Scary and Instructional case on assumption of the risk in a climbing wall case in Pennsylvania

Release blocked the claims for negligence; however, the gross negligence claims relied on assumption of the risk as a defense. The release helped prove the plaintiff assumed the risk, but I suspect that defense would only work in a bouldering case like this.

Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

State: Pennsylvania: Superior Court of Pennsylvania

Plaintiff: Rebecca Mcgarry

Defendant: Philly Rock Corp

Plaintiff Claims: gross negligence in that the defendant

Defendant Defenses: Assumption of the Risk

Holding: For the Defendant

Year: 2015

The plaintiff and her husband wanted to try something new, so they went to the defendant indoor climbing facility. The plaintiff signed the release and took a class in belaying and use of the belay equipment.

Around the facility were numerous signs warning of the risks of the activity: bathrooms, reception desk, and pillars in the building. There was also a sign about mat placement that the plaintiff remembered and drew correctly during her depositions.

On their second visit, the plaintiff tried bouldering. The bouldering area had mats; however, the mats were moveable and were supposed to be moved by the people bouldering. The plaintiff was approximately four feet of the ground when she jumped off. She did not move the mats prior to bouldering and did not look for the mats when she jumped. She shattered her ankle, which required three surgeries.

The plaintiff sued, and the case went to trial on the issue of the gross negligence of the defendant. The release precluded all the negligence claims of the plaintiff. As in most states (if not all) a release is not valid for gross negligence claims. “Because McGarry signed a waiver, no one in this case disputes that McGarry was required to prove that PRC was grossly negligent to recover.

The jury awarded the plaintiff $150,000 for her gross negligence claims. The defendants filed a motion for Judgment Notwithstanding the Verdict (JNOV). This motion, JNOV, requests the judge to overrule the jury and grant the defendant’s motion for dismissal. The judge did and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The plaintiff appealed claiming the trial court made four errors of the law. The first two were based on the procedural issues associated with the JNOV. The third was whether the trial court correctly applied the assumption of the risk doctrine, and the final issue was whether the court properly denied the introduction of evidence that the defendant’s employees had not been trained properly.

The court started by defining gross negligence as per Pennsylvania law.

Gross negligence has . . . been termed the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Additionally, gross negligence has been described as an extreme departure from ordinary care or the want of even scant care [and] . . . as [a] lack of slight diligence or care, and [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party . . . .

[G]ross negligence is clearly more egregious than ordinary negligence.

Under Pennsylvania law, if the plaintiff assumed the risk which caused her injury, then the defendant does not owe the plaintiff any further duty. The trial court found the plaintiff had assumed the risk based on the following:

McGarry knew that there was a risk in bouldering, knew she could be injured from a height of four feet, knew she was jumping from the wall without looking for the mats, and jumped anyway. The trial court also found that, because the dangers were obvious, PRC reasonably could expect that McGarry would take steps to protect herself, precluding a finding that PRC was grossly negligent.

The plaintiff countered by staging she could only assume the risks she understood. Since there was no written safety material, and she had not been trained in how to use the mats or a spotter, she could not assume the risk.

McGarry first notes that assumption of risk is subjective and that McGarry only could assume a risk that she understood. McGarry argues that, because there were no written safety materials, McGarry did not know how to position the mats or how to use a spotter to avoid injury.

The court looked at the assumption of risk doctrine. As in most (if not all) states assumption of the risk as a defense was merged into comparative negligence. However, in Pennsylvania the Supreme Court had not eliminated assumption of the risk as a defense, it was now only in disfavor.

In Pennsylvania, the doctrine of assumption of the risk is defined as:

[A]ssumption of risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong.

Assumption of the risk eliminates a duty from the defendant.

If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that [the plaintiff] voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by [the defendant]. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.

The court quoted another Pennsylvania decision to explain what elimination of the duty from the defendant meant.

Similarly, “[w]hen an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpoint to the possessor’s lack of duty to protect the invitee from those risks.”

The court then applied those definitions to the present case. The first analysis was whether the dangers were open and obvious. (Jumping from four feet high I believe is obvious to everyone in the world) The court found the dangers had been pointed out to the plaintiff.

Multiple signs throughout the facility warned that climbing and bouldering are dangerous and may result in serious injury. Additionally, the danger of these activities “is well understood by virtually all individuals of adult age.” Falling and causing a injury to an ankle or wrist is a “common, frequent, and expected” risk of climbing or bouldering.

The plaintiff had also admitted during her deposition that she knew of the risks.

Further, McGarry knew of and appreciated the risk. McGarry testified that she knew there were risks in bouldering and that she knew she could be injured when jumping even from a height of four feet. McGarry saw the sign stressing the importance of mat placement and drew it from memory much later at her deposition. Despite knowing that mats and their placement were important, McGarry nonetheless did not look before she jumped and landed in the wrong place.

The court also found that the fact the plaintiff had signed a release; she knew she was responsible for her injuries.

McGarry also acknowledged that she signed a waiver, which she understood meant that she was responsible for any injuries. She then voluntarily proceeded with the activity despite her appreciation of that risk.

The court then went back to the testimony to sum the assumption of the risk defense and why it agreed with the trial court. “However, McGarry’s own testimony compels the trial court’s finding that she assumed the risk, which, as a matter of law, precludes a verdict in her favor.”

The next issue was the application of the assumption of the risk defense to a claim of gross negligence. Because assumption of the risk removed the necessary duty from the defendant, there could be no gross negligence. In Pennsylvania once the plaintiff assumes the risk the defendant has no further duty to the plaintiff, with respect to the duty the plaintiff is assuming.

…we conclude that McGarry’s assumption of the risk barred her recovery regardless of whether PRC was grossly negligent. Because the evidence supported the trial court’s conclusion that McGarry as-sumed the risk of injury, PRC owed no duty to McGarry and, therefore, was not legally responsible for her injury.

If there is no duty, there is no negligence. To prove negligence, the plaintiff must prove there was a duty, a breach of that duty, an injury proximately caused by the breach and damages. Failing to prove all four points and the plaintiff does not prove her case. If the case is not proved, then the defense has no need to present any defenses because there was no negligence.

The final issue the court reviewed was the plaintiffs claim the employees were not sufficiently trained.

Finally, McGarry complains that the trial court erred in precluding her from introducing evidence regarding whether PRC’s employees were trained or qualified. McGarry argues that this evidence was relevant and should have been presented to the jury.

The court found this was not at issue. Because the plaintiff did not receive instruction on bouldering from an employee of the defendant, the training and qualifications were immaterial.

Because McGarry did not receive instruction from PRC employees, the trial court reasoned that if PRC was obligated to provide instruction to clients as part of its duty, PRC would be negligent regardless of whether it’s the employees were adequately trained. If PRC was not obligated to provide instruction to clients, then PRC would not be negligent regardless of employee training.

The defendant did not have a required bouldering class and told the plaintiff to ask questions which the plaintiff did not do. However, because her complaint did not involve the training, she received or how her questions were answered, the training and qualifications of the defendant employees did not matter.

The appellate court agreed with the trial court and upheld the dismissal of the case.

So Now What?

First, this is another example where the risks of the activity should be included in your release. Here the court found the release proved the plaintiff had assumed the risk of her injury.

The next issue is the training issue. This issue seemed to have been developed by the plaintiff’s expert witness. Besides training he stated the defendant was below the standard of the industry in the following ways.

Mr. Andres testified that some of the safety signs were placed where they were unlikely to be noticed. Some of the signs warned about possible dangers, but gave no instructions about how to avoid those risks. Mr. Andres testified that belaying and bouldering are different and that, in bouldering, mat placement, the use and limitations of mats, and how to control one’s descent are important. Mr. Andres opined that it was insufficient to have signs instructing clients to ask an employee about climbing or safety because novice climbers may not know what to ask in order to participate safely.

You will see experts making many, and in a few case’s extremely absurd claims to assist the plaintiff in making his or her claim. Signs that warned but did not instruct which the plaintiff ignored anyway mat placement and controlling your descent when falling was argued by the plaintiff’s expert.

I think mat placement is pretty obvious. You put the mats where you think you may land. As far as controlling your descent, I’m lost. I’ve tried a lot of things when falling, clawing the air, kicking madly, flapping my arms and screaming may make me feel better at the time but did nothing to “control my descent.”

I go back to education on this type of claim again. The more you educate your client the less likely they might get hurt and the less likely they can sue. The problem always is. How do you educate a client and then who do you prove you educated them.

In my opinion, that is where the business website comes in. The more information and videos you can put on the website the better. When you post these videos be real. Post the right way and the wrong way, show the risks and show people being stupid. Just make sure you point out when someone is doing something wrong that you make sure that is indicated on the video.

You can then require people to watch the videos before starting the activity, or you can have them acknowledge in the release, they have watched the videos. You can also tell them in your marketing or communications to watch the videos to learn more about climbing or whatever the activity is.

This case was decided in October of 2015. I believe the time to appeal is only thirty (30) days, and it does not appear that an appeal has been filed in this case. However, until a longer period of time has run, this case might be appealed and possibly over turned by the Pennsylvania Supreme Court.

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Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

Mcgarry v. Philly Rock Corp., 2015 Pa. Super. Unpub. LEXIS 3767

Rebecca Mcgarry, Appellant v. Philly Rock Corp., Appellee

No. 3326 EDA 2014

SUPERIOR COURT OF PENNSYLVANIA

2015 Pa. Super. Unpub. LEXIS 3767

October 15, 2015, Decided

October 15, 2015, Filed

NOTICE: NON-PRECEDENTIAL DECISION — SEE SUPERIOR COURT I.O.P. 65.37

PRIOR HISTORY: [*1] Appeal from the Order of November 19, 2014. In the Court of Common Pleas of Chester County. Civil Division at No.: No. 12-13367.

JUDGES: BEFORE: DONOHUE, J., SHOGAN, J., and WECHT, J. MEMORANDUM BY WECHT, J.

OPINION BY: WECHT

OPINION

MEMORANDUM BY WECHT, J.:

Rebecca McGarry (“McGarry”) appeals the November 19, 2014 order. In that order, the trial court granted Philly Rock Corp.’s (“PRC”) post-trial motion and entered a judgment notwithstanding the verdict in favor of PRC. We affirm.

The trial testimony supports the following factual history.1 On March 5, 2011, McGarry and her husband, Peter, went to PRC, an indoor rock-climbing facility, because they wanted to try a new activity. Notes of Testimony (“N.T.”), 7/14/2014, at 3-4. On that day, McGarry signed a waiver and then took an introductory course on belaying equipment. Id. at 4-6. McGarry understood that the waiver meant that if she were injured, PRC would not be at fault. Id. at 37. McGarry also understood at the time that she signed the waiver that there were risks involved in rock climbing and that injuries were possible. Id. at 39. McGarry returned on March 12, 2011, and participated in rock-climbing again. Id. at 7.

1 The entire trial was not transcribed; only [*2] the testimony of three witnesses, the jury instructions, and the argument for PRC’s motion for a non-suit are available. The trial court did not provide a detailed factual history. From the transcripts available, it appears that the testimony of at least two PRC employees and one other defense witness is not available. Therefore, our ability to relate the history of this case is limited. Other testimony was included in the reproduced record. However, we may not consider any documents that are not in the certified record. Commonwealth v. Preston, 2006 PA Super 170, 904 A.2d 1, 7 (Pa. Super. 2006).

McGarry and Peter returned to PRC again on March 16, 2011, and went to the bouldering area.2 Id. at 8. McGarry received no instruction on bouldering, but watched other climbers. Id. at 9-10. Peter attempted the wall first and successfully completed his climb. Id. at 10. McGarry then attempted the wall. Id. at 12. Peter had placed a mat under her. Id. at 11. McGarry climbed about four feet, then jumped off the wall. Id. at 12. McGarry acknowledged that she knew that there was a risk of injury when jumping from a height of four feet. Id. at 42-43. McGarry did not look to see where the mats were before she jumped. Id. at 45. When she jumped, McGarry rolled her left ankle. Id. at 17. McGarry testified that the mats were in the [*3] correct position, but that she jumped in the wrong place and landed between two mats.3 Id. at 46-47. McGarry heard a crunch, felt pain, and was taken to Phoenixville Hospital by ambulance. Id. at 18.

2 When “top-roping,” the climber’s harness is fastened to a rope that runs upward through or over an anchor. The other end of the rope is controlled, with the use of safety equipment, by the “belayer.” In the event that the climber falls, the belayer is able to hold the rope fast, arresting the climber’s fall. In bouldering, the activity at issue in this case, the climber is not attached to any safety equipment.

3 McGarry told her physicians that she fell on the floor instead of the mat. Id. at 45.

McGarry’s ankle was fractured, requiring surgery. During surgery, screws and plates were inserted into her ankle. Id. at 20. McGarry had a second surgery in September 2011. Id. at 24. She also received physical therapy for a year after the injury. Id. at 23. A third surgery and more physical therapy followed in December 2012. Id. at 26. Because of the ankle injury, McGarry had difficulty walking long distances, standing for long periods of time, running, and jumping. Id. at 29.

McGarry testified that she could not recall seeing signs with warnings and [*4] information that were posted by the bathrooms, at the reception desk, or on pillars in the building. Id. at 39-40. However, McGarry indicated that she recalled a sign about mat placement and was able to draw it from memory at her deposition. Id. at 41-42.

On December 24, 2012, McGarry filed a complaint against PRC, in which she alleged that PRC’s negligence and/or gross negligence caused her injury.4 The jury trial was held in July 2014.

4 The complaint also included a claim for loss of consortium on behalf of Peter.

At trial, Corey Andres, who was qualified as an expert in sports and recreation venues and industries, testified for McGarry. N.T., 7/15/2014, at 11. Mr. Andres testified that some of the safety signs were placed where they were unlikely to be noticed. Id. at 41. Some of the signs warned about possible dangers, but gave no instructions about how to avoid those risks. Id. at 47, 52. Mr. Andres testified that belaying and bouldering are different and that, in bouldering, mat placement, the use and limitations of mats, and how to control one’s descent are important. Id. at 54. Mr. Andres opined that it was insufficient to have signs instructing clients to ask an employee about climbing or safety because novice climbers [*5] may not know what to ask in order to participate safely. Id. at 57-58. Mr. Andres testified that PRC’s reliance upon signs for safety information about bouldering, rather than requiring instruction, was inadequate. Id. at 71. Mr. Andres acknowledged that McGarry was told in her belaying course that she should ask staff if she had questions about bouldering, but that McGarry did not do so. Id. at 81. He also acknowledged that there was a sign that instructed about correct placement of mats, how to land on the mat, and how to avoid injury. Id. at 99-101. Mr. Andres opined that PRC’s standard of care required compulsory instruction as suggested by industry literature. Id. at 83.

David Rowland, PRC’s president, also testified. N.T., 7/16/2014, at 3. Rowland testified that PRC offered an optional bouldering course. Id. at 7. He agreed that correct mat placement was important and could reduce the likelihood of injury. Id. at 13-14. However, Rowland testified that the climber was responsible for placing the mats, even if the climber was inexperienced. Id. at 15-16. Rowland admitted that there were no written rules or instruction manuals beyond the signs posted in the facility. Id. at 22. PRC recommends that climbers rely upon spotters to guide them to safe [*6] landing spots, but it was not mandatory. Id. at 27-28.

At the close of McGarry’s case, PRC moved for a non-suit. N.T., 7/16/2014 (Argument), at 3. The trial court heard argument on the motion and decided that the evidence did not support punitive damages. Therefore, the court decided not to submit that issue to the jury. Id. at 11. Recognizing that non-suit was a close issue, the trial court denied the motion and permitted the defense to present its case. Id. at 11-12. PRC also moved for a directed verdict at the close of evidence, which the trial court also denied. Id. at 13-14.

On July 16, 2014, the jury reached its verdict. It found that PRC was grossly negligent, that PRC’s gross negligence was the cause of McGarry’s injuries, that McGarry was contributorily negligent, and that PRC and McGarry were each fifty percent at fault. The jury awarded McGarry $150,000 without a reduction for her own negligence.

On July 25, 2014, PRC filed a post-trial motion in which it sought judgment notwithstanding the verdict (“JNOV”). PRC asserted that the trial court had erred in not granting its motions for non-suit and/or a directed verdict, that McGarry had failed to prove gross negligence as a matter of law, that the jury disregarded [*7] the court’s instructions on assumption of risk and gross negligence, and that McGarry’s expert was not qualified. On November 19, 2014, the trial court granted PRC’s motion and entered JNOV. The trial court concluded that it erred in failing to grant the motion for directed verdict because the evidence did not support a finding of gross negligence, and that McGarry knowingly and voluntarily accepted a risk, which relieved PRC’s duty to McGarry. Order, 11/19/2014, at 1-2 n.1.

On November 25, 2014, McGarry filed a notice of appeal. On November 26, 2014, the trial court directed McGarry to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and McGarry timely complied. The court filed a Pa.R.A.P. 1925(a) opinion on February 2, 2015.

McGarry raises four issues for our review:

1. Did the Trial Court commit an error of law and/or abuse its discretion when the Trial Court misapplied the standard for j.n.o.v., which requires that j.n.o.v. be granted only where the movant is entitled to judgment as a matter of law and/or evidence was such that no two reasonable minds could disagree that the outcome should have been in favor of the movant?

2. Did the Trial Court commit an error of law and/or [*8] abuse its discretion when the Trial Court granted a motion for j.n.o.v., after the jury had been instructed on the law of gross negligence, applied the facts, and determined that [PRC’s] conduct reached the level of gross negligence?

3. Did the Trial Court commit an error of law and/or abuse its discretion in applying the assumption of risk doctrine in granting [PRC’s] post[-]trial motion?

4. Did the Trial Court commit an error of law and/or abuse its discretion when the Trial Court prohibited [McGarry] from presenting evidence as to the training vel non of employees of [PRC] at trial?

McGarry’s Brief at 5.

McGarry’s first two issues relate to the trial court’s entry of JNOV. Additionally, the third issue, related to assumption of risk, is intertwined with JNOV. As such, we discuss them together. Our standard of review of a trial court’s ruling on a motion for JNOV is as follows:

In reviewing a trial court’s decision whether or not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in the light most favorable to the verdict winner. Our standard[s] of review when considering the motions for a directed verdict and [*9] judgment notwithstanding the verdict [JNOV] are identical. We will reverse a trial court’s grant or denial of a [directed verdict or JNOV] only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.

There are two bases upon which a [directed verdict or JNOV] can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in his favor. Whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Campisi v. Acme Markets, Inc., 2006 PA Super 368, 915 A.2d 117, 119 (Pa. Super. 2006) (quotation omitted). See Berg v. Nationwide Mutual Insurance Co., Inc., 2012 PA Super 88, 44 A.3d 1164 (Pa. Super. 2012).

Hall v. Episcopal Long Term Care, 2012 PA Super 205, 54 A.3d 381, 395 (Pa. Super. 2012) (bracketed material in original).

Because McGarry signed a waiver, no one in this case disputes that McGarry was required to prove that PRC was grossly negligent to recover. Gross negligence has been defined as follows: [*10]

Gross negligence has . . . been termed the entire absence of care and the utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others. Additionally, gross negligence has been described as an extreme departure from ordinary care or the want of even scant care [and] . . . as [a] lack of slight diligence or care, and [a] conscious, voluntary act or omission in reckless disregard of a legal duty and of the consequences to another party . . . .

[G]ross negligence is clearly more egregious than ordinary negligence.

Ratti v. Wheeling Pittsburgh Steel Corp., 2000 PA Super 239, 758 A.2d 695, 704-05 (Pa. Super. 2000) (citations and quotation marks omitted).

The trial court granted PRC’s motion for JNOV because it found that McGarry had assumed the risk of injury, which was open and obvious. Trial Court Opinion (“T.C.O.”), 2/15/2015, at 5. Because McGarry assumed the risk, PRC owed her no further duty. Id. at 5-6. Based upon McGarry’s testimony, the trial court found that McGarry knew that there was a risk in bouldering, knew she could be injured from a height of four feet, knew she was jumping from the wall without looking for the mats, and jumped anyway. Id. at 7-8. The trial court also found that, because the dangers were obvious, PRC reasonably could expect that McGarry would [*11] take steps to protect herself, precluding a finding that PRC was grossly negligent. Id. at 8-9.

In response, McGarry first notes that assumption of risk is subjective and that McGarry only could assume a risk that she understood. McGarry argues that, because there were no written safety materials, McGarry did not know how to position the mats or how to use a spotter to avoid injury. McGarry’s Brief at 21-23. McGarry also observes that her expert witness testified that the lack of instruction contributed to her injury, the jury was instructed on assumption of risk, and the jury decided that McGarry did not appreciate the risk. By setting aside that decision, McGarry contends that the trial court invaded the province of the jury. Id. at 24-25. McGarry also argues that the facts of this case were such that the trial court erred in deciding that the risks were so open and obvious that reasonable minds could not disagree upon the issue of duty. Id. at 25-27. Finally, McGarry notes that the assumption of risk doctrine has fallen out of favor with the passage of the comparative negligence statute. However, despite the applicability of assumption of risk, McGarry argues that the jury was instructed adequately about [*12] both doctrines and that the trial court erred in upsetting that verdict. Id. at 27-28.

“Assumption of risk is a judicially created rule [based in the common law that] did not protect [individuals] from the consequences of their own behavior . . . . The doctrine, however, has fallen into disfavor, as evidenced by our [S]upreme [C]ourt’s two . . . attempts to abolish or limit it.” Staub v. Toy Factory, Inc., 2000 PA Super 87, 749 A.2d 522, 528 (Pa. Super. 2000) (en banc). Our Supreme Court has noted that “the complexity of analysis in assumption of risk cases makes it extremely difficult to instruct juries.” Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107, 1108 (Pa. 1993) (plurality). Courts also have questioned whether the doctrine serves a purpose following Pennsylvania’s adoption of comparative negligence. See id. at 1109; Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 570 (Pa. Super. 2000); Staub, 749 A.2d at 528; see also Zeidman v. Fisher, 2009 PA Super 161, 980 A.2d 637, 640 (Pa. Super. 2009) (“We acknowledge the continuing vitality of the assumption of risk doctrine remains in doubt.”). However, despite its difficulties, the doctrine remains the law of Pennsylvania. See Bullman, 761 A.2d at 570 (“[A]s the doctrine has not been formally abolished by our Supreme Court, we are obligated to apply the doctrine despite its less than wholehearted support.”); Staub, 749 A.2d at 528 (“[U]ntil our [S]upreme [C]ourt or our legislature abrogates assumption of risk in negligence cases, the doctrine remains viable . . . .”). Therefore, we review the trial court’s application of assumption of risk. [*13]

The doctrine has been defined as follows:

[A]ssumption of risk is established as a matter of law only where it is beyond question that the plaintiff voluntarily and knowingly proceeded in the face of an obvious and dangerous condition. Voluntariness is established only when the circumstances manifest a willingness to accept the risk. Mere contributory negligence does not establish assumption of risk. Rather, a plaintiff has assumed the risk where he has gone so far as to abandon his right to complain and has absolved the defendant from taking any responsibility for the plaintiff’s injuries. In order to prevail on assumption of risk, the defendant must establish both the “awareness of the risk” prong and the “voluntariness” prong.

Staub, 749 A.2d at 529 (citations and quotation marks omitted). Assumption of risk has been compared to estoppel:

It might be assumed, for purposes of an assumption of risk analysis, that the defendant(s) was negligent, and at least partly responsible for the injury sustained, nevertheless, given the circumstances in which the injury was sustained, the plaintiff is essentially “estopped” from pursuing an action against the defendant because it is fundamentally unfair to allow the plaintiff to [*14] shift responsibility for the injury to the defendant when the risk was known, appreciated and voluntarily assumed by the plaintiff.

Bullman, 761 A.2d at 570. The doctrine also has been viewed, as the trial court did here, in relation to duty:

If the case is viewed from the perspective of a duty analysis, the evidence presented at trial establishes that [the plaintiff] voluntarily encountered a known risk, thereby obviating any duty which might otherwise have been owed him by [the defendant]. Under this analysis, the case is controlled by the assumption of risk principle that one who voluntarily undertakes a known risk thereby releases the defendant from any duty of care.

Howell, 620 A.2d at 1110-11. Similarly, “[w]hen an invitee enters business premises, discovers dangerous conditions which are both obvious and avoidable, and nevertheless proceeds voluntarily to encounter them, the doctrine of assumption of risk operates merely as a counterpoint to the possessor’s lack of duty to protect the invitee from those risks.” Zeidman, 980 A2.d at 642.

The risk that is appreciated and accepted must also be “the specific risk that occasioned injury.” Bullman, 761 A.2d at 571. For instance, assumption of risk did not apply when a student was injured by a discharged ceremonial [*15] cannon, when the student was not aware that the cannon could cause the type of injury sustained and because the cannon had always required more force to discharge than the student applied when he was injured. Id. at 572 (citing Struble v. Valley Forge Military Academy, 445 Pa. Super. 224, 665 A.2d 4 (Pa. Super. 1995)). An installer working on stilts, while appreciating a general risk of falling, had not assumed the risk of slipping on a piece of vinyl siding when he had cleared a path of debris and did not see the siding. Id. (citing Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129 (Pa. Super. 1996)). In Bullman, a girl assumed the risk of traversing a plank over an excavation ditch because the risk was open and obvious, but she did not assume the risk of falling through insulation board covering a porch that appeared to be solid because that risk was not appreciated. Id. at 573-74.

In spectator sports, we have found assumption of risk or no duty for risks that are “common, frequent, and expected,” such as being hit by a batted ball or by a hockey puck, but not when the risk is “not inherent in the amusement activity,” such as tripping over a beam or falling in a hole in a walkway at a stadium. Zeidman, 980 A.2d at 642-43. In Zeldman, the plaintiff raised sufficient issues of material fact to overcome a motion for summary judgment based upon assumption of risk when he was struck by [*16] a golf ball hit by his golfing companion. The plaintiff went ahead to check that the golfing group ahead of his group was off the green and was returning to the tee. Assumption of risk was not available at summary judgment because the plaintiff raised an issue of material fact as to whether he had reason to expect that his golfing companion would hit a shot off the tee while he was en route. Id. at 641.

Turning to this case, we first must consider whether the danger was open and obvious. The testimony supported the conclusion that it was. Multiple signs throughout the facility warned that climbing and bouldering are dangerous and may result in serious injury. Additionally, the danger of these activities “is well understood by virtually all individuals of adult age.” Bullman, 761 A.2d at 573. Falling and causing a injury to an ankle or wrist is a “common, frequent, and expected” risk of climbing or bouldering. Zeidman, 980 A.2d at 642.

Further, McGarry knew of and appreciated the risk. McGarry testified that she knew there were risks in bouldering and that she knew she could be injured when jumping even from a height of four feet. McGarry saw the sign stressing the importance of mat placement and drew it from memory much later at her deposition. [*17] Despite knowing that mats and their placement were important, McGarry nonetheless did not look before she jumped and landed in the wrong place. McGarry also acknowledged that she signed a waiver, which she understood meant that she was responsible for any injuries. She then voluntarily proceeded with the activity despite her appreciation of that risk. Based upon this testimony, no two reasonable minds could fail to conclude that McGarry understood and appreciated the specific risk of injury associated with jumping from four feet without first looking for the mat. Although McGarry argues that the lack of instruction about correct mat placement did not fully apprise her of the risk, the lack of instruction would be relevant only to PRC’s negligence, which is not at issue as McGarry assumed the risk and PRC had no further duty toward her. Therefore, the trial court did not err in finding that McGarry assumed the risk.

McGarry argues that the trial court ignored the standard for granting JNOV and, instead, supplanted the jury’s findings with its own. McGarry contends that the trial court ignored evidence that was favorable to her, particularly the opinion of her expert witness. McGarry’s [*18] Brief at 10-15.

As noted in Hall, supra, in reviewing a grant of JNOV, we must consider the evidence in the light most favorable to the verdict winner and we will reverse only upon a showing that the trial court made a legal error or abused its discretion.

It is axiomatic that, “[t]here are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant.” Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (Pa. 1992) (citations omitted). To uphold JNOV on the first basis, we must review the record and conclude “that even with all the factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second [we] review the evidentiary record and [conclude] that the evidence was such that a verdict for the movant was beyond peradventure.” Id.

Rohm & Haas Co. v. Cont’l Cas. Co., 566 Pa. 464, 781 A.2d 1172, 1176 (Pa. 2001) (citation modified).

Having reviewed the incomplete record that we have been provided,5 we conclude that, even viewing the evidence in the light most favorable to McGarry, the trial court did not err in granting JNOV. Even if we accept Mr. Andres’ testimony that PRC was negligent [*19] in failing to provide instruction on bouldering and mat placement and that PRC’s signs were inadequate to instruct McGarry how to avoid injury, McGarry testified that she knew the risk of injury in bouldering, and that she proceeded despite that risk. As noted, as part of an assumption of risk analysis, we may presume PRC was negligent and partly responsible for McGarry’s injuries. See Bullman, supra. In fact, the jury found that PRC was partially responsible. However, McGarry’s own testimony compels the trial court’s finding that she assumed the risk, which, as a matter of law, precludes a verdict in her favor. The trial court did not err or abuse its discretion in awarding JNOV.

5 “[T]he ultimate responsibility of ensuring that the transmitted record is complete rests squarely upon the appellant and not upon the appellate courts.” Preston, 904 A.2d at 7.

McGarry also asserts that the jury was charged accurately and thoroughly regarding gross negligence. McGarry contends that the jury’s finding of gross negligence was supported by the facts of the case, including that the bouldering course was optional, that PRC did not have written safety policies, that the policy on the use of spotters was unclear, and that no [*20] instruction was given on proper mat placement. McGarry’s Brief at 16-20.

While expressing no opinion as to whether the evidence supported a finding of gross negligence, we conclude that McGarry’s assumption of the risk barred her recovery regardless of whether PRC was grossly negligent. Because the evidence supported the trial court’s conclusion that McGarry assumed the risk of injury, PRC owed no duty to McGarry and, therefore, was not legally responsible for her injury.

Finally, McGarry complains that the trial court erred in precluding her from introducing evidence regarding whether PRC’s employees were trained or qualified. McGarry argues that this evidence was relevant and should have been presented to the jury. McGarry’s Brief at 29.

“Generally, an appellate court’s standard of review of a trial court’s evidentiary rulings is whether the trial court abused its discretion. . . .” Buckman v. Verazin, 2012 PA Super 216, 54 A.3d 956, 960 (Pa. Super. 2012). “Evidence is . . . relevant if it tends to prove or disprove a material fact in issue.” McManamon v. Washko, 2006 PA Super 245, 906 A.2d 1259, 1274 (Pa. Super. 2006).

The trial court sustained PRC’s relevance objection to questions regarding the training of PRC’s employees. Because McGarry did not receive instruction from PRC employees, the trial court reasoned that if PRC was obligated [*21] to provide instruction to clients as part of its duty, PRC would be negligent regardless of whether its the employees were adequately trained. If PRC was not obligated to provide instruction to clients, then PRC would not be negligent regardless of employee training. T.C.O. at 1 n.1.

McGarry has not set forth a compelling argument as to why the proposed testimony would have been relevant. McGarry states:

[T]he training was relevant because [Rowland] testified that staff members were available to answer questions for [McGarry]. Had the instructors been qualified or properly trained, they would have known to instruct [McGarry] in the specific risks associated with bouldering, including proper mat placement, spotting and the dangers associated with failure to do so, which were the true risks of bouldering.

McGarry’s Brief at 29. The evidence in question would have invited the jury to speculate about what instruction McGarry would have received had she sought it out. However, the evidence made clear that there was no required bouldering class, that PRC expected people who were bouldering to ask questions of staff members, and that McGarry did not do so. Had McGarry sought instruction and been [*22] injured, or had McGarry complained regarding the care she received from PRC staff after her injury, then staff training would be relevant. That was not the case, and the trial court did not abuse its discretion in determining that the testimony was not relevant.

Order affirmed.

Judgment Entered.

Date: 10/15/2015


Hitting a rock while skiing in Montana is an inherent risk of the sport. Other interesting statements by the court though create an interesting decision.

Decision looks at whether rocks are an inherent risk when they have been moved by the resort and determined the plaintiff was responsible for his injuries.

Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

State: Montana, United States District Court for the District of Montana, Butte Division

Plaintiff: Brian Kopeikin, M.D.                                     

Defendant: Moonlight Basin Management, LLC, D/B/A Moonlight Ba In Resort

Plaintiff Claims: for negligence sounding in premises liability and a claim for negligent hiring, training, supervision and management

Defendant Defenses: Montana Ski Safety Act

Holding: For the Defendant

Year: 2015

This is a basic case. The guest was skiing at the resort, hit a rock and was injured. The court looked at the facts, the Montana’s Skier Responsibility Statute and dismissed the case on a motion for summary judgment. What is interesting and educational about this case are the facts the court reports in its opinion.

Near the ticket booth where Kopeikin purchased his ticket is a sign warning skiers of unmarked hazards. Kopeikin is a very experienced skier, having skied at several ski resorts throughout the Rocky Mountain West over the past 36 years, and he had seen similar signs at other ski resorts warning patrons of unmarked hazards.

Skiing conditions at Moonlight on February 5, 2012, were generally good, with clear skies, calm winds, and temperatures near thirty-two degrees. However, it was a low snow coverage year, and Kopeikin acknowledges that prior to his accident he saw uncovered rocks on the sides of the ski runs. Rocks are prevalent at Moonlight.

Immediately before the entrance to Elkhorn, there is a sign indicating, again, that Elkhorn is designated a black diamond, or “most difficult,” run. As Kopeikin began skiing down Elkhorn, plainly visible grass and rocks could be seen poking through the snow on the side of the run.

The defendant filed a motion for summary judgment based on these facts, and the court granted the motion. Here is the court’s analysis in granting the motion.

Analysis: making sense of the law based on these facts.

The court first looked at the inherent risks and dangers of skiing. “The “inherent dangers and risks of skiing” are statutorily defined as “those dangers or conditions that are part of the sport of skiing“…” The court then compared this statement with the general requirements set forth in the Montana’s Skier Responsibility Statute.

However, the court also found the Montana’s Skier Responsibility Statute did not protect ski areas from their own negligence. “Montana’s skier responsibility statutes cannot be read to immunize ski resorts from their own negligent or intentional acts, because such an interpretation would violate Montana’s constitution.”

However, the stated purpose of Montana’s skier responsibility statutes is to “discourage claims based on damages resulting from the inherent risks of skiing.”

The court also looked at the ski area’s actions in warning its guests of the risks.

Moonlight warned generally of unmarked hazards. It posted multiple signs designating the run on which Kopeikin was injured a black diamond, or most difficult, run. With respect to the cat track, Moonlight had taken efforts to remove it and return the slope back to its natural condition.

In looking at the facts, the court concluded the plaintiff was responsible for his own injuries.

Furthermore, Kopeikin failed to negotiate the terrain safely and without injury. Notwithstanding his years of experience and expertise, he failed to ski in manner that avoided injury to himself and to be aware of the inherent dangers and risks of skiing.

The rock that the plaintiff hit was a natural rock, naturally occurring. (When you figure out how to make rocks let me know?) “…the rocks that Kopeikin collided with, like all the rocks on the Elkhorn run, were naturally occurring.

The plaintiff argued the rocks were created when the ski area attempted to eliminate the cat track.

Without citation to any record evidence, Kopeikin asks the Court to infer that some of the rocks in the area where he fell unnaturally accumulated there through the process of removing the cat track back in 2007. The record evidence, however, establishes the opposite — the process of removing the cat track reduced the number of rocks in the area because many of the rocks were covered up during the cat track removal process.

The issue obviously is whether or not the Montana’s Skier Responsibility Statute. However, the statute specifically identifies rock as an inherent risk.

23-2-702  Definitions.

(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects; [Emphasize added]

Another fact pointed out by the court and obviously placed in the record were there had never been an accident at that location before. “Furthermore, with over 700,000 skier visits, there had never been another reported accident at the location of Kopeikin’s accident caused by a collision with rocks.

The court also pointed out that the plaintiff was skiing the run he was injured on because he did not want to ski the run he had originally planned because of the rocks.

Because the rock the plaintiff encountered was an inherent risk of skiing under the Montana’s Skier Responsibility Statute, the motion for summary judgment of the defendant was granted.

Because Kopeikin’s injuries resulted only from the inherent dangers and risks of skiing and because Moonlight did not breach its duty of reasonable care, Moonlight is entitled to judgment as matter of law.

So Now What?

Remember Montana is a state that does not allow the use of a release and limits most defenses in most outdoor recreation activities. See States that do not Support the Use of a Release. This prohibition is set forth in the Montana constitution.

The decision makes sense; however, some of the statements in the decision were confusing.

Tracking where accidents happen can be good as in this case, or bad in most other cases. Remember foreseeability. If the accident which caused the injury was foreseeable, then the defendant might owe a duty to the plaintiff. Tracking accidents can prove foreseeability. If other accidents had occurred at this location, then having accident location information available would have proven that there was at least a problem and probably a place where the ski area might have owed a duty to its guests because of the number of accidents.

Tracking accidents can be good or be bad. Most times I would guess the tracking could be a problem not a help.

The argument that the rocks were not naturally occurring because they had been created in eliminating the cat track was very novel. The rock was there with, without or after the creation and removal of the cat track. A rock is a rock (I think?). Consequently, whether or not the rock was moved to the surface by actions of the ski area should not have been at issue. However, the court looked at the issue.

The final issue of interest was the statement from the court that the plaintiff had not skied the run safely. “…Kopeikin failed to negotiate the terrain safely and without injury.” Very rarely do courts state the plaintiff was at fault for their injury. Normally, the most the court states is that the defendant was not at fault and you can surmise from that statement the plaintiff was at fault.

However, to have the court state it is interesting and rare.

By the way, second post from Hawaii while on vacation. That is above and beyond for you guys, you owe me!  Smile

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Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

Kopeikin v. Moonlight Basin Management, LLC, 90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

Brian Kopeikin, M.D., Plaintiff, vs. Moonlight Basin Management, LLC, D/B/A Moonlight Ba In Resort, Defendant.

CV 13-C45-CBU-CDLC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, BUTTE DIVISION

90 F. Supp. 3d 1103; 2015 U.S. Dist. LEXIS 15348

February 9, 2015, Decided

February 9, 2015, Filed

PRIOR HISTORY: Kopeikin v. Moonlight Basin Mgmt., LLC, 981 F. Supp. 2d 936, 2013 U.S. Dist. LEXIS 160390 (D. Mont., 2013)

CORE TERMS: skier, skiing, rock, snow, elkhorn, ski, track, cat, terrain, inherent dangers, summary judgment, ski area, hazard, reasonable care, mountain, sport, hit, injuries resulted, surface, slope, skis, visible, ski resort, disputed, safely, skied, unmarked, matter of law, entitled to judgment, legal responsibility

COUNSEL: [**1] For Brian Kopeikin, M.D., Plaintiff: Edward P. Moriarity, MORIARITY BADARUDDIN & BOOKE, LLC, Missoula, MT.

For Moonlight Basin Management, LLC doing business as Moonlight Basin Resort, Defendant: Ian McIntosh, LEAD ATTORNEY, CROWLEY FLECK, Bozeman, MT.

JUDGES: Dana L. Christensen, Chief United States District Judge.

OPINION BY: Dana L. Christensen

OPINION

[*1104] ORDER

Before the Court is Defendant’s Motion for Summary Judgment. For the reasons explained, the Court grants the motion.

Synopsis

Plaintiff Dr. Brian Kopeikin (“Kopeikin”) was injured in a skiing accident in Montana. Kopeikin is a resident of California. He brought this diversity action against Defendant Montana ski area operator Moonlight Basin Management, LLC (“Moonlight”) asserting a claim for negligence sounding in premises liability and a claim for negligent hiring, training, supervision and management.

Earlier in the litigation, Moonlight moved to dismiss the Complaint asserting that it failed to state a claim under Montana’s skier responsibility statute, Montana Code Annotated § 23-2-736, because even as alleged all of Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. The Court denied the motion.

Now before the Court is Moonlight’s motion for summary judgment, and a [**2] fully-developed record in which several of Kopeikin’s key allegations from the Complaint are conclusively rebutted. On this updated evidentiary record, the Court concludes that Moonlight acted consistent with its duty of reasonable care and that all of Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. Accordingly, Moonlight is entitled to judgment as a matter of law and its motion for summary judgment is granted.

Factual Background1

1 Defendant filed its motion for summary judgment on June 23, 2014, and Kopeikin responded on July 25, 2014. In accordance with Local Rule 56.1(b), Kopeikin simultaneously filed a separate Statement of Disputed Facts with his brief in opposition to the motion for summary judgment. Then, on the afternoon of January 28, 2015, less than 24 hours prior to a hearing on the motion, Kopeikin filed a document styled as a “Supplement to Statement of Disputed Facts.” (Doc. 41.) Kopeikin did not seek leave of Court to file the “Supplement,” and the filing is not contemplated by Local Rules. Indeed, it is contrary to the Local Rule’s requirement that a Statement of Disputed Facts be filed “simultaneously with” the brief in opposition. L.R. 56.1(b). The filing is untimely by [**3] at least six months, and Kopekin has not sought leave to file it. Accordingly, its contents are not considered for purposes of deciding this motion.

On February 5, 2012, Kopeikin and his skiing partner, Sven Rose, purchased lift tickets to ski Moonlight Basin ski resort. Near the ticket booth where Kopeikin purchased his ticket is a sign warning skiers of unmarked hazards. Kopeikin is a very experienced skier, having skied at several ski resorts throughout the Rocky Mountain West over the past 36 years, and he had seen similar signs at other ski resorts warning patrons of unmarked hazards. Kopeikin knew that the presence of rocks is common at ski areas in the Rocky Mountains, such as Moonlight, and he did not expect that all hazards at Moonlight would be marked.

Skiing conditions at Moonlight on February 5, 2012, were generally good, with [*1105] clear skies, calm winds, and temperatures near thirty-two degrees. However, it was a low snow coverage year, and Kopeikin acknowledges that prior to his accident he saw uncovered rocks on the sides of the ski runs. Rocks are prevalent at Moonlight.

After skiing several easier warm-up runs, Kopeikin and Rose decided to take the Six Shooter chairlift up [**4] the mountain in an effort to access an area of more challenging, expert terrain known as Headwaters. Upon learning that hiking was required to access the terrain, and due to their concern about a lack of sufficient snow coverage, the two men decided not to ski Headwaters.

Instead, Kopeikin and Rose decided to ski a run called “Elkhorn.” At the unloading area for the Six Shooter chairlift there is a sign identifying Elkhorn as a black diamond, or “most difficult,” run. (Doc. 21-9; 30-7.) To access Elkhorn, Kopeikin and Rose began by skiing on an intermediate run called “Fast Lane.” On Fast Lane, there were plainly visible rocks above the snow surface that Kopeikin admits that he likely saw.

The two then approached the entrance to Elkhorn. Immediately before the entrance to Elkhorn, there is a sign indicating, again, that Elkhorn is designated a black diamond, or “most difficult,” run. (Doc. 21-13.) Kopeikin and Rose skied past this sign and onto Elkhorn. At this point, the terrain steepened and narrowed, and the ski run was occupied by obstacles such as moguls and snowdrifts.2 As Kopeikin began skiing down Elkhorn, plainly visible grass and rocks could be seen poking through the snow on [**5] the side of the run.

2 A snowdrift, or wind drift, is defined as “a heap of snow piled up by the wind.” Webster’s New World Dictionary (4th Ed., Wiley Publishing 2002). In his deposition, Kopeikin referred to the snowdrifts as “drift lumps.” (Doc. 25-4 at 93.)

Approximately 200 yards below the entrance of Elkhorn, there is an area where a cat track, or its remains, crosses Elkhorn. In 2007, after determining the cat track was not being used regularly, Moonlight removed the edges of the cat track where it crossed Elkhorn in an attempt to return the slope to its natural condition. The cat track, or what remains of it, partially obscures the terrain immediately below it.

Rose skied in front of Kopeikin and successfully navigated the cat track and the terrain immediately below it. Kopeikin estimates that he was skiing behind Rose at approximately 10 to 15 miles per hour. Kopeikin “came over the cat track and absorbed it[] and when [his] skis touched down both hit rocks,” and he was ejected from his skis. (Doc. 25-4 at 120.) He fell forward and landed in other rocks that were either visible or buried under the snow. As a result of his fall, Kopeikin suffered serious and disabling injuries that [**6] necessitated extensive medical care and treatment.

Kopeikin testified that he “would not have fallen because of the cat track,” id. at 124:1-2, but fell because his “skis hit rocks.” Id. at 124:2-3. The particular rock that caused him to be ejected from his ski was one that he could not see because it was under the snow and was “something you had to penetrate and hit with a little force.” Id. at 146:14-15.

From 2003, when Moonlight opened, through the end of the 2012 ski season, Moonlight had approximately 700,000 skier visits. Other than Kopeikin’s accident, there have been no other reported accidents due to rocks in the location of the subject accident.3

3 Kopeikin disputes whether any other accidents had been reported at the location of his accident, but he presents no contrary evidence. In an effort to show that the fact is disputed, Kopeikin cites to the Court three incident reports involving skiing or snowboarding accidents on the Elkhorn run generally. These include: (1) a 2013 accident that occurred somewhere on Elkhorn in which a woman with “no vision on one side” bumped into her daughter on her blind side and fell, (Doc. 25-11 at 3); (2) a 2011 accident in which a snowboarder “was [**7] going down of [sic] the second hill of elkhorn [and] rolled forward,” (Doc. 25-9 at 2-3.); and (3) a 2008 accident that occurred on the “left side on skiers L of Lower Elkhorn” in which a snowboarder “caught [his] edge on ice [and] fell forward,” (Doc. 25-10 at 2-3). None of these accident appear to have occurred at the location of Kopeikin’s accident, and all of them are, in any case, of such dissimilar nature as to be immaterial to the Court’s analysis.

[*1106] Legal Standard

A party is entitled to summary judgment if it can demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248. In ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The “mere existence of a scintilla of evidence in support of the plaintiff’s [**8] position” is insufficient to defeat a properly supported motion for summary judgment. Id. at 252.

Discussion

In this diversity action, the Court applies Montana substantive law. Erie R.R. v. Tompkins, 304 U.S. 64, 79, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

Pursuant to Montana statute, “[a] skier shall accept all legal responsibility for injury or damage of any kind to the extent that the injury or damage results from inherent dangers and risks of skiing.” Mont. Code Ann. § 23-2-736(4). The “inherent dangers and risks of skiing” are statutorily defined as “those dangers or conditions that are part of the sport of skiing,” including in pertinent part:

. . .

(b) snow conditions as they exist or as they may change, . . .

. . .

(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps . . . and other natural objects;

. . .

(f) variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks,4 and other terrain modifications.

Id. at § 702(2).

4 Consistent with its Order of November 7, 2013, the Court interprets the term “catwalk” to be synonymous with the term “cat track.” No objection to this interpretation has been raised by the parties. [**9]

Under Montana statute, “[a] skier has the duty to ski at all times in a manner that avoids injury to the skier and others and to be aware of the inherent dangers and risks of skiing.” Id. at § 736(1). Additionally, Montana statute requires a skier to “know the range of the skier’s ability and safely ski within the limits of that ability . . . so as to negotiate any section of terrain or ski slope and trail safely and [*1107] without injury or damage.” Id. at 736(2)(a). A skier is also statutorily required to “know that the skier’s ability may vary because of ski slope and trail changes caused by weather, grooming changes, or skier use.” Id.

A ski area operator must act “consistent with the duty of reasonable care owed by a ski area operator to a skier.” Id. at § 733. Montana’s skier responsibility statutes cannot be read to immunize ski resorts from their own negligent or intentional acts, because such an interpretation would violate Montana’s constitution. Mead v. M.S.B., Inc., 264 Mont. 465, 872 P.2d 782, 788 (Mont. 1994). However, the stated purpose of Montana’s skier responsibility statutes is to “discourage[] claims based on damages resulting from the inherent risks of skiing.” Mont. Code Ann. § 23-2-731.

In ruling on Defendant’s motion to dismiss, the Court articulated an interpretation of Montana’s skier [**10] responsibility statutes that harmonizes the definition of the inherent dangers and risks of skiing with the requirement that a ski area operator act consistent with its duty of reasonable care. In so doing, the Court rejected the notion that a court’s only role in ski area liability cases is to inquire whether the plaintiff’s injuries resulted from a collision with a particular object appearing on the statutory list of inherent risks of skiing, because such an application would produce absurd results and render the statute unconstitutional. Kopeikin v. Moonlight Basin Management, LLC, 981 F.Supp.2d 936, 945 (D. Mont. 2013). At the same time, not every case involving hazards on a ski mountain presents a genuine dispute of fact appropriate for trial, and summary judgment will sometimes be appropriate. Id. at 943.

Ultimately, Montana’s skier responsibility statutes make clear that the duty of reasonable care owed by a ski area operator to a skier “must be viewed in the unique context of skiing.” Id. at 945. Skiing is a sport in which thrill-seeking skiers embrace its inherent dangers and risks. It is a sport that occurs on “a mighty mountain, with fluctuation in weather and snow conditions that constantly change.” Wright v. Mt. Mansfield Lift, Inc., 96 F.Supp. 786, 791 (D. Vt. 1951). “[A] ski area operator cannot be expected to expend all of its resources [**11] making every hazard or potential hazard safe, assuming such an end is even possible,” or desirable. Kopeikin, 981 F.Supp.2d at 946. “Ski areas encompass vast and unwieldy terrain and mother nature is always at play.” Id. The act of skiing in such terrain presents an obvious array of dangers to a skier, many of which the ski area operator has no duty to protect against under Montana law. Fundamentally, a skier bears much of the responsibility for avoiding injury to himself, which is a principal that is consistent with Montana law.

In this case, Kopeikin’s injuries resulted from the inherent dangers and risks of skiing. Without question, applying a plain language interpretation of Montana’s skier responsibility statutes leads to this conclusion. In snow conditions as they existed on February 4, 2012, Kopeikin skied over a variation in terrain and collided with a subsurface rock that caused him to fall and collide with other surface or subsurface rocks. Thus, the accident falls clearly within the definition of the inherent dangers and risks that are part of the sport of skiing. Mont. Code Ann. § 23-2-701(2)(b)(d)&(f). Furthermore, Kopeikin failed to negotiate the terrain safely and without injury. Notwithstanding his years of experience and expertise, [**12] he failed to ski in manner that avoided injury to himself and to be aware of the inherent dangers and risks of skiing. See id. at § 23-2-736. Accordingly, so long as Moonlight [*1108] acted consistent with its duty of reasonable care owed to Kopeikin, Kopeikin must accept all legal responsibility for his injuries. Id. at § 23-2-736(4).

It is clear that Moonlight acted consistent with its duty of reasonable care as a ski area operator with respect to Kopeikin. Moonlight warned generally of unmarked hazards. It posted multiple signs designating the run on which Kopeikin was injured a black diamond, or most difficult, run. With respect to the cat track, Moonlight had taken efforts to remove it and return the slope back to its natural condition.

Kopeikin did not suddenly and blindly encounter an unmarked cat track. Rather, Kopeikin admits that what remained of the cat track could be clearly seen from above. Also, the rocks that Kopeikin collided with, like all of the rocks on the Elkhorn run, were naturally occurring. Without citation to any record evidence, Kopeikin asks the Court to infer that some of the rocks in the area where he fell unnaturally accumulated there through the process of removing the cat track back [**13] in 2007. The record evidence, however, establishes the opposite — the process of removing the cat track reduced the number of rocks in the area because many of the rocks were covered up during the cat track removal process.

Furthermore, with over 700,000 skier visits, there had never been another reported accident at the location of Kopeikin’s accident caused by a collision with rocks. According to Kopeikin, the rock that he hit with his skis, which caused him to fall, was buried under the snow and “was something you had to penetrate and hit with a little force and then it was there.” (Doc. 25-4 at 147.) Thus, Kopeikin’s theory that Moonlight had a duty to warn of these specific rocks, is undermined by this specific accident’s unforeseeability, despite the fact that accidents of this general nature were foreseeable to skiers that were skiing on the mountain in low snow conditions. To impose a duty on Moonlight to mark or remove all submerged rocks, which are not readily visible, would be to require Moonlight to undertake an impossibility.

Kopeikin himself recognized that it was a low snow year. He had seen other rocks on other runs prior to skiing Elkhorn. He elected not to ski Headwaters [**14] in part because there was “no snow.” (Doc. 25-4 at 90.) He rightly did not expect that all hazards on the mountain would be marked. On Elkhorn, rocks and grass were plainly visible. When he approached the area of Elkhorn where the remains of the cat track obscured the terrain immediately below, he did not stop and assess what was below.

It is clear that Montana’s skier responsibility statutes apply to these facts, that Kopeikin encountered the inherent dangers and risks of skiing, and that he must therefore accept all legal responsibility for his injuries and damages. As was eloquently stated by Judge Gibson in granting a directed verdict for the defendant ski area operator against a claim by a plaintiff injured when her skis unexpectedly hit a tree stump buried under the snow:

Skiing is a sport; a sport that entices thousands of people; a sport that requires an ability on the part of the skier to handle himself or herself under various circumstances of grade, boundary, mid-trail obstructions, corners and varied conditions of the snow. Secondly, it requires good judgment on the part of the skier and recognition of the existing circumstances and conditions. Only the skier knows his own [**15] ability to cope with a certain piece of trail. Snow, ranging from powder to ice, can be of infinite kinds. Breakable crust may be encountered where soft snow is expected. [*1109] Roots and rocks may be hidden under a thin cover. A single thin stubble of cut brush can trip a skier in the middle of a turn. Sticky snow may follow a fast running surface without warning. Skiing conditions may change quickly. What was, a short time before, a perfect surface with a soft cover on all bumps may fairly rapidly become filled with ruts, worn spots and other manner of skier created hazards.

Wright, 96 F.Supp. at 790-91 (emphasis added).

The Montana Legislature has recognized these truths about skiing and codified them, so that a skier has a duty to ski safely and within his abilities, and accepts all responsibility for injuries resulting from the inherent dangers and risks of skiing. Because Kopeikin’s injuries resulted only from the inherent dangers and risks of skiing and because Moonlight did not breach its duty of reasonable care, Moonlight is entitled to judgment as matter of law.

IT IS ORDERED that Moonlight’s motion for summary judgment (Doc. 20) is GRANTED. IT IS FURTHER ORDERED that all other motions are DENIED AS MOOT. The [**16] clerk shall enter judgment in favor of Defendant and against Plaintiff. This case is CLOSED.

Dated this 9th day of February 2015.

/s/ Dana L. Christensen

Dana L. Christensen, Chief District Judge

United States District Court


Federal court voids release in Vermont based on Vermont’s unique view of release law

Release is thrown out and arbitration clause is deemed unconscionable and modified by the court. The defendant was left with a one sentence assumption of the risk clause.

Littlejohn v. Timberquest Park at Magic, LLC, et. al., 2015 U.S. Dist. LEXIS 96443

State: Vermont, United States District Court for the District of Vermont

Plaintiff: Joseph P. Littlejohn

Defendant: Timberquest Park at Magic, LLC, and Corporate Challenge, Inc., d/b/a Adventure Más

Plaintiff Claims: negligently designed, constructed, and operated the course

Defendant Defenses: Release

Holding: For the Plaintiff

Year: 2015

This is an interesting group of facts about how something simple and easily over looked in building and operating a challenge (ropes) course and a zip line can lead to an accident and then a lawsuit. Combine those facts with the Vermont Supreme Court’s decisions on releases and the defendants lose in this case.

The plaintiff was a 76 year old man. A friend of the plaintiffs purchased tickets online to go to the defendant challenge course at the ski area. The park is a self-guided aerial adventure park where the guest is taught how to clip in and then ascends through the course to the top where they then descend through a series of zip lines.

This is a commercial course purchased for amusement rather than a normal challenge or ropes course which is built for team building or other goals for the benefit of the guests. Meaning the sole purpose of this course is entertainment.

The belay system is called a “smart belay” is attached to the system and the guest at all times.

The trees and poles used to create the course are supported by guy cables or wires. While descending, the course the plaintiff clipped into a guy wire rather than a zip line. He rode the zip line down hitting a tree.

The first issue was the claim by the plaintiff that he was not notified until he arrived at the course that he would be required to sign a release. However it was later agreed that as you started to pay for the course tickets it notified you a release was required.

Upon arrival the plaintiff signed a release on a tablet. The release included a clause that stated any claim for more than $75,000 had to be arbitrated. The arbitration clause required the plaintiff and the defendant to choose one arbitrator who then chose the third arbitrator. The third arbitrator had to be “an officer or director of another company that operates a zip-line course.”

The plaintiff (or his insurance company) sued.

Analysis: making sense of the law based on these facts.

The first issue the court looked at was whether the release was valid under Vermont law. The court looked at four decisions from the Vermont Supreme Court concerning releases and determined the factors needed for a release to be valid in Vermont. In Vermont the factors are not only how the release is written but what the release is attempting to shield from liability.

In Vermont the question is, is “the business is open to the general public without regard to special training or ability and the premises owner is in the best position to assure the safety of visitors.” That means if the defendant is “in control of the location were the injury occurred and whether the premises were open to the general public.”

The court then examined the zip line course and compared it to a ski area. “As this discussion indicates, the court is satisfied that attending a zip-line program is more like visiting a ski area than like taking part in a specialized high-risk sport which requires skill and experience.”

The court found the course was not going to be protected by a release.

The course is designed and controlled by defendants. There is no indication in the record that anyone needs to learn to use the course beyond an initial training class offered at the park. It is even more open to the public than skiing, which typically involves beginner’s lessons and some degree of acquired skill. The zip-line course requires no such training or skill.

The release was void as a release. The court then looked at whether a document would survive as proof the plaintiff assumed the risk. The agreement contained the following clause:

“[t]he Participant … understand[s] that there are inherent risks of participating in the Programs and using the Equipment, which may be both foreseen and unforeseen and include serious physical injury and death.”

This clause survived the agreement and the court was going to allow the clause to be used at trial to show the plaintiff assumed the risk.

The arbitration clause was the next clause in the document, (since it is no longer a release).

As drafted, the clause works in the following way: a claimant seeking damages in excess of $75,000 is required to proceed to binding arbitration. Claims of $75,000 or less are not subject to arbitration. The arbitration panel is composed of three members. Each side chooses one member. The two members then select the third, who must be “an officer or director of any entity that operates an aerial adventure park with zip lines in the United States.” If the first two panel members cannot agree on a third, a judge within the District of Vermont shall appoint the third member “utilizing the selection criteria for the neutral as set forth above.”

The plaintiff argued the arbitration clause was unconscionable.

First, he argues that the provision is procedurally unconscionable because it is contained in small print in a contract of adhesion that was presented to him well after he paid for his tickets. Second, he maintains that the arbitration clause is substantively unconscionable because the third arbitrator is required to be an officer or director of another company that operates a zip-line course, thus tilting the arbitration panel in favor of TimberQuest. Finally, he argues that the arbitration clause lacks mutuality because it has no application to a claim by TimberQuest against a customer.

The first argument was small print. This argument is still raised if for no other purpose then to put in the judge and/or juries mind that the contract is a bad thing. However the court found the print size was the same as the rest of the document and had a “conspicuous header.”

The customer’s signature line is on the second page, giving him an opportunity to read the text before signing. Although the agreement was presented to Littlejohn as a preprinted contract with no real opportunity to negotiate the terms, he could have declined to participate in the course and requested his money back if he objected to the arbitration provision.

As the Vermont Supreme Court has repeatedly pointed out, “unequal bargaining power alone will not nullify a contract.”

The plaintiff then argued that because he was not notified he was required to sign a release until he arrived at the site the arbitration clause should be void. However his friend who purchased the tickets was informed of the requirement and because the plaintiff had not objected when presented with the release this argument failed.

The court looked at the arbitration provisions that the arbitrator had to be picked from the zip line industry was unfair. “Courts have long refused to enforce arbitration clauses which call for the appointment of panel members who are likely to harbor a bias in favor of one side or another.”

The agreement did contain a severability clause. This clause states that if one part of the agreement is void then the void section is thrown out but the rest of the agreement is still valid. Here the severability clause saved what defense was left for the defendant.

The contract between the parties includes a severability clause: “To the extent that any portion of this Agreement is deemed to be invalid under the law of the applicable jurisdiction, the remaining portions of the Agreement shall remain binding and available for use by the Host and its counsel in any proceeding.”

This gave the court the power to enforce the arbitration clause by reforming it altering it to fit the law. “The court will enforce the severability clause to strike the provision requiring the choice of a “neutral” arbitrator who is likely to hold a bias in favor of the zip-line industry. The remaining question is the issue of mutuality.”

The plaintiff then argued that the entire agreement was void because it lacked consideration. He paid for the tickets one day and three weeks later had to sign the release. However this failed. Consideration is does not have a time requirement.

Littlejohn argues that the agreement was unsupported by consideration because he was forced to sign it weeks after he had paid for the tickets. This argument is without merit. “[A]ny performance which is bargained for is consideration.” TimberQuest’s performance in this case was allowing Littlejohn to use its adventure zip-line course. In exchange, Littlejohn’s friend paid for their tickets. Upon arrival at the park, he promised that he would submit his claims to arbitration or agree to limit his recovery in court to $75,000.

The court then set the requirements for the parties to proceed.

As reformed by the court, the arbitration provision is valid. Under the agreement, there is no cap on damages if the participant chooses to go to arbitration. If the participant chooses to go to court, he or she agrees to seek $75,000 or less in damages. This court only has jurisdiction over a diversity case if the amount in controversy “exceeds the sum or value of $75,000.” This provision is strictly construed, and does not extend jurisdiction to a claim for an even $75,000. Thus, Littlejohn may not bring suit in this court. The court accordingly dismisses plaintiff’s negligence claims for lack of subject matter jurisdiction and without prejudice to plaintiff’s right to demand arbitration.

So Now What?

This case is similar to Geographic Expeditions, Inc., v. The Estate Of Jason Lhotka, 599 F.3d 1102; 2010 U.S. App. LEXIS 6606 discussed in Complicated serious of cases created to defend against a mountaineering death. There the release was thrown out because it was so onerous that the court could not stand it.

Under the rational the court determined from the Vermont Supreme Court cases any recreational based activities on land owned by the defendant that is open for business a release will not be valid. Whether nor not a guided operation on federal or state land be subject to this restriction is unknown, however the amount of federal land in Vermont is minimal and not used for recreation.

If the guest is taking the property as in a rental program then the release maybe valid. Renting a car, renting skis or renting a canoe is probably covered by a release in Vermont. However a ski rental shop that is owned by the ski area and incorporates into its release protection for the ski area will probably be void in Vermont.

The next issue is the assumption of risk clause that survived the release.

“[t]he Participant … understand[s] that there are inherent risks of participating in the Programs and using the Equipment, which may be both foreseen and unforeseen and include serious physical injury and death.”

If the courts in Vermont see the word “inherent” as a limiting term, the assumption of the risk clause may fail. Inherent has been defined to mean the risk associated with the sports that are part of the sport. Removal of the inherent risk removes the nature of the sport or activity. Risk would mean all aspects of the activity, not just the inherent ones.

This is a class example where a word has become associated to create a phrase because it “feels good.” However the word either has a different meaning when legally defined than its not legal definition or the definition of the word is not understood. If under Vermont law inherent is a limiting term the actual risks the plaintiff assumes could be very narrowly construed.

Small print is just stupid now days. Courts are still voiding releases if your release or release language is in small print. More importantly if the judge can’t read the document because the print is so small the court will always through the document out. Always make sure the print in any legal document is all the same size and no smaller than the font size required for pleadings in the court.

This case points out two major issues. The first is releases in Vermont as difficult if at all possible to use for outdoor recreation programs and businesses. The exception may be if you are someone not open to the public such as a college or university.

The second issue is whatever document you use, release or acknowledgement of risk agreement it has to be fair. If it is going to stop a lawsuit then it must inform your guests that is the purpose of the agreement. If you are going to assume the risk with the agreement the risks must be identified and the possible injuries must be pointed out. If you require arbitration the arbitration clause must conform to the laws controlling arbitration and the arbitration rules itself which is based on a neutral arbitrator.

Here arbitration was a good idea. However arbitration is not necessarily so. Arbitration has general come to mean you are deciding how much money to pay to the other side. Arbitration is usually quick and a lot less costly. Arbitration in many states limits the damages and in some states arbitrators cannot award punitive damages.

However a well written release in a state that supports release law is better than arbitration. It does not allow for any payment. A motion for summary judgment is fairly quick and easy to file after limited discovery and can be cheaper over all with a better long term effect than arbitration.

If you operate on a state listed here: States that do not Support the Use of a Release you may want to look or may only have the ability to use an assumption of the risk document and arbitration. If you are providing program to minors and your state does not support the use of a release to prevent minor’s claims, arbitration and assumption of the risk is probably best for you. See States that allow a parent to sign away a minor’s right to sue.

Either way you go the agreement must be clear, easily understood, written in English, with print large enough to read and an agreement that court will look at and determine is fair.

The final issue is the court itself. You MUST evaluate your business or program from your guest’s point of view. You know and understand how your course works. Your guest does not have that knowledge. Here a guest could not see the difference between the zip line and a guy line. It is easy enough to attach warning signs on the guy lines.  Rap red tape around the guy lines and tell guest don’t touch anything red.

Look through your program from your guests inexperienced eyes, not your battle worn glasses.

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Littlejohn v. Timberquest Park at Magic, LLC, et. al., 2015 U.S. Dist. LEXIS 96443

Littlejohn v. Timberquest Park at Magic, LLC, et. al., 2015 U.S. Dist. LEXIS 96443

Joseph P. Littlejohn, Plaintiff, v. Timberquest Park at Magic, LLC, and Corporate Challenge, Inc., d/b/a Adventure Más, Defendants.

Case No. 5:14-cv-200

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT

July 20, 2015, Decided

July 21, 2015, Filed

SUBSEQUENT HISTORY: Amended by Littlejohn v. Timberquest Park at Magic, LLC, 2015 U.S. Dist. LEXIS 94592 (D. Vt., July 21, 2015)

CORE TERMS: arbitration, customer, ticket, adventure, arbitration clause, motorcycle, mutuality, summary judgment, exculpatory, zip-line, participating, wire, zip, guy, ski area–, arbitration provision, public policy, general public, ski, website, unconscionability, enforceability, unconscionable, recreational, arbitrate, sport, void, cable, enforceable, adhesion

COUNSEL: [*1] For Joseph P. Littlejohn, Plaintiff: Daniel L. Burchard, Esq., Thomas E. McCormick, McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, VT.

For Timberquest Park at Magic, LLC, Defendant: Andrew A. Beerworth, Esq., Robert G. Cain, Paul Frank Collins PC, Burlington, VT.

For Corporate Challenge, Inc., doing business as Adventure Mas, Defendant: Heather Z. Cooper, Rodney Edward McPhee, Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, VT.

For ENE Evaluator, ENE Evaluator: Michael J. Marks, Esq., MarksPowers LLP, Middlebury, VT.

For Timberquest Park at Magic, LLC, Cross Claimant: Robert G. Cain, Paul Frank Collins PC, Burlington, VT.

For Corporate Challenge, Inc., Cross Defendant: Rodney Edward McPhee, Kenlan, Schwiebert, Facey & Goss, P.C., Rutland, VT.

JUDGES: Geoffrey W. Crawford, United States District Judge.

OPINION BY: Geoffrey W. Crawford

OPINION

OPINION AND ORDER RE: DEFENDANT’S AND PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT (Docs. 44, 46 & 52)

Plaintiff Joseph Littlejohn was severely injured while participating in an adventure zip-line course at Magic Mountain Ski Area in Londondeffy, Vermont on October 5, 2013. He claims that defendants negligently designed, constructed, and operated the course, leading to the [*2] accident which caused his injuries. Both Littlejohn and defendant TimberQuest Park at Magic, LLC (TimberQuest) have filed motions for summary judgment, seeking a determination regarding the enforceability of a liability waiver and arbitration provision signed by Littlejohn prior to participating in the course.

I. Facts

The following facts are undisputed for the purposes of summary judgment, except where otherwise noted. On October 5, 2013, Littlejohn was injured while traversing a self-guided aerial adventure course at Magic Mountain. At the time of his injury, Littlejohn was seventy-six years old. He had never participated in an adventure course before. Defendant TimberQuest operated the adventure course at the time of the incident. Defendant Corporate Challenge, Inc. d/b/a Adventure Mas designed and constructed the course.

The adventure course consists of a series of rope bridges, ladders, cargo nets and zip lines placed between elevated platforms constructed around trees and poles. Participants gradually gain elevation by climbing and traversing a series of uphill course elements and then return to the bottom of the course by sliding down a series of zip lines. Participants wear a [*3] climbing harness equipped with a “smart belay” system that is meant to keep them attached at all times to both a safety cable and a zip line cable. The “smart belay” system is intended to ensure that the participant is always attached to at least one of the cables.

The trees and poles which support the course platforms are stabilized by guy wires. These guy wires are anchored at one end to the tree or pole where a course platform is located and at the other end to another nearby tree or the ground.

On the day he visited, Littlejohn was equipped with a climbing harness and was instructed how to use the smart belay system’s dual carabiners. According to Littlejohn, he was not warned that there were guy wires on the course in addition to safety cables and zip line cables or that he should avoid clipping onto the guy wires.

Littlejohn climbed through the uphill course elements and began to descend on the zip lines. As he was preparing to descend one of the sections of the course, he mistook a guy wire for the zip line cable. He attached his smart belay to the guy wire and slid down the guy wire. At the bottom he ran into the tree which anchored the other end of the guy wire. He suffered severe [*4] injuries.

Littlejohn’s friend Miki Conn had purchased their tickets for the adventure course through TimberQuest’s website on September 12, 2013.

According to Littlejohn, TimberQuest’s website does not alert customers that they will be required to sign a liability waiver prior to participating in the adventure course. Littlejohn alleges that neither Conn nor he was aware that they would have to sign a liability waiver until they arrived at TimberQuest three weeks later. At oral argument, counsel for both sides cleared up some confusion on this point: there is a notice on the website concerning the liability waiver, but it appears only at the point of purchase by the customer. A company other than TimberQuest provides the ticketing, reservation and credit card services. That company’s website includes a warning to customers that they will be required to sign a liability waiver before they enter the course. Since Littlejohn’s counsel did not actually buy a ticket, he did not encounter this information in preparing his motion for summary judgment.

When they arrived at TimberQuest on October 5, Littlejohn and Conn were each presented with a document entitled “Release of Liability, Waiver [*5] of Claims, Indemnification, and Arbitration Agreement.” The agreement was presented to them in digital format on an electronic device and they were instructed to read and sign it electronically.

The agreement stated that the participant agreed to “waive all claims” and “assume all risks” arising from participating in programs at the adventure course, including claims arising from negligent acts or conduct of TimberQuest, and further agreed to release and indemnify TimberQuest from liability for any injury suffered by the participant while using the course. (Doc. 44-3 at 2.) Under the heading “Arbitration,” the agreement stated that:

The Participant … hereby agrees to submit any dispute arising from participation in the Programs, for which Participant intends to seek damages in excess of $75,000.00, to binding arbitration. . . . In the event that Participant . . . files a lawsuit in any court relating to, and/or arising from, Participant’s participation in the Programs, Participant . . . by signing this document, stipulate[s] to a cap on Participant’s damages of $75,000.00, exclusive of interest and costs. As a threshold matter, the Panel, or the Court (if a lawsuit is filed), shall confirm whether [*6] the Waiver and Release contained in this Agreement are enforceable under applicable law. (Id.)

The agreement contains a severability clause stating that if any provision is invalidated, the remainder of the agreement will continue to be binding. Littlejohn signed the agreement prior to participating in the course.

II. Analysis

On March 27, 2015, TimberQuest filed a motion for partial summary judgment seeking a declaration that the $75,000 damages cap contained in the arbitration clause is enforceable against Littlejohn. (Doc. 44.) Littlejohn opposed the motion on the grounds that the damages cap violates public policy and is procedurally and substantively unconscionable. (Doc. 45.) Littlejohn filed a cross-motion for summary judgment seeking to have the waiver, assumption of risk, release and indemnity provisions of the agreement declared void and unenforceable as well. (Doc. 46.) In response, TimberQuest filed a cross-motion for summary judgment arguing that the agreement is enforceable and all of Littlejohn’s claims should be dismissed because he released TimberQuest from liability for negligence by signing the agreement. (Doc. 52.)

A. Standard of Review

Summary judgment is appropriate [*7] where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

B. Enforceability of Provisions Regarding Waiver of Claims, Release, Assumption of Risks from Negligence, and Indemnity

The enforceability of a contract provision providing for the waiver of a customer’s claims for negligence arising out of recreational activities is a matter of Vermont law. It is governed by four Vermont Supreme Court cases which seek to define the circumstances under which a business may contract out of liability for its own negligent conduct.

The leading case remains Dalury v. S-K-I, Ltd., 164 Vt. 329, 670 A.2d 795 (Vt. 1995), in which the Vermont Supreme Court rejected the exculpatory language in ski tickets issued by the Killington ski resort to its customers. The court reviewed the criteria announced by the California Supreme Court in Tunkl v. Regents of University of California, 60 Cal. 2d 92, 32 Cal. Rptr. 33, 383 P.2d 441 (Cal. 1963),1 and identified the longstanding rule that business owners are responsible for the safety of their premises as the basis on which to strike the exculpatory provisions in the ticket. Dalury, 670 A.2d at 799. The decision [*8] recognized that the ski area–and not the skiers–had the expertise and opportunity to foresee and control hazards and to reduce negligent conduct by its employees.

1 The Tunkl decision identified the following list of characteristics which may violate the public interest:

It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, [*9] as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Tunkl, 383 P.2d at 445-46.

The Dalury decision did not depend upon a determination that skiing was an essential industry or service. “Whether or not [the ski resort] provide[s] an essential public service does not resolve the public policy question in the recreational sports context.” Id. Skiing is not like taking a cab or visiting the hospital–services for which there may be no substitute and which are necessary to everyday life. Rather, the decision rests upon two related principles: the business is open to the general public without regard to special training or ability and the premises owner is in the best position to assure the safety of visitors. These principles have remained unchanged in the cases which have followed Dalury.

The first was Spencer v. Killington, Ltd., 167 Vt. 137, 702 A.2d 35, 37 (Vt. 1997), in which the exculpatory language used as a condition for entering an amateur ski race was not enforced for the same reasons the court had expressed two years before in Dalury. The dissent identified the fault line in the doctrine:

There is a significant difference between the expectations of the general [*10] public, which has a right to assume reasonable care on the part of the ski area operator, and a ski racer who consciously undertakes risks that he or she knows may strain or exceed the tolerance of any safety system.

Id. at 38 (Allen, C.J., dissenting). Over time this distinction between members of the general public and people engaging in high-risk sports would become more marked.

In Thompson v. Hi Tech Motor Sports, Inc., 183 Vt. 218, 945 A.2d 368, 372 (Vt. 2008), the Vermont Supreme Court upheld the enforceability of a liability waiver on public policy grounds.2 The case concerned a customer at a motorcycle dealership who was injured on her test ride. The court distinguished the policy concerns at issue in Dalury, explaining that “whereas public policy places the burden of maintaining safe premises on a landowner, public policy concerning motorcycle safety places the burden of safe driving on the operator of the motorcycle.” Id. The court also determined that motorcycle dealerships do not provide a necessary service. Id. at 373. In this respect, the case followed Dalury. In contrast to skiers, however, the customer operated the motorcycle on the public road. There were no business premises relevant to the case. The decision also compared motorcyclists to customers of skydive [*11] companies, underwater diving schools, and mountain guiding services–high-risk sports for people with special skills. Id. Further, unlike the ski area in Dalury, the motorcycle dealership only allowed licensed motorcycle drivers with sufficient experience and training to take its motorcycles out for a ride. Id.

2 Although the waiver provision was held not to be void on public policy grounds, the court concluded that the provision failed release the defendant from liability for negligence because the language was ambiguous. Id. at 375.

Finally, in Provoncha v. Vermont Motorcross Association, 185 Vt. 473, 974 A.2d 1261, 1267 (Vt. 2009), the exculpatory language for an off-road motorcycle racing club was enforced because the activities were “neither of great importance to the public nor open to the public at large.” The majority distinguished the case from Dalury because the premises where the accident occurred was a private racetrack open only to members of a small club of 300 members. Id. The general public was not permitted to ride. The decision also drew a parallel to the enforcement of similar provisions in cases involving parachute jumping, stock car racing, scuba diving, and mountaineering–all sports which were said not to be matters of legitimate public interest. Id.

All four [*12] cases call for a flexible case-specific analysis of the factors originally identified in the Dalury decision. Of these, the least significant is whether a recreational activity is necessary to society. Few of them are. Not surprisingly, skiing and motorcycle riding–the two activities which generated the four decisions–were both found to be inessential to daily life. The factors which were most consistently applied were whether the defendant was in control of the location where the injury occurred and whether these premises were open to the general public. When these factors are present–as in Dalury and Spencer–the exculpatory clauses are not enforced. When these factors are absent–as in Thompson and Provoncha–the exculpatory clauses are likely to be enforced.

The court is not persuaded by TimberQuest’s argument that the Dalury case is on its last legs and will not survive much longer. Although the result was different in Thompson and Provoncha, neither case suggested that any member of the Vermont Supreme Court sought to discard the rule announced in Dalury. Instead, the debate from both sides concerned the differences between activities open to the general public and the more risky [*13] pursuits of riding motorcycles, skydiving, scuba diving and mountaineering, all of which generally take place in settings that are not under the control of the business operators.

The remaining factors set out in Tunkl had no particular application in Dalury and the subsequent cases and have little in this case either. These include whether the activity is suitable for public regulation, whether the business enjoys unequal bargaining strength as a result of its essential nature, and whether the contract is one of adhesion. Tunkl, 383 P.2d at 445-46. Although ski lifts are regulated, see 31 V.S.A. §§ 701-12, the downhill experience is not. Neither are rope courses or motorcycle races. Although a person who sought to negotiate the terms of his ski ticket or his adventure course ticket might not be admitted, in the absence of any necessity the customer can always walk away, which gives him or her some degree of economic strength. And all of the contracts involved in these cases–whether enforced or not–were preprinted contracts of adhesion which appeared on tickets and entrance forms.

Before leaving the Dalury factors, the court must consider one final factor which is heavily relied upon by the defendants. This factor arises from [*14] the language in Dalury that thousands of skiers visit Killington every day, 670 A.2d at 799, while only a few come to TimberQuest’s zip-line course. In the course of discovery, TimberQuest’s owner estimated that he has 1000 visitors a season–the number he put down on his worker’s compensation insurance application. (Doc. 52-6 at 3.) He does not actually have a real count. Assuming a 100-day season, this amounts to ten visitors each day or one or two visitors per hour. (The estimate may not be very reliable, but it is the only number in the record.) The defense argues that a small business which is open to the public should receive treatment which is different from a large business. Although the court has reviewed the language in the Dalury decision about the thousands of daily visitors, the court is not convinced that the size of the business alone plays a significant role in whether the exculpatory clause in the ticket should be enforced.

As this discussion indicates, the court is satisfied that attending a zip-line program is more like visiting a ski area than like taking part in a specialized high-risk sport which requires skill and experience. Like the ski area, the zip-line sells tickets to all [*15] comers (subject to age and weight restrictions not relevant here.) It requires no prior training. As an excerpt from the website furnished by defendant indicates, this is a recreational activity open to all without restriction:

TimberQuest is an exhilarating treetop adventure course for the entire family. We have over 20 zip lines and 75 challenges of varying difficulty. Challenges include rope bridges, ladders, cargo nets, and even a course for younger children. Customers are always clipped into a safety guide wire and friendly trained staff provide[] assistance from the ground. (Doc. 52-4 at 5.)

The course is designed and controlled by defendants. There is no indication in the record that anyone needs to learn to use the course beyond an initial training class offered at the park. (Doc. 52-4 at 14.) It is even more open to the public than skiing, which typically involves beginner’s lessons and some degree of acquired skill. The zip-line course requires no such training or skill.

This court’s decision to invalidate the exculpatory clause on public policy grounds falls within the principles laid down by the Vermont Supreme Court in Dalury and the later cases. It recognizes the longstanding [*16] rule that business owners are responsible for the safety of their premises. It also recognizes the expectation that a recreational activity which is open to the general public will be reasonably safe for use by all users. In other words, the business cannot contract out of liability for negligence in the design, maintenance and operation of its business premises.

For these reasons, the court will not enforce the exculpatory language on the public policy grounds first identified in Dalury.

C. Assumption of Risk and Indemnity

Littlejohn seeks to invalidate the assumption-of-risk provision in the agreement. The court has already concluded that the first sentence of this provision, which states that by signing the agreement the participant agrees to assume all risks of participating in the adventure course including those caused by TimberQuest’s negligence, is invalid.

However, Littlejohn’s argument does not specifically address the second sentence of this provision, which states that “[t]he Participant … understand[s] that there are inherent risks of participating in the Programs and using the Equipment, which may be both foreseen and unforeseen and include serious physical injury and death.” (Doc. 44-3 [*17] at 2.) Under Vermont law, “a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary.” 12 V.S.A. § 1037. This defense remains viable even if the defendant’s exculpatory agreement is found to be void as contrary to public policy. Spencer, 702 A.2d at 38. This provision of the agreement remains valid and TimberQuest is free to assert assumption of risk as a defense.

There is no third-party claim against TimberQuest for indemnity. The court does not address this issue.

D. Enforceability of Arbitration Clause

After disposing of the exculpatory clause, the court considers the enforceability of the arbitration clause.

As drafted, the clause works in the following way: a claimant seeking damages in excess of $75,000 is required to proceed to binding arbitration. Claims of $75,000 or less are not subject to arbitration. The arbitration panel is composed of three members. Each side chooses one member. The two members then select the third, who must be “an officer or director of any entity that operates an aerial adventure park with zip lines in the United States.” (Doc. 52-4 at 31.) If the first two panel members cannot agree on a third, a judge within the District of Vermont shall appoint [*18] the third member “utilizing the selection criteria for the neutral as set forth above.” (Id.)

Littlejohn challenges this provision on the following grounds. First, he argues that the provision is procedurally unconscionable because it is contained in small print in a contract of adhesion that was presented to him well after he paid for his tickets. Second, he maintains that the arbitration clause is substantively unconscionable because the third arbitrator is required to be an officer or director of another company that operates a zip-line course, thus tilting the arbitration panel in favor of TimberQuest. Finally, he argues that the arbitration clause lacks mutuality because it has no application to a claim by TimberQuest against a customer.

The first issue is what law governs this dispute. Both the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and the Vermont Arbitration Act, 12 V.S.A. §§ 5651-5681, apply to this arbitration agreement which was formed in Vermont and which the defendant seeks to enforce in Vermont. When the two statutes differ, the federal provision preempts state law. See David L. Threlkeld & Co., Inc. v. Metallgesellschaft Ltd. (London), 923 F.2d 245, 249-50 (2d Cir. 1991) (holding that FAA preempts VAA); Little v. Allstate Ins. Co., 167 Vt. 171, 705 A.2d 538, 540 (Vt. 1997) (same). The claims of unconscionability raised by Littlejohn, however, are matters arising under state [*19] substantive law and are enforced in the same way under either the federal or state arbitration acts. See 9 U.S.C. § 2 (stating agreements to arbitrate “shall be valid, in-evocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract”); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1746, 179 L. Ed. 2d 742 (2011) (explaining that final phrase of § 2 provides that agreements to arbitrate may be invalidated by generally applicable state-law contract defenses such as fraud, duress, or unconscionability). In considering issues of both procedural unconscionability relating to the form of the contract to arbitrate and substantive unconscionability relating to its content, the court is guided by Vermont decisional law where it is available.

Littlejohn’s claim of procedural unconscionability is unconvincing. Unlike the provisions at issue in Glassford v. BrickKicker, 191 Vt. 1, 35 A.3d 1044, 1053 (Vt. 2011), the arbitration provision is on the middle of the page, directly under the waiver provisions and is prefaced with a conspicuous header stating “Arbitration.” The print is normal-sized. The customer’s signature line is on the second page, giving him an opportunity to read the text before signing. Although the agreement was presented to Littlejohn as a preprinted contract with no real opportunity [*20] to negotiate the terms, he could have declined to participate in the course and requested his money back if he objected to the arbitration provision. This was not a contract for a necessary service such as home inspection where the weaker party was “at the mercy” of the drafter. See id. at 1052. As the Vermont Supreme Court has repeatedly pointed out, “unequal bargaining power alone will not nullify a contract.” Maglin v. Tschannerl, 174 Vt. 39, 800 A.2d 486, 490 (Vt. 2002).

Littlejohn also argues that the arbitration agreement was procedurally unconscionable because he was presented with it upon arrival at TimberQuest, more than three weeks after his companion paid for the tickets, and was not warned in advance that he would have to sign it. This argument was based on his attorney’s mistaken belief that the TimberQuest website did not warn customers prior to payment that they would be required to sign the agreement. However, at oral argument the parties agreed that on the payment page, under Terms and Conditions/Liability Waiver, the website displayed the following message: “All participants MUST sign a release and waiver of claims/indemnification agreement at check-in.” Customers were required to check a box stating “I agree” in order to purchase their [*21] tickets. This provided sufficient constructive warning to Littlejohn through his friend who actually bought the tickets that he would have to sign the agreement prior to participating in the course. Further, this was not the first time that Littlejohn had encountered a recreational liability agreement. As he testified at his deposition, “[w]e did sign a release, but that’s standard to me” since he was often required to sign similar forms at ski areas. (Doc. 44-4 at 4.)

Turning to Littlejohn’s argument of substantive unconscionability, it is obvious that the requirement that the “neutral arbitrator” be drawn from the ranks of the zip-line industry is unfair. It is no more than a requirement that the arbitration be conducted among friends–or at least people who share the same concerns about defending against claims by injured customers. Courts have long refused to enforce arbitration clauses which call for the appointment of panel members who are likely to harbor a bias in favor of one side or another. See Halligan v. Piper Jaffray, Inc., 148 F.3d 197, 202 (2d. Cir. 1998) (discussing possibility of institutional bias due to industry influence over selection of arbitration panel); Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 995 F. Supp. 190, 209 (D. Mass. 1998) (listing cases). TimberQuest’s suggestion that a member of the same industry [*22] will be biased against TimberQuest because he or she will be a competitor willing to do harm to a rival company demonstrates only that the arbitration clause requires the choice of someone likely to hold some form of bias or self-interest–maybe for TimberQuest and maybe against.

The contract between the parties includes a severability clause: “To the extent that any portion of this Agreement is deemed to be invalid under the law of the applicable jurisdiction, the remaining portions of the Agreement shall remain binding and available for use by the Host and its counsel in any proceeding.” (Doc. 52-4 at 32.) Setting aside for a moment the one-sided nature of this clause–“available for use by the Host and its counsel”–the severability clause authorizes the court to reform the arbitration provision by striking the requirement that the neutral be drawn from the zip-line industry and providing for the more conventional selection of a genuinely neutral arbitrator by the other two panel members with provision for selection of a third by the court in the event of a deadlock.

The court will enforce the severability clause to strike the provision requiring the choice of a “neutral” arbitrator [*23] who is likely to hold a bias in favor of the zip-line industry. The remaining question is the issue of mutuality.

Some courts have found arbitration clauses in contracts of adhesion that required one party to go to arbitration but imposed no similar obligation on the other party to be unconscionable. See, e.g., Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 170-71 (5th Cir. 2004) (holding arbitration clause in cellular telephone customer service agreement was unconscionable under Louisiana law because it required customer but not provider to arbitrate all claims); Abramson v. Juniper Networks, Inc., 115 Cal. App. 4th 638, 9 Cal. Rptr. 3d 422, 437 (Cal. Ct. App. 2004) (“When only the weaker party’s claims are subject to arbitration, and there is no reasonable justification for that lack of symmetry, the agreement lacks the requisite degree of mutuality.”).

However, this appears to be a minority position. The Second Circuit has rejected the argument that an arbitration clause is void for lack of mutuality where it only requires one party to submit all claims to arbitration. In Doctor’s Associates, Inc. v. Distajo, 66 F.3d 438 (2d Cir. 1995), the court held that an arbitration clause in a franchise agreement was not void for lack of mutuality under Connecticut law, even though the clause required the franchisees to submit all controversies to arbitration while reserving to the franchisor the right to seek summary eviction [*24] against the franchisees. The court explained that mutuality was “not an issue.” Id. at 451. Under modern contract law, the doctrine of “mutuality of obligation,” which requires that a contract be based on reciprocal promises, is no longer required so long as the agreement as a whole is supported by consideration. Id. (citing Restatement (Second) of Contracts § 79 (1979)). The court rejected the idea that the arbitration clause must be considered as a separate contract within a contract, supported by its own consideration. Id. at 452. Likewise, the court held that the doctrine of “mutuality of remedy,” which provides that a “plaintiff shall not get specific enforcement unless the defendant could also have obtained it,” is also defunct and did not support the franchisees’ argument. Id. at 453 (citing Restatement (Second) of Contracts § 363 cmt. c. (1979)). Because the agreement to arbitrate was part of a larger contract which was supported by consideration, it did not fail for lack of mutuality.

Other circuits have reached similar conclusions. See Soto v. State Indus. Prods., Inc., 642 F.3d 67, 77 (1st Cir. 2011) (applying Puerto Rico law); Harris v. Green Tree Fin. Corp., 183 F.3d 173, 181 (3d Cir. 1999) (applying Pennsylvania law); Barker v. Golf U.S.A., Inc., 154 F.3d 788, 791 (8th Cir. 1998) (applying Oklahoma law); see also Circuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1108 (9th Cir. 2002) (applying California law and holding that employer’s promise to be bound by arbitration process was sufficient consideration for employee’s agreement [*25] to arbitrate); Michalski v. Circuit City Stores, Inc., 177 F.3d 634, 636 (7th Cir. 1999) (applying Wisconsin law and reaching same conclusion as Najd).

Vermont courts have not specifically addressed whether an arbitration clause may be void for lack of mutuality. Vermont contract law does not otherwise require parties to an agreement to have equivalent obligations for the agreement to be valid. See H.P. Hood & Sons v. Heins, 124 Vt. 331, 205 A.2d 561, 566 (Vt. 1964) (“[T]here is no requirement that the option of one promisor must be coextensive with the privilege of termination extended to the counter-promisor.”). “Even if one party has options not provided to the other party … the contract is not per se unsupported by consideration. Rather, a contract is incomplete only if one party’s obligations are so attenuated as to render consideration merely illusory.” Petition of Dep’t of Pub. Serv., 157 Vt. 120, 596 A.2d 1303, 1309 (Vt. 1991) (Morse, J., dissenting); Restatement (Second) of Contracts§ 79 (1981) (“If the requirement of consideration is met, there is no additional requirement of … ‘mutuality of obligation.'”). The FAA would preempt Vermont from imposing such a requirement only in the case of arbitration provisions. See AT&T Mobility LLC, 131 S. Ct. at 1741. Given that Vermont law strongly favors arbitration, Union Sch. Dist. No. 45 v. Wright & Morrissey, Inc., 183 Vt. 555, 945 A.2d 348, 354 (Vt. 2007), the court concludes that mutuality is not required in order for the arbitration provision to be enforceable.

Littlejohn argues that the agreement was unsupported [*26] by consideration because he was forced to sign it weeks after he had paid for the tickets. This argument is without merit. “[A]ny performance which is bargained for is consideration.” Restatement (Second) of Contracts § 72 (1981). TimberQuest’s performance in this case was allowing Littlejohn to use its adventure zip-line course. In exchange, Littlejohn’s friend paid for their tickets. Upon arrival at the park, he promised that he would submit his claims to arbitration or agree to limit his recovery in court to $75,000. As noted above, the payment page required Littlejohn to agree to sign the agreement prior to participating in the course. “In other words, defendant’s offer of services did not extend to anyone who did not sign the Agreement.” Mero v. City Segway Tours of Washington DC, LLC, 962 F. Supp. 2d 92, 103 (D.D.C. 2013) (holding that liability waiver signed by plaintiff who paid for Segway tour in advance was supported by consideration in form of defendant’s provision of Segway and guided tour where confirmation email warned that he would have to sign liability waiver prior to tour). Thus, Littlejohn’s promise was supported by consideration.

As reformed by the court, the arbitration provision is valid. Under the agreement, there is no cap on damages if the participant chooses to go to arbitration. If [*27] the participant chooses to go to court, he or she agrees to seek $75,000 or less in damages. This court only has jurisdiction over a diversity case if the amount in controversy “exceeds the sum or value of $75,000.” 28 U.S.C. § 1332(a). This provision is strictly construed, and does not extend jurisdiction to a claim for an even $75,000. Salis v. Am. Export Lines, 331 Fed. Appx. 811, 814 (2d Cir. 2009); Matherson v. Long Island State Park Comm’n, 442 F.2d 566, 568 (2d Cir. 1971). Thus, Littlejohn may not bring suit in this court. The court accordingly dismisses plaintiff’s negligence claims for lack of subject matter jurisdiction and without prejudice to plaintiff’s right to demand arbitration.

III. Conclusion

For the reasons stated above, defendant TimberQuest’s motion for partial summary judgment (Doc. 44) is GRANTED. TimberQuest’s cross-motion for summary judgment dismissing all claims (Doc. 52) is DENIED. Plaintiff’s cross-motion for summary judgment (Doc. 46) is GRANTED in part and DENIED in part. The case is dismissed for lack of subject matter jurisdiction without prejudice to plaintiff’s right to demand arbitration.

Dated at Rutland, in the District of Vermont, this 20th day of July, 2015.

/s/ Geoffrey W. Crawford

Geoffrey W. Crawford, Judge

United States District Court


In most you assume the risk of the risks of the sport (but not all) unless the defendant did something to increase that risk to you.

In this case, the defendant was snowboarding without a retention strap. His snowboard got away from him hitting a young girl. The California Appellate Court held this was not a risk the plaintiff assumed when she went skiing.

Campbell v. Derylo, 75 Cal. App. 4th 823; 89 Cal. Rptr. 2d 519; 1999 Cal. App. LEXIS 915; 99 Cal. Daily Op. Service 8401; 99 Daily Journal DAR 10709

State: California

Plaintiff: Jennifer Campbell

Defendant: Eric Derylo

Plaintiff Claims: Negligence

Defendant Defenses: Assumption of the Risk

Holding: For the Plaintiff

Year: 1999

Snowboarders argue they don’t have to wear retention straps because their binding keeps their snowboards attached to them. Snowboard bindings are not releasable. That is true until the Snowboarder sits down to adjust his board or boots and takes his bindings off or tears his bindings off his board.

Working at a ski area you see snowboards coming down the hill that have escaped from boarders.

Most state laws also say that you cannot board a lift without a retention strap.

In this case, the plaintiff was skiing down a run at Heavenly Valley Ski resort. She skied to an icy section and took off her skis and hiked down the icy section. She was sitting on the snow putting her skis back on when the accident occurred.

The defendant was snowboarding on the same run when he encountered the icy section. He sat down to take his snowboard off to walk down the icy section when his snowboard got away from him. The snowboard hit the plaintiff in the lower back.

California does not have a skier safety statute. El Dorado County, the county where Heavenly Valley Ski Resort is located does have a county ordinance requiring all skiers and boarders to have a safety retention strap on their skis and boards.

The skier responsibility code also used by Heavenly requires retention straps.

The plaintiff filed this lawsuit, and the defendant filed a motion for summary judgment based on assumption of the risk. The trial court granted the motion, and the plaintiff appealed.

Analysis: making sense of the law based on these facts.

The trial court’s supporting argument for granting the defendant’s motion for summary judgment was:

The trial court concluded that primary assumption of the risk barred plaintiff’s action because injury from runaway snowboards is an “everyday risk in the sport of skiing or snowboarding.” Plaintiff contends that primary assumption of risk does not bar this action because defendant’s use of a snowboard unequipped with a retention strap amounted to conduct outside the inherent nature of the sport.

The Appellate court first went to the deciding case in California (and relied upon in most other states) concerning assumption of the risk. Knight v. Jewett (1992) 3 Cal. 4th 296 [11 Cal. Rptr. 2d 2, 834 P.2d 696]. The California Supreme Court in Knight defined assumption of the risk.

…ordinary duty of care to avoid injury to others is modified by the doctrine of “primary assumption of risk.” Primary assumption of the risk negates duty and constitutes a complete bar to recovery. .) Whether primary assumption of the risk applies depends on the nature of the sport or activity in question and the parties’ relationship to that activity. In the context of sports, the question turns on “whether a given injury is within the ‘inherent’ risk of the sport.”

The court then looked at California cases dealing with skiing where assumption of the risk was a basis for the defense.

…assumption of the risk applies to bar recovery for “. . . moguls on a ski run, trees bordering a ski run, snow-covered stumps, and numerous other conditions or obstacles such as variations in terrain, changes in surface or subsurface snow conditions, bare spots, other skiers, snow-making equipment, and myriad other hazards which must be considered inherent in the sport of skiing.”

Knight, Id, however, does not grant immunity to “all defendants participating in sporting activity.” Defendants have a duty of care not to increase the risks to another participate “over and above those inherent in the sport.”

Meaning if you increase the risk of a sport to another participant, you have eliminated the inherent risk from the sport. Inherent risks of a sport are assumed by the participants, whether or not those risks are truly inherent or identified as inherent by statute.

The court then applied a quasi but for test to determine if the actions of the defendants in cases increased the risk unnecessarily. In a baseball game, the actions of the mascot took a spectator’s attention away from the game, and he was hit with a foul bar. The game of baseball could be played without a mascot; therefore, having the mascot increased the risk to the spectators.

In a skiing case you could ski without alcohol. Therefore, skiing drunk increases or changes the risk to the other skiers on the slope placing them at greater risk of a collision. Therefore, the inherent risk of skiing was changed when the defendant was drunk.

The court then looked at the present case as: “the question whether defendant’s use of a snowboard without a retention strap could be found by a jury to have  increased the inherent risk of injury to coparticipants from a runaway snowboard.”

The court found that both the county ordinance and the Heavenly Valley Skier Responsibility Code which was posted at the resort require the use of a retention strap. Therefore, there was a demonstrated recognition that retention straps were a necessary safety equipment to reduce the risk of runaway ski equipment.

A jury could find that, by using a snowboard without the retention strap, in violation of the rules of the ski resort and a county ordinance, defendant unnecessarily increased the danger that his snowboard might escape his control and injure other participants such as plaintiff. The absence of a retention strap could therefore constitute conduct not inherent to the sport which increased the risk of injury.

A test in the drunken skier case upheld this conclusion.

[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.”

When you assume the risk, those risks are the normal risks, even if they occur infrequently or rarely. More so, the risks you assume in a sport are not changed by the individual actions of one person.

The defendant also argued there was no proximate cause between this action in taking off his board and the injury the plaintiff suffered because the board could have gotten away from him at any time when he was taking it off to walk down the hill. The court looked at statements from the Defendant’s expert witness to refute that argument.

However, the declaration of plaintiff’s expert established that, used properly; the retention strap would have tethered defendant’s leg or boot to his snowboard. Defendant offered no evidence to refute the possibility that the strap would have provided him an opportunity to secure control of the board and prevent the accident.

The court reversed and sent the case back to the lower court for trial because “We conclude that defendant owed a duty of care not to increase the risks of skiing beyond those inherent to the sport.”

So Now What?

The first obvious issue is, do not snowboard without a retention strap or a way to secure your board from getting away. Even if you take your board off to walk down the slope or work on your board/binding you need to secure the board. Skis all have breaks now days, and if you drop a ski on the slope, it will stop.

More importantly, this case looks at the upper limit of assumption of an inherent risk in a sport.

The inherent risks of a sport are those risks that are part and parcel of the sport or activity. Without those risks, the sport would not be what it is. Remove the inherent risks and the sport has no value to the players.

In skiing, most ski area safety statutes have broadened the definition of the inherent risk of skiing to include numerous other risks. Several other state statutes have done the same for other activities.

California has not defined the inherent risk of skiing except through case law. Consequently, each new injury a skier suffers on the slope is defined afterwards by the courts as being an assumed risk or not, rather before the injured guest starts skiing.

Here, the inherent risks of skiing were tightened in California, and I would guess most other courts would come to the same conclusion.

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