, but only one which would be safe to a person who exercises such minimum care as the circumstances reasonably indicate.” Toubiana v. Priestly, 402 Mass. 84, 88, 520 N.E.2d 1307 (1988). “A landowner has no duty to protect lawful visitors on his property from risks that would be obvious to persons of average intelligence.” Id. at 89.
In the present case, Ms. Herberchuk claims there are genuine issues of fact concerning the condition in which the zipwire was kept, as well as, what actions 4-H took to prevent unauthorized use of the apparatus. The evidence on the record, for the purposes of this motion, includes affidavits from both Ms. Herberchuk and Mr. Charles G. Ingersoll, a member of the 4-H Board of Trustees, as well as exhibits, including photographs of the area immediately before the accident.
In his affidavit, Mr. Ingersoll states that, while not having [*6] a specific memory of doing so the summer during which Ms. Herberchuk was injured, it was his practice to remove and put away for the winter all those removable parts and safety equipment associated with the zipwire at the end of each camping season (before the outing). Mr. Ingersol also stated that the ladder used by the plaintiff to get to the platform was not one of those presently used by the camp and that the pulley was not on the line the day of the outing. Ms. Herberchuk admitted in her affidavit that when she first arrived at the outing there was no ladder attached to the tree and that when she attempted to make her way to the platform she had to pull herself up because the wooden ladder placed there did not reach the platform. Ms. Herberchuk stated further that she did not know if the pulley was attached to the wire or where the strap had come from.
[HN4] “The question to be decided is whether the jury reasonably could have concluded that, in view of all the circumstances, an ordinarily prudent person in the defendant’s position would have taken steps, not taken by the defendant, to prevent the accident that occurred.” Id. at 89. In this case the evidence shows that 4-H [*7] had removed both the ladder and the safety equipment used with the zipwire during the camping season. Upon arriving at the outing Ms. Herberchuk saw no ladder allowing entry to the platform rendering the zipwire inaccessible, it being twenty feet above the ground. Ms. Herberchuk chose to use the zipwire without the benefit of safety equipment or instructions on the use of the device. Ms. Herberchuk also admitted in her deposition that she knew there was a chance she could be injured but decided to use the apparatus. Further, 4-H did not have a duty to warn Ms. Herberchuk of the obvious dangers involved with using the zipwire without safety equipment or instruction. “There is no duty to warn of dangers obvious to persons of average intelligence.” Thorson v. Mandell, 402 Mass. 744, 749, 525 N.E.2d 375 (1988). On this evidence, a fair minded jury could not return a verdict for the plaintiff.
2. The Claim Against Teleglobe.
[HN5] “Before liability for negligence can be imposed there must first be a legal duty owed by the defendant to the plaintiff, and a breach of that duty proximately resulting in the injury.” Davis v. Westwood Group, 420 Mass. 739, 743, 652 N.E.2d 567 (1995). [*8] Ms. Herberchuk urges that Teleglobe played a part in the organization and funding of the outing at which the plaintiff was injured. The evidence, however, is to the contrary. First, the outing was organized by Teleglobe employees because the company no longer sponsored such events. Second, the money to pay for the outing was raised by a group of employees independent of Teleglobe through the use of a raffle. Finally, Ms. Herberchuk’s attendance was not required by her employment and she received no compensation for attending. On this evidence a reasonable jury could not find that Teleglobe owed any duty to Ms. Herberchuk.
For the foregoing reasons, it is hereby ORDERED that defendants’, 4-H and Teleglobe, motions for summary judgment are ALLOWED.
Raymond J, Brassard
Justice of the Superior Court
Dated: March 11, 1999
It’s pretty rare that I post stuff like this. However in the outdoor industry fitting the right pair of boots or pack is the first and a critical step in preparing for your trip. These people in these stores know how to do it.
Congrats if you made the list.
Outdoor USA Magazine is excited to honor the Top 100 outdoor specialty retailers in the United States. The Top 100 Retailers initiative recognizes the leading independent, outdoor specialty retail businesses for their outstanding work and entrepreneurial drive.
“The independent specialty retail channel is essential to building engaged outdoor and active lifestyle communities,” said Raimondo Forlin, publisher of Outdoor USA Magazine. “Specialty retailers also play a key role in fostering product innovation and brand authenticity because in this channel is where new products, new brands and technologies earn credibility with the consumer. We are happy to honor the stores that are setting the bar for success.”
This year’s Top 100 Retailers were chosen from nominations provided by leading industry brands and distributors. Stores were also able to nominate themselves for consideration.
The 2014 Top 100 Retailers are:
- Adventure 16 – San Diego, CA
- Al’s Sporting Goods – Logan, UT
- Alabama Outdoors – Birmingham, AL
- Alpenglow Sports – Tahoe City, CA
- Alpine Shop – Kirkwood, MO
- Appalachian Outfitters – Peninsula, OH
- Appalachian Ski & Outdoors – State College, PA
- Backcountry Experience – Durango, CO
- Backcountry Gear – Eugene, OR
- Backcountry North – Traverse City, MI
- Backwoods – Austin, TX
- Bent Gate Mountaineering – Golden, CO
- Bill & Paul’s Sporthaus – Grand Rapids, MI
- Black Creek Outfitters – Jacksonville, FL
- Blue Ridge Mountain Sports – Blacksburg, VA
- Bristlecone Mountain Sports – Basalt, CO
- Buffalo Peak Outfitters – Jackson, MS
- Cadillac Mountain Sports – Bar Harbor, ME
- Campmor – Paramus, NJ
- Cansfield’s Sporting Goods – Omaha, NE
- Casual Adventure – Arlington, VA
- Clear Water Outdoor – Lake Geneva, WI
- Cole Sport – Park City, UT
- Denali – Guilford, CT
- Desert Rock Sports – Las Vegas, NV
- Diamond Brand Outdoors – Arden, NC
- Edmond Summit Company – Edmond, OK
- Elephant’s Perch – Ketchum, ID
- Erehwon Mountain Outfitter – Chicago, IL
- Fin & Feather – Iowa City, IA
- Gardenswartz Outdoors – Durango, CO
- Gear Co-op – Costa Mesa, CA
- GearHeads Outdoor Store – Moab, UT
- Good Sports Outdoor Outfitters – San Antonio, TX
- Great Outdoor Provision Co. – Raleigh, NC
- Great Outdoor Store – Sioux Falls, SD
- Half-Moon Outfitters – Charleston, SC
- Hudson Trail Outfitters – Gaithersburg, DC
- Idaho Mountain Touring – Boise, ID
- International Mountain Equipment – Salt Lake City, UT
- J & H Lanmark Store – Lexington, KY
- Jans Mountain Outfitter – Park City, UT
- Jax Mercantile Co. – Bellvue, CO
- Kittery Trading Post – Kittery, ME
- Lombardi Sports – San Francisco, CA
- Maine Sport Outfitters – Rockport, ME
- Massey’s Pro Outfitter – New Orleans, LA
- Mast General Store – Valle Crucis, NC
- Midwest Mountaineering – Minneapolis, MN
- Moosejaw Mountaineering – Madison Heights, MI
- Mountain Crossings – Blairsville, GA
- Mountain Gear – Spokane, WA
- Mountain High Outfitters – Birmingham, AL
- Nantahala Outdoor Center – Bryson City, NC
- Next Adventure – Portland, OR
- Nugget Alaskan Outfitter – Juneau, AK
- Onion River Sports – Montpelier, VT
- Outdoor Adventures – Clemson, SC
- Outdoor Gear Exchange – Burlington, VT
- Outdoor Sports Center – Wilton, CT
- Outside World Outfitters – Dawsonville, GA
- Pack Rat Outdoor Center – Fayetteville , AR
- Paragon Sports – New York, NY
- Pedal N Paddle – Hanalei, HI
- Piragis Northwoods Company – Ely, MN
- Ptarmigan Sports – Edwards, CO
- Quest Outdoors – Louisville, KY
- Ramsey Outdoor Store – Ramsey, NJ
- River Sports – Knoxville, TN
- Rock/Creek – Chattanooga, TN
- Rusted Moon Outfitters – Indianapolis, IN
- Sam’s Outdoor Outfitters – Brattleboro, VT
- Sitzmark Sports – Overland Park, KS
- Ski Haus – Steamboat Springs, CO
- Sports Basement – San Francisco, CA
- Sportsman & Ski Haus – Kalispell, MT
- Summit Hut – Tucson, AZ
- Taos Mountain Outfitters – Taos, NM
- Teton Mountaineering – Jackson, WY
- The Backpacker – Baton Rouge, LA
- The Backpackers Shop – Sheffield Village, OH
- The Base Camp – Billings, MT
- The Fifth Season – Mt. Shasta, CA
- The Mountain Air – San Luis Obispo, CA
- The Mountain Shop – Skagway, AK
- The Mountaineer – Keene Valley, NY
- The Toggery – Whitefish, MT
- The Trail Head – Missoula, MT
- Tooth of Time Traders – Cimarron, NM
- Trail Creek Outfitters – Glen Mills, PA
- Travel Country – Altamonte Springs, FL
- U.S. Outdoor Store – Portland, OR
- Uncle Dan’s – Chicago, IL
- Uncle Lem’s Mountain Outfitters – Knoxville, TN
- Ute Mountaineer – Aspen, CO
- Water Stone Outdoors – Fayetteville, WV
- Whole Earth Provision – Austin, TX
- Wild Iris Mountain Sports – Lander, WY
- Wild River Outfitters – Virginia Beach, VA
- Zoar Outdoor – Charlemont, MA
CAIC Benefit Bash, November 8 5-10pm at the Breckenridge Riverwalk Center
Join the Friends of the CAIC for the premier fundraising party of the season! There will be a huge silent auction to help you gear up. Great food and beverages will help fuel your adventures. Test your early-season conditioning by dancing to the band. This event will sell out, so get your tickets when they become available on the CAIC website.
First Frost, November 7 6:30-11:30pm at the Denver Press Club
First Frost is Denver’s premier winter kick-off event. Hosted at the historic Denver press club, First Frost is a celebration of the Colorado winter experience. Featuring winter images from the best photographers in the state, this formal evening benefits the educational, forecasting and informational programs of the Colorado avalanche information center as well as the preservation of the Press Club’s historic building and facilities.
Colorado Snow Avalanche Workshop
The 13th annual Colorado Snow Avalanche Workshop (CSAW) will take place on Friday, October 17. We are moving to a new, spacious venue at the Breckenridge Riverwalk Center. We are inviting speakers from around Colorado and North America. This is a one-day professional development seminar for people working in avalanche safety to learn and discuss new ideas, techniques and technologies with their colleagues. The meeting is intended for ski patrollers, avalanche forecasters, road maintenance personnel, ski guides, avalanche education instructors, undergraduate and graduate students, and applied researchers, but the meeting is open to anyone.
Registration begins September 1, and will be $25 in advance and $40 at the door. Special lodging rates in and around Breckenridge will be available.
We will update the CSAW web page with the speaker list, registration links, and lodging rates by September 1. Check the page for the latest details: http://avalanche.state.co.us/about-us/events/13th-annual-colorado-snow-avalanche-workshop/
Insurance policies, you need to read yours and stay in touch with your agent to make sure your insurance is covering youPosted: August 27, 2014
Several examples of popped up recently where insurance companies have altered their policies leaving the OR industry in the rain
Insurance companies do not change their policies mid-term. However they do make changes to policies and as the policies renew, those new policies incorporate the new changes.
Traveler’s issues worker’s compensation policies for the cycling industry. Recently the Traveler’s worker’s compensation policy excludes from the policy employees who participate in employer (retailer) sanctioned rides.
In this case, that means that you may get a new question before your renewal or just a denial in the mail leaving you hunting for a new worker’s comp carrier.
Obviously, this is a problem for those retailers that have Travelers. Most insurance carriers do NOT “willingly” insure the general liability for shops that have shop/group rides.
Shop rides are one of the best ways to attract new customers and retain current ones. Having your employees on these rides is super important as it is the easy way to “soft-sell” new product. Likely, your shop employee will be riding the latest-greatest bike and will be able to address any question about your product line. If the prospective customer has a good time on the ride, they will come back. The more a rider on a shop ride shows up, the more likely that rider will end up being a customer.
So, the insurance industry must feel this is a risky activity. Yes, there are some increased risks. Making sure your employees do not take any unnecessary risks is important to mitigating the workers compensation exposure.
Like attorneys, you need to find a good insurance broker who understands your industry. Your friend down the street maybe great, however it is the little things that can leave you hanging. The more advanced notice you have about possible non-renewals the better chance you will have at getting a good policy if that happens.
Better still is to find an agent who works in your industry and is ahead of the problems finding solutions and letting you know about the issues before you receive the letter in the mail.
What do you think? Leave a comment.
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|MIPS AB, the patented Multi-directional Impact Protection System, will be launched in more than 20 new helmet models this year alone. MIPS will be available in helmets across all categories including road, mountain, commuter, youth and women’s bike helmets from 661, Fox, Lazer, POC, Scott Sports, Smith Optics, Sweet Protection, Triple 8, and more.
The MIPS brain protection system reduces rotational forces on the brain caused by angled impacts to the head. In a MIPS helmet, the shell and liner are separated by a low friction layer that lets the helmet slide relative to the head during impact. The MIPS design was inspired by the cerebral spinal fluid surrounding the human brain, which allows it to slide inside the head on impact. MIPS mimics this protective mechanism by giving the helmet its own low-friction layer which also slides to absorb much of the energy created by an angled blow to the head.
|Brain Protection System|
|For more information contact: Johan Thiel, CEO of MIPS AB,
E-mail: johan.thiel Mobile: +46 73-399 65 88