Court in its ruling referred to the language on the lift ticket as additional proof that plaintiff had knowledge of the risk.
State: Minnesota, Court of Appeals of Minnesota
Plaintiff: Donya L. Dawson
Defendant: Afton Alps Recreation Area
Plaintiff Claims: Negligence
Defendant Defenses: Assumption of Risk
Holding: for the Defendant
The plaintiff went tubing at the defendant’s property. She failed to stop and collided with a fence at the end of the run. She had been tubing before in the past couple of years. She purchased a ticket to tube but did not read the disclaimer language on the back of the ticket before she affixed it to her jacket.
The language on the lift ticket was quite extensive and outlined the risks of tubing.
The plaintiff could see the fence which was behind a snow barrier when she was standing at the top of the tubing run. The plaintiff tubed for about 1.5 hours when she linked her tube with her boyfriends. At the end of the run the plaintiff “flipped out of her tube” hitting the fence injuring her leg.
The plaintiff sued, and the trial court granted the defendant’s motion for summary judgment stating the plaintiff’s claims were barred by the doctrine of primary assumption of the risk.
Analysis: making sense of the law based on these facts.
Primary assumption of the risk is a complete bar to a recovery by a plaintiff. Under Minnesota law, primary assumption of the risk is defined as:
Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .
In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.
The court also stated that in Minnesota for a person to assume the risk, they must:
The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.”
The knowledge required when knowing the risk is actual knowledge of the risk. That means the plaintiff could not be held to know the risk of tubing and hitting the fence if she had not seen the fence. Actual knowledge that there was a fence at the end of the run is required, not just the knowledge that you can be hurt tubing.
The court then broke down the requirements and discussed each component of the steps necessary to prove assumption of the risk. The first is, was there a duty of care owed by the defendant to the plaintiff. Under Minnesota law, a person operating a place of amusement owes a duty to make the amusement reasonable safe.
(holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.
The court found that the plaintiff had the opportunity to discover the risks of tubing, knew about those risks thus she accepted the risks of tubing.
Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.
Next the court looked at whether the plaintiff had knowledge and appreciated of the risk. Knowledge must be “Actual knowledge of a sport’s risks may be inferred from experience in the sport.”
The plaintiff argued she did not know she could be hurt hitting the fence.
The court basically did not buy it. The plaintiff knew she could be injured if she hit other objects or other tubers. The plaintiff knew the hill was icy that night and knew she was unable to control the tube as it went down the hill. The plaintiff knew the activity was not safe and wore a ticket that stated it was not safe.
The court concluded that if the plaintiff wanted to avoid the risks, she could have not gone tubing that evening.
So Now What?
I found this statement in the decision to be quite interesting. “Snowtubing is a sport, like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” This might be interesting and provide help either direction in a skiing case in Minnesota.
Assumption of the risk is the second defense available to most outdoor recreation providers. However, proving assumption of the risk is difficult. Here it was a lot easier because the plaintiff had gone tubing before and had been tubing for an hour and half the nigh to the incident as well as saw the risk before encountering it.
Keep track of who visits your operation. Repeat visitors may tell you of the dozens of times they have stopped by in the past and then on the stand say it was a first time for them. Assumption of the risk is hard to prove without prior experience, videos or proof the persons assumed the risk in writing.
What do you think? Leave a comment.
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Donya L. Dawson, Appellant, vs. Afton Alps Recreation Area, Respondent.
COURT OF APPEALS OF MINNESOTA
2014 Minn. App. Unpub. LEXIS 1047
September 22, 2014, Filed
NOTICE: THIS OPINION WILL BE UNPUBLISHED AND MAY NOT BE CITED EXCEPT AS PROVIDED BY MINNESOTA STATUTES.
SUBSEQUENT HISTORY: Review denied by Dawson v. Afton Alps Rec. Area, 2014 Minn. LEXIS 685 (Minn., Dec. 16, 2014)
PRIOR HISTORY: [*1] Washington County District Court File No. 82-CV-13-224.
CORE TERMS: snowtubing, fence, ticket, colliding, tube, barrier, pillow, well-known, incidental, snowtuber, skiing, sport, summary judgment, review denied, collision, snowtubed, speed, record supports, actual knowledge, genuine, icy, snowboarding, snowtube, descent, jacket, tubing, linked, user, hit, matter of law
COUNSEL: For Appellant: James W. Balmer, Falsani, Balmer, Peterson, Quinn & Beyer, Duluth, Minnesota.
For Respondent: Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, PLLC, Minneapolis, Minnesota.
JUDGES: Considered and decided by Reyes, Presiding Judge; Hooten, Judge; and Willis, Judge*.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
OPINION BY: WILLIS
Appellant sustained injuries from colliding with a fence while snowtubing and brought a negligence action against the owner and operator of the snowtubing business. The district court entered summary judgment in favor of the owner, concluding that the doctrine of primary assumption of the risk barred appellant’s claim. We affirm.
In January 2012, appellant Donya Dawson went snowtubing at respondent Afton Alps Recreation Area with a group of friends. Dawson, who was 41 years old, had snowtubed at least once in the preceding two years. A friend of Dawson’s signed a release in order to get Dawson’s ticket; Dawson affixed the ticket to her jacket. The ticket contained the following language:
The [*2] purchaser or user of this ticket agrees and understands that skiing, snowboarding, and tubing can be hazardous. Trail conditions vary constantly because of weather changes and individual use. Ice, variations in terrain, moguls, forest growth, rocks and debris, lift towers and other obstacles and hazards, including other skiers, snowboarders and tubers may exist throughout the area. Be aware that snowmaking and snowgrooming may be in progress at any time. Always stay in control.
In using the ticket and skiing, snowboarding or tubing at the area, such dangers are recognized and accepted whether they are marked or unmarked. Ski, snowboard and tube on slopes of your ability and read trail maps.
The user realizes that falls and collisions do occur and injuries may result and therefore assumes the burdens of skiing, snowboarding and tubing under control at all times.
. . . .
The user of this ticket assumes all risk of personal injury or loss or damage to property.
While Dawson did not read the fine print of the ticket, she testified that she had read similar language on a ticket when she snowtubed previously.
Standing at the top of the hill, Dawson saw that there was a fence directly behind a [*3] pillow barrier at the foot of the hill. The pillow barrier was composed of several large, foam-filled pads that were tied together with thick rope and that in turn were tied to the fence. Dawson testified that the conditions on the hill were icy and that she had no control over the speed or direction of travel of her tube during the descent. On her first run, Dawson snowtubed down the hill with five of her friends. All six linked their tubes together. When Dawson reached the bottom of the hill, she “flipped upside down” as she hit the pillow barrier. An Afton Alps employee told her that the facility allowed only two snowtubers to go down the hill together because linking tubes increases the speed of descent. Dawson testified that she continued to snowtube down the hill linked with a friend’s tube, and she hit the pillow barrier “very hard” each time. After snowtubing for approximately an hour and a half, Dawson and her boyfriend snowtubed down the hill with their tubes linked together. At the end of the run, Dawson flipped off her tube and her body hit the fence, injuring her left leg.
Dawson asserts that her bodily injury was directly and proximately caused by Afton Alps’s negligence. [*4] The district court granted Afton Alps’s motion for summary judgment, concluding that Dawson’s claims were barred by the doctrine of primary assumption of the risk. This appeal follows.
“On appeal from summary judgment, we must review the record to determine whether there is any genuine issue of material fact and whether the district court erred in its application of the law.” Dahlin v. Kroening, 796 N.W.2d 503, 504-05 (Minn. 2011). “[T]he applicability of primary assumption of the risk may be decided by the court as a matter of law when reasonable people can draw only one conclusion from undisputed facts. . . . [A]n appellate court reviews that decision de novo.” Grady v. Green Acres, Inc., 826 N.W.2d 547, 549-50 (Minn. App. 2013) (alterations in original).
Primary assumption of the risk acts as a complete bar to a plaintiff’s recovery. Armstrong v. Mailand, 284 N.W.2d 343, 348 (Minn. 1979). Minnesota courts have applied primary assumption of the risk to cases involving participants in inherently dangerous sporting activities. See Wagner v. Obert Enters., 396 N.W.2d 223, 226 (Minn. 1986) (rollerskating); see also Grisim v TapeMark Charity Pro-Am Golf Tournament, 415 N.W.2d 874, 876 (Minn. 1987) (golf); Moe v. Steenberg, 275 Minn. 448, 450-51, 147 N.W.2d 587, 589 (1966) (ice skating); Peterson ex rel. Peterson v. Donahue, 733 N.W.2d 790, 793 (Minn. App. 2007) (skiing), review denied (Minn. Aug. 21, 2007); Schneider ex rel. Schneider v. Erickson, 654 N.W.2d 144, 152 (Minn. App. 2002) (paintball); Snilsberg v. Lake Wash. Club, 614 N.W.2d 738, 746-47 (Minn. App. 2000) (diving), review denied (Minn. Oct. 17, 2000); Jussila v. U.S. Snowmobile Ass’n, 556 N.W.2d 234, 237 (Minn. App. 1996), (snowmobile racing), review denied (Minn. Jan. 29, 1997); Swagger v. City of Crystal, 379 N.W.2d 183, 184-85 (Minn. App. 1985) (softball), review denied (Minn. Feb. 19, 1986). In Grady, this court recently held that primary assumption of [*5] the risk applies to adult snowtubers because it is an inherently dangerous sport. 826 N.W.2d at 552.
Here, the doctrine of primary assumption of the risk relates to Afton Alps’s legal duty to protect Dawson, a snowtuber, from the risk of harm.
Primary assumption of the risk arises when parties have voluntarily entered a relationship in which plaintiff assumes well-known, incidental risks. The defendant has no duty to protect the plaintiff from the well-known, incidental risks assumed, and the defendant is not negligent if any injury to the plaintiff arises from an incidental risk . . . .
In primary assumption of the risk, by voluntarily entering into a situation where the defendant’s negligence is obvious, by his conduct, the plaintiff consents to the defendant’s negligence and agrees to undertake to look out for himself and relieve the defendant of the duty.
Id. at 550.
“The application of primary assumption of the risk requires that a person who voluntarily takes the risk (1) knows of the risk, (2) appreciates the risk, and (3) has a chance to avoid the risk.” Id. at 551 (citing Peterson, 733 N.W.2d at 792). “Application of the doctrine requires actual, rather than constructive, knowledge.” Snilsberg, 614 N.W.2d at 746.
A. Duty of Care
“The first step in determining whether primary [*6] assumption of the risk applies is to determine whether the defendant owed a duty to the plaintiff.” Grady, 826 N.W.2d at 550. Afton Alps acknowledges that it owed Dawson the duty of reasonable care. See Phillips v. Wild Mountain Sports, Inc., 439 N.W.2d 58, 59 (Minn. App. 1989) (holding that “[a] private person operating a place of public amusement is under an affirmative duty to make it reasonably safe for his patrons”). “But the landowner’s duty to entrants does not include situations where the risk of harm is obvious or known to the plaintiff, unless the landowner should anticipate the harm despite the obviousness of the risk.” Snilsberg, 614 N.W.2d at 744.
Dawson argues that Afton Alps breached its duty because it failed to warn her that she could be injured by colliding with the fence, and Afton Alps should have either removed or properly cushioned the fence. But Dawson offers no evidence other than her own argument that such measures would have lessened the inherent risks associated with snowtubing. See Grady, 826 N.W.2d at 550 (dismissing appellant’s assertion that respondent was negligent in reducing risk of collision with another snowtuber when it failed to provide numerous safety measures on the course).
A well-known, incidental risk of snowtubing is the possibility of colliding with a fixed object. Snowtubing is a sport, [*7] like skiing, in which “participants travel down slippery hills at high speed with limited ability to stop or turn.” Id. Even if Afton Alps had a duty to warn, it met that duty when it informed Dawson of the risk of possibly colliding into a fixed object, such as the fence. Dawson wore a release ticket on her jacket that stated that snowtubing can be hazardous, and by using the ticket to snowtube at Afton Alps, she recognized and accepted all dangers “whether they are marked or unmarked” and “assume[d] the burden” of snowtubing “under control at all times.”
B. Knowledge and appreciation of the risk
Actual knowledge of a sport’s risks may be inferred from experience in the sport. Grady, 826 N.W.2d at 551; see also Snilsberg, 614 N.W.2d at 746 (concluding that appellant’s actual knowledge of the danger of diving into the lake from the dock was established by her general knowledge as an experienced swimmer and diver and specific knowledge of the shallow water at the dock).
Dawson argues that she did not have actual knowledge that she could suffer severe harm from colliding with the fence while snowtubing. But the record supports the district court’s determination that Dawson had such actual knowledge. Dawson testified that she had general knowledge [*8] of snowtubing because she had done it at least once before. Dawson also had specific knowledge that she could collide with the fence while snowtubing–she saw that the fence was located directly behind the pillow barrier at the foot of the hill. Dawson knew of the icy conditions on the hill that evening and that she was unable to control her tube as it went down the hill. An Afton Alps employee told Dawson after her first run that linking tubes increases the speed of descent. Despite her knowledge of these risks, she continued to snowtube down the hill.
The record also supports the district court’s conclusion that Dawson appreciated the risk of being injured by colliding with the fence. Dawson wore a ticket on her jacket stating that she acknowledged that “obstacles and hazards . . . may exist throughout the area” and “collisions do occur and injuries may result,” and that she “recognized and accepted those dangers” and “assume[d] all risk of personal injury.”
Although Dawson insisted that she was unaware that she could be injured by colliding with the fence, she testified that it was possible that she could collide with other persons or objects while snowtubing and that snowtubing is a sport [*9] that cannot be made completely safe. The record supports the district court’s conclusion that Dawson knew and appreciated the risk of a collision with the fence.
The district court also properly concluded that Dawson had a chance to avoid the risk. See Grady, 826 N.W.2d at 552 (concluding appellant had the chance to avoid the risk of colliding with another snowtuber by not going down the hill). Dawson could have avoided the risk by not snowtubing that evening. The district court noted that when Dawson stood at the top of the hill, “she could see and appreciate the conditions then existing” and that she “was aware from her previous trips down the hill that the hill was icy and that she would in all likelihood run into the [pillow barrier], and possibly the fence, at the end of her run.” The record supports the district court’s conclusion.
C. Expert testimony
Dawson argues that primary assumption of the risk is inapplicable here because her liability expert testified that the fence was not a well-known risk incidental to snowtubing. But colliding with a fixed object is a well-known risk of snowtubing, and here the fence was an obvious fixed object. No genuine issue for trial exists when “the record taken as a [*10] whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). No genuine issue of fact exists here because the evidence is conclusive, and there is no fact issue for a jury to decide. See Snilsberg, 614 N.W.2d at 744 (holding that applicability of primary assumption of the risk is “[g]enerally a question for the jury” but that it “may be decided as a matter of law” when the evidence is conclusive).
The record supports the district court’s determination that Dawson’s injuries resulted from the inherent risks of snowtubing, and it did not err by granting Afton Alps’s motion for summary judgment.
The basics of winning a negligence claim is having some facts that show negligence, not just the inability to canoe by the plaintiffPosted: February 2, 2015
Plaintiff’s rented a canoe and sued when they did not make the takeout and became stuck. The plaintiff’s took 4 hours to paddle 2.5 miles
State: New York, Supreme Court of New York, Suffolk County
Plaintiff: Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually
Defendant: Bob’s Canoe Rental, Inc.
Plaintiff Claims: negligent in permitting them to rent the canoe and launch so close in time to low tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.
Defendant Defenses: Assumption of the Risk and Release
The facts are pretty simple, even if expanded by the plaintiffs. The plaintiff wanted to rent a canoe on the Nissequogue River in Suffolk, New York. The Nissequogue River is affected by tides. At low tide, the river disappears and the ocean rushes in. The plaintiff/deceased/husband had canoed the river several times before. The plaintiff/husband and wife contacted the defendant the day before and arrived the day of the incident in the morning. However, the defendant was not at the put in, but located at the takeout. The plaintiff’s drove to the take out where they left their car and were taken back to the put in by the defendant where they started canoeing.
Prior to starting the trip each plaintiff signed a release, and the wife signed a rental agreement for the canoe.
A canoe livery if you are not familiar with one is really a rental operation like a car rental operation where you rent a car and go anywhere you want. A canoe livery you rent the canoe and paddle down a specific section of a specific river. At the end of the trip, the livery picks you up and takes you back to your car. Some liveries start by taking you upriver where you paddle down to your car.
Generally, courts look at canoe liveries as outfitters, not as rental shops. Consequently, liveries are held to a slightly higher degree of care for their guests because of their control over the boat, the river and transportation.
The time prior to putting in, the husband questioned the employee of the defendant about whether they had enough time to canoe the river before the low tide. The employee confirmed they did.
From the put in to the take out is a distance of five miles. Witnesses and the defendant testified it could easily be canoed in 2.5 hours.
After 4 hours of canoeing, the plaintiffs on the day in question had made it 2.5 miles. The tide went out leaving them stranded. According to the wife, the pair started drinking the vodka and wine they had with them to stay warm.
Eventually, they were found and treated for hyperthermia.
The plaintiff sued for basically not stopping them from renting the canoe. The court also looked at their complaint and defined one of their allegations as a negligent misrepresentation claim.
At the time of the trial, the husband had died; however, his death was not part of this case or caused by the facts in this case.
Analysis: making sense of the law based on these facts.
The court looked at the degree of care the defendant owed to the plaintiff and found the plaintiff was voluntarily participating in a sporting or recreational activity. As such, the participants “consent to the commonly appreciated risks that are inherent in and arise out of, the nature of the sport generally and flow from participation therein.” Consequently the participants consent to injury caused by events which are “known, apparent, or reasonably foreseeable risks of the participation.”
If the plaintiff fully comprehends the risks, then the plaintiff consents to them. Stated another way “the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks…”
The court found the defendant husband was an experience canoeist and understood the tides, and the risks presented by both. Therefore, the plaintiff’s assumed the risk of injury.
The court then looked at the releases.
It must appear absolutely clear that the agreement extends to negligence or other fault of the party. “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear”
Under New York law once the defendant has presented the release, and it has passed the test to exclude negligence the plaintiff must produce evidence, admissible at trial, “sufficient to require a trial of the material issues of fact.”
Here the plaintiff had not submitted any evidence other than the testimony of the plaintiff’s. More importantly the court wanted to know why it took four hours to go half way on the trip.
The court then looked at the remaining allegations and determined those sounded like a claim of negligent misrepresentation. To prevail on a negligent misrepresentation claim the plaintiff must prove “a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided”
Here the court found that no evidence had been submitted by the plaintiff to prove the information supplied by the defendant was false.
The plaintiff’s complaint was dismissed.
So Now What?
This case was short but very interesting. The plaintiff did not attack the releases. The court even commented about the fact the plaintiff did not try to have the releases thrown out or voided. Additionally, the plaintiff simply tried to say that the defendant was liable because they got stuck. This is a belief that many plaintiffs have now days. I suffered an injury; therefore, you must be liable.
To win a negligence claim you must prove negligence. Here the plaintiff had not argued there was a breach of the duty owed to them.
There are several abnormally that make this interesting. The first is the standard of care applied to this case is significantly lower than normally that a canoe livery must meet. However, that same standard of care was only at issue on a small part of the claim so the claim would have failed anyway.
The second is the experience of the husband as a canoeist was held to prevent the plaintiff wife from her claims also. Normally, assumption of the risk must be known and understood by each injured plaintiff. Here, because there were two people in the canoe both working together, the court applied the experience and knowledge of one party in the canoe to the other party in the canoe.
The court did not rely on the release or any other document to make this decision as to the wife assuming the risk that caused their injuries.
Granted, the defendants should have clearly won this case. Whenever in a deposition, the plaintiff argues, they did not start drinking until after they had run out of water to canoe, to stay warm, you should be a little suspect.
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[**1] Kathleen Ferrari, as Administratrix of the Estate of Dennis Ferrari, and Kathleen Ferrari, Individually. Plaintiffs, – against – Bob’s Canoe Rental, Inc., Defendant. INDEX No. 09-6690
SUPREME COURT OF NEW YORK, SUFFOLK COUNTY
2014 N.Y. Misc. LEXIS 3768; 2014 NY Slip Op 32209(U)
July 31, 2014, Decided
NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.
CORE TERMS: river, canoe, trip, low tide, summary judgment, stranded, deposition, tide, rented, canoeing, paddling, safe, launch, minutes, mile, issue of fact, nonparty, high tide, entitlement, newspaper, decedent, halfway, paddle, facie, launched, arrived, canoed, times, stuck, woman
COUNSEL: [*1] For Plaintiffs: ELOVICH & ADELL, ESQS., Long Beach, New York.
For Defendant: GORDON & SILBER, P.C., New York, New York.
JUDGES: PRESENT: Hon. DENISE F. MOLIA, Acting Justice of the Supreme Court.
OPINION BY: DENISE F. MOLIA
ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further
ORDERED that the motion by the defendant for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint is granted, and it is further
ORDERED that the motion by the defendant for an order pursuant to CPLR 1021 dismissing the complaint for failure to substitute a representative on behalf of the decedent Dennis Ferrari is denied as academic.
This action was commenced to recover damages for personal injuries allegedly sustained by the plaintiff Kathleen Ferrari, and her husband, the decedent Dennis Ferrari, when they were exposed to the elements after becoming stranded at low tide while canoeing on the Nissequogue River in Suffolk County, New York. The Ferraris had rented the canoe used by them that day from the defendant. In the complaint, the Ferraris allege, among other things, that the defendant was negligent in permitting them to rent the canoe and launch so close in time to low [*2] tide, and in advising them that it was safe to begin their canoe trip when the defendant knew or should have known it was unsafe to do so.
[**2] The following facts involving this incident are undisputed. The Ferraris rented a canoe from the defendant on October 27, 2008, intending to make a one-way trip on the Nissequogue River from a launching site located in a park in Smithtown, New York to a park in Kings Park, New York. Both sites were used by the defendant in its business of renting canoes to the public. The defendant’s employee, Geoffrey Lawrence, met the Ferraris, both signed the defendant’s release of liability form, and Dennis Ferrari signed a written lease agreement for the canoe.
The defendant now moves for summary judgment on the grounds that the Ferraris assumed the risk of their activities and that the defendant did not breach a duty of care. In support of the motion, the defendant submits, among other things, the pleadings, the deposition transcripts of the parties, the deposition transcripts of three nonparty witnesses, and an affidavit from an expert. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, [*3] tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 501 N.E.2d 572, 508 NYS2d 923 ; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 476 N.E.2d 642, 487 NYS2d 316 ). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties’ competing interest must be viewed “in a light most favorable to the party opposing the motion” (Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]).
At his deposition, Dennis Ferrari testified that he had canoed approximately 12 times when he was younger and a Boy Scout, and that, before this incident, he had canoed as an adult on the Nissequogue River two times. He indicated that his first trip took four to four and one-half hours to travel the length of the river, and that his second trip took five hours to complete. He stated that he rented canoes for those trips, that he “believes” they were rented from the defendant, and that the rental company “schedule[s] you around the tides.” Dennis Ferrari further testified that he called the defendant the day before this trip to rent a canoe, that he believes that he was told it would be high tide for his trip at either 9:00 or 10:00 a.m, and that he was aware that low tide was generally six hours [*4] after high tide. He stated that he himself checked the time of high tide in the local newspaper, and that he does so “every day, because I do a lot of fishing.” He indicated that, on the day of this incident, he awoke at 7:30 or 8:00 a.m. and had breakfast, that he packed a lunch with wine and vodka, that he left his home at 9:30 a.m. to travel to Smithtown to rent the canoe, and that no one from the defendant was there when he arrived at approximately 10:00 a.m. He declared that neither he or his wife had cell phones, that they waited approximately one hour and then contacted the defendant by pay phone, and that he was told to travel to the mouth of the river in Kings Park. Dennis Ferrari further testified that he arrived at Kings Park at 11:30 or 11:45 a.m., that “there was somebody waiting there,” and “by this time, I’m thinking that its getting a little late, and I asked him if it was going to be a problem.” He stated that the person then drove them back to Smithtown, that they arrived “probably close to 12:30,” and “I just asked if we had enough time to make it down river. He said, yeah, it won’t be a problem.” He indicated that he and his wife launched the canoe a little after [*5] 12:30, that both were paddling the canoe, and that they did not eat or drink anything before they “got stuck” at approximately 4:30 p.m. Dennis Ferrari further testified that, for the approximately four hours before they were stranded, he and his wife were paddling [**3] “leisurely, because the river … takes you,” and that he noticed the tide “going out fast” approximately 20 minutes before they got stuck in the mud. He indicated that he and his wife paddled “maybe a couple of hundred yards” in that last 20 minutes, that, “as the water started to go out,” he tried to paddle closer to the shore, and that they became stranded near the Smithtown Landing Country Club. He stated that the Country Club was approximately three or four miles from the launch site in Smithtown and more than halfway to Kings Park, that he did not have any difficulties with the canoe before he and his wife were stranded, and that, after they were stuck, he got out of the canoe to attempt to pull it to shore. He was unsuccessful and re-entered the canoe. He declared that the sun went down at approximately 5:00 or 5:30 p.m., and that he and his wife were not rescued for hours after they were stranded.
At her deposition, [*6] Kathleen Ferrari testified that she had never been canoeing before, that her husband told her that he had canoed on the Nissequogue River twice before, and that he rented a canoe and said that they had to be at Smithtown at either 9:00 or 10:00 a.m. on the day of this incident. She stated that they waited approximately 15 minutes for someone from the defendant to show up, that they called from a pay phone, and that they were told that they had to go to Kings Park. She indicated that they met the man in Kings Park at approximately 11:00 a.m., that her husband asked if they were getting out too late and if it was safe, that the man said that they were fine, and the man told them to leave their car so that he could drive them back to Smithtown. Kathleen Ferrari further testified that, because they were approximately 20 minutes away from Smithtown, her husband kept asking about the tides and told the man that “we’re not going to be actually going out until 11:30,” and that the man kept assuring him that it was safe. She stated that they launched from Smithtown at approximately 12:00 p.m., that they paddled at “quite a pace” because her husband was “concerned that we kept moving,” and that [*7] when her husband mentioned that tide was changing fast they were almost at the end of their trip. She indicated that she and her husband did not have any alcohol to drink until well after they were stranded and in order to combat the cold, and that it took hours before they were rescued.
Geoffrey Lawrence (Lawrence) was deposed on March 7, 2011, and testified that he was a seasonal full-time employee of the defendant in 2008, that he canoed the Nissequogue River daily that year, and that the length of the river from Smithtown to Kings Park is five and one-half miles. He stated that the defendant always launches its canoes from Smithtown, and that the average time to complete the trip to Kings Park at a moderate rate of paddling is two and one-half hours. He indicated that high tide was at approximately 10:30 a.m. on October 27, 2008, that low tide was at 4:30 p.m., and that the time for return of canoes was 4:30 p.m., as it is always at the time of low tide. Lawrence further testified that the Ferraris signed the releases and lease agreement in his truck at Kings Park, that he gave them general instructions, and that Dennis Ferrari said he was experienced, he had done this before, and [*8] he knew where he was going. He stated that he recalled Dennis Ferrari asking if they still had time to launch, and that, generally, the latest time that he would rent a canoe to someone, depending on the tide and time of sunset, would be 2:00 p.m. He indicated that he advised Dennis Ferrari that they could not be in later than 4:30 p.m. that day, that he did not know of any other incidents where someone was stranded on the river, and that he waited in Kings Park for the Ferraris after they launched. He declared that he became anxious when the Ferraris did not arrive at 4:30 p.m., that he went looking for them in his truck, and that he found them stranded near the Smithtown Landing Country Club.
[**4] Nonparty witness Ann Schumacher was deposed on September 3, 2010, and testified that she was employed by the Smithtown Fire Department as an EMT-B in 2008, that she was also a registered nurse, and that she had training in hypothermia and intoxication. She stated that she and her crew responded to an emergency call on October 27, 2008, that this was the first time she had been called to rescue someone stuck on the Nissequogue River, and that she completed a patient care record regarding Dennis [*9] Ferrari. She indicated that Dennis Ferrari did not appear intoxicated, that she did not smell alcohol on his breath, and that he was not slurring his speech.
At his deposition, nonparty witness Edward Springer (Springer) testified that he was employed by the Smithtown Fire Department as an EMT-Critical Care in 2008, that he responded to an emergency call on October 27, 2008, and that he completed a care record regarding Kathleen Ferrari that date. He indicated that he recorded her blood pressure as 80/60, that she was hypothermic, and that her pupils were normal. He stated that if she was intoxicated her pupils would be “different [than] normal,” and that he did not smell alcohol on her breath. Springer further testified that he has rented canoes on the Nissequogue River, that he was verbally told when high tide would be, and that he was aware that low tide is six hours later. He stated that “he believed” it took him three hours to complete a trip on the river, and that the Smithtown Landing Country Club is a little more than halfway to the end of the river.
Nonparty witness Greg Krockta (Krockta) was deposed on September 1, 2011, and testified that he was fishing on the Nissequogue [*10] River on the day of this incident, that he observed a man and a woman in a canoe, and that the woman was slumped over and looked “ill or something.” He stated that the man was paddling the canoe, that the woman was not paddling, and that the man was yelling at the woman to “get up and paddle.” He indicated that he did not know if the couple that he saw are “the same two people [involved in this lawsuit],” that he thinks that the two were the only “male and female combination” that he saw that day, and that he believes that he could identify the couple if shown photographs. Krockta further testified that he lives near the river less than one mile from the launching area, that he often fishes and boats on the river, and that it would take a novice approximately two hours to get from the Smithtown … launching area to the end of the river.”
In an affidavit dated December 8, 2011, the defendant’s expert witness, David Smith (Smith), swears that he is a retired commander with the United States Coast Guard and, among other things, a member of the National Safe Boating Council. He states that he has reviewed the complaint and bill of particulars, the depositions of the Ferraris, Lawrence [*11] and Krockta, and the tidal data for the Nissequogue River. He indicates that he inspected the river on June 14, 2011, when he paddled a canoe from the Smithtown launch site to the vicinity of the Smithtown Landing Country Club. Smith further swears that he chose the June date because the tidal times were substantially the same as on the date of this incident, that he was provided a 17-foot aluminum canoe, and that he took a companion but that “he was the sole paddler of the canoe at all times.” He states that he was 73 years old at the time, and that the combined weight of he and his companion was 426 pounds. He indicates that his review of the Ferraris depositions reveals that their combined weight was 302 pounds, and that Dennis Ferrari was 49 years old on the day of this incident. Smith further swears that he launched his canoe at 11:38 a.m., encountered a headwind of 5-10 miles per hour, and arrived at the Smithtown Landing Country Club at 1:03 p.m. having covered a distance of 3.2 miles in 1 hour and 25 minutes. He states that he estimates that he would have completed the 5 Vi miles from Smithtown to Kings Park in 2 hours and 26 minutes. Smith [**5] opines that, with a reasonable degree [*12] of boating and aquatic safety certainty, the Ferraris had “ample time to complete the course of the Nissequogue River well before the onset of low tide” on the date of this incident.
As a general rule, a plaintiff who voluntarily participates in a sporting or recreational event is held to have consented to those commonly-appreciated risks that are inherent in, and arise out of, the nature of the sport generally and flow from participation therein (see Morgan v State of New York, 90 NY2d 471, 685 N.E.2d 202, 662 NYS2d 421 ; Mendoza v Village of Greenport, 52 AD3d 788, 861 NYS2d 738 [2d Dept 2008]; Paone v County of Suffolk, 251 AD2d 563, 674 NYS2d 761 [2d Dept 1998]), including the injury-causing events which are the known, apparent, or reasonably foreseeable risks of the participation (see Cotty v Town of Southampton, 64 AD3d 251, 880 NYS2d 656 [2d Dept 2009]; Rosenbaum v. Bayis Ne’Emon, Inc.., 32 AD3d 534, 820 NYS2d 326 [2d Dept 2006]). In addition, the plaintiff’s awareness of risk is to be assessed against the background of the skill and experience of the particular plaintiff (see Maddox v City of New York, 66 NY2d 270, 487 N.E.2d 553, 496 NYS2d 726 ; Kremerov v. Forest View Nursing Home, Inc.., 24 AD3d 618, 808 NYS2d 329 [2d Dept 2000] Dept 2005]; Gahan v Mineola Union Free School Dist., 241 AD2d 439, 660 NYS2d 144 [2d Dept 1997]). If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty” (Turcotte v Fell, 68 NY2d 432, 502 N.E.2d 964, 510 NYS2d 49 ). Stated otherwise, the duty of the defendant is to protect the plaintiff from injuries arising out of unassumed, concealed, or unreasonably increased risks (see Manoly v City of New York, 29 AD3d 649, 816 NYS2d 499 [2d Dept 2006]; Lapinski v Hunter Mountain Ski Bowl, 306 AD2d 320, 760 NYS2d 549 [2d Dept 2003]; Pascucci v Town of Oyster Bay, 186 AD2d 725, 588 NYS2d 663 [2d Dept 1992]).
Here, the defendant has established [*13] that Dennis Ferrari was an experienced canoeist, with experience regarding the tides on the Nissequogue River, and with knowledge about the risk involved in canoeing at low tide. Dennis Ferrari testified that he had specific knowledge that low tide would occur at approximately 4:30 p.m. that date, and he indicated that it was his experience that a trip on the river could take five hours. Nonetheless, he decided to launch the rented canoe as late as 12:30 p.m., and apparently urged his wife to paddle at “quite a pace” to ensure that they accounted for the tides. It is determined that getting stranded at low tide, whether in a river or on a sand bar near a beach, is an inherent risk in canoeing and arises out of the nature of the sport. Accordingly, the defendant has established its prima facie entitlement to summary judgment on the ground that the Ferraris assumed the risk of canoeing on the river.
In addition, it is undisputed that, prior to their commencing their trip on the river, the Ferraris signed a release of liability form which states, in part:
2. I KNOWINGLY AND FULLY ASSUME ALL SUCH RISKS, both known and unknown, EVEN IF ARISING FROM THE NEGLIGENCE OF THE RELEASES or others, [*14] and assume full responsibility for my participation; and
* * *
[**6] 4. I, for myself and on behalf of my heirs … HEREBY RELEASE, INDEMNIFY, AND HOLD HARMLESS THE Bob’s Canoe Rental, Inc. … WITH RESPECT TO ANY AND ALL INJURY, DISABILITY, DEATH, or loss or damage to person or property associated with my presence or participation, WHETHER ARISING FROM THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE, to the fullest extent of the law.
Exculpatory provisions in a contract, including a release or a covenant not to sue, are generally enforced although they are disfavored by the law and closely scrutinized by the courts (Lago v Krollage, 78 NY2d 95, 575 N.E.2d 107, 571 NYS2d 689 ). Thus, the language of the exculpatory agreement must express the intention of the parties in unequivocal terms in order to relieve a defendant from liability for negligence (Lago v Krollage, id.; Gross v Sweet, 49 NY2d 102, 400 N.E.2d 306, 424 NYS2d 365 ). It must appear absolutely clear that the agreement extends to negligence or other fault of the party (Gross v Sweet, id., Van Dyke Prods. v Eastman Kodak Co., 12 NY2d 301, 189 N.E.2d 693, 239 NYS2d 337 , Ciofalo v Vic Tanney Gyms, 10 NY2d 294, 177 N.E.2d 925, 220 NYS2d 962 ). “That does not mean that the word ‘negligence’ must be employed for courts to give effect to an exculpatory agreement; however, words conveying a similar import must appear” (Gross v Sweet, supra). Here, the defendant has established its prima facie entitlement to summary [*15] judgment on the ground that the Ferraris are bound by the release of liability herein.
Having established its entitlement to summary judgment dismissing the complaint, it is incumbent upon the plaintiff to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O’Neill v Fishkill, supra). In opposition to the defendant’s motion, the plaintiff submits, among other things, four newspaper articles, the pleadings and bill of particulars, the deposition transcripts of the parties, and the affirmation of her attorney. The newspaper articles relied on by the plaintiff are plainly inadmissible and they have not been considered by the Court in making this determination (Young v Fleary, 226 AD2d 454, 640 NYS2d 593 [2nd Dept 1996] [newspaper articles submitted on summary judgment motion constitute inadmissible hearsay]; see also P & N Tiffany Props. Inc. v Maron, 16 AD3d 395, 790 NYS2d 396 [2d Dept 2005]; Platovsky v City of New York, 275 AD2d 699, 713 NYS2d 358 [2d Dept 2000]).
In his affirmation, counsel for the plaintiff contends that the defendant had a duty to warn the Ferraris that it was essential that they complete their trip on the river “well before the 4:30 low tide,” and that the Ferraris justifiably relied on the defendant’s material misrepresentation that it was safe to leave as late [*16] as they did that day. The affidavit of an attorney who has no personal knowledge of the facts is insufficient to raise an issue of fact on a motion for summary judgment (Sanabria v. Paduch, 61 AD3d 839, 876 NYS2d 874 [2d Dept 2009]; Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 826 NYS2d 152 [2d Dept 2006]; 9394, LLC v Farris, 10 AD3d 708, 782 NYS2d 281 [2d Dept 2004]; Deronde Prods., Inc. v. Steve Gen. Contr., Inc., 302 AD2d 989, 755 NYS2d 152 [4th Dept 2003]). The plaintiff has not submitted any evidence that individuals canoeing on the Nissequogue River must fully complete the trip “well before” low tide, or that the Ferraris could not have completed their trip on the river having left as late as 12:30. In addition, the plaintiff has not submitted any evidence why it took approximately four hours to traverse a little more than halfway on their trip, or to rebut the [**7] testimony of Lawrence and the nonparty witnesses, as well as the opinion of the defendant’s expert, that the entire trip takes three hours or less to complete, paddling at a moderate rate.
The plaintiff’s remaining contention sounds in negligent misrepresentation. In order to prevail on her claim, the plaintiff must establish that the defendant had a “duty to use reasonable care to impart correct information due to a special relationship existing between the parties, that the information provided by plaintiff was incorrect or false, and that the plaintiff reasonably relied upon the information provided [*17] (J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 863 N.E.2d 585, 831 NYS2d 364 ; MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 929 NYS2d 571 [1st Dept 2011]; Fleet Bank v Pine Knoll Corp., 290 AD2d 792, 736 NYS2d 737 [3d Dept 2002]; see also Fresh Direct, LLC v Blue Martini Software, 7 AD3d 487, 776 NYS2d 301 [2d Dept 2004]; Grammer v. Turits, 271 AD2d 644, 706 NYS2d 453 [2d Dept 2000]). As noted above, the plaintiff has failed to submit any evidence that the information provided by Lawrence was incorrect or false. In addition, the testimony of Dennis Ferrari and Kathleen Ferrari establishes that they did not reasonably rely on Lawrence’s general statement that it was safe to leave as late as 12:30 p.m. that day. Dennis Ferrari testified as to his knowledge that low tide was at 4:30 p.m. that day, and that, according to him, the trip could take five hours. Kathleen Ferrari testified that her husband was concerned that they paddle at more than a moderate pace. Despite this, the plaintiff has failed to submit any evidence why they were only able to traverse a little more than halfway on their trip before becoming stranded, and how Lawrence’s general statements mislead them.
In addition, despite the fact that this is not a wrongful death case, counsel for the plaintiff also contends that the Ferraris are entitled to every inference that can reasonably be drawn from the evidence in determining whether a prima facie case of negligence is made as against the defendant (see Noseworthy v City of New York, 298 NY 76, 80, 80 NE2d 744 ). Setting [*18] aside the issue whether the doctrine is applicable herein, even with the reduced burden of proof thereunder, the plaintiff is required to submit proof from which the defendant’s negligence may be inferred (see Sanchez-Santiago v Call-A-Head Corp., 95 AD3d 1292, 945 NYS2d 716 [2d Dept 2012]; Barbaruolo v DiFede, 73 AD3d 957, 900 NYS2d 671 [2d Dept 2010]; Martone v Shields, 71 AD3d 840, 899 NYS2d 249 [2d Dept 2010], and the plaintiff is not absolved from demonstrating the existence of a triable issue of fact to avoid summary judgment (Albinowski v Hoffman, 56 AD3d 401, 868 NYS2d 76 [2d Dept 2008]; Blanco v Oliveri, 304 AD2d 599, 600, 758 NYS2d 376 [2d Dept 2003]). In any event, the subject doctrine is not applicable under the circumstance herein as the defendant’s knowledge as to the cause of the decedent’s accident is no greater than that of the plaintiff (Knudsen v Mamaroneck Post No. 90, Dept. of N.Y. – Am. Legion, Inc., 94 AD3d 1058, 942 NYS2d 800 [2d Dept 2012]; Zalot v Zieba, 81 AD3d 935, 917 NYS2d 285 [2d Dept 2011]; Martone v Shields, supra; Kuravskaya v Samjo Realty Corp., 281 AD2d 518, 721 NYS2d 836 [2d Dept 2001]).
Finally, the plaintiff has not submitted any evidence to dispute the efficacy of the signed release of liability, and does not address the issue in her opposition to the defendant’s motion. New York Courts have held that the failure to address arguments proffered by a movant or appellant is equivalent to a concession of the issue (see McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 817 NYS2d 295 [2d Dept 2006]; Weldon v Rivera, 301 AD2d 934, 754 NYS2d 698 (3d Dept 2003]; Hajderlli v Wiljohn 59 LLC, 24 Misc3d 1242[A], 901 N.Y.S.2d 899, 2009 NY Slip Op 51849[U] [Sup Ct, Bronx County 2009]) [**8] . Accordingly, the defendant’s motion for summary judgment dismissing the complaint is granted. [*19]
The Court now turns to the defendant’s motion for an order pursuant to CPLR 1021 dismissing the complaint for failure to substitute a representative on behalf of the decedent Dennis Ferrari. The computerized records maintained by the Court indicate that the parties entered into a stipulation to amend the caption to reflect Kathleen Ferrari’s appointment as the executrix of the estate of Dennis Ferrari. Said stipulation was so-ordered by the undersigned on October 17, 2013, and recorded with the Clerk of the Court on October 21, 2013. Accordingly, the defendant’s motion is denied as academic.
/s/ Denise F. Molia
Nicholas, a Minor, etc., Plaintiffs and Appellants, Defendants and Respondents.
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION TWO
August 15, 2013, Opinion Filed
NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.
PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KC061412, Peter J. Meeka, Judge.
DISPOSITION: Reversed and remanded.
CORE TERMS: dodgeball, triable, membership, ball, summary judgment, issues of fact, gross negligence, sport, playing, racquetball, played, inherent risk, hit, childcare, assumption of risk, ambiguity, risk of injury, risk of harm, rubber ball, matter of law, participating, aggressively, supervised, training, thrown, riding, player, risk doctrine, risk doctrine, evidence showed
COUNSEL: Magaña, Cathcart & McCarthy and Charles M. Finkel for Plaintiffs and Appellants.
Manning & Kass, Ellrod, Ramirez, Trester, Anthony J. Ellrod and David J. Wilson for Defendants and Respondents.
JUDGES: FERNS, J. *; ASHMANN-GERST, Acting P. J., CHAVEZ, J. concurred.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
OPINION BY: FERNS, J.
The trial court granted summary judgment in favor of defendants and respondents The Claremont Club (Club) and Adam Qasem (Qasem) on the complaint brought by minor Nicholas Lotz (Nicholas) by and through his guardian ad litem Deborah Lotz (Deborah) and Deborah individually (sometimes collectively appellants). 1 Nicholas was injured in a dodgeball game that took place while he was in the Club’s childcare program. The trial court ruled that a release signed by Nicholas’s father barred appellants’ claims and there was no evidence showing the Club’s conduct amounted to gross negligence beyond the scope of the release. It further ruled the primary assumption of risk doctrine [*2] barred appellants’ claims.
1 We use first names for convenience only; no disrespect is intended.
We reverse. The evidence offered by appellants showed there were triable issues of material fact regarding the scope and application of multiple releases, whether the Club’s and Qasem’s conduct constituted gross negligence and whether their conduct increased the risk of harm inherent in the game of dodgeball.
FACTUAL AND PROCEDURAL BACKGROUND
In 2001, Thomas Lotz (Thomas) signed The Claremont Club Membership Agreement (Membership Agreement) and completed a membership information form indicating that he was seeking a family membership for himself, Deborah and their two children. On the information form, Thomas put a check mark by some of the specified sports and activities in which he and his family were interested in participating. Dodgeball was not included among the list of activities.
The Membership Agreement included a section entitled “Waiver of Liability” that provided in relevant part: “IT IS EXPRESSLY AGREED THAT USE OF THE CLUB FACILITIES, PARTICIPATION IN CLUB-SPONSORED OUTSIDE ACTIVITIES OR EVENTS AND TRANSPORTATION PROVIDED BY THE CLUB SHALL BE UNDERTAKEN BY A MEMBER [*3] OR GUEST AT HIS/HER SOLE RISK AND THE CLUB SHALL NOT BE LIABLE FOR ANY INJURIES OR ANY DAMAGE TO ANY MEMBER OR GUEST . . . .” The provision further stated that the member voluntarily assumed the risk of personal injury and released the Club and its employees from every demand, claim or liability on account of any personal injury.
On the same day he signed the Membership Agreement, Thomas signed a separate document captioned Waiver of Liability, Assumption of Risk and Indemnity Agreement (Waiver) that contained a provision stating: “This Agreement constitutes my sole and only agreement respecting release, waiver of liability, assumption of the risk, and indemnity concerning my involvement in The Claremont Club.” The Waiver further provided in part: “I, for myself, my spouse, if any, my heirs, personal representative or assigns, and anyone claiming through or under me do hereby release, waive, discharge, and covenant not to sue The Claremont Club . . . for liability from any and all claims including the negligence of the Claremont Club, resulting in damages or personal injury . . . .” The Waiver further identified certain activities provided at the Club–again excluding dodgeball–together [*4] with the risks arising therefrom, and required Thomas to assert that his participation was voluntary and “that I knowingly assume all such risks.” The Waiver’s concluding paragraph provided for Thomas’s understanding “THAT I AM GIVING UP SUBSTANTIAL RIGHTS, INCLUDING MY RIGHT TO SUE.”
Together with a Club attorney, Club president and chief executive officer Mike Alpert helped prepare the Waiver. According to Alpert, only the Waiver–not the waiver of liability contained in the Membership Agreement–was in full force and effect at the time Thomas signed both documents. None of the documents that Thomas and Deborah signed in connection with their Club membership informed them that dodgeball would be played on Club premises.
Nicholas Is Injured in a Dodgeball Game at the Club.
The “InZone” was part of the Club’s childcare department; it provided a clubhouse environment for older children that included ping pong, foosball and video games. In-house sports and a specialized fitness room were also available as part of the InZone. A document provided to parents describing InZone activities identified a number of sports in which a child might participate; it did not mention dodgeball.
On April 13, [*5] 2005, Deborah checked 10-year-old Nicholas into the InZone between 4:30 and 5:00 p.m. No one advised Deborah or Thomas that Nicholas might be playing dodgeball as part of the InZone activities. That day, Club employee Qasem was scheduled to work at the front desk. Eighteen-year-old Qasem had worked part-time at the Club for approximately one year as a lifeguard, weight room attendant and at the front desk. He had never worked in the InZone and the Club had not provided him with any training to work with children.
At some point during his shift, Qasem left the front desk to work in the children’s fitness room. He was the only individual supervising approximately eight to 15 children, including Nicholas. One of the children suggested the group play dodgeball, and Qasem agreed. He took the children to the Club’s racquetball court because he had observed dodgeball being played there once or twice. The Club’s written policies, however, stated “[o]nly racquetball, handball, squash and Wally ball may be played on the racquetball courts.” Qasem had never played dodgeball at the Club, nor had he ever seen any written rules concerning dodgeball.
Though Qasem was uncertain whether he provided the [*6] children with any rules before they began playing the game, he may have told them to throw the ball below their waists. During the game, anywhere from three to six balls were being thrown at one time; each rubber ball was filled with air and was about the size of a soccer ball. About 20 minutes into the game, Qasem threw a ball using a sidearm motion hard and fast toward Nicholas. The ball hit Nicholas’s face and slammed his head into the wall behind him, leaving tooth marks on the wall. Nicholas suffered multiple dental injuries as a result of being hit by the ball.
At the time of the game, Qasem was six feet tall and weighed approximately 145 pounds. According to Nicholas, Qasem had been playing aggressively throughout the game. By playing in the game, Qasem had also violated the Club’s then unwritten policy that supervisors not participate in dodgeball games with the children. No one had previously been injured in a dodgeball game at the Club. After that game, Qasem was disciplined for failing to follow childcare policies and procedures, and one of his superiors instructed him not to play dodgeball at the Club.
Nicholas had previously played dodgeball at school. Though the players [*7] were instructed to not throw the ball at other players’ heads, he understood there was some risk of being hit in the head with the ball. The balls used at school, however, were similar to a Nerf ball and softer than those used at the InZone. Had Thomas and Deborah been advised that Nicholas would be playing dodgeball on a racquetball court with rubber balls, they would not have given their permission for him to do so.
The Intramural Rules of Dodgeball provide the game is one in which players try to hit others with a ball and avoid being hit themselves. “The main objective is to eliminate all members of the opposing team by hitting them with thrown balls, catching a ball thrown by a member of the opposing team, or forcing them outside of the court boundaries.” The National Dodgeball League Rules and Regulations of Play specify that a player committing a “headshot”–hitting another player in the head by a high thrown ball–will be deemed out of the game.
The Pleadings and Summary Judgment.
In June 2011, appellants filed their complaint alleging negligence and gross negligence and seeking general and special damages. They alleged that Nicholas was injured as a result of the Club’s negligently [*8] and recklessly “a. hiring, employing, training, entrusting, instructing, and supervising defendant ADAM QASEM; [¶] b. failing to adequately  protect children under the care of defendant ADAM QASEM; [¶] c. participating in a game of dodge ball in an unreasonably forceful and dangerous manner so as to endanger the health, safety and welfare of children placed by their parents into the care of defendants.”
In December 2011, the Club and Qasem moved for summary judgment. They argued that appellants’ negligence claims were barred by Thomas’s execution of a release and express assumption of risk, and according to the assumption of risk doctrine. They further argued their actions did not rise to the level of gross negligence. In support of their motion, they submitted the Membership agreement, appellants’ discovery responses, deposition excerpts and Qasem’s declaration. They also sought judicial notice of several principles related to dodgeball rules and manner of play.
Appellants opposed the motion and filed evidentiary objections. They argued that triable issues of material fact existed concerning the scope of the Waiver, whether the Club’s conduct amounted to gross negligence and whether [*9] Nicholas’s injury was the result of an inherent risk of the game of dodgeball. They offered deposition excerpts, Club policies, medical records and several declarations in support of their arguments. Sports and Recreational Consultants president Steve Bernheim opined that the Club “did not take the proper measures to protect the children who were in its care, custody and control during the dodgeball game in which Nicholas Lotz was injured.” More specifically, the children were not provided with game-appropriate rules, the racquetball court was an insufficient space, use of the rubber balls was inappropriate and an adult should not have been playing with the children. He further opined that Qasem acted recklessly and that his conduct, coupled with the other conditions of the game, increased the risks inherent in the game of dodgeball and were outside the range of ordinary activity associated with the sport.
The Club replied and also filed evidentiary objections. At a March 2012 hearing, the trial court granted the motion. Though the trial court edited the proposed judgment to eliminate any reasons for its ruling, at the hearing the trial court first referred to childhood dodgeball experience [*10] as the basis for its decision: “When I went to school, we called it Warball, and we didn’t use Nerf balls because there weren’t any. It was a ball. When it hit you, it stung. And we all knew that. Everybody knew it. And it was just one of those games you played in school, and high school for that matter.” Turning to the evidence, the trial court construed the Waiver to apply to Thomas’s family members as well as Thomas, reasoning that the Club would have expected Thomas to be executing a release on behalf of all family members when he joined. The trial court further explained that even if it were to ignore the Waiver, appellants’ claims would be barred by the assumption of risk doctrine. It further found that the Club’s and Qasem’s conduct did not rise to the level of gross negligence as a matter of law, reasoning there was no evidence that Qasem was trying to injure Nicholas and that such an injury could have occurred in the context of any type of sport. It did not rule on any of the evidentiary objections.
Judgment was entered in June 2012, and this appeal followed.
Appellants maintain that the trial court erred in granting summary judgment and assert they offered evidence [*11] sufficient to create triable issues of fact concerning the scope and application of the Waiver, the existence of gross negligence and the application of the assumption of risk defense. We agree that triable issues of fact preclude the granting of summary judgment.
I. Standard of Review.
We review a grant of summary judgment de novo and independently determine whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850.) To secure summary judgment, the moving defendant must show that one or more elements of the cause of action cannot be established, or that there is a complete defense to the cause of action, and that it “is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) Once that burden is met, the burden “shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, at p. 850.)
We assume the role of the trial court and redetermine the [*12] merits of the motion. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) “In doing so, we must strictly scrutinize the moving party’s papers. [Citation.] The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. [Citation.] All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. [Citation.]” (Ibid.; accord, Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) “Because a summary judgment denies the adversary party a trial, it should be granted with caution. [Citation.]” (Acosta v. Glenfed Development Corp. (2005) 128 Cal.App.4th 1278, 1292.) The court’s role is to focus “on issue finding; it does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Ibid.)
II. Appellants Raised Triable Issues of Fact as to Whether the Waiver Applied to Release Their Claims.
At the hearing on the motion, the trial court indicated that one basis for its ruling was the application of [*13] a written release. It stated: “Here, dad is signing the release on behalf of the family. Mom could have signed the release on behalf of the family and had a check and paid for the membership. And even though there are some slight twists and turns here, I guess nothing is ever completely crystal clear. I think the release really hurts the plaintiff or plaintiffs here.” Though the trial court’s comments fail to demonstrate whether it relied on the Membership Agreement or the Waiver as providing the operative release, the Club argues on appeal that the release contained in the Membership Agreement was clear and unambiguous, and applied to release appellants’ claims.
“California courts require a high degree of clarity and specificity in a [r]elease in order to find that it relieves a party from liability for its own negligence.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488 (Cohen).) Thus, “to be effective, an agreement which purports to release, indemnify or exculpate the party who prepared it from liability for that party’s own negligence or tortious conduct must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, [*14] must clearly notify the prospective releaser or indemnitor of the effect of signing the agreement.” (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 318.) Waiver and release forms are strictly construed against the defendant. (Lund v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738.) But “a release need not achieve perfection” to be effective. (National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.) A release is sufficient if it “‘constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence.'” (Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.)
Here, Thomas represented in his membership application that he sought Club membership on behalf of his family. The release contained in the Membership Agreement provided that the member and guests assumed the risk of Club activities and released the Club from liability for participation in Club activities. A contract in which a party expressly assumes a risk of injury is, if applicable, a complete defense to a negligence action. (See Knight v. Jewett (1992) 3 Cal.4th 296, 308, fn. 4 (Knight); Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304.) [*15] Moreover, it is well settled a parent may execute a release on behalf of his or her child. (Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1120 (Aaris); Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1565.) By offering evidence of the Membership Agreement, the Club met its threshold burden to demonstrate a complete defense to appellants’ negligence claims.
In contrast to the trial court, however, we conclude the evidence offered by appellants showing that the release was not “crystal clear” satisfied their burden to demonstrate triable issues of material fact. As summarized in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357: “The determination of whether a release contains ambiguities is a matter of contractual construction. [Citation.] ‘An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.’ [Citation.] The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. [Citation.] [*16] If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter. [Citations.]”
Here, appellants demonstrated an ambiguity by offering evidence that the Waiver–not the Membership Agreement–contained the operative release. The Waiver contained language effectively negating any other release, providing: “This Agreement constitutes my sole and only agreement respecting release, waiver of liability, assumption of the risk, and indemnity concerning my involvement in The Claremont Club. Any prior written or oral agreements, promises, representations concerning the subject matter contained in this Agreement and not expressly set forth in this Agreement have no force or effect.” Club president Alpert testified that only the Waiver was the operative agreement at the time Thomas joined the Club. The Waiver, however, inconsistently provided in one paragraph that Thomas was giving up his right to sue on behalf of his spouse and heirs, and in another paragraph that he was relinquishing only his personal right to sue. Other language in the Waiver that “I hereby assert that my participation is voluntary and that I knowingly assume all such risks” likewise [*17] suggested that the Waiver was intended to be personal only. Given appellants’ identification of an “alternative, semantically reasonable” construction of the Waiver, the evidence created a triable issue of fact concerning whether and to what extent the Waiver applied to appellants’ claims. (See Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.)
Beyond the issue of whether the Waiver or the Membership Agreement contained the operative release, appellants demonstrated a triable issue of fact as to whether the language of either document contemplated the type of injuries suffered by Nicholas. Both the Membership Agreement and the Waiver released the Club from liability for personal injury from Club activities. “‘Where a participant in an activity has expressly released the defendant from responsibility for the consequences of any act of negligence, “the law imposes no requirement that [the participant] have had a specific knowledge of the particular risk which resulted in his death [or injury.]” . . . Not every possible specific act of negligence by the defendant must be spelled out in the agreement or discussed by the parties. . . . Where a release of all liability for any [*18] act of negligence is given, the release applies to any such negligent act, whatever it may have been. . . . “It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.“‘ [Citation.]” (Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th 1227, 1234-1235 (Leon).) 2
2 The Leon court separately evaluated an assumption of risk provision and a general release in a health club membership agreement. (Leon, supra, 61 Cal.App.4th at pp. 1234, 1235.) It reasoned that for an assumption of the risk provision to be effective, “‘it must also appear that its terms were intended by both parties to apply to the particular conduct of the defendant which has caused the harm.'” (Id. at p. 1234.) We find this analysis sufficiently similar to that required for a general release to engage in a single evaluation.
Appellants offered evidence creating a triable issue of fact as to whether an injury from a child playing dodgeball was sufficiently related to the purpose of the release. Neither Thomas nor Deborah were ever informed that Nicholas would be playing dodgeball at the Club. Dodgeball [*19] was not identified as a Club activity in any of the Club materials. It was not listed as an activity in either the Membership Agreement or the Waiver. It did not appear on the list of Club activities in the membership information form. According to the Club’s written policies, it was not among the activities permitted to be played on the Club’s racquetball courts. Likewise, the Club maintained a policy to preclude supervisors from engaging in dodgeball games with children.
These circumstances are analogous to those in Cohen, supra, 159 Cal.App.4th 1476. There, the plaintiff was injured during a horseback ride when the guide unexpectedly caused his horse to gallop, knowing that it would cause the horses following to do the same, and the plaintiff was unable to control her galloping horse. (Id. at p. 1480.) Before riding, the plaintiff had signed a release that described some but not all of the risks inherent in horseback riding and provided that she agreed “‘to assume responsibility for the risks identified herein and those risks not specifically identified.‘ (Italics added.)” (Id. at p. 1486.) Finding this language unambiguous, the trial court granted summary judgment. (Id. at pp. 1482-1483.) [*20] The appellate court reversed, reasoning the exculpatory provision was problematic, as “[t]he ‘risks not specifically identified’ could refer to the risks inherent in horseback riding left unidentified by the phrase ‘some, but not all,’ which seems to us the most reasonable assumption, but it might also refer to risks arising out of respondent’s negligence that increase the inherent risks.” (Id. at p. 1486.) Stated another way, the court explained that “[t]he Release presented to appellant clearly does not unambiguously, let alone explicitly, release respondent from liability for injuries caused by its negligence or that of its agents and employees which increase a risk inherent in horseback riding.” (Id. at p. 1488.)
At a minimum, appellants’ evidence that dodgeball was an undisclosed risk and an activity contrary to the Club’s written policies raised a triable issue of fact as to whether it was a risk that was reasonably related to the purpose for which any release was given. Evidence of Qasem’s conduct likewise raised a triable issue of fact as to whether such a risk was encompassed by the Waiver. (See Cohen, supra, 159 Cal.App.4th at p. 1489 [“Nothing in the Release clearly, unambiguously, [*21] and explicitly indicates that it applies to risks and dangers attributable to respondent’s negligence or that of an employee that may not be inherent in supervised recreational trail riding,” italics omitted]; see also Sweat v. Big Time Auto Racing, Inc., supra, 117 Cal.App.4th at p. 1308 [release in favor of racetrack owner for injuries suffered while in a racetrack’s restricted area did not apply to injuries sustained after defectively constructed bleachers collapsed]; Leon, supra, 61 Cal.App.4th at p. 1235 [release that allowed the plaintiff to engage in fitness activities at a health club did not apply to injuries from a collapsed sauna bench].)
On the other hand, the circumstances here bear no similarity to those in Aaris, supra, 64 Cal.App.4th 1112, a case on which the Club relies. There, the court found that a high school cheerleader and her family assumed the risk of injuries resulting from cheerleading activities. On the basis of that finding, the court also affirmed summary judgment on the ground that a release of liability for school activities barred any claim for injuries. The court reasoned that the assumption of risk doctrine “embodies the legal conclusion that defendant [*22] owed no duty to protect appellant from the risk of harm inherent in the athletic activity. [Citation.] There being no duty, there was no negligence.” (Id. at p. 1120.) Ignoring that the Aaris court’s holding was based on a finding of no negligence rather than any application of the release, the Club emphasizes that the release applied notwithstanding its failure to specify “cheerleading,” and argues that the Membership Agreement’s and Waiver’s references to Club activities must therefore similarly be construed to encompass dodgeball. But in Aaris, the only reasonable inference to be drawn from the evidence was that the sole purpose of the release was to address injuries resulting from cheerleading. Here, Thomas and Deborah did not even know that Nicholas would be participating in a dodgeball game. Moreover, the trial court in Aaris ruled that the undisputed evidence showed “‘that the instructor did not increase the risk of harm inherent in the activity, the participants received adequate and proper training in technique and safety, and they were properly and reasonably supervised.'” (Id. at p. 1117.) In sharp contrast, appellants’ evidence showed that Qasem should not have been playing [*23] dodgeball and played aggressively, he violated the Club’s written policy concerning use of the racquetball court and no one else was supervising the game.
Finally, appellants offered evidence to show that the InZone was part of the Club’s childcare department. On the day of the dodgeball game, Deborah signed Nicholas in to the Club’s InZone program. Club wellness director Denise Johnson testified that she was aware children played dodgeball on the racquetball courts while being supervised under the childcare department. To the extent that the Club’s Membership Agreement or Waiver purported to release it from liability for injuries occurring in its childcare program, appellants raised a triable issue of fact as to whether such an agreement would be void against public policy. (Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 676 [“we hold that exculpatory agreements that purport to relieve child care providers of liability for their own negligence are void as against public policy”].)
In sum, the evidence offered on summary judgment demonstrated that the Membership Agreement and/or the Waiver did not clearly and explicitly release the Club from liability for Nicholas’s [*24] injuries. In view of the ambiguities concerning whether the Membership Agreement or the Waiver applied, whether the language in either document was sufficient to cover the Club’s conduct and whether any release violated public policy, a trier of fact could find that the Club was not released from liability. (See Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1288 [“if a release is ambiguous, and it is not clear the parties contemplated redistributing the risk causing the plaintiff’s injury, then the contractual ambiguity should be construed against the drafter, voiding the purported release”].) The undisputed evidence failed to show the Club and Qasem were absolved from liability as a matter of law according to the Membership Agreement or the Waiver.
III. Appellants Raised Triable Issues of Fact Whether the Club Was Liable for Gross Negligence.
In City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751 (Santa Barbara), our State’s highest court held “that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” Relying on Santa [*25] Barbara, appellants opposed the Club’s summary judgment motion on the alternative ground that, even if the Club’s most comprehensive release language was unambiguous, there was a triable issue of fact as to whether the Club’s conduct amounted to gross negligence. The trial court ruled: “It is not gross negligence. He wasn’t trying to injure the child on purpose, any more than a child would be injured playing hockey or soccer, or anything like that.” Again, we disagree.
California courts define “‘gross negligence'” “as either a ‘”‘want of even scant care'”‘ or ‘”‘an extreme departure from the ordinary standard of conduct.'”‘ [Citations.]” (Santa Barbara, supra, 41 Cal.4th at p. 754; accord, Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 857.) Gross negligence “connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results.” (Calvillo-Silva v. Home Grocery (1998) 19 Cal.4th 714, 729, disapproved on other grounds in Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19.) In contrast to willful misconduct, gross negligence does not require an intent to do harm or to act with absolute disregard of the consequences. (Meek v. Fowler (1935) 3 Cal.2d 420, 425; [*26] see also Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal.2d 656, 662 [“While gross negligence may involve an intent to perform the act or omission, wilful misconduct involves the further intent that the performance be harmful or that it be done with a positive, active and absolute disregard of the consequences”].) Though not always, “[g]enerally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence. [Citations.]” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358; accord, Santa Barbara, supra, at pp. 767, 781.)
Appellants offered sufficient evidence to create a triable issue of fact as to whether the Club’s and Qasem’s conduct amounted to gross negligence. According to the undisputed evidence, while the Club’s policies prohibited dodgeball being played on the racquetball courts, Club employees–including the childcare director–knew the courts were used for children’s dodgeball games. Nonetheless, none of the Club’s materials identified dodgeball as an available activity. Consistent with the Club’s failure to acknowledge dodgeball as an ongoing activity, it failed to promulgate rules to insure the game was played [*27] safely. When Nicholas was dropped off at the InZone program, no one advised his parents that he might play dodgeball. In this particular instance, children initiated a dodgeball game while being supervised by an 18-year-old front desk clerk who had no childcare training. Qasem selected inflated rubber balls for the game and participated aggressively in the game with the children, even though the Club’s policy was that supervisors not play dodgeball. Nicholas was injured after Qasem threw the ball extremely hard and extremely fast, using a sidearm motion.
On the basis of this evidence, appellants offered Bernheim’s expert opinion that “the injury to Nicholas Lotz occurred during an extreme departure from what must be considered as the ordinary standard of conduct when children are playing dodgeball and are supposed to be . . . supervised.” We agree that appellants’ evidence was sufficient to raise a triable issue of fact as to whether the Club’s and Qasem’s conduct was an extreme departure from ordinary care or, at a minimum, demonstrated passivity and indifference toward results. A trier of fact could find gross negligence on the basis of the Club’s failure to address the repeated violation [*28] of its own policy prohibiting dodgeball play on the racquetball courts, failure to implement rules or policies designed to protect those playing dodgeball and failure to provide any training to individuals assigned to supervise the children in its childcare program. Triable issues existed as to whether the Club’s and Qasem’s conduct was grossly negligent and therefore outside the scope of any release in either the Membership Agreement or the Waiver.
IV. Appellants Raised Triable Issues of Fact Whether the Assumption of Risk Doctrine Barred Liability.
As a further basis for granting summary judgment, the trial court determined that the Club met its burden to show the primary assumption of risk doctrine was a viable defense and that appellants failed to offer any effective rebuttal. It analogized the circumstances here to those in a previous case in which it found the doctrine barred recovery to a high school student injured during a soccer game. We fail to see the analogy.
“Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended [*29] elbow in basketball are considered inherent risks of those respective sports. [Citation.] Primary assumption of risk is a complete bar to recovery. [Citation.] [¶] Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the sport and thereby alter its fundamental nature. [Citation.]” (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751-752, citing Knight, supra, 3 Cal.4th 296.) “Knight however does not grant unbridled legal immunity to all defendants participating in sporting activity. The Supreme Court has stated that ‘. . . it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.‘ ([Knight, supra,] 3 Cal.4th at pp. 315-316, italics added.) Thus, even though ‘defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself,’ they may not increase the likelihood of injury above that which is [*30] inherent. (Id. at p. 315.)” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827.) Thus, “when the plaintiff claims the defendant’s conduct increased the inherent risks of a sport, summary judgment on primary assumption of risk grounds is unavailable unless the defendant disproves the theory or establishes a lack of causation. [Citations.]” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 740.)
Much of appellants’ evidence that we deemed sufficient to raise a triable issue of fact on the question of gross negligence likewise created a triable issue as to whether the Club and Qasem increased the risk of harm inherent in the game of dodgeball. 3 Certainly, being hit by a ball is one of the objectives of and hence an inherent risk in the game of dodgeball. But appellants’ evidence tended to show that the Club and Qasem increased that risk in a number of ways, including by playing on an enclosed racquetball court which was neither intended nor permitted to be used for dodgeball; by selecting rubber balls for the game; by allowing an adult untrained in childcare not only to participate in the game with the children but also to abdicate any supervisory role over them during the game; and by enabling [*31] that adult to play aggressively with the children. Given the totality of the circumstances, we cannot say, as a matter of law, that Nicholas assumed the risk of being hit in the head with a ball.
3 We acknowledge that the application of the primary assumption of risk doctrine is a question of law. (Knight, supra, 3 Cal.4th at p. 313.) But where a defendant engages in conduct that is not an inherent risk of the sport and the imposition of a duty of care will neither alter the nature of nor chill participation in the sport, the question becomes one of ordinary negligence, with the remaining elements beyond duty to be determined by a trier of fact. (Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 565-567.)
Other courts have similarly reversed a grant of summary judgment where the plaintiff’s evidence raised a triable issue of fact as to whether the defendant’s conduct increased the inherent risks in a sport or other recreational activity. Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112 is particularly instructive. There, the plaintiff filed suit after he was injured by a foul ball while watching a baseball game, and the trial court granted summary judgment, finding [*32] the doctrine of primary assumption of risk barred his claims. (Id. at p. 120.) In reversing, the appellate court relied on evidence showing the plaintiff was hit when he turned toward a team mascot who had repeatedly tapped his shoulder. (Id. at pp. 117-118, 123.) The court explained that while foul balls represent an inherent risk to spectators attending a baseball game, “we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.” (Id. at p. 123; see also Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 591 [though skiers assume the risk of injury from the sport, triable issue of fact existed whether ski resort’s jump design increased the risk of harm]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134 [while a golfer assumes the risk of being hit by a golf ball, golf course owner owes a duty to minimize that risk, and the plaintiff raised a triable issue of fact as to whether that duty was breached where evidence showed the design [*33] of certain holes may have increased that risk].)
We find no merit to the Club’s and Qasem’s argument that appellants’ evidence demonstrated merely that their conduct may have increased the severity of Nicholas’s injuries as opposed to increasing the risk of injury. In Calhoon v. Lewis (2000) 81 Cal.App.4th 108, the plaintiff suffered injury when he fell off his skateboard and hit a metal pipe protruding from a planter in the defendants’ driveway. Finding the primary assumption of risk doctrine barred his claims, the court rejected the plaintiff’s argument that the concealed metal pipe increased his risk of harm: “[The plaintiff] was injured because he fell. As [he] concedes, falling is an inherent risk of skateboarding, and the presence of the pipe or the planter had nothing to do with his falling down. The fact that [his] injuries were more severe than they would have been if the pipe had not been in the planter does not make the assumption of risk doctrine inapplicable. The Knight exception applies when the defendant increased the risk of injury beyond that inherent in the sport, not when the defendant’s conduct may have increased the severity of the injury suffered.” (Id. at p. 116.) [*34] Here, in contrast, appellants’ evidence showed that the Club and Qasem increased the risk of injury by initiating the dodgeball game in which Nicholas participated. This was not the type of situation where Nicholas would have been playing dodgeball absent the Club’s and Qasem’s involvement. Moreover, the evidence raised a triable issue of fact as to whether the Club and Qasem increased the risk of injury by permitting dodgeball play on the racquetball court, by failing to adopt rules for safe play, by Qasem’s failing to act as a supervisor during the game, by his selecting rubber balls for the game and by his participating aggressively in the game. The Club and Qasem were not entitled to summary judgment on the ground the primary assumption of risk doctrine barred appellants’ claims.
The judgment is reversed and the matter is remanded with directions for the trial court to vacate its order granting summary judgment and to enter a new order denying summary judgment. Appellants are entitled to their costs on appeal.
, J. *
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
, Acting [*35] P. J. ASHMANN-GERST , J. CHAVEZ
The harder a court works to justify its decision the more suspect the reasoning. In this case, a ski area is liable for injuries to a spectator no matter what risks she knew and assumed.Posted: November 17, 2014
Neither the Pennsylvania Skier’s Responsibility Act assumption of the risk, nor the No Duty Rule were enough to stop this lawsuit. Spectators are always at risk. Either that or the defense attorneys failed to discover the necessary elements to prove their case in deposition.
State: Pennsylvania, US District Court for the Middle District of Pennsylvania
Plaintiff: Colleen Barillari and William Barillari
Defendant: Ski Shawnee, Inc.
Plaintiff Claims: negligence
Defendant Defenses: Pennsylvania Skier’s Responsibility Act and Assumption of the Risk
Holding: for the plaintiff
The plaintiff was a skier. On the day in question she was not skiing but was watching her husband take a lesson. She was standing on the snow but not close enough, in her opinion, to be at risk. She was behind a tape that separated the ski run from the instruction area. She was standing on a ski run though.
The plaintiffs are residents of New Jersey; Ski Shawnee is located in Pennsylvania. Residents of two different states gave the Federal District Court jurisdiction for the case. The federal court system was created so residents of two different states involved in litigation did not feel like the home state was favoring the person who lived there.
Standing there a skier collided with her. She filed a complaint alleging negligence and her husband filed a claim for loss of consortium. The ski area filed a motion for summary judgment based on the Pennsylvania Skier’s Responsibility Act and assumption of the risk which the court denied with this decision.
Analysis: making sense of the law based on these facts.
The defense relied upon two distinct but similar theories for its case, The Pennsylvania Skier’s Responsibility Act and assumption of the risk. The court went through an extensive analysis of the law and other, mostly conflicting case law in its decision. What was even more interesting though was the court applied traditional definitions of assumption of the risk in its analysis of the Pennsylvania Skier’s Responsibility Act even though the act defines the risks assumed by a skier as under the doctrine of voluntary assumption of the risk.
(c) Downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1).
The doctrine of voluntary assumption of risk has been defined by Pennsylvania courts as “where one, with full knowledge or full opportunity of knowledge, voluntarily-assumes a danger he is barred from recovery under the doctrine of voluntary assumption of risk:” As interpreted by another decision “plaintiff knew of the risk, appreciated its character and voluntarily chose to accept it.”
Here the court started with the RESTATEMENT (SECOND) OF TORTS, § 496A which defines the doctrine of assumption of risk as “”[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” The Restatement of Torts is a compendium of the law put together by experts, mostly legal professors who have reviewed the law of the states in their area of expertise and put it down in the restatement. It is the basis of research and provides a foundation for understanding the law on a particular subject. Rarely do courts adopt the restatement as is. It is modified and adapted based on prior case law in the state and how the state supreme court follows the law.
The court then stated that when this definition and defense, assumption of the risk, is applied to sport it is called the No Duty Rule, “the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.”
Under Pennsylvania law when applied to ski areas this has been interpreted to mean “ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.”
Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.
The court stated Pennsylvania had a two-step analysis to determine whether a plaintiff is subject to the rule.
First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . .
The court then looked at several if not all the instances where Pennsylvania courts had determined someone was skiing and assumed the risk. At the end of the analysis, the court stated the plaintiff was a spectator at the time of the incident. Then the court stated that the plaintiff could assume the risk of a collision with another skier, but did not assume the risk of a collision with a skier when she was a spectator because she did not know she could be hit by a skier as a spectator…..standing on a run at the base of a hill.
Because the court found the spectator, who was a skier did not understand that standing on a ski run would subject to the possibility of being hit by another skier, she did not know the risk and therefore, could not assume the risk. Under the Pennsylvania Skier’s Responsibility Act the plaintiff did not assume the risk and the defendant would not rely on the protection it afforded.
The court then analyzed whether the plaintiff assumed the risk with a traditional definition.
The decision spent two paragraphs describing the defense as a hydra that would not die. Under Pennsylvania law, there are four different types of assumption of risk. The court defined two of them: “One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware.”
A second related corollary of the assumption of risk doctrine is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event.
The court determined the two remaining types of assumption of the risk did not apply in this case in a footnote.
The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable.
Under Pennsylvania law assumption of the risk is a three-step process (even though the decision stated earlier it was only two):
[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed. This assumption of risk defense 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.” Moreover, “[t]he mere fact one engages in activity that has some inherent danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.”
The court focused on the knowledge of the plaintiff. “Rather, the plaintiff must be aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law.”
Again, the court went through several Pennsylvania cases distinguishing the definition of assumption of the risk the judge wanted to use from the other cases in Pennsylvania. The court then held:
Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator.
This decision was based on the plaintiff’s statement:
Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.”
Under this logic, you would not know you could be hit skiing by a skier if you were standing in a group of trees……on the side of a run.
Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury.
The court then went back and looked at whether the No Duty Rule applied in this case. The No Duty Rule is defined as:
…the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.
Again, the court wove its way through the Pennsylvania case law, even at one point stating the No Duty Rule applied to spectators. However, the court found the rule did not apply in this case because there was a difference in the risk the rule applied to. The risk the rule applied to must be a necessary element of the sport, not just a possible risk.
Applying these principles to the case before the Court, the no-duty rule cannot protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport
The court summed up its decision by stating the burden on ski areas to protect spectators would not be that great.
Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.
So Now What?
Spectators will be protected because in the future I’m sure they will not be allowed anywhere near the slopes in Pennsylvania for fear of being sued.
One of the biggest holes in all ski area defenses is spectators. Either watching friends or loved one’s ski or attending an event or race, spectators are always subject to injury. I believe only the Colorado Skier Safety act has been interpreted broadly enough, because it is written broadly enough to protect the ski area from suits by spectators.
Not only do spectators get hit by skiers, they get knocked by racers who leave the trail and plow into them. The slip and fall getting on or off the slope, and they get lost hiking up or down the hill appearing suddenly on an open run or not appearing for hours.
This case is a great look at the law of Assumption of the Risk in Pennsylvania. Other than that, it is a judicial greased pig to reach a decision that the court wanted.
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Colleen Barillari and William Barillari, Plaintiffs, v. Ski Shawnee, Inc., Defendant.
Civ. No. 3:12-CV-00034
UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
986 F. Supp. 2d 555; 2013 U.S. Dist. LEXIS 161029
November 12, 2013, Decided
November 12, 2013, Filed
PRIOR HISTORY: Barillari v. Ski Shawnee, Inc., 2012 U.S. Dist. LEXIS 4998 (M.D. Pa., Jan. 17, 2012)
CORE TERMS: skiing, sport, downhill, skier, spectator, no-duty, summary judgment, ski, hit, ball, SKIER’S RESPONSIBILITY ACT DOES, risk doctrine, foul ball, amusement, matter of law, inherent risks, slope, baseball game, baseball, genuine, snow, ski lift, collision, mountain, ski resorts, risks inherent, nonmoving party, frequent, sporting, player
COUNSEL: [**1] For Colleen Barillari, William Barillari, h/w, Plaintiffs: Edward Shensky, Jeffrey A. Krawitz, Stark & Stark, Newtown, PA.
JUDGES: Matthew W. Brann, United States District Judge.
OPINION BY: Matthew W. Brann
Before the Court is Ski Shawnee, Inc.’s (“Defendant”) motion for summary judgment in the negligence action filed by Colleen Barillari and William Barillari (“Plaintiffs”). The complaint alleges Colleen Barillari suffered an injury and William Barillari suffered a corresponding loss of consortium, both caused by the Defendant’s alleged negligence. See Pls.’ Compl. 9-13, Jan. 6, 2012, ECF No. 1.
The Defendant moves for summary judgment in its favor on two related, but alternative theories relying on the assumption of the risk doctrine: first, that the Plaintiffs’ claims are barred by the Pennsylvania Skier’s Responsibility Act, 42 Pa. C.S.A. § 7102(c); or, alternatively, that the claims are barred by the traditional common law assumption of the risk doctrine. See Def.’s Br. Supp. Mot. Summ. J. 5-9, Dec. 3, 2012, ECF No. 17 [hereinafter Def.’s Br.]. The Court hereby denies the Defendant’s motion for summary judgment on both theories for the reasons that follow.
This case arises from [**2] an accident Mrs. Barillari suffered at the Shawnee Mountain Ski Area, Monroe County, Pennsylvania, on January 10, 2010. Def.’s Statement Material Facts ¶ 1, Dec. 3, 2012, ECF No. 18 [hereinafter Def.’s SOF]. Although Mrs. Barillari had skied previously, she was not a ticketed skier that day. Def.’s SOF ¶¶ 3-4; Pls.’ Answer Statement Facts ¶ 3, Dec. 19, 2012, ECF No. 19 [hereinafter Pls.’ SOF]. On that particular occasion, she came to the ski area to watch her husband and her children take ski lessons. Def.’s SOF ¶¶ 6-13.
The accident occurred while Mrs. Barillari was standing on the snow of the slope close to tape that divided a ski run from the instruction area where Mr. Barillari was taking a lesson. See Def.’s SOF ¶¶ 12-13; Pls.’ SOF ¶¶ 10-11. There was a sign that read: “ATTENTION A Ticket or a Pass is Required to be on the Snow.” Def.’s SOF ¶ 19. Nevertheless, Ski Shawnee, Inc. employees admitted that the sign may be ambiguous and that its stated policy was not routinely enforced. Pls.’ SOF ¶ 19.
Mrs. Barillari was generally aware of the risks of collision between skiers. [*558] Def.’s SOF ¶ 7. At the time, however, she was not worried about skiers colliding with her because she believed [**3] that she was close enough to the dividing tape and there were other spectators in the area. Def.’s SOF ¶¶ 15-17; Pls.’ SOF ¶¶ 15-17. Unfortunately for Mrs. Barillari, a skier did collide with her and caused an injury to her left leg. Pls.’ SOF, at 2. The Court considers the legal arguments in light of these facts.
A. LEGAL STANDARDS
1. Summary Judgment
Summary judgment is appropriate when the court is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A genuine issue of material fact exists if “the evidence is such that a reasonable jury could find for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). When the court considers the evidence on summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [her] favor.” Id. at 255.
The party moving for summary judgment bears the burden of establishing the nonexistence of a “genuine issue” of material fact. In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (internal quotations and [**4] citations omitted). The moving party may satisfy this burden by either submitting evidence that negates an essential element of the nonmoving party’s claim, or demonstrating the other party’s evidence is insufficient to establish an essential element of its claim. Id. at 231.
Once the moving party satisfies this initial burden, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). To do so, the nonmoving party must “do more than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Rather, to survive summary judgment, the nonmoving party must “make a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Moreover, “[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must identify those facts of record which would contradict the facts identified by the movant.” Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (internal [**5] quotations and citation omitted).
In deciding the merits of a party’s motion for summary judgment, the court’s role is to determine whether there is a genuine issue for trial, not to evaluate the evidence and decide the truth of the matter. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, not the district court. BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Consequently, summary judgment may be granted only “if 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. 54(a).
2. Pennsylvania Law Must Be Applied In This Case
This case is before the Court as a diversity of citizenship action under 28 U.S.C. § 1332. The Plaintiffs are citizens of New [*559] Jersey, the Defendant is a Pennsylvania corporation with a principal place of business in Pennsylvania, and the amount in controversy is alleged to be over $75,000–consequently, diversity jurisdiction is proper. See 28 U.S.C. § 1332; Pls.’ Compl., ¶¶ 1, 2, 46.
As this is a diversity action and Pennsylvania was the situs of the injury, this Court “must apply Pennsylvania law to the facts of [**6] this case.” Berrier v. Simplicity Mfg., Inc., 563 F.3d 38, 46 n. 11 (3d Cir. 2009) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938)).
B. THE PENNSYLVANIA SKIER’S RESPONSIBILITY ACT DOES NOT APPLY TO THIS CASE
The Defendant asserts that the Plaintiffs’ claims are barred by the assumption of the risk doctrine. Def.’s Br., at 6. The Pennsylvania General Assembly expressly provided this doctrine as a defense in downhill skiing cases in the Comparative Negligence Statute. See 42 Pa. C.S.A. § 7102(c). The pertinent portion of the statute, commonly known as the Skier’s Responsibility Act, reads:
(c) Downhill skiing.–
(1) The General Assembly finds that the sport of downhill skiing is practiced by a large number of citizens of this Commonwealth and also attracts to this Commonwealth large numbers of nonresidents significantly contributing to the economy of this Commonwealth. It is recognized that as in some other sports, there are inherent risks in the sport of downhill skiing.
(2) The doctrine of voluntary assumption of risk as it applies to downhill skiing injuries and damages is not modified by subsections (a) and (a.1). 1
42 Pa. C.S.A. § 7102(c).
1 As a general rule, subsections (a) and (a.1) [**7] supplant the assumption of the risk doctrine with a system of comparative fault in most negligence cases. Nevertheless, assumption of the risk was expressly preserved for injuries arising from downhill skiing, as noted. See 42 Pa. C.S.A. § 7102; Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 341 (2000).
The Restatement (Second) of Torts, § 496A, summarizes the essence of the assumption of the risk doctrine: “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” As the Supreme Court of Pennsylvania elucidated, “[t]he assumption of the risk defense, as applied to sports and places of amusement, has also been described as a ‘no-duty’ rule, i.e., as the principle that an owner or operator of a place of amusement has no duty to protect the user from any hazards inherent in the activity.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1186 (2010) (citing Restatement (Second) of Torts, § 496A, cmt. C, 2).
Applying those principles to the Skier’s Responsibility Act, that same court “made clear that this ‘no-duty’ rule applies to the operators of ski resorts, so that [**8] ski resorts have no duty to protect skiers from risks that are ‘common, frequent, and expected,’ and thus ‘inherent’ to the sport of downhill skiing.” Chepkevich, 2 A.3d at 1186 (citing Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 762 A.2d 339, 343-44 (2000)). Consequently, “[w]here there is no duty, there can be no negligence, and thus when inherent risks are involved, negligence principles are irrelevant–the Comparative Negligence Act is inapplicable–and there can be no recovery based on allegations of negligence.” Id.
[*560] The Supreme Court of Pennsylvania established a two-part analysis to determine whether a plaintiff was subject to the assumption of the risk doctrine adopted in the Skier’s Responsibility Act. See Huges v. Seven Springs Farm, Inc. 762 A.2d at 343-44. “First, this Court must determine whether [the Plaintiff] was engaged in the sport of downhill skiing at the time of her injury. If that answer is affirmative, we must then determine whether the risk of being hit . . . by another skier . . . is one of the ‘inherent risks’ of downhill skiing . . . .” Id. at 344. If both of these prerequisites are met, then summary judgment is appropriate because, as a matter of law, [**9] the Defendant would have had no duty to Mrs. Barillari. See id.
First, the Court considers whether Mrs. Barillari was “engaged in the sport of downhill skiing at the time of her injury.” Id. As the court noted in Hughes v. Seven Springs Farm, Inc.:
the sport of downhill skiing encompasses more than merely skiing down a hill. It includes those other activities directly and necessarily incident to the act of downhill skiing. Such activities include boarding the ski lift, riding the lift up the mountain, alighting from the lift, skiing from the lift to the trail and, after a run is completed, skiing towards the ski lift to start another run or skiing toward the base lodge or other facility at the end of the day.
Hughes, 762 A.2d at 344.
In that case, the court held that a plaintiff who was skiing towards the chair lift through an area at the base of the mountain where several trails converged when she was struck from behind by another skier could not recover because the assumption of risk doctrine applied. Hughes, 762 A.2d at 340, 345. Although the plaintiff “was not in the process of skiing downhill, but rather was propelling herself towards the ski lift at the base of the mountain,” the [**10] court found this action was within the scope of engaging “in the sport of downhill skiing.” Id. at 344-45. The court noted that to decide otherwise would “interpret the Act, as well as the sport of downhill skiing, in an extremely narrow, hypertechnical and unrealistic manner.” Id. at 344.
In Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174 (2010), the Supreme Court of Pennsylvania held that a skier’s negligence action based on her fall from a ski lift was barred by the doctrine of assumption of the risk because she was engaged in the sport of downhill skiing and the fall was an inherent risk of that sport. Chepkevich, 2 A.3d at 1194-95. The court noted that “the clear legislative intent to preserve the assumption of the risk doctrine in this particular area, as well as the broad wording of the Act itself, dictates a practical and logical interpretation of what risks are inherent to the sport.” Id. at 1187-88.
A number of other courts have addressed the scope of the Skier’s Responsibility Act as well. See, e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008) (finding that a skier’s claim based on the lack of safety netting, improper course plotting, or [**11] soft loose snow was barred because those were risks inherent in skiing); Burke v. Ski America, Inc., 940 F.2d 95 (4th Cir. 1991) (interpreting Pennsylvania law to find ski resort had no duty of care to injured skier because a “double black diamond” slope with rocks and trees was an obvious inherent danger of skiing); Smith v. Seven Springs Farm, Inc., 716 F.2d 1002 (3d Cir. 1983) (Aldisert, J.) (finding that a skier’s claim was barred by assumption of the risk when he chose to ski a steep, icy expert slope with unpadded poles for snowmaking equipment); Lin v. Spring Mountain Adventures, Inc., CIV. [*561] A. 10-333, 2010 U.S. Dist. LEXIS 136090, 2010 WL 5257648 (E.D. Pa. Dec. 23, 2010) (holding that the Act barred a skier’s claim because colliding with snow making equipment was an inherent risk); Savarese v. Camelback Ski Corp., 417 F. Supp. 2d 663, (M.D. Pa. 2005) (Caputo, J.) (holding that a skier was barred from recovery where the injury occurred when he attempted to board the ski lift when the bottom of the chair was not folded down for seating); Bell v. Dean, 2010 PA Super 151, 5 A.3d 266 (Pa. Super. Ct. 2010) (finding that a skier assumed the risk of collision with a snowboarder such that the snowboarder could not be found negligent); [**12] Crews v. Seven Springs Mountain Resort, 2005 PA Super 138, 874 A.2d 100 (Pa. Super. Ct. 2005) (holding that the risk of colliding with a drunk underage snowboarder was not a risk inherent in the sport of downhill skiing).
The case before the Court, however, is distinguishable from all of these cases–Mrs. Barillari was not “engaged in the sport of downhill skiing” at the time of her collision, as required by the statute. 2 Hughes, 762 A.2d at 344. Although someone wearing skis and standing in the area of Mrs. Barillari and the other spectators on a momentary pause in their run may well have been “engaged in the sport,” that is an entirely different matter from someone who is purely a spectator. See id. Even though a collision with a skier is a prominent injury considered to be inherent in the sport of skiing as contemplated by the statute and the courts, the fact remains that Mrs. Barillari was merely a spectator not engaged in the sport. See id.
2 The Court recognizes that “engaged” may be defined as “greatly interested,” which could suggest that spectators are “engaged in the sport of downhill skiing.” Merriam-Webster’s New International Dictionary (3d ed. 2013). As is apparent from the context of the [**13] relevant Supreme Court of Pennsylvania decisions, however, this is not the manner in which the court used the term “engaged.” See, e.g., Hughes, 762 A.2d at 344. Rather, the context surrounding the court’s usage of the term indicates a meaning closer to “occupied” or “employed” when using the phrase “engaged in the sport of downhill skiing.” See id.; Merriam-Webster’s New International Dictionary (3d ed. 2013).
If this Court were to include Mrs. Barillari as a person subject to the Skier’s Responsibility Act, it would necessarily extend the confines of Pennsylvania’s law beyond the scope of its current applicability. That is not this Court’s place, and the Court declines to do so. Instead, the Court must apply the law as Pennsylvania’s own Supreme Court has instructed. See, e.g., Hughes, 762 A.2d at 344-45. Consequently, the Court finds that the assumption of the risk doctrine, as articulated in the statue and interpreted by courts, does not apply to bar Mrs. Barillari’s claim, because she was not “engaged in the sport of downhill skiing” at the time of her accident. See Hughes, 762 A.2d at 344-45.
C. TRADITIONAL ASSUMPTION OF THE RISK DOES NOT BAR THE PLAINTIFFS’ CLAIMS
The Defendant [**14] asserts that, in the alternative, the traditional common law defense of assumption of the risk should bar the claim. Def.’s Br., at 6. Although Pennsylvania has severely limited the traditional assumption of the risk doctrine and some courts have questioned its ongoing viability, the fact remains that Pennsylvania courts continue to apply assumption of the risk in a variety of cases outside the context of downhill skiing. See, e.g., Zinn v. Gichner Systems Grp., 880 F. Supp. 311 (M.D. Pa. 1995) (Caldwell, J.) (holding assumption of the risk barred plaintiff’s claim when he continued to work after landowner refused to cover opening in which he was injured); Howell v. Clyde, [*562] 533 Pa. 151, 620 A.2d 1107 (1993) (finding that the plaintiff guest who helped secure gunpowder for a firework cannon and participate in lighting it assumed the risk of his injury); see also Rutter v. Ne. Beaver Cnty. Sch. Dist., 496 Pa. 590, 437 A.2d 1198, 1212 (1981) (Nix, C.J., dissenting) (“[T]his doctrine constitutes a necessary and viable component of tort law.”).
Borrowing Justice Antonin Scalia’s memorable phrase concerning a similarly limited but resurgent doctrine in another area of law, assumption of the [**15] risk survives “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). Nevertheless, the doctrine remains viable in certain circumstances, a monstrous hydra though it may be.
There are four different theoretical species of assumption of the risk–two of which are at issue in this case. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c. One form of this polymorphic doctrine is a voluntary assumption of the risk, where the plaintiff makes a conscious, voluntary decision to encounter a risk of which he is aware. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3.
A second related corollary of the assumption of risk doctrine 3 is sometimes titled the “no-duty rule.” It applies when a plaintiff tacitly agrees to relieve the defendant of a duty by entering a certain relationship with the defendant, when the plaintiff is then injured by an inherent risk of that activity, such as a spectator at a sporting event. See Hughes, 762 A.2d at 342; Restatement (Second) of Torts, § 496A, cmt. c, 3 [**16] . As both of these manifestations of that intractable doctrine are at issue here, the Court addresses them in turn, first analyzing voluntary assumption of the risk. 4
3 See Berman v. Radnor Rolls, Inc., 374 Pa. Super. 118, 542 A.2d 525, 531 (1988) (discussing the discrete conceptual differences between voluntary assumption of the risk as an affirmative defense to a breached duty and the “no-duty” theory with its inherent absence of a duty).
4 The two remaining forms of assumption of the risk do not apply to this case. These are i) express assumption of the risk; and, ii) situations in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable. See Hughes, 762 A.2d at 341-42; Restatement (Second) of Torts, § 496A, cmt. c, 1, 4.
1. Voluntary Assumption of the Risk Does Not Bar Plaintiff’s Claim in this Case
As Judge A. Richard Caputo articulated when considering a case involving voluntary assumption of the risk: “[t]o grant summary judgement on [that basis] the court must conclude, as a matter of law: (1) the party consciously appreciated the risk that attended a certain endeavor; (2) assumed the risk of injury by engaging in the endeavor despite [**17] the appreciation of the risk involved; and (3) that injury sustained was, in fact, the same risk of injury that was appreciated and assumed.” Bolyard v. Wallenpaupack Lake Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5 (M.D. Pa. Feb. 27, 2012) (Caputo, J.). This assumption of risk defense 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.” Barrett v. Fredavid Builders, Inc., 454 Pa. Super. 162, 685 A.2d 129, 131 (1996). Moreover, “[t]he mere fact one engages in activity that has some inherent [*563] danger does not mean that one cannot recover from a negligent party when injury is subsequently sustained.” Bullman v. Giuntoli, 2000 PA Super 284, 761 A.2d 566, 573 (Pa. Super. Ct. 2000).
The dispositive analytical point in the case before this Court is determining what constitutes a plaintiff’s conscious appreciation of the risk. It is not enough that the plaintiff was generally aware that the activity in which he was engaged had accompanying risks. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at * 6 (citing Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693 (1990)). Rather, the plaintiff must be [**18] aware of “the particular danger” from which he is subsequently injured in order to voluntarily assume that risk as a matter of law. Id.
For example, in Bolyard v. Wallenpaupack Law Estates, Inc., 3:10-CV-87, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6 (M.D. Pa. Feb. 27, 2012), Judge Caputo held, inter alia, that assumption of the risk did not apply to a plaintiff who went snow-tubing on an old ski slope, hit a rut, and crashed into a tree. Judge Caputo recognized that, while the plaintiff “was generally aware that snow tubing on a tree-lined trail was dangerous, there [was] no evidence in the record that she had any knowledge of the specific hazards of that particular slope.” Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *6. This was a material distinction, such that the elements of voluntary assumption of the risk remained unsatisfied–therefore, as a matter of law, the plaintiff did not assume the risk. Id.
Similarly, in Handschuh v. Albert Dev., 393 Pa. Super. 444, 574 A.2d 693, 696 (1990), the court held that assumption of the risk did not apply when a plumbing contractor sustained injuries and died because a trench in which he was laying pipe collapsed. The court noted that the plaintiff was aware of the general [**19] risk of ditch collapses and that the particular job would be delicate. Handschuh, 574 A.2d at 694. Nevertheless, that awareness of the general risks was not sufficient “to compel a finding of a waiver of an individual’s right to complain about a breach of duty of care to the risk taker.” Id. at 696 (original punctuation altered).
In the case before the Court, Mrs. Barillari did not voluntarily assume the risk of her injury under this doctrine because there are no facts demonstrating she was specifically aware of the risk of the type of harm she suffered–namely, a skier crashing into a spectator. See Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696; Pls.’ SOF ¶ 5. It is undisputed that Mrs. Barillari was aware of the general risks and dangers inherent in the sport of skiing. She was aware collisions between skiers occurred and she “was worried about [her] children with that.” Def.’s SOF, Oral Dep. Mrs. Barillari 23, Dec. 03, 2012, ECF No. 18, Exh. 5. There is not, however, anything in the record that indicates Mrs. Barillari was specifically aware of the danger that later befell her.
Rather, Mrs. Barillari stated she was not worried about a skier crashing into her, “because [**20] [she] was close enough to the ribbon and [she] was with other people that were just watching. [She] wasn’t standing with a bunch of skiers. [She] was standing with spectators.” Id. at 63-64. Like the plaintiffs in Bolyard and Handschu, Mrs. Barillari did not possess the requisite conscious appreciation of the specific risk of harm that caused her injury. Bolyard, 2012 U.S. Dist. LEXIS 24598, 2012 WL 629391, at *5-6; Handschuh, 574 A.2d at 694, 696. Therefore, the doctrine of voluntary assumption of the risk is inapplicable to this case. See id.
2. The “No-Duty” Rule Does Not Apply
The “no-duty” theory, a corollary species of assumption of the risk discussed [*564] previously in the context of the Skier’s Responsibility Act, applies at common law when: “the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.” Hughes, 762 A.2d at 341 (citing Restatement (Second) of Torts, §496A, cmt. c, 2). “Again the legal result is that the defendant is relieved of his duty to the plaintiff.” Id.
The no-duty rule applies most prominently in the context of a spectator [**21] at a sporting event, such as a fan hit by a foul ball at a baseball game. See, e.g., Schentzel v. Philadelphia Nat’l League Club, 173 Pa. Super. 179, 96 A.2d 181 (1953). As the Restatement observes, “a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without precautions to protect him from being hit by the ball.” Restatement (Second) of Torts, §496A, cmt. c, 2.
“In Pennsylvania, the law imposes ‘no duty’ to protect spectators from risks that are common, frequent, and expected [in the sport].” Petrongola v. Comcast-Spectacor, L.P., 2001 PA Super 338, 789 A.2d 204, 210 (2001). “However, a facility may be held liable if the design of the facility deviates from the established custom in some relevant way.” Id. “The central question, then, is whether [a plaintiff’s] case is governed by the ‘no-duty’ rule applicable to common, frequent and expected risks of [the sport] or by the ordinary rules applicable to all other risks which may be present [at a sporting facility].” Jones v. Three Rivers Mgmt. Corp., 483 Pa. 75, 394 A.2d 546, 551 (1978).
For example, in Schentzel v. Philadelphia National League Club, 173 Pa. Super. 179, 186-92, 96 A.2d 181 (1953), [**22] the no-duty rule barred the claim of a plaintiff hit by a foul ball in the stands at a baseball game. The court noted that, even though there was scant evidence the plaintiff knew about the prevalence of foul balls, the defendant owed her no duty because foul balls are an inherent risk of attending a baseball game. Schentzel,173 Pa. Super. at 186-92.
In Loughran v. The Phillies, 2005 PA Super 396, 888 A.2d 872, 876-77 (Pa. Super. Ct. 2005), a majority of the court held that the no-duty rule barred a spectator’s claim for injuries suffered in the stands at a baseball game. There, the center-fielder threw the ball into the stands after catching it for the final out of the inning–as is customarily done to provide souvenirs for fans–when the unsuspecting plaintiff was hit and injured by the ball. Loughran, 888 A.2d at 874. Although this was not the typical foul ball hit into the stands, the majority considered this custom to be inherent in the sport. Id. at 877. They noted that the plaintiff failed to establish the defendants “deviated from the common and expected practices of the game of baseball.” 5 Id.
5 Judge John T. Bender dissented from this majority opinion, writing:
since the act of tossing a ball to fans [**23] as a souvenir is extraneous to the game and not necessary to the playing of the game, a spectator does not “assume the risk” of being struck by a ball entering the stands for this purpose, nor is there any valid reason in law or policy to extend the immunity of the “no duty” rule to this practice. Rather, if a baseball player wants to go beyond the confines of the game . . . he should be charged with the obligation of doing it in a reasonably safe and prudent manner.
Loughran, 888 A.2d at 882.
By contrast, in Jones v. Three Rivers Management Corporation, 483 Pa. 75, 394 A.2d 546, 548, 552-553 (1978), the court held that the no-duty rule did not apply because the patron was hit by a ball while using an interior walkway to the concessions [*565] area, rather than while seated in the stands. The court noted that “in a ‘place of amusement’ not every risk is reasonably expected.” Jones, 394 A.2d at 551. That particular injury was due to a failure in the ballpark’s design such that the no-duty rule should not apply. Id. at 551-52.
The Jones court also drew a distinction between risks that are merely inherent in the activity, and those risks that are not only inherent but also necessary to the activity. See id.; [**24] see also Loughran, 888 A.2d at 880 (Bender, J., dissenting) (“A careful reading of Jones, reveals that the no-duty rule applies not just when one’s injury is caused by a risk inherent to the activity, but also when the risk in question is necessary to the activity.”). For example, while foul balls in the stands are an inherent and necessary part of any baseball game, a bat flying into the stands is an inherent risk of baseball but not a necessary component of the game. Jones, 394 A.2d at 551; see also Schentzel, 96 A.2d at 182 (“There is a million foul balls, maybe three or four or five an inning, goes into the stand [sic].”).
The court further illuminated this distinction with analogies, writing that: “[m]ovies must be seen in a darkened room, roller coasters must accelerate and decelerate rapidly and players will bat balls into the grandstand.” Id. at 550-51. As Judge John T. Bender poignantly extrapolated in his Loughran dissent:
if movie houses are made to lighten the theatres so that no one trips, the movie-going experience would be greatly diminished if not destroyed. If amusement parks are made to design roller coasters so as to eliminate all jerkiness and smooth out all changes [**25] in direction they would no longer be capable of being classified as “thrill rides” and the word “amusement” might be deleted from the term “amusement parks.” But if baseball players and their employers, are charged with exercising reasonable care in the practice of providing souvenir balls to patrons, the “Fall Classic” will remain a classic sporting contest and all those regular season and playoff games preceding it would still be played in a manner consistent with Abner Doubleday’s original intent.
Loughran, 888 A.2d at 881.
According to the principles discussed in Jones and Loughran, the no-duty rule can be said to apply when, to avoid injury, a “place of amusement” must alter conditions at the facility in such a way that would change the very essence of the activity for which it is made. See Loughran, 888 A.2d at 881; Jones, 394 A.2d at 550-52. This does not affect the duty of sports facilities and places of amusement to protect patrons against foreseeable risks not inherent and necessary such that they are “common, frequent, and expected” in the very essence of that central activity. Jones, 394 A.2d at 551
Applying these principles to the case before the Court, the no-duty rule cannot [**26] protect the Defendant and bar Mrs. Barillari’s claim. The Defendant asserts that this case is directly analogous to the example of a spectator at a baseball game being hit by a foul ball–Mrs. Barillari was a spectator by a ski slope that was hit by a skier. See Def.’s Br., at 8-10. Although a skier crashing into spectators may be a foreseeable risk inherent in the sport of skiing, it is not a necessary and inherent element of that sport. See Jones, 394 A.2d at 551-52.
A majority of fans attend a baseball game expecting to see a number of foul balls hit into the stands. See Schentzel, 96 A.2d at 182. The Court is not aware of a similar majority that assumes they will see [*566] a number of skiers crash violently into spectators on a day trip to the mountain.
Furthermore, charging ski facilities with the ordinary duty of care to protect spectators from ski crashes, rather than shielding them with “no-duty,” will not in any way affect the essence of skiing. See Loughran, 888 A.2d at 881. The ski resort may erect mesh fences, snow walls, ropes, and other sorts of precautions around the sides and at the base of the slopes without impeding the rhythmic descent of countless alpine enthusiasts.
Therefore, [**27] the issues in this case do not present an instance where the “no-duty” rule applies. Rather, the existence of any negligence by either or both parties should be submitted to a jury.
For the foregoing reasons, Ski Shawnee Inc.’s motion for summary judgment is denied.
An appropriate Order follows.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge
AND NOW, this 12th day of November, 2013, it is hereby ORDERED, in accordance with a Memorandum of this same date, that the Defendant, Ski Shawnee, Inc.’s motion for summary judgment is hereby DENIED.
BY THE COURT:
/s/ Matthew W. Brann
Matthew W. Brann
United States District Judge