Kindrich III et al., v. Long Beach Yacht Club et al., 167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705Posted: April 21, 2015
Carl Kindrich III et al., Plaintiffs and Appellants, v. Long Beach Yacht Club et al., Defendants and Respondents.
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION THREE
167 Cal. App. 4th 1252; 84 Cal. Rptr. 3d 824; 2008 Cal. App. LEXIS 1705
October 28, 2008, Filed
COUNSEL: Brunick, McElhaney & Beckett and Steven K. Beckett for Plaintiffs and Appellants.
Cogswell Nakazawa & Chang, Christina L. Owen and Dena S. Aghabeg for Defendants and Respondents.
JUDGES: Opinion by Rylaarsdam, J., with Sills, P. J., concurring. Dissenting opinion by Bedsworth, J.
OPINION BY: Rylaarsdam [*1255]
[**825] RYLAARSDAM, J.–Plaintiff Carl Kindrich III was injured while disembarking from a boat after participating in casting his late father’s ashes [**826] into the ocean. He sued defendants Long Beach Yacht Club, the owner of the boat and the dock, and Charles Fuller, the boat’s skipper, alleging they had been negligent in their use and maintenance of both the boat and the dock–specifically because they failed either to have someone on the dock to assist in tying off the boat when it returned, or to ensure that the portable steps, previously used in boarding the boat, would be available for his use when he attempted to disembark. Carl’s wife, Barbara, and son, Michael, also sued. Barbara claimed loss of consortium, and Michael claimed emotional distress suffered as an aural percipient witness to his father’s injury. (Because [***2] all three plaintiffs have the same last name, we will refer to them by their first names to avoid confusion and not out of disrespect.)
The trial court granted summary judgment to defendants, reasoning the doctrine of primary assumption of risk applied to Carl’s decision to jump off the boat onto the dock. All plaintiffs appeal, contending the court improperly concluded that the act of jumping onto the dock was an activity subject to the complete defense of primary assumption of risk. We agree that the court’s analysis was incorrect. Carl was not engaged in the type of sporting event where the doctrine of primary assumption of risk should be applied. At most Carl may have assumed risks, categorized as secondary assumption of risk, which are subsumed in contributory negligence. Whether he was contributorily negligent and, if so, how his negligence compares with that of defendants, if any, are questions of fact to be resolved by the trier of fact.
Defendants also contend summary judgment was properly granted because they were not negligent. But this is another question of fact and not subject to summary judgment. Defendants’ additional issues, whether Barbara suffered damages and whether [***3] Michael’s awareness of his father’s accident qualifies him as a “bystander” entitled to recover on a theory of negligent infliction of emotional distress, also raise questions of fact.
We therefore reverse the summary judgment.
FACTS AND PROCEDURAL HISTORY
The complaint alleges that plaintiffs and some of their relatives and friends gathered at the Yacht Club to participate in a “burial at sea” of the ashes of Carl’s late father. The Yacht Club arranged for the attendees to be taken to the burial site on a boat it owned and maintained and assigned Fuller to pilot that boat. The Yacht Club provided portable stairs on the dock to assist the [*1256] attendees in boarding. Plaintiffs contend that, when the boat returned to the dock, the portable steps were no longer in place. According to the complaint, Fuller told Carl to tie off the boat; there was no one on the dock waiting to do so. As Carl “started to jump from the side of the boat onto the dock … , the boat and dock moved relative to each other causing [Carl] to fall and injure himself.”
Plaintiffs allege causes of action for Carl’s personal injury, Barbara’s loss of consortium, and emotional distress suffered by Michael when he witnessed [***4] his father’s accident.
Defendants moved for summary judgment. They argued that Carl’s claim failed as a matter of law because (1) he assumed any risk of injury from his voluntary decision to jump onto the dock from the boat; and (2) they did not breach any duty of care they might have owed him and had no actual or constructive notice that the portable stairs may not have been in place when the boat returned to the [**827] dock. They also asserted that Barbara’s claim failed as a matter of law, both because it was derivative of Carl’s claim and because her discovery responses revealed no loss of consortium damages. Finally, defendants maintained Michael’s claim failed as a matter of law because it was derivative of Carl’s and because Michael was not actually aware of his father’s injury until after it had occurred.
These are the relevant undisputed facts offered in support of the motion: Carl’s father, a member of the Yacht Club before he died, had expressed the wish to be “buried at sea.” The Yacht Club agreed to assist with such a burial and permitted the Kindrich family to use one of its boats, without charge, for the ceremony. The Yacht Club also agreed to let Fuller, one of its long-standing [***5] members and a good friend of Carl’s father, pilot the boat for the ceremony.
Carl, Barbara, and Michael, along with other family members, used portable steps located on the dock to board the boat for the ceremony. After the ceremony was over, Carl and Michael were up on the bridge with Fuller, who piloted the boat back to the dock. According to Carl’s testimony, “[a]fter the burial, we were bringing the boat in and … not too far from the dock, [Fuller] looked to me and says ‘We have to tie up the boat, and someone else will have to help.’ And Michael and I were the only two on the bridge … . And so Michael said that he would help … . [¶] … When [Fuller] turned the boat into the dock and we had gotten up to the dock and we were getting ready to get off the boat, Mike, my son, jumped to the dock. We didn’t see the steps. The steps weren’t there. And then after Mike jumped off, I jumped off, also … .” [*1257]
Carl stated that at the moment he jumped off the boat, it was hit by the wake from another boat, causing it to “go up as he stepped off the boat and when he came down onto the deck, he broke his leg.” The boat used for the burial ceremony does not require more than two [***6] people to tie it up when it reaches the dock–one person to operate the boat and one person on the dock to tie the lines.
Plaintiffs opposed the summary judgment, arguing this was not a proper case for applying the doctrine of primary assumption of the risk, and the case could not be summarily adjudicated on the basis that defendants acted with reasonable care as a matter of law. Plaintiffs argued there were numerous factual disputes relating to whether defendants satisfied the duty of care they owed to the passengers on their boat, and those issues must ultimately be resolved by a jury.
At the hearing, the court explained its initial thinking in favor of granting the summary judgment: “We have some conflicts in the facts as to whether he jumped, or stepped, or lowered himself, or whatever, but that doesn’t matter. What didn’t happen was he wasn’t pushed. He wasn’t ordered. He voluntarily undertook an activity that was inherently dangerous; namely, disembarking from a moving boat obviously onto the dock and he hurt himself. [¶] I believe that without really much hesitation that … primary assumption of the risk applies and the motions should be granted for summary judgment.”
Although [***7] plaintiffs’ counsel attempted to persuade the court that Fuller directed Carl to assist in tying up the boat, and thus his decision to jump from the boat should not be regarded as voluntary, the court did not agree. “[Carl] assumed the risk of something in this recreational activity going wrong. [¶] It did go wrong. The precise wrong is irrelevant. One way or the other he voluntarily disembarked the boat … with the idea of going onto [**828] the dock, and this was an unsafe thing to do.”
The formal order granting the motion cited two bases. First, the court found that “even if the portable steps were actually missing when the vessel … arrived back at dock after the burial at sea, [d]efendants had no notice, constructive or actual, of their absence. … [¶] The Court additionally finds that [d]efendants are entitled to summary adjudication on their Fourth Affirmative Defense because when [p]laintiff … made the deliberate and conscious decision to jump from the vessel … to the dock, he, with full knowledge thereof, knowingly and voluntarily assumed the risk of sustaining injury. (See Meintsma v. United States [(9th Cir. 1947)] 164 F.2d 976 … ; see also DeRoche v. Commodore Cruise Line, Ltd. (1994) 31 Cal.App.4th 802, 810 [46 Cal. Rptr. 2d 468] [***8] (‘[It] is settled that there is no duty to warn of a danger that is as obvious to the injured party as to the defendant.’).)” [*1258]
The order granted summary judgment against Barbara and Michael as well, concluding Barbara’s claim for loss of consortium was derivative as a matter of law and that any distinct claim for emotional distress was precluded by the fact she did not actually witness Carl’s injury. As to Michael’s claim, the court concluded that a bystander’s recovery for extreme emotional distress was dependent upon a determination the injury he witnessed was negligently inflicted. Since Carl’s negligence claim failed, Michael’s did as well.
Primary Versus Secondary Assumption of Risk
(1) Even were we to conclude that Carl’s decision to jump off the boat was a voluntary one, and that therefore he assumed a risk inherent in doing so, this is not enough to provide a complete defense. [HN1] Because voluntary assumption of risk as a complete defense in a negligence action was abandoned in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal. Rptr. 858, 532 P.2d 1226], only the absence of duty owed a plaintiff under the doctrine of primary assumption of risk would provide such a defense. But that doctrine does not come [***9] into play except when a plaintiff and a defendant are engaged in certain types of activities, such as an “active sport.” That was not the case here; plaintiff was merely the passenger on a boat. Under Li, he may have been contributorily negligent but this would only go to reduce the amount of damages to which he is entitled.
Before Li, contributory negligence and voluntary assumption of risk were distinct and complete defenses in an action for negligence. Under certain circumstances, the “last clear chance” doctrine provided relief from the harshness of the rules. Li changed all that. It adopted the doctrine of comparative negligence and held that “[t]he [HN2] doctrine of last clear chance is abolished, and the defense of assumption of risk is also abolished to the extent that it is merely a variant of the former doctrine of contributory negligence; both of these are to be subsumed under the general process of assessing liability in proportion to negligence.” (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 829.)
Li recognized that there are at least two distinct forms of assumption of risk. “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory [***10] negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, [**829] plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence … . [*1259] Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant’s duty of care.’ [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. [Citation.]” (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824-825.)
(2) So, [HN3] to the extent that “‘”a plaintiff unreasonably [***11] undertakes to encounter a specific known risk imposed by a defendant’s negligence,”‘” he or she is subject to the defense of comparative negligence but not to an absolute defense. (Knight v. Jewett (1992) 3 Cal.4th 296, 305-306 [11 Cal. Rptr. 2d 2, 834 P.2d 696].) This type of comparative negligence has been referred to as ” ‘secondary assumption of risk.’ ” (Id. at p. 308.) Assumption of risk that is based upon the absence of a defendant’s duty of care is called ” ‘primary assumption of risk.’ ” (Ibid.) “First, in ‘primary assumption of risk’ cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in ‘secondary assumption of risk’ cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable.” (Id. at p. 309.)
Primary assumption [***12] of risk, “‘”where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him”‘” (Knight v. Jewett, supra, 3 Cal.4th at p. 306), remains as a complete defense. That defense was not fully developed until our Supreme Court decided Knight v. Jewett. There, Knight sued Jewett for negligence and assault and battery after she was injured when Jewett knocked her over and stepped on her finger during a touch football game. In affirming summary judgment for the defendant, the court held that under the doctrine of primary assumption of risk, the defendant did not owe the plaintiff a duty. It “conclude[d] that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.) [*1260]
(3) Knight shifted the focus of assumption of risk from a plaintiff’s “subjective knowledge and awareness” of the risk to the nature of the activity in question. (Knight v. Jewett, supra, 3 Cal.4th at p. 313.) [***13] [HN4] “In cases involving ‘primary assumption of risk’–where, by virtue of the nature of the activity and the parties’ relationship to the [**830] activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Id. at pp. 314-315.) Knight justified maintaining the defense in a sports setting because there “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” (id. at p. 315), and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule” (id. at p. 319). The focus of the questions should consider the nature of the activity and the relationship of the parties to the activity. (Id. at p. 315.)
There are situations other than active sports where under the doctrine of primary assumption of risk a plaintiff is held to agree to relieve a defendant of an obligation of reasonable conduct toward him or her. For example, Knight stated, “In addition to the sports [***14] setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the ‘firefighter’s rule.’ [Citation.] In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.] Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.” (Knight v. Jewett, supra, 3 Cal.4th at pp. 309-310, fn. 5.)
Other examples of primary assumption of risk are the so-called veterinarian’s rule (e.g., Priebe v. Nelson (2006) 39 Cal.4th 1112, 1121, fn. 1 [47 Cal. Rptr. 3d 553, 140 P.3d 848]) [***15] or where the plaintiff is hired to undertake a particular, dangerous job (e.g., Farnam v. State of California (2000) 84 Cal.App.4th 1448, 1455 [101 Cal. Rptr. 2d 642]; Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1765 [53 Cal. Rptr. 2d 713]). But for purposes of this case, we need only consider whether Carl’s injuries occurred while he was engaged in an “active sport,” which relieved defendants of a duty of care. [*1261]
There are more than 100 published cases defining what is and what is not an “active sport” qualifying for application of the doctrine of primary assumption of risk. “Since the decision in Knight, which involved a recreational game of touch football, our state Supreme Court and appellate courts have examined the applicability of the primary assumption of the risk defense in a wide variety of cases involving sports and recreational activities. In Ford[ v. Gouin (1992)] 3 Cal.4th 339 [11 Cal. Rptr. 2d 30, 834 P.2d 724], the companion case to Knight, the Supreme Court expanded the doctrine and applied it to the noncompetitive, nonteam sporting activity of waterskiing. The Supreme Court has applied the doctrine to other sports, including intercollegiate baseball (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [**831] [41 Cal. Rptr. 3d 299, 131 P.3d 383]), swimming (Kahn[ v. East Side Union High School Dist. (2003)] 31 Cal.4th [990,] 1004-1005 [4 Cal. Rptr. 3d 103, 75 P.3d 30] [***16] [examining coach’s relationship to sport]), and snow skiing (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068 [68 Cal. Rptr. 2d 859, 946 P.2d 817] …). [Citation.] The Courts of Appeal have applied the primary assumption of the risk rule in cases involving snow skiing (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [45 Cal. Rptr. 2d 855]), ‘off-roading’ with a motorcycle or ‘dune buggy’ (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1255, 1259-1265 [102 Cal. Rptr. 2d 813]), skateboarding (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115-117 [96 Cal. Rptr. 2d 394]), figure ice skating (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1636 [53 Cal. Rptr. 2d 657]), and long-distance group bicycle riding (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1218-1223 [130 Cal. Rptr. 2d 198]), to name a few.” (Truong v. Nguyen (2007) 156 Cal.App.4th 865, 878-879 [67 Cal. Rptr. 3d 675] [primary assumption of risk applied to bar action for injury to passenger on jet ski].)
In Record v. Reason (1999) 73 Cal.App.4th 472 [86 Cal. Rptr. 2d 547], the court held that where the plaintiff was injured when he fell off an inner tube while being towed behind a motor boat, primary assumption of risk applied. In doing so, the court considered the issue of whether a particular activity was a “sport” such that the doctrine should be applied. [***17] After reviewing a substantial number of cases applying primary assumption of risk to a variety of activities, the court concluded that “[c]ompiling all of the distinguishing factors, it appears that an activity falls within the meaning of ‘sport’ if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” (Id. at p. 482.) Although we agree with the result in Record its reliance on a plaintiff’s subjective reasons for participating in a sport seems inconsistent with Knight‘s test, which focuses on whether imposing liability would “alter fundamentally the nature of the sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.) [*1262]
(4) Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1205 [14 Cal. Rptr. 2d 670] applied primary assumption of risk to sailing where the plaintiff was one of the crew operating the boat; the court noted that sailing involves swinging booms and physical participation of crew. But in our case, plaintiff was not a participant in the “sport” of boating or in any “active sport.” He was a passenger. Thus [HN5] this activity does not fall within [***18] the test set out in Knight, i.e., that to hold defendants owed no duty to plaintiffs would “alter fundamentally the nature of [a] sport by deterring participants from” vigorous participation. (Knight v. Jewett, supra, 3 Cal.4th at p. 319.)
This case is more analogous to Shannon v. Rhodes (2001) 92 Cal.App.4th 792 [112 Cal. Rptr. 2d 217]. There a six-year-old child and her siblings sued the owner and operator of a ski boat for negligence arising from injuries sustained by the child when she fell from the boat into the boat’s propeller. The Court of Appeal reversed summary judgment, holding that primary assumption of risk did not apply. The court noted, “Our analysis begins by examining with what activity the Knight court was concerned. In Knight, the court came to the commonsense conclusion that when two people are playing a sport together one should not be liable to the other for injuries sustained while playing that sport [**832] absent some recklessness or intentional misconduct. [Citation.] The parties in Knight were engaged in a recreational game of football, clearly a physical activity and ‘sport’ within any common understanding of the word.” (Id. at p. 796.) Shannon held that the defense did not apply where [***19] the plaintiff was merely a passenger in the ski boat. (Id. at p. 801.)
Shannon distinguished Ford v. Gouin, supra, 3 Cal.4th 339, the waterskiing case, by noting that in Ford, our Supreme Court “explicitly used the language ‘noncompetitive but active sports activity’ in applying the doctrine to waterskiing. [Citation.] A review of the reasoning set forth in Ford makes clear that the court focused on the physical skill and risk involved in the waterskiing itself to conclude that the activity of waterskiing was a sport, and the boat driver a coparticipant in that sport. [Citation.] The same certainly cannot be said of a mere passenger in a boat … .” (Shannon v. Rhodes, supra, 92 Cal.App.4th at p. 798.)
(5) Here, the trial court characterized the activity in which plaintiff engaged as “jumping” rather than boating. We disagree that [HN6] we must surgically separate an activity’s constituent parts apart from the general activity in which the plaintiff was engaged. Carl was engaged in boating, not in jumping. If he had been a jumper, in the sense of one who competes in athletic events, our conclusion would be different. But he was disembarking from the boat; his method of doing so, be it leaping, jumping, stepping off, or walking the gangplank, [***20] did not turn his activity into an “active sport.” [*1263]
We therefore conclude that the doctrine of primary assumption of risk does not bar plaintiffs’ action.
Defendants’ Remaining Arguments
(6) We need not expend a great deal of time dealing with the rest of defendants’ arguments. Although these were not the basis for the grant of summary judgment, we will comment briefly. Defendants contend they acted with reasonable care. But this argument should be made not to us but to the trier of facts. [HN7] Whether reasonable care has been exercised is normally a question of fact. (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 656 [320 P.2d 500].) Even if defendants were not responsible for the removal of the steps, and they contend the steps were there, this would only be one possible theory of liability. And, in light of the conflicting evidence, it is not for us to decide whether the steps were removed and, if so, by whom.
(7) As to defendants’ argument that Carl’s wife, Barbara, did not sustain damages to support her loss of consortium claim, the contention rests on the absence of evidence of physical injuries. But, as plaintiffs point out, “[a]lthough [HN8] loss of consortium may have physical consequences, it is principally a form [***21] of mental suffering.” (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 401 [115 Cal. Rptr. 765, 525 P.2d 669].)
(8) Defendants’ final argument is equally specious. [HN9] Whether or not Carl’s son, Michael, had such a contemporaneous sensory awareness of the accident as to satisfy the requirements of Thing v. La Chusa (1989) 48 Cal.3d 644, 668-669 [257 Cal. Rptr. 865, 771 P.2d 814] is again a question of fact, not to be resolved by us.
The judgment is reversed. Appellants shall recover their costs.
Sills, P. J., concurred.
DISSENT BY: BEDSWORTH
BEDSWORTH, J., Dissenting.–“No good deed goes unpunished” has become a truism of modern life. Today, [**833] by allowing suit against a yacht club that tried to help one of the sons of a member in his time of grief, only to be sued when he hurt himself intruding into their conduct of the good deed, my colleagues give this sad commentary on modern society the force of law. I respectfully dissent from that.
Carl Kindrich III was injured when he jumped off a boat and onto a dock. He did so voluntarily, after he knew his adult son, Michael, had already [*1264] gotten onto the dock to assist in tying off the boat. There is absolutely no evidence that anyone suggested, let alone required, that Kindrich himself must get off the boat prior [***22] to the time the stairs were put into place on the dock for the egress of passengers. Nonetheless, Kindrich, along with his wife and son, sued both the Long Beach Yacht Club and Charles Fuller, the Yacht Club member who captained the boat, alleging they were responsible for his injuries.
The trial court granted summary judgment to defendants, and I would affirm that judgment. I believe the trial court properly concluded that Kindrich’s specific act of “jumping onto the dock,” rather than the more generic and sedate “boating” was the relevant “activity” for purposes of assessing his assumption of risk. In my view, jumping or stepping some two and one-half or three feet off the side of a boat onto a dock–merely because portable steps had not yet been put into place–is no more an integral part of “boating” than diving out a window–because no one has yet opened the door–is an integral part of visiting a house.
This was not an outing or an excursion. It was not a leisurely sail. The trip was made to dispose of the ashes of Kindrich’s father. The injury in question was not the result of “boating.” Kindrich was not swept off the boat by a wave or hit by a jib. He jumped off the [***23] boat at the conclusion of the trip before the boat had been tied up. His injury was the result of his sudden decision he would leap off the boat rather than waiting for his son to finish tying it off and ensuring debarkation could be safely accomplished.
It is undisputed that defendants did not expect, let alone require, that passengers would have to jump off this particular boat as part of the “boating” experience. To my mind, the existence of portable stairs, which had been used by these passengers when boarding the boat, and were intended to be kept on the dock for the passengers to use in both getting on and off the boat, rather conclusively establishes the lack of any such expectation. And Kindrich’s own testimony demonstrates that even he did not consider jumping off the side of the boat onto the dock to be a normal part of this boat ride, let alone an integral part of the activity of “boating” in general. As Kindrich explained it, he not only did not expect that anyone else on the boat would be jumping off, he believed them unable to do it. 1
1 As Kindrich explained in his deposition, “Jim, my brother, has a back to where he can’t do a lot of jumping; Mary Ann would not be capable [***24] of doing it; Lisa wouldn’t be capable of doing it; my grandsons would not be capable of doing it. And the other two gentlemen would not be capable of doing it.”
Moreover, there is no evidence that anyone–either Fuller or the Yacht Club–imposed some special obligation on Kindrich to jump off the boat and [*1265] be on the dock while it was being tied up. Instead, Kindrich’s own testimony establishes that (1) Fuller merely stated (either directly to Kindrich or generally to him and his son) that it was necessary to tie up the boat, and “someone else” would have to assist; (2) Kindrich’s son immediately volunteered to do that; and (3) Kindrich was aware his son [**834] had already jumped onto the dock for the purpose of tying off lines before his own ill-fated attempt to follow suit. Even assuming it was actually necessary for “someone” to be on the dock–a fact disputed below–it is uncontested that need had been met prior to Kindrich’s jump.
Under these facts, it is clear that jumping off the boat before the stairs were in place was not a requirement placed generally on those who were passengers on the boat, and it was not a requirement placed specifically on Kindrich by any defendant. 2 Hence, [***25] Kindrich’s decision to do so was simply an optional, and entirely voluntary act, which must be distinguished, for analytical purposes, from any normal aspect of “boating.”
2 Of course, I do not mean to suggest Kindrich necessarily thought through these events with the specificity I have just employed. Presumably, he just figured if Fuller needed help getting the boat tied onto the dock, he was willing to do whatever he could to assist. But that instinct is the essence of volunteerism: “Somebody ought to do it, might as well be me” is not the same thing as being specifically assigned a task. And the fact Fuller might even have appreciated having two people on the dock is not the same thing as concluding he actually directed Kindrich to get onto the dock–by whatever means possible–as soon as the boat arrived. Based upon the evidence in this case, the trial court correctly determined Kindrich was acting voluntarily when he jumped off the boat.
As my colleagues seem to concede, when Kindrich’s activity is construed not as an integral part of “boating” but rather as simply an impetuous act of “jumping off the boat,” it falls within the scope of “athletic” endeavors, which includes those [***26] noncompetitive activities requiring some level of “physical skill and risk,” and thus primary assumption of the risk would apply. (See Ford v. Gouin (1992) 3 Cal.4th 339, 345 [11 Cal. Rptr. 2d 30, 834 P.2d 724]; Shannon v. Rhodes (2001) 92 Cal.App.4th 792, 798 [112 Cal. Rptr. 2d 217].) Because I see it that way, I would apply that doctrine, and grant the summary judgment.
But I should also note that I disagree with the majority’s analysis for an additional reason. As they explain, they considered Kindrich’s situation to be more analogous to Shannon v. Rhodes, supra, 92 Cal.App.4th 792, in which the injured plaintiff, a six-year-old child, was merely a passenger when she fell out of a boat that lurched unexpectedly, than to Stimson v. Carlson (1992) 11 Cal.App.4th 1201 [14 Cal. Rptr. 2d 670], in which the court applied primary assumption of the risk to a plaintiff who was injured while serving as a crewmember on a sailboat. If that is the analysis, it would lead me to the opposite conclusion. After all, a cornerstone of Kindrich’s theory of liability [*1266] is the assertion he had agreed to help with the docking of the boat, which is why–unlike the other passengers–he could not simply wait for the stairs to be put in place before getting onto the dock. If we accept [***27] his view, it seems clear that at the time of the accident, Kindrich had assumed the role of “crew,” rather than remaining a mere passenger. That would bring him within the majority’s characterization of Stimson. For that reason as well, I would affirm the judgment.
My colleagues have expanded civil liability beyond previous decisional law and beyond my ability to sign on. This ship will have to sail without me.
Respondents’ petition for review by the Supreme Court was denied February 11, 2009, S168902. Werdegar, J., did not participate therein.
Forman v. Brown, d/b/a Brown’s Royal Gorge Rafting, 944 P.2d 559; 1996 Colo. App. LEXIS 343
Sue Forman, Plaintiff-Appellant, v. Mark N. Brown, d/b/a Brown’s Royal Gorge Rafting, Brown’s Fort and Greg Scott, Defendants-Appellees.
COURT OF APPEALS OF COLORADO, DIVISION B
944 P.2d 559; 1996 Colo. App. LEXIS 343
November 29, 1996, Decided
SUBSEQUENT HISTORY: [**1] Released for Publication October 23, 1997.
Rehearing Denied February 6, 1997.
PRIOR HISTORY: Appeal from the District Court of Fremont County. Honorable John Anderson, Judge. No. 93CV123.
DISPOSITION: JUDGMENT AFFIRMED
COUNSEL: Gregory J. Hock, Colorado Springs, Colorado, for Plaintiff-Appellant.
Hall & Evans, L.L.C., Alan Epstein, Denver, Colorado, for Defendants-Appellees.
JUDGES: Opinion by JUDGE NEY. Pierce *, J. concurs. Tursi *, J. concurs in part and dissents in part.
* Sitting by assignment of the Chief Justice under provisions of the Colo. Const. art. VI, Sec. 5(3), and § 24-51-1105, C.R.S. (1996 Cum. Supp.).
OPINION BY: NEY
[*560] Opinion by JUDGE NEY
Plaintiff, Sue Forman, appeals from a summary judgment entered in favor of defendants, Mark N. Brown d/b/a Brown’s Royal Gorge Rafting and Brown’s Fort, and Greg Scott. We affirm.
Plaintiff participated in a rafting trip conducted by defendants. During the trip, defendant Scott, the river guide, pulled the raft off the river for a rest break and suggested [*561] that the participants take a swim in the river. Scott led some of the participants, including plaintiff, to a large boulder near the river and instructed them on the proper method [**2] to enter the water. Plaintiff injured her ankle when she jumped into the river.
Plaintiff brought this action alleging negligence, willful and wanton conduct, and breach of contract. Defendants moved for partial summary judgment on the grounds that the exculpatory agreement executed by plaintiff before the trip absolved them from liability for negligence as a matter of law. The trial court granted defendant’s motion for partial summary judgment, and later granted defendants’ motion for summary judgment on plaintiff’s remaining claims. This appeal followed.
Plaintiff argues that summary judgment was improper because a genuine issue of fact existed as to whether she was mentally competent when she signed the exculpatory agreement. We disagree.
[HN1] Summary judgment is proper when the pleadings, affidavits, depositions, and admissions show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56; Civil Service Commission v. Pinder, 812 P.2d 645 (Colo. 1991).
The moving party has the burden to show that there is no issue of material fact. Once the moving party has met its initial burden, the burden then [**3] shifts to the nonmoving party to establish that there is a triable issue of material fact. Mancuso v. United Bank, 818 P.2d 732 (Colo. 1991).
In determining whether summary judgment is proper, the nonmoving party must receive the benefit of all favorable inferences that may reasonably be drawn from the undisputed facts. Mancuso v. United Bank, supra. Summary judgment is proper if reasonable persons could not reach differing conclusions. Morlan v. Durland Trust Co., 127 Colo. 5, 252 P.2d 98 (1952).
In their motion for summary judgment, defendants attached the exculpatory agreement, which was signed by plaintiff, entitled “Agreement to Participate (Acknowledgment of Risks),” and an agreement entitled “On River Prohibitions,” also signed by plaintiff, which listed rules that rafting participants were required to follow while on the rafts. Defendants also included plaintiff’s admissions that she signed the exculpatory agreements and that she was advised concerning the hazards involved in the raft trip. With this evidence, defendants established both the scope of the exculpatory agreement and the fact that plaintiff signed the agreement, and thus the burden shifted to plaintiff to establish [**4] triable issues of fact. Mancuso v. United Bank, supra.
Plaintiff admitted in her response to the summary judgment motion that she had signed the exculpatory agreement and she attached to her response an affidavit in which she stated:
I believe I am an intelligent woman and I
understand the (prohibition.) My failure to read the Agreement to Participate was related to my mental condition.
. . . .
Although I was not incompetent when I signed the on-river prohibitions and the Agreement to Participate, I do feel I lacked competency in the skills of independent decision-making and that I had mental impairment on relying on what Mr. Scott had advised.
Plaintiff also averred that she had been in therapy for several years before the incident, and included extensive documentation of the diagnosis and in-patient treatment of her emotional and mental condition that she underwent six months after the rafting incident. However, plaintiff’s complaint did not state any allegations of her impaired mental capacity.
Plaintiff filed a supplementary response to the summary judgment motion which included an affidavit from the therapist who had been treating her for several years prior to the rafting [**5] incident wherein the therapist stated that, at the time of the rafting trip, plaintiff was suffering from a mental impairment, “including a mental and/or emotional disability related to psychiatric problems, her [*562] inability to handle stress, emotional illness and severe psychiatric difficulties and serious emotional disturbances which prevented her from fully assessing the consequences of risks or prohibited conduct related to jumping into the river.” The therapist further opined that plaintiff had a tendency “to be quite vulnerable following the direction of someone she was trusting as well as to following the actions of those with whom she desired to be a part.”
Plaintiff also supplemented her response with an affidavit from a therapist who began treating her a year after the rafting incident in which the therapist averred that, at the time of the rafting incident, plaintiff’s need to be liked and accepted was likely to have caused her to suspend her own judgment in deference to others.
The trial court held that, even under the most favorable interpretation of the evidence, plaintiff did not show that she was incompetent to enter into a binding contract. Relying on plaintiff’s [**6] specific assertion that she was not incompetent when she signed the exculpatory agreements, the court found that plaintiff’s assertions of mental impairment, such as her need to belong to a group and her need to trust and follow the river guide, did not at all relate to her execution of a binding contract.
We agree with the trial court and find that the relevant evidence established, as a matter of law, that plaintiff was not, under principles of competency applicable to contracts in general, incompetent at the time she signed the exculpatory agreement.
[HN2] Every person is presumed by the law to be sane and competent for the purpose of entering into a contract. Hanks v. McNeil Coal Corp., 114 Colo. 578, 168 P.2d 256 (1946). A party can be insane for some purposes and still have the capacity to contract. Davis v. Colorado Kenworth Corp., 156 Colo. 98, 396 P.2d 958 (1964).
A person is incompetent to contract when the subject matter of the contract is so connected with an insane delusion as to render the afflicted party incapable of understanding the nature and effect of the agreement or of acting rationally in the transaction. Hanks v. McNeil Coal Corp., supra. Therefore, under this [**7] rule, it follows that emotional distress or severe mental depression generally is insufficient to negate the capacity to contract. See Drewry v. Drewry, 8 Va. App. 460, 383 S.E.2d 12 (Va. App. 1989)(severe mental depression did not render party to separation agreement legally incompetent where there was no evidence that party did not understand the nature and consequences of her acts).
Moreover, a contract may not be voided when, as here, the alleged incompetence arose after the execution of the contract. Competency to contract is determined by a party’s mental state at the time of execution of the agreement. See Hanks v. McNeil Coal Corp., supra.
[HN3] Where a party has failed to present sufficient evidence to make out a triable issue of material fact, the moving party is entitled to summary judgment. See Continental Air Lines Inc. v. Keenan, 731 P.2d 708 (Colo. 1987).
Plaintiff admitted that she was not incompetent at the time she signed the exculpatory agreement, that she was “an intelligent woman,” and that she understood the “prohibition.” Additionally, none of plaintiff’s evidence of her psychological diagnosis and treatment showed that, at the time she signed the exculpatory agreements, she was [**8] suffering under an insane delusion that prevented her from understanding the nature and effect of the agreements or of acting rationally in the transaction.
Nor do we agree with plaintiff’s claim that her impaired mental capacity caused her to fail to read the Agreement to Participate. As noted above, plaintiff admitted that she was not incompetent when she signed the exculpatory agreements; therefore, her failure to read the Agreement to Participate precludes her from arguing that she is not bound by it. See Rasmussen v. Freehling, 159 Colo. 414, 412 P.2d 217 (1966)(in the absence of fraud, one who signs a contract without reading it is barred from claiming she is not bound by what she has signed); Cordillera Corp. v. Heard, 41 Colo. App. 537, 592 P.2d 12 (1978), aff’d, 200 Colo. 72, 612 [*563] P.2d 92 (1980)(party signing an agreement is presumed to know its contents).
We conclude, therefore, that plaintiff failed to establish a triable issue of fact concerning her capacity to execute a contract at the time she signed the exculpatory agreement.
Plaintiff also argues that the exculpatory agreement was invalid and ambiguous as to whether it applied to the activity in which she was [**9] injured. We disagree.
[HN4] The determination of the sufficiency and validity of an exculpatory agreement is a matter of law for the court to determine. Jones v. Dressel, 623 P.2d 370 (Colo. 1981).
The validity of an exculpatory agreement must be determined by the following four criteria: (1) the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language. Jones v. Dressel, supra.
Only the fourth factor is at issue here, and as to this factor, the supreme court has held that in order for an exculpatory agreement to shield a party from liability, the intent of the parties to extinguish liability must be clearly and unambiguously expressed. Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989).
The Agreement to Participate provided in relevant part:
I am aware that the activities I am participating in, under the arrangements of Brown’s Fort family recreation center; its agents, employees, and associates, involves certain inherent risks. I recognize that white water rafting, . . . and other activities, scheduled or unscheduled [**10] have an element of risk which combined with the forces of nature, acts of commission, or omission, by participants or others, can lead to injury or death.
I also state and acknowledge that the hazards include, but are not limited to the loss of control, collisions with rocks, trees and other man made or natural objects, whether they are obvious or not obvious, flips, immersions in water, hypothermia, and falls from vessels, vehicles, animals, or on land.
I understand that any route or activity, chosen as a part of our outdoor adventure may not be the safest, but has been chosen for its interest and challenge. . . . I . . . understand and agree that any bodily injury, death or loss of personal property, and expenses thereof, as a result of my . . . participation in any scheduled or unscheduled activities, are my responsibility. I hereby acknowledge that I and my family . . . have voluntarily applied to participate in these activities. I do hereby agree that I and my family . . . are in good health with no physical defects that might be injurious to me and that I and my family are able to handle the hazards of traffic, weather conditions, exposure to animals, walking, riding, and all [**11] and any similar conditions associated with the activities we have contracted for.
. . . .
I and my family . . . agree to follow the instructions and commands of the guides, wranglers, and others in charge at Brown’s Fort recreation center with conducting activities in which I and my family are engaged.
Further, and in consideration of, and as part payment for the right to participate in such trips or other activities . . . I have and do hereby assume all the above risks and will hold Brown’s Fort . . . its agents, employees, and associates harmless from any and all liability, action, causes of action, debts, claims, and demands of any kind or nature whatsoever which I now have or which may arise out of, or in connection with, my trip or participation in any other activities.
The terms of this contract shall serve as a release and assumption of risk for my heirs, executors and administers and for all members of my family, including any minors accompanying me. . . .
I have carefully read this contract and fully understand its contents. I am aware [*564] that I am releasing certain legal rights that
I otherwise may have and I enter into this contract in behalf of myself and my family [**12] of my own free will.
Plaintiff was engaged in an apparently unscheduled activity that had an element of risk which, combined with the forces of nature and acts of others, resulted in an injury. The language of the Agreement to Participate specifically addressed a risk, collision with boulders, that adequately described the circumstances of plaintiff’s injury, and by executing the Agreement to Participate, plaintiff was specifically made aware of and agreed to assume this risk. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (broad language in a release interpreted to cover all negligence claims); Barker v. Colorado Region–Sports Car Club of America, Inc., 35 Colo. App. 73, 532 P.2d 372 (1974) (in absence of duty to public, exculpatory agreements are valid when fairly made and may be enforced to preclude recovery for injury sustained by patrons of recreational facilities).
Therefore, we agree with the trial court that the Agreement to Participate unambiguously released defendants from liability for injuries occurring during associated scheduled or unscheduled activities such as the swimming activity here at issue.
Plaintiff’s final contention is that the trial court erred in [**13] dismissing her claim of willful and wanton conduct against defendant Scott. We disagree.
[HN5] An exculpatory agreement does not bar an action based upon injuries sustained by a defendant’s willful and wanton conduct. Barker v. Colorado Region-Sports Car Club of America, Inc., supra. Willful and wanton conduct is purposeful conduct committed recklessly that exhibits an intent consciously to disregard the safety of others. Such conduct extends beyond mere unreasonableness. Terror Mining Co. v. Roter, 866 P.2d 929 (Colo. 1994) (applying definition of willful and wanton conduct to parental immunity doctrine); see also § 13-21-102(1)(b), C.R.S. (1987 Repl. Vol. 6A)(for purposes of exemplary damages, willful and wanton conduct means conduct purposefully committed which the actor must have realized as dangerous and which was done heedlessly and recklessly, without regard to the consequences, or of the rights and safety of others, particularly the plaintiff).
[HN6] Although the issue of whether a defendant’s conduct is purposeful or reckless is ordinarily a question of fact, Wolther v. Schaarschmidt, 738 P.2d 25 (Colo. App. 1986), if the record is devoid of sufficient evidence to raise a factual [**14] issue, then the question may be resolved by the court as a matter of law. See Continental Air Lines, Inc. v. Keenan, supra.
Plaintiff’s complaint alleged only that defendant Scott “beached the raft with Plaintiff and other guests, subsequently inviting, encouraging and directing Plaintiff and other guests to jump into the river and take a swim, directing them to a point of jumping that Scott represented as being safe for entry.” Plaintiff also gave a statement in which she said that, prior to the swim, defendant Scott reinforced the possibility of being hurt while jumping into the river but that he instructed the group on the proper manner of entry to avoid injury, and talked and stood close to the participants while they jumped.
Additionally, plaintiff stated in one of her affidavits:
Scott was with all of us monitoring the entry into the river. He gave brief instructions that we should try to jump with our feet up and keep our feet downstream and paddle to the shore. Although the possibility of being hurt existed, this clearly related to after we went downstream and tried to negotiate the river current and swim to the side of the river. I did not believe there were any safety [**15] problems in entering the water at the place he designated, nor could I see any submerged rocks.
. . . .
A couple jumped in before me and everything worked out fine. Their experience was consistent with what Scott had stated that if we followed his direction we would not get hurt.
. . . .
[*565] I feel that Scott was negligent in his suggesting the jumping and his preparing us and instructing us for that exercise.
Plaintiff’s evidence is insufficient to establish a factual question as to whether defendant Scott acted in a willful and wanton manner. Plaintiff’s statements that Scott instructed the participants on the proper manner to enter the water to avoid injury indicates that Scott did not consciously and willfully disregard the safety of the participants. Furthermore, plaintiff does not allege, nor does the record indicate, that Scott recklessly forced the participants to jump in the river or otherwise intentionally disregarded the participants’ safety. Rather, plaintiff states in her affidavit that Scott acted negligently. Negligence is not the same as willful or wanton conduct. Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954).
Therefore, the court properly entered summary [**16] judgment in defendant Scott’s favor. See Mancuso v. United Bank, supra.
The judgment is affirmed.
JUDGE PIERCE concurs.
JUDGE TURSI concurs in part and dissents in part.
CONCUR BY: TURSI (In Part)
DISSENT BY: TURSI (In Part)
JUDGE TURSI concurring in part and dissenting in part.
I concur in Parts I and III of the majority opinion and dissent as to Part II.
This matter is before us on summary judgment. The majority adequately sets forth the rules governing review of summary judgments. However, as to Part II, it misapplies them.
In Part II, the majority concludes that the documents which defendant had plaintiff execute were unambiguous. I disagree.
Plaintiff was presented with two documents by the defendants and was required to execute them simultaneously. These are the Agreement to Participate, quoted at length in the majority opinion, and the On River Prohibitions, which although mentioned, are not quoted.
It is axiomatic that if simultaneously executed agreements between the same parties and relating to the same subject matter are contained in more than one instrument, the documents must be construed together. Bledsoe v. Hill, 747 P.2d 10 (Colo. App. 1987).
The On River Prohibitions [**17] contained a prohibition that stated: “No diving or jumping into the river. (There are rocks under the surface of the river).”
By affidavit and by a statement appended to defendant’s motion for summary judgment, facts were presented that the guide had instructed plaintiff to “jump in” the river. In plaintiff’s affidavit (referred to by the majority), plaintiff further stated that the guide “indicated that we should jump into the water at that point.”
Plaintiff correctly argues that she was confronted with the requirement that she follow the instruction of the guide as required by the Agreement to Participate, but that this conflicted with a specific provision of the On River Prohibitions. The patently conflicting provision was, at a minimum, ambiguous and placed plaintiff in a situation that gave rise to a genuine issue of material fact. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781; Jones v. Dressel, 623 P.2d 370.
Clearly, the provision in the Agreement to Participate stating that participants “agree to follow the instruction . . . of the guides” creates a conflict when a participant is instructed by the guide to violate the specific prohibition against jumping into the river. Under [**18] these circumstances, an ambiguity arises which creates a genuine issue of material fact and thus, renders the entry of summary judgment reversible error.
Finally, after giving the entire agreement a fair reading, I am unable to comprehend how the majority can conclude that a prohibited activity is a foreseeable “unscheduled” [*566] activity. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781.
Therefore, in view of the ambiguity that arose under the documents based upon the material facts herein, I would reverse and remand to the trial court to proceed on the issues addressed in Part II of the majority opinion.
The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiffPosted: February 2, 2015
Plaintiff’s rented a canoe and sued when they did not make the takeout and became stuck. The plaintiff’s took 4 hours to paddle 2.5 miles
State: New York, Supreme Court of New York, Suffolk County
Plaintiff: Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually
Defendant: Bob’s Canoe Rental, Inc.
Plaintiff Claims: negligent in permitting them to rent the canoe and launch so close in time to low tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.
Defendant Defenses: Assumption of the Risk and Release
The facts are pretty simple, even if expanded by the plaintiffs. The plaintiff wanted to rent a canoe on the Nissequogue River in Suffolk, New York. The Nissequogue River is affected by tides. At low tide, the river disappears and the ocean rushes in. The plaintiff/deceased/husband had canoed the river several times before. The plaintiff/husband and wife contacted the defendant the day before and arrived the day of the incident in the morning. However, the defendant was not at the put in, but located at the takeout. The plaintiff’s drove to the take out where they left their car and were taken back to the put in by the defendant where they started canoeing.
Prior to starting the trip each plaintiff signed a release, and the wife signed a rental agreement for the canoe.
A canoe livery if you are not familiar with one is really a rental operation like a car rental operation where you rent a car and go anywhere you want. A canoe livery you rent the canoe and paddle down a specific section of a specific river. At the end of the trip, the livery picks you up and takes you back to your car. Some liveries start by taking you upriver where you paddle down to your car.
Generally, courts look at canoe liveries as outfitters, not as rental shops. Consequently, liveries are held to a slightly higher degree of care for their guests because of their control over the boat, the river and transportation.
The time prior to putting in, the husband questioned the employee of the defendant about whether they had enough time to canoe the river before the low tide. The employee confirmed they did.
From the put in to the take out is a distance of five miles. Witnesses and the defendant testified it could easily be canoed in 2.5 hours.
After 4 hours of canoeing, the plaintiffs on the day in question had made it 2.5 miles. The tide went out leaving them stranded. According to the wife, the pair started drinking the vodka and wine they had with them to stay warm.
Eventually, they were found and treated for hyperthermia.
The plaintiff sued for basically not stopping them from renting the canoe. The court also looked at their complaint and defined one of their allegations as a negligent misrepresentation claim.
At the time of the trial, the husband had died; however, his death was not part of this case or caused by the facts in this case.
Analysis: making sense of the law based on these facts.
The court looked at the degree of care the defendant owed to the plaintiff and found the plaintiff was voluntarily participating in a sporting or recreational activity. As such, the participants “consent to the commonly appreciated risks that are inherent in and arise out of, the nature of the sport generally and flow from participation therein.” Consequently the participants consent to injury caused by events which are “known, apparent, or reasonably foreseeable risks of the participation.”
If the plaintiff fully comprehends the risks, then the plaintiff consents to them. Stated another way “the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks…”
The court found the defendant husband was an experience canoeist and understood the tides, and the risks presented by both. Therefore, the plaintiff’s assumed the risk of injury.
The court then looked at the releases.
It must appear absolutely clear that the agreement extends to negligence or other fault of the party. “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear”
Under New York law once the defendant has presented the release, and it has passed the test to exclude negligence the plaintiff must produce evidence, admissible at trial, “sufficient to require a trial of the material issues of fact.”
Here the plaintiff had not submitted any evidence other than the testimony of the plaintiff’s. More importantly the court wanted to know why it took four hours to go half way on the trip.
The court then looked at the remaining allegations and determined those sounded like a claim of negligent misrepresentation. To prevail on a negligent misrepresentation claim the plaintiff must prove “a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided”
Here the court found that no evidence had been submitted by the plaintiff to prove the information supplied by the defendant was false.
The plaintiff’s complaint was dismissed.
So Now What?
This case was short but very interesting. The plaintiff did not attack the releases. The court even commented about the fact the plaintiff did not try to have the releases thrown out or voided. Additionally, the plaintiff simply tried to say that the defendant was liable because they got stuck. This is a belief that many plaintiffs have now days. I suffered an injury; therefore, you must be liable.
To win a negligence claim you must prove negligence. Here the plaintiff had not argued there was a breach of the duty owed to them.
There are several abnormally that make this interesting. The first is the standard of care applied to this case is significantly lower than normally that a canoe livery must meet. However, that same standard of care was only at issue on a small part of the claim so the claim would have failed anyway.
The second is the experience of the husband as a canoeist was held to prevent the plaintiff wife from her claims also. Normally, assumption of the risk must be known and understood by each injured plaintiff. Here, because there were two people in the canoe both working together, the court applied the experience and knowledge of one party in the canoe to the other party in the canoe.
The court did not rely on the release or any other document to make this decision as to the wife assuming the risk that caused their injuries.
Granted, the defendants should have clearly won this case. Whenever in a deposition, the plaintiff argues, they did not start drinking until after they had run out of water to canoe, to stay warm, you should be a little suspect.
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Hubert Schoeps; Christiane Schoeps, as heirs and beneficiaries of Sandra Schoeps, deceased, Plaintiffs – Appellants, v. Whitewater Adventures LLC; Mark Gholson, Defendants – Appellees.
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
136 Fed. Appx. 966; 2005 U.S. App. LEXIS 13181
June 15, 2005**, Submitted, San Francisco, California
** This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
June 29, 2005, Filed
JUDGES: Before: TALLMAN, BYBEE, and BEA, Circuit Judges.
[*967] MEMORANDUM *
* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Hubert and Christiane Schoeps brought a diversity jurisdiction wrongful death action against Whitewater Adventures and its managing owner, Mark Gholson, alleging negligence, breach of contract, and intentional misrepresentation arising from the death of their daughter, Sandra Schoeps, during a whitewater rafting trip organized by the defendants. The district court granted the defendants summary [**2] judgment on all claims. The Schoeps appeal only the dismissal of their negligence claim against Whitewater Adventures. [HN1] We review de novo the grant of summary judgment. Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. The district court correctly concluded that California law precludes recovery for Sandra’s personal injuries because she expressly assumed the risk of harm when she signed Whitewater Adventures’ liability release form before participating in the whitewater rafting activity. See Sweat v. Big Time Auto Racing, Inc., 117 Cal. App. 4th 1301, 12 Cal. Rptr. 3d 678, 681 (Cal. Ct. App. 2004) (citation omitted). On the whole, the release is in plain language, contains a clear and comprehensive outline of the kinds of harm that may occur, and has [**3] the clear import of relieving Whitewater Adventures of liability for negligence or other harms. See Saenz v. Whitewater Voyages, Inc., 226 Cal. App. 3d 758, 276 Cal. Rptr. 672, 676-77 (Cal. Ct. App. 1990).
Moreover, we conclude that the liability release was not unconscionable. See Ilkhchooyi v. Best, 37 Cal. App. 4th 395, 45 Cal. Rptr. 2d 766, 774-75 (Cal. Ct. App. 1995) (noting that [HN2] unconscionability has “procedural and substantive elements, both of which must be present to invalidate a clause”). Substantively, it is not unreasonable or unexpected for an organizer of adventure sports to reallocate risk to the participants through a liability waiver. See, e.g., Ford v. Gouin, 3 Cal. 4th 339, 11 Cal. Rptr. 2d 30, 834 P.2d 724, 728 (Cal. 1992). Procedurally, there were no hidden terms in the liability release, and the most oppressive aspect of the situation was that if Sandra refused to sign it she could not go with the group on the river and might be stuck without transportation in an isolated area. But this was not caused by any action or inaction On Whitewater Adventures’ part; nor is there any evidence in the record that Denyse Caven, who had driven Sandra to the meeting point, would have been unwilling to [**4] leave with Sandra or to let Sandra drive herself, nor that no other transportation was available. The district court recognized that Sandra had only a few minutes to decide whether to sign the release and would have lost her pre-paid ticket price had she refused to sign. However, this is not sufficient to constitute oppression or lack of meaningful choice, particularly insofar as Sandra had been given a brochure before the rafting trip in which Whitewater Adventures stated: “we require all trip participants to sign a liability release [*968] waiver before embarking on your trip.” See Ilkhchooyi, 45 Cal. Rptr. 2d at 775.
[HN3] We may affirm on any ground supported by the record, San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1030 (9th Cir. 2004), and therefore do not reach the issue of whether recovery is also barred under the primary assumption of risk doctrine. See Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248, 38 Cal. Rptr. 2d 65, 67-68 (Cal. Ct. App. 1995).
The Schoeps’ maritime jurisdiction claim was not presented to the district court and so we do not consider it here. See United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir. 1991). [**5]
[**1] Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually. Plaintiffs, – against – Bob’s Canoe Rental, Inc., Defendant. INDEX No. 09-6690
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)
July 31, 2014, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: river, canoe, trip, low tide, summary judgment, stranded, deposition, tide, rented, canoeing, paddling, safe, launch, minutes, mile, issue of fact, nonparty, high tide, entitlement, newspaper, decedent, halfway, paddle, facie, launched, arrived, canoed, times, stuck, woman
COUNSEL: [*1] For Plaintiffs: ELOVICH & ADELL, ESQS., Long Beach, New York.
For Defendant: GORDON & SILBER, P.C., New York, New York.
JUDGES: PRESENT: Hon. DENISE F. MOLIA, Acting Justice of the Supreme Court.
OPINION BY: DENISE F. MOLIA
ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further
ORDERED that the motion by the defendant for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint is granted, and it is further
ORDERED that the motion by the defendant for an order pursuant to CPLR 1021 dismissing the complaint for failure to substitute a representative on behalf of the decedent Dennis Ferrari is denied as academic.
This action was commenced to recover damages for personal injuries allegedly sustained by the plaintiff Kathleen Ferrari, and her husband, the decedent Dennis Ferrari, when they were exposed to the elements after becoming stranded at low tide while canoeing on the Nissequogue River in Suffolk County, New York. The Ferraris had rented the canoe used by them that day from the defendant. In the complaint, the Ferraris allege, among other things, that the defendant was negligent in permitting them to rent the canoe and launch so close in time to low [*2] tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.
[**2] The following facts involving this incident are undisputed. The Ferraris rented a canoe from the defendant on October 27, 2008, intending to make a one-way trip on the Nissequogue River from a launching site located in a park in Smithtown, New York to a park in Kings Park, New York. Both sites were used by the defendant in its business of renting canoes to the public. The defendant’s employee, Geoffrey Lawrence, met the Ferraris, both signed the defendant’s release of liability form, and Dennis Ferrari signed a written lease agreement for the canoe.
The defendant now moves for summary judgment on the grounds that the Ferraris assumed the risk of their activities and that the defendant did not breach a duty of care. In support of the motion, the defendant submits, among other things, the pleadings, the deposition transcripts of the parties, the deposition transcripts of three nonparty witnesses, and an affidavit from an expert. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, [*3] tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 501 N.E.2d 572, 508 NYS2d 923 ; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 ). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties’ competing interest must be viewed “in a light most favorable to the party opposing the motion” (Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]).
At his deposition, Dennis Ferrari testified that he had canoed approximately 12 times when he was younger and a Boy Scout, and that, before this incident, he had canoed as an adult on the Nissequogue River two times. He indicated that his first trip took four to four and one-half hours to travel the length of the river, and that his second trip took five hours to complete. He stated that he rented canoes for those trips, that he “believes” they were rented from the defendant, and that the rental company “schedule[s] you around the tides.” Dennis Ferrari further testified that he called the defendant the day before this trip to rent a canoe, that he believes that he was told it would be high tide for his trip at either 9:00 or 10:00 a.m, and that he was aware that low tide was generally six hours [*4] after high tide. He stated that he himself checked the time of high tide in the local newspaper, and that he does so “every day, because I do a lot of fishing.” He indicated that, on the day of this incident, he awoke at 7:30 or 8:00 a.m. and had breakfast, that he packed a lunch with wine and vodka, that he left his home at 9:30 a.m. to travel to Smithtown to rent the canoe, and that no one from the defendant was there when he arrived at approximately 10:00 a.m. He declared that neither he or his wife had cell phones, that they waited approximately one hour and then contacted the defendant by pay phone, and that he was told to travel to the mouth of the river in Kings Park. Dennis Ferrari further testified that he arrived at Kings Park at 11:30 or 11:45 a.m., that “there was somebody waiting there,” and “by this time, I’m thinking that its getting a little late, and I asked him if it was going to be a problem.” He stated that the person then drove them back to Smithtown, that they arrived “probably close to 12:30,” and “I just asked if we had enough time to make it down river. He said, yeah, it won’t be a problem.” He indicated that he and his wife launched the canoe a little after [*5] 12:30, that both were paddling the canoe, and that they did not eat or drink anything before they “got stuck” at approximately 4:30 p.m. Dennis Ferrari further testified that, for the approximately four hours before they were stranded, he and his wife were paddling [**3] “leisurely, because the river … takes you,” and that he noticed the tide “going out fast” approximately 20 minutes before they got stuck in the mud. He indicated that he and his wife paddled “maybe a couple of hundred yards” in that last 20 minutes, that, “as the water started to go out,” he tried to paddle closer to the shore, and that they became stranded near the Smithtown Landing Country Club. He stated that the Country Club was approximately three or four miles from the launch site in Smithtown and more than halfway to Kings Park, that he did not have any difficulties with the canoe before he and his wife were stranded, and that, after they were stuck, he got out of the canoe to attempt to pull it to shore. He was unsuccessful and re-entered the canoe. He declared that the sun went down at approximately 5:00 or 5:30 p.m., and that he and his wife were not rescued for hours after they were stranded.
At her deposition, [*6] Kathleen Ferrari testified that she had never been canoeing before, that her husband told her that he had canoed on the Nissequogue River twice before, and that he rented a canoe and said that they had to be at Smithtown at either 9:00 or 10:00 a.m. on the day of this incident. She stated that they waited approximately 15 minutes for someone from the defendant to show up, that they called from a pay phone, and that they were told that they had to go to Kings Park. She indicated that they met the man in Kings Park at approximately 11:00 a.m., that her husband asked if they were getting out too late and if it was safe, that the man said that they were fine, and the man told them to leave their car so that he could drive them back to Smithtown. Kathleen Ferrari further testified that, because they were approximately 20 minutes away from Smithtown, her husband kept asking about the tides and told the man that “we’re not going to be actually going out until 11:30,” and that the man kept assuring him that it was safe. She stated that they launched from Smithtown at approximately 12:00 p.m., that they paddled at “quite a pace” because her husband was “concerned that we kept moving,” and that [*7] when her husband mentioned that tide was changing fast they were almost at the end of their trip. She indicated that she and her husband did not have any alcohol to drink until well after they were stranded and in order to combat the cold, and that it took hours before they were rescued.
Geoffrey Lawrence (Lawrence) was deposed on March 7, 2011, and testified that he was a seasonal full-time employee of the defendant in 2008, that he canoed the Nissequogue River daily that year, and that the length of the river from Smithtown to Kings Park is five and one-half miles. He stated that the defendant always launches its canoes from Smithtown, and that the average time to complete the trip to Kings Park at a moderate rate of paddling is two and one-half hours. He indicated that high tide was at approximately 10:30 a.m. on October 27, 2008, that low tide was at 4:30 p.m., and that the time for return of canoes was 4:30 p.m., as it is always at the time of low tide. Lawrence further testified that the Ferraris signed the releases and lease agreement in his truck at Kings Park, that he gave them general instructions, and that Dennis Ferrari said he was experienced, he had done this before, and [*8] he knew where he was going. He stated that he recalled Dennis Ferrari asking if they still had time to launch, and that, generally, the latest time that he would rent a canoe to someone, depending on the tide and time of sunset, would be 2:00 p.m. He indicated that he advised Dennis Ferrari that they could not be in later than 4:30 p.m. that day, that he did not know of any other incidents where someone was stranded on the river, and that he waited in Kings Park for the Ferraris after they launched. He declared that he became anxious when the Ferraris did not arrive at 4:30 p.m., that he went looking for them in his truck, and that he found them stranded near the Smithtown Landing Country Club.
[**4] Nonparty witness Ann Schumacher was deposed on September 3, 2010, and testified that she was employed by the Smithtown Fire Department as an EMT-B in 2008, that she was also a registered nurse, and that she had training in hypothermia and intoxication. She stated that she and her crew responded to an emergency call on October 27, 2008, that this was the first time she had been called to rescue someone stuck on the Nissequogue River, and that she completed a patient care record regarding Dennis [*9] Ferrari. She indicated that Dennis Ferrari did not appear intoxicated, that she did not smell alcohol on his breath, and that he was not slurring his speech.
At his deposition, nonparty witness Edward Springer (Springer) testified that he was employed by the Smithtown Fire Department as an EMT-Critical Care in 2008, that he responded to an emergency call on October 27, 2008, and that he completed a care record regarding Kathleen Ferrari that date. He indicated that he recorded her blood pressure as 80/60, that she was hypothermic, and that her pupils were normal. He stated that if she was intoxicated her pupils would be “different [than] normal,” and that he did not smell alcohol on her breath. Springer further testified that he has rented canoes on the Nissequogue River, that he was verbally told when high tide would be, and that he was aware that low tide is six hours later. He stated that “he believed” it took him three hours to complete a trip on the river, and that the Smithtown Landing Country Club is a little more than halfway to the end of the river.
Nonparty witness Greg Krockta (Krockta) was deposed on September 1, 2011, and testified that he was fishing on the Nissequogue [*10] River on the day of this incident, that he observed a man and a woman in a canoe, and that the woman was slumped over and looked “ill or something.” He stated that the man was paddling the canoe, that the woman was not paddling, and that the man was yelling at the woman to “get up and paddle.” He indicated that he did not know if the couple that he saw are “the same two people [involved in this lawsuit],” that he thinks that the two were the only “male and female combination” that he saw that day, and that he believes that he could identify the couple if shown photographs. Krockta further testified that he lives near the river less than one mile from the launching area, that he often fishes and boats on the river, and that it would take a novice approximately two hours to get from the Smithtown … launching area to the end of the river.”
In an affidavit dated December 8, 2011, the defendant’s expert witness, David Smith (Smith), swears that he is a retired commander with the United States Coast Guard and, among other things, a member of the National Safe Boating Council. He states that he has reviewed the complaint and bill of particulars, the depositions of the Ferraris, Lawrence [*11] and Krockta, and the tidal data for the Nissequogue River. He indicates that he inspected the river on June 14, 2011, when he paddled a canoe from the Smithtown launch site to the vicinity of the Smithtown Landing Country Club. Smith further swears that he chose the June date because the tidal times were substantially the same as on the date of this incident, that he was provided a 17-foot aluminum canoe, and that he took a companion but that “he was the sole paddler of the canoe at all times.” He states that he was 73 years old at the time, and that the combined weight of he and his companion was 426 pounds. He indicates that his review of the Ferraris depositions reveals that their combined weight was 302 pounds, and that Dennis Ferrari was 49 years old on the day of this incident. Smith further swears that he launched his canoe at 11:38 a.m., encountered a headwind of 5-10 miles per hour, and arrived at the Smithtown Landing Country Club at 1:03 p.m. having covered a distance of 3.2 miles in 1 hour and 25 minutes. He states that he estimates that he would have completed the 5 Vi miles from Smithtown to Kings Park in 2 hours and 26 minutes. Smith [**5] opines that, with a reasonable degree [*12] of boating and aquatic safety certainty, the Ferraris had “ample time to complete the course of the Nissequogue River well before the onset of low tide” on the date of this incident.
As a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation therein (see Morgan v State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 NYS2d 421 ; Mendoza v Village of Greenport, 52 AD3d 788, 861 NYS2d 738 [2d Dept 2008]; Paone v County of Suffolk, 251 AD2d 563, 674 NYS2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Cotty v Town of Southampton, 64 AD3d 251, 880 NYS2d 656 [2d Dept 2009]; Rosenbaum v. Bayis Ne’Emon, Inc.., 32 AD3d 534, 820 NYS2d 326 [2d Dept 2006]). In addition, the plaintiff’s awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff (see Maddox v City of New York, 66 NY2d 270, 487 N.E.2d 553, 496 NYS2d 726 ; Kremerov v. Forest View Nursing Home, Inc.., 24 AD3d 618, 808 NYS2d 329 [2d Dept 2000] Dept 2005]; Gahan v Mineola Union Free School Dist., 241 AD2d 439, 660 NYS2d 144 [2d Dept 1997]). If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 NYS2d 49 ). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 NYS2d 499 [2d Dept 2006]; Lapinski v Hunter Mountain Ski Bowl, 306 AD2d 320, 760 NYS2d 549 [2d Dept 2003]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 NYS2d 663 [2d Dept 1992]).
Here, the defendant has established [*13] that Dennis Ferrari was an experienced canoeist, with experience regarding the tides on the Nissequogue River, and with knowledge about the risk involved in canoeing at low tide. Dennis Ferrari testified that he had specific knowledge that low tide would occur at approximately 4:30 p.m. that date, and he indicated that it was his experience that a trip on the river could take five hours. Nonetheless, he decided to launch the rented canoe as late as 12:30 p.m., and apparently urged his wife to paddle at “quite a pace” to ensure that they accounted for the tides. It is determined that getting stranded at low tide, whether in a river or on a sand bar near a beach, is an inherent risk in canoeing and arises out of the nature of the sport. Accordingly, the defendant has established its prima facie entitlement to summary judgment on the ground that the Ferraris assumed the risk of canoeing on the river.
In addition, it is undisputed that, prior to their commencing their trip on the river, the Ferraris signed a release of liability form which states, in part:
2. I KNOWINGLY AND FULLY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASES or others, [*14] and assume full responsibility for my participation; and
* * *
[**6] 4. I, for myself and on behalf of my heirs … HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS THE Bob’s Canoe Rental, Inc. … WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent of the law.
Exculpatory provisions in a contract, including a release or a covenant not to sue, are generally enforced although they are disfavored by the law and closely scrutinized by the courts (Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 ). Thus, the language of the exculpatory agreement must express the intention of the parties in unequivocal terms in order to relieve a defendant from liability for negligence (Lago v Krollage, id.; Gross v Sweet, 49 NY2d 102, 400 N.E.2d 306, 424 NYS2d 365 ). It must appear absolutely clear that the agreement extends to negligence or other fault of the party (Gross v Sweet, id., Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301, 189 N.E.2d 693, 239 NYS2d 337 , Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 177 N.E.2d 925, 220 NYS2d 962 ). “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear” (Gross v Sweet, supra). Here, the defendant has established its prima facie entitlement to summary [*15] judgment on the ground that the Ferraris are bound by the release of liability herein.
Having established its entitlement to summary judgment dismissing the complaint, it is incumbent upon the plaintiff to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O’Neill v Fishkill, supra). In opposition to the defendant’s motion, the plaintiff submits, among other things, four newspaper articles, the pleadings and bill of particulars, the deposition transcripts of the parties, and the affirmation of her attorney. The newspaper articles relied on by the plaintiff are plainly inadmissible and they have not been considered by the Court in making this determination (Young v Fleary, 226 AD2d 454, 640 NYS2d 593 [2nd Dept 1996] [newspaper articles submitted on summary judgment motion constitute inadmissible hearsay]; see also P & N Tiffany Props. Inc. v Maron, 16 AD3d 395, 790 NYS2d 396 [2d Dept 2005]; Platovsky v City of New York, 275 AD2d 699, 713 NYS2d 358 [2d Dept 2000]).
In his affirmation, counsel for the plaintiff contends that the defendant had a duty to warn the Ferraris that it was essential that they complete their trip on the river “well before the 4:30 low tide,” and that the Ferraris justifiably relied on the defendant’s material misrepresentation that it was safe to leave as late [*16] as they did that day. The affidavit of an attorney who has no personal knowledge of the facts is insufficient to raise an issue of fact on a motion for summary judgment (Sanabria v. Paduch, 61 AD3d 839, 876 NYS2d 874 [2d Dept 2009]; Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 826 NYS2d 152 [2d Dept 2006]; 9394, LLC v Farris, 10 AD3d 708, 782 NYS2d 281 [2d Dept 2004]; Deronde Prods., Inc. v. Steve Gen. Contr., Inc., 302 AD2d 989, 755 NYS2d 152 [4th Dept 2003]). The plaintiff has not submitted any evidence that individuals canoeing on the Nissequogue River must fully complete the trip “well before” low tide, or that the Ferraris could not have completed their trip on the river having left as late as 12:30. In addition, the plaintiff has not submitted any evidence why it took approximately four hours to traverse a little more than halfway on their trip, or to rebut the [**7] testimony of Lawrence and the nonparty witnesses, as well as the opinion of the defendant’s expert, that the entire trip takes three hours or less to complete, paddling at a moderate rate.
The plaintiff’s remaining contention sounds in negligent misrepresentation. In order to prevail on her claim, the plaintiff must establish that the defendant had a “duty to use reasonable care to impart correct information due to a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided [*17] (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 863 N.E.2d 585, 831 NYS2d 364 ; MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 929 NYS2d 571 [1st Dept 2011]; Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 736 NYS2d 737 [3d Dept 2002]; see also Fresh Direct, LLC v Blue Martini Software, 7 AD3d 487, 776 NYS2d 301 [2d Dept 2004]; Grammer v. Turits, 271 AD2d 644, 706 NYS2d 453 [2d Dept 2000]). As noted above, the plaintiff has failed to submit any evidence that the information provided by Lawrence was incorrect or false. In addition, the testimony of Dennis Ferrari and Kathleen Ferrari establishes that they did not reasonably rely on Lawrence’s general statement that it was safe to leave as late as 12:30 p.m. that day. Dennis Ferrari testified as to his knowledge that low tide was at 4:30 p.m. that day, and that, according to him, the trip could take five hours. Kathleen Ferrari testified that her husband was concerned that they paddle at more than a moderate pace. Despite this, the plaintiff has failed to submit any evidence why they were only able to traverse a little more than halfway on their trip before becoming stranded, and how Lawrence’s general statements mislead them.
In addition, despite the fact that this is not a wrongful death case, counsel for the plaintiff also contends that the Ferraris are entitled to every inference that can reasonably be drawn from the evidence in determining whether a prima facie case of negligence is made as against the defendant (see Noseworthy v City of New York, 298 NY 76, 80, 80 NE2d 744 ). Setting [*18] aside the issue whether the doctrine is applicable herein, even with the reduced burden of proof thereunder, the plaintiff is required to submit proof from which the defendant’s negligence may be inferred (see Sanchez-Santiago v Call-A-Head Corp., 95 AD3d 1292, 945 NYS2d 716 [2d Dept 2012]; Barbaruolo v DiFede, 73 AD3d 957, 900 NYS2d 671 [2d Dept 2010]; Martone v Shields, 71 AD3d 840, 899 NYS2d 249 [2d Dept 2010], and the plaintiff is not absolved from demonstrating the existence of a triable issue of fact to avoid summary judgment (Albinowski v Hoffman, 56 AD3d 401, 868 NYS2d 76 [2d Dept 2008]; Blanco v Oliveri, 304 AD2d 599, 600, 758 NYS2d 376 [2d Dept 2003]). In any event, the subject doctrine is not applicable under the circumstance herein as the defendant’s knowledge as to the cause of the decedent’s accident is no greater than that of the plaintiff (Knudsen v Mamaroneck Post No. 90, Dept. of N.Y. – Am. Legion, Inc., 94 AD3d 1058, 942 NYS2d 800 [2d Dept 2012]; Zalot v Zieba, 81 AD3d 935, 917 NYS2d 285 [2d Dept 2011]; Martone v Shields, supra; Kuravskaya v Samjo Realty Corp., 281 AD2d 518, 721 NYS2d 836 [2d Dept 2001]).
Finally, the plaintiff has not submitted any evidence to dispute the efficacy of the signed release of liability, and does not address the issue in her opposition to the defendant’s motion. New York Courts have held that the failure to address arguments proffered by a movant or appellant is equivalent to a concession of the issue (see McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 817 NYS2d 295 [2d Dept 2006]; Weldon v Rivera, 301 AD2d 934, 754 NYS2d 698 (3d Dept 2003]; Hajderlli v Wiljohn 59 LLC, 24 Misc3d 1242[A], 901 N.Y.S.2d 899, 2009 NY Slip Op 51849[U] [Sup Ct, Bronx County 2009]) [**8] . Accordingly, the defendant’s motion for summary judgment dismissing the complaint is granted. [*19]
The Court now turns to the defendant’s motion for an order pursuant to CPLR 1021 dismissing the complaint for failure to substitute a representative on behalf of the decedent Dennis Ferrari. The computerized records maintained by the Court indicate that the parties entered into a stipulation to amend the caption to reflect Kathleen Ferrari’s appointment as the executrix of the estate of Dennis Ferrari. Said stipulation was so-ordered by the undersigned on October 17, 2013, and recorded with the Clerk of the Court on October 21, 2013. Accordingly, the defendant’s motion is denied as academic.
/s/ Denise F. Molia
Martin Litton, the man who turned the Sierra Club around and saved the Grand Canyon Passes Away in his sleep yesterday.
Thanks for everything you did.