Fecke v. The Board of Supervisors of Louisiana State University, 2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357Posted: September 26, 2015
Brandy Lynn Fecke, Stephen C. Fecke, and Karen Fecke versus The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College
NO. 2015 CA 0017
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
2015 0017 (La.App. 1 Cir. 07/07/15); 2015 La. App. LEXIS 1357
July 7, 2015, Judgment Rendered
THIS DECISION IS NOT FINAL UNTIL EXPIRATION OF THE FOURTEEN DAY REHEARING PERIOD.
SUBSEQUENT HISTORY: Rehearing denied by Fecke v. Bd. of Supervisor, 2015 La. App. LEXIS 1644 (La.App. 1 Cir., Sept. 3, 2015)
Rehearing denied by Fecke v. Bd. of Supervisiors, 2015 La. App. LEXIS 1679 (La.App. 1 Cir., Sept. 3, 2015)
PRIOR HISTORY: [*1] On Appeal from the 19th Judicial District Court. In and for the Parish of East Baton Rouge, State of Louisiana. No. C584652. The Honorable R. Michael Caldwell, Judge Presiding.
DISPOSITION: REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.
COUNSEL: John Neale deGravelles, Baton Rouge, Louisiana, Attorney for Plaintiffs/Appellees, Brandy L. Fecke, Stephen C. Fecke, and Karen Fecke.
James D. “Buddy” Caldwell, Attorney General, Patrick E. Henry, Darrell J. Saltamachia, John L. Dugas, Special Assistant Attorneys General, Baton Rouge, Louisiana and J. Elliott Baker, Special Assistant Attorney General, Covington, Louisiana, Attorneys for Defendant/Appellant, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.
JUDGES: BEFORE: GUIDRY, THERIOT, AND DRAKE, JJ. Guidry. J. concurs in the result.
OPINION BY: DRAKE
[Pg 2] DRAKE, J.
The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (“LSU Board”) appeals a judgment on a jury verdict that awarded damages to the plaintiff for injuries she sustained in an indoor rock wall climbing accident. For the following reasons, we reverse and amend portions of the judgment and affirm as amended.
FACTS AND PROCEDURAL [*2] HISTORY
It is undisputed that on the evening of December 3, 2008, Brandy Lynn Fecke sustained injuries when she fell from a bouldering wall located at the LSU Recreation Center (“LSU UREC”) indoor rock climbing wall facility. Ms. Fecke, then a 23-three-year-old senior at LSU, and a fellow classmate, Chad Culotta, visited the indoor rock climbing facility to complete a required assignment for an Outdoor Living Skills Activity course. The indoor rock climbing facility at the LSU UREC is housed in a remodeled racquetball court. LSU converted the court into the rock climbing wall facility, with three rock wall climbing options: (i) a 19′ climbing wall; (ii) a 13′ 1″ bouldering wall located on the rear wall; (iii) and a 13′ 1″ bouldering wall located on a side wall.
After Ms. Fecke and Mr. Culotta paid for admission to enter the indoor rock climbing wall facility and received a receipt, the LSU UREC employees working the night of the accident signed Ms. Fecke and Mr. Culotta’s course forms to verify their completion of the rock wall climbing assignment for their Outdoor Living Skills Activity course. Ms. Fecke also executed a Rock Climbing Wall Participation Agreement, which was provided [*3] to her by the LSU UREC employees. The student workers inquired into their previous experience with rock climbing. Ms. Fecke testified that she climbed a rock wall twice before — once when she was eight years old and a second time when she was ten years old. Ms. Fecke also testified that she had “top lined” previously, that is, that she knew about [Pg 3] climbing a wall wearing a harness and using safety ropes, i.e., belay ropes. The employees proceeded to go through the instructions for the rock wall climbing experience. They explained to Ms. Fecke and her classmate that they could climb the 19′ climbing wall with top ropes while wearing a harness, or they could climb one of the 13′ 1″ bouldering walls. Ms. Fecke wanted to climb the “easiest wall” and opted to climb the rear bouldering wall, which did not require her to wear a harness or climb with belay ropes. Bouldering is when a climber, with a partner standing behind the climber to act as a spotter in case the climber needs assistance, climbs up to a certain point on the wall and then traverses the wall side-to-side, in order to develop proficiency in climbing.
After instruction and a climbing demonstration by one of the employees, [*4] Ms. Fecke’s classmate climbed up and then traversed down the wall. Ms. Fecke then climbed the wall. After reaching the top of the wall, Ms. Fecke began her descent; however, she got stuck while traversing down the wall and was unable to climb down any further. She lost her footing and hung from the wall. When she lost her grip after hanging for a few seconds, she let go of the wall and pushed herself away from the wall. As she fell, Ms. Fecke twirled around, facing away from the wall. Ms. Fecke landed on her left foot and sustained multiple fractures to the talus bone in her left ankle, known as a comminuted talus fracture. Due to the severity of the fractures, Ms. Fecke underwent three surgeries and will require additional surgery, including either a permanent ankle fusion or an ankle replacement.
Ms. Fecke and her parents, Stephen and Karen Fecke, brought suit against the LSU Board for damages Ms. Fecke sustained as a result of the accident. Following a three-day jury trial, the jury returned a verdict in favor of Ms. Fecke, Karen Fecke, and Stephen Fecke and against the LSU Board, and awarded damages. The jury allocated 75% of the fault to the LSU Board and 25% of the fault to Ms. [*5] Fecke and awarded damages to Ms. Fecke as follows:
[Pg 4] Physical Pain and Suffering, Past and Future: $150,000.00
Mental Pain and Suffering, Past and Future: $125,000.00
Loss of Enjoyment of Life: $75,000.00
Permanent Disability and Scarring: $165,000.00
Past Medical Expenses: $60,392.72
Fecke Future Medical Expenses: $1,000,000.00
Loss of Future Earnings: $350,000.00
Additionally, the jury awarded damages to Karen Fecke as follows:
Loss of Consortium and Society: $50,000.00
The jury awarded no damages to Stephen Fecke for loss of consortium and society.
Six months later, the trial court signed a judgment on October 3, 2014, and after adjusting the jury’s damage award based on the fault allocation, awarded damages to Ms. Fecke as follows:
Physical Pain and Suffering, Past and Future: $112,500.00
Mental Pain and Suffering, Past and Future: $93,750.00
Loss of Enjoyment of Life: $56,250.00
Permanent Disability and Scarring: $123,750.00
Past Medical Expenses: $45,294.54
Fecke Future Medical Expenses: $750,000.00
Loss of Future Earnings: $262,500.00
[Pg 5] The trial court also awarded Ms. Fecke all costs of the proceedings plus 6.0% judicial interest from the date [*6] of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Furthermore, the trial court ordered that after being reduced for attorney’s fees and costs, Ms. Fecke’s future medical care award of $750,000 (plus judicial interest) be placed in a reversionary trust in accordance with La. R.S. 13:5106(B)(3)(c).1 Additionally, the trial court awarded damages to Karen Fecke as follows:
Loss of Consortium and Society: $37,500.00
The trial court also awarded Karen Fecke all costs of the proceedings plus 6.0% judicial interest from the date of judicial demand until paid, pursuant to La. R.S. 13:5112(C). Finally, the trial court cast the LSU Board with all costs of court, including but not limited to, the expert witness fees as follows:
Dan Pervorse: $3,500.00
Dr. James Lalonde: $1,400.00
Dr. John F. Loupe: $900.00
Stephanie Chalfin: $1,500.00
Harold Asher: $3,000.00
The LSU Board now appeals the October 3, 2014 final judgment of the trial court, assigning three errors to the trial court’s application of the law pertinent to this case.
1 Although this point will be discussed more thoroughly in the first assignment of error, we note here, for clarification purposes, that the trial court’s judgment names the reversionary trust the “Future Medical Care Trust.” We observe [*7] the label “Future Medical Care Trust” appears nowhere in La. R.S. 13:5106, nor in any other provision in the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113.
LAW AND DISCUSSION
Standard of Review
[HN1] The appellate court’s review of factual findings is governed by the manifest error/clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So. 2d 1120, 1127 (La. 1987). Thus, if there is no reasonable factual basis in the record for the fact-finder’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a fact-finder’s factual finding only if, after reviewing the record in its entirety, it determines the finding was clearly wrong. See Stobart v. State, through Dept, of Transp. and Dev., 617 So. 2d 880, 882 (La. 1993).
[HN2] A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews [*8] the trial court’s finding as to issues of material fact, the [Pg 6] appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So. 2d 731, 735. However, the above approach need not be considered when a jury has made some factual findings favorable to each party, and when the legal error affected only one of the findings, but does not interdict the entire fact-finding process. The appellate court should proceed to evaluate each jury finding pertinent to liability in order to determine the applicability of the manifest error rule to each. If only one of the jury’s factual findings is tainted by the application of incorrect principles of law that are prejudicial, the appellate court’s de novo review is limited to the jury finding so affected. Rideau v. State Farm Mut. Auto. Ins. Co., 06-0894 (La. App. 1 Cir. 8/29/07), 970 So. 2d 564, 571, writ denied, 07-2228 (La. 1/11/08), 972 So. 2d 1168.
Assignment of Error 1:
In the first assignment of error, the LSU Board contends the trial court erred by ordering that attorney’s fees and costs were payable out of Ms. Fecke’s damage award for her future medical care. The LSU Board further contends that the trial court erred by awarding Ms. Fecke interest on that award. Ms. Fecke counters that she is [*9] entitled by statute to receive interest on her future medical care damage award, and she further argues that the trial court is authorized by statute to award contractual attorney fees from that award prior to establishing the terms and provisions of a reversionary trust, which is to be created for her future medical care expenses. Thus, the first issue before this court is whether any interest, attorney’s fees, or costs are due and collectible by Ms, Fecke and her attorneys on and out of her damage award against LSU for future medical care. [HN3] As the facts in this matter are not in dispute and the issue on this assignment of error is purely one of the statutory interpretation of La. R.S. 13:5106, a section of the Louisiana [Pg 7] Governmental Claims Act, this court will review the matter de novo, without deference to the legal conclusion of the trial court, and determine whether the error was prejudicial to the case. Turner v. Willis Knighton Med. Ctr., 12-0703 (La. 12/4/12), 108 So. 3d 60, 62; Duzon v. Stallworth, 01-1187 (La. App. 1 Cir. 12/11/02), 866 So. 2d 837, 861, writ denied sub nom., Duzon ex rel. Cmty. of Acquets & Gains v. Stallworth, 03-0589 (La. 5/2/03), 842 So. 2d 1101, and writ denied, 03-0605 (La. 5/2/03), 842 So. 2d 1110.
[HN4] Suits against the State of Louisiana, a state agency, or a political subdivision must be brought pursuant to the Louisiana Governmental Claims Act, La. R.S. 13:5101-5113 (“Act”). The Act applies to any suit in contract or for injury to person or property. La. R.S. 13:5101(B). Pursuant [*10] to the Act, the Legislature appropriates certain funds to pay claims against the State, its agencies, and political subdivisions. La. R.S. 13:5106(B)(1). The Act caps a claimant’s damages for personal injury at $500,000.00, exclusive of property damage, medical care and related benefits, loss of earnings, and loss of future earnings. La. R.S. 13:5106(B)(1).
[HN5] When a trial court determines that a plaintiff in a suit for personal injury against the state or a state agency is entitled to medical care and related benefits2 incurred subsequent to judgment, i.e. future medicals, the provisions of the Future Medical Care Fund (“FMCF”), La. R.S. 39:1533.2, apply to such cases. Louisiana Revised Statutes 13:5106(B)(3)(c) is the controlling statutory authority for personal injury claims against the state or a state agency:
In any suit for personal injury against the state or a state agency wherein the court pursuant to judgment determines that the claimant is entitled to medical care and related benefits that may be incurred [Pg 8] subsequent to judgment, the court shall order that all medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund as provided in R.S. 39:1533.2. Medical care and related benefits shall be paid directly to the provider as they are incurred [*11] . Nothing in this Subparagraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided but with the requirement that they shall be paid in accordance with this Subparagraph. [Emphasis added.]
[HN6] The FMCF is administered by the Office of Risk Management, through the Treasurer of the State of Louisiana. La. R.S. 39:1533.2(B).
2 Louisiana Revised Statutes 13:5106(D)(1) provides that:
[HN7] “Medical care and related benefits” for the purpose of this Section means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.
In contrast, [HN8] when a trial court determines that a plaintiff in a suit for personal injury against a political subdivision is entitled to medical care and related benefits incurred subsequent to judgment, a reversionary trust is established for the benefit of the plaintiff and all future medical care is paid pursuant to the reversionary trust instrument. Louisiana Revised Statutes 13:5106(B)(3)(a)3 is the controlling statutory authority for personal injury claims against political subdivisions:
In any suit for personal injury [*12] against a political subdivision wherein the court, pursuant to judgment, determines that the claimant is entitled to medical care and related benefits that may be incurred subsequent to judgment, the court shall order that a reversionary trust be established for the benefit of the claimant and that all medical care and related benefits incurred subsequent to judgment be paid pursuant to the reversionary trust instrument. The reversionary trust instrument shall provide that such medical care and related benefits be paid directly to the provider as they are incurred. Nothing in this Paragraph shall be construed to prevent the parties from entering into a settlement or compromise at any time whereby medical care and related benefits shall be provided, but with the requirement of establishing a reversionary trust. [Emphasis added.]
The Act [HN9] does not limit the rights of a claimant to contract with respect to attorney’s fees and costs when the claimant’s future medical care is paid from a reversionary [Pg 9] trust established by a political subdivision for that claimant’s future medical care. As provided for in Louisiana Revised Statutes 13:5106(D)(3):
[HN10] “Reversionary trust” means a trust established by a political subdivision for [*13] the exclusive benefit of the claimant to pay the medical care and related benefits as they accrue, including without limitation reasonable and necessary amounts for ah diagnosis, cure, mitigation, or treatment of any disease or condition from which the injured person suffers as a result of the injuries, and the sequelae thereof, sustained by the claimant on the date the injury was sustained. The trustee shall have the same fiduciary duties as imposed upon a trustee by the Louisiana Trust Code. Nothing herein shall limit the rights of claimants to contract with respect to attorney fees and costs. [Emphasis added.]
3 Louisiana Revised Statutes 13:5106(B)(3)(a) and (D)(3), [HN11] relative to the creation of reversionary trusts, were added by 1996 La. Acts No. 63, § 1 (effective May 9, 1996). 2000 La. Acts No. 20, § 1 (effective July 1, 2000) amended La. R.S. 13:5106(B)(3)(a) and (D)(3) to provide that the creation of reversionary trusts for the payment of future medical care specifically applies to personal injury claims against political subdivisions.
To ascertain which of the Act’s provisions regarding damage awards apply to Ms. Fecke’s case — either the provision applicable to an award against the state or a state agency, La. R.S. 13:5106(B)(3)(c), or the provision applicable to damage awards against [*14] a political subdivision, La. R.S. 13:5106(B)(3)(a) — this court must determine whether the LSU Board is classified as the “state or a state agency” or as a “political subdivision.” The Act defines a “state agency” as “any board, commission, department, agency, special district, authority, or other entity of the state.” La. R.S. 13:5102(A). The Act defines a “political subdivision” as “[a]ny parish, municipality, special district, school board, sheriff, public board, institution, department, commission, district, corporation, agency, authority, or an agency or subdivision of any of these, and other public or governmental body of any kind which is not a state agency.” La. R.S. 13:5102(B)(1).
[HN12] The starting point in the interpretation of any statute is the language of the statute itself. Whitley v. State ex rel. Bd. of Supervisors of Louisiana State Univ. Agr. Mech. College, 11-0040 (La. 7/1/11), 66 So. 3d 470, 474. When the wording of a section of the revised statutes is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. La. C.C. art. 9; La. R.S. 1:4. “Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” La. R.S. 1:3. [Pg 10] Based on the clear language of La. R.S. 13:5102(A) and (B), the LSU Board is a state agency.4 Because the LSU Board is a state agency, the Act’s provision applicable to [*15] awards for future medical care against the state or a state agency – La. R.S. 13:5106(B)(3)(c) DMASH applies to the instant case. Thus, the trial court legally erred in applying La. R.S. 13:5106(B)(3)(a) to this case. That legal error became prejudicial when the trial court rendered judgment on the jury’s verdict and ordered that Ms. Fecke’s damage award for her future medical care be placed in a reversionary trust, which the trial court referred to as a “Future Medical Care Trust.”5 We therefore amend the portion of the trial court’s October 3, 2014 final judgment that refers to a “Future Medical Care Trust” to refer to the “Future Medical Care Fund.”
4 We note that there is constitutional and statutory authority for the classification of the LSU Board as a state agency. We also note there is jurisprudence that has previously applied the Act to suits involving the LSU Board. In those instances, courts applied the provisions of the Act applicable to state agencies to the LSU Board. See La. Const, art. VIII, § 7; La. R.S. 13:5102(A): La. R.S. 39:1527(1); Whitley, 66 So. 3d at 476; LeBlanc v. Thomas, 08-2869 (La. 10/20/09), 23 So. 3d 241, 246; Student Govt. Association of Louisiana State Univ. Agr. & Meek College, Main Campus, Baton Rouge v. Board of Supervisors of Louisiana State Univ. Agr. & Meek College, 262 La. 849, 867-68, 264 So. 2d 916, 922 (1972) (Barham, J., dissenting); Hunter v. Louisiana State Univ. Agr. & Meek College ex rel. Louisiana Health Care Services Center for Univ. Hosp. at New Orleans, 10-1406 (La. App. 4 Cir. 6/8/11), 77 So. 3d 264, 267, reversed on other grounds, 11-2841 (La. 3/9/12), 82 So. 3d 268.
5 The trial court’s judgment ordered that Ms. Fecke’s future medicals be placed in a “Future Medical Care Trust” in accordance with La. R.S. 13:5106(B)(3)(c); however, as we have discussed, Section 5106(B)(3)(c) applies [*16] to the state and state agencies and governs the placement of a claimant’s future medicals in the Future Medical Care Fund, not a trust.
In addition to its argument that the trial court legally erred in establishing a reversionary trust for Ms. Fecke’s future medical care instead of ordering that those benefits be paid from the FMCF, the LSU Board further contends that the trial court legally erred when it (i) ordered that costs and judicial interest be paid out of and earned on Ms. Fecke’s damage award for future medicals, and (ii) ordered that attorney’s fees be taken out of that award prior to the establishment of a reversionary trust.
[Pg 11] Section 5106(B)(3)(c), referring to La. R.S. 39:1533.2, [HN13] provides that a claimant’s future medicals are paid from the FMCF “directly to the provider as they are incurred.” The FMCF is established by La. R.S. 39:1533.2, which provides:
[HN14] A. There is hereby established in the state treasury the “Future Medical Care Fund”, hereinafter referred to as the “fund”. The fund shall consist of such monies transferred or appropriated to the fund for the purposes of funding medical care and related benefits that may be incurred subsequent to judgment rendered against the state or a state agency [*17] as provided by R.S. 13:5106 and as more specifically provided in R.S. 13:5106(B)(3)(c). All costs or expenses of administration of the fund shall be paid from the fund.
B. The fund shall be administered by the treasurer on behalf of the office of risk management for the benefit of claimants suing for personal injury who are entitled to medical care and related benefits that may be incurred subsequent to judgment. Except for costs or expenses of administration, this fund shall be used only for payment of losses associated with such claims. At the close of each fiscal year, the treasurer shall transfer to the Future Medical Care Fund from the Self-Insurance Fund an amount equal to the monies expended from the Future Medical Care Fund during that fiscal year. Monies in the fund shall be invested by the state treasurer in the same manner as monies in the state general fund. Interest earned on investment of monies in the fund shall be deposited in and credited to the fund. All unexpended and unencumbered monies in the fund at the end of the fiscal year shall remain in the fund. [Emphasis added.]
Ms. Fecke is entitled to receive costs and interest on her damage award in accordance with La. R.S. 13:5112 of the Act; however, pursuant to La. R.S. 39:1533.2 (which [*18] the Act refers to in Section 13:5106(B)(3)(c)), any interest specifically earned on the award for Ms. Fecke’s future medical care “shall be deposited in and credited to” the FMCF. Thus, to the extent that the October 3, 2014 judgment of the trial court awards interest directly to Ms. Fecke’s on her future medical care award, that portion of the judgment is hereby vacated.
[HN15] With regard to costs and attorney’s fees, this court notes that when a reversionary trust is established by a political subdivision for the payment of a claimant’s future medical care and related benefits, the statute does not limit the rights of a claimant to contract with respect to attorney fees and costs. La. R.S. 13:5106(D)(3) [Pg 12]. Ms. Fecke argues that this provision of the Act authorizes the trial court to approve her contract with her lawyer for reasonable attorney’s fees which may be deducted from the jury’s damage award for her future medical care, prior to the establishment of the reversionary trust. Ms. Fecke’s contention regarding reversionary trusts is valid, but, as we have previously held, the reversionary trust provisions contained in La, R.S. 13:5106(B)(3)(a) and (D)(3) do not apply to her suit for personal injury against the LSU Board.
Louisiana Revised Statutes 13:5106(D)(1) defines “[m]edical [*19] care and related benefits” as “all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services, and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services.” Thus, the only monies to be paid to a provider from the FMCF for Ms. Fecke’s future medical care are those things defined in Section 13:5106(D)(1). Nowhere in the statutes pertaining to the FMCF does it provide for costs or attorney’s fees to be paid therefrom. Furthermore, costs and attorney’s fees are not “medical care and related benefits” set forth in La. R.S. 13:5106(D)(1). See Starr v. State ex rel. Dept. of Transp. & Dev., 46,226 (La. App. 2 Cir. 6/17/11), 70 So. 3d 128, 144, writs denied, 11-1835 (La. 10/21/11), 73 So. 3d 386, 11-1952 (La. 10/21/11), 73 So. 3d 387, 11-1625 (La. 10/21/11), 73 So. 3d 388 and 12-2146 (La. 10/12/12), 98 So. 3d 877.
We also note that a lump sum is not placed in the FMCF on Ms. Fecke’s behalf, out of which costs and attorney’s fees could be paid directly to her attorneys. As set forth in the statutory scheme, Ms. Fecke’s future medical care will be paid from the FMCF directly to her medical provider as her medical care is incurred.6 La. R.S. 13:5106(B)(3)(c). Therefore, the portions of the October 3, 2014 judgment of the trial court, which ordered that costs and attorney’s fees be [Pg 13] paid out of Ms. Fecke’s damage award for her future medical care, are hereby vacated.
6 The statutory scheme that creates and governs the organization and management of the FMCF is analogous to the statutory scheme that creates and governs the “Patient’s Compensation Fund,” the fund established for the payment of medical malpractice claims. See La. R.S. 40:1299.43-44.
Assignment [*20] of Error 2:
In its second assignment of error, the LSU Board contends that the trial court erred in excluding from trial a one-page Rock Climbing Wall Participation Agreement (“Agreement”) that was provided to Ms. Fecke by the LSU UREC employees, which she executed prior to climbing the wall on the day of her accident. Prior to trial, Ms. Fecke filed a motion in limine to exclude the Agreement, arguing that the document constituted a waiver of liability to release the LSU Board from any and all liability for causing injury to Ms. Fecke. Such exclusion of liability waivers are null under Louisiana law. See La. C.C. art. 2004. The LSU Board opposed the motion. A hearing was held on Ms. Fecke’s motion in limine the day before commencement of the jury trial. The trial court granted the motion excluding the Agreement.
On the second day of the jury trial, the LSU Board moved to re-consider the motion in limine to exclude the Agreement. The LSU Board argued that portions of the Agreement unrelated to the liability waiver, such as certifications regarding Ms. Fecke’s health, mental, and physical condition should be permitted into evidence. The trial court considered entering into evidence a version of the Agreement [*21] that redacted any mention of a waiver of liability; however, the trial court reasoned that a redacted document may cause confusion for the jury who might speculate over the contents of the redacted portions of the Agreement. Recognizing the need to provide the information contained in the “non-waiver of liability” paragraphs of the Agreement to the jury without causing confusion, the trial court opted to instruct the jury that Ms. Fecke certified to the LSU UREC employees that she was in good health and had no mental or physical conditions [Pg 14] that would interfere with her safety or the safety of others. The parties stipulated to the disclosure, and counsel for the LSU Board proffered the Agreement.
On appeal, the LSU Board argues that the Agreement was more than a mere waiver of liability. It argues that the Agreement establishes that Ms. Fecke was sufficiently educated and understood the inherent risk of injury associated with the activity she was about to undertake and that the LSU UREC employees had properly screened Ms. Fecke prior to allowing her to climb the wall. The LSU Board avers that the Agreement constituted Ms. Fecke’s acknowledgment of the risks of climbing the wall, [*22] which is a significant factor in determining her fault, and that this information should have been presented to the jury. Ultimately, the LSU Board contends the Agreement is relevant, highly probative, and its exclusion from evidence materially prejudiced the LSU Board in its ability to defend against Ms. Fecke’s allegations of negligence and the alleged breach of duty owed as the owner of the rock wall climbing facility. Specifically, the LSU Board argues that Ms. Fecke’s acknowledgement regarding the risk of bodily injury, representations regarding her physical and mental capacity and understanding that she alone was to determine whether she was fit to participate in the activity, and her agreement to direct any questions to the climbing wall staff constituted her informed consent and acknowledgement of the risk of climbing the indoor rock wall and are significant factors in determining her fault.
[HN16] All relevant evidence is admissible, except as otherwise provided by law. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. The trial [*23] court has great discretion in its consideration of evidentiary matters such as motions in limine. See Heller v. Nobel Insurance Group, 00-0261 (La. 2/2/00), 753 So. 2d 841. Thus on review, an appellate court must determine whether the [Pg 15] trial court abused its great discretion in ruling on a motion in limine. Id. [HN17] Pursuant to La. C.C.P. art. 1636, when a trial court rules against the admissibility of any evidence, the court shall either permit the party offering such evidence to make a complete record thereof or permit the party to make a statement setting forth the nature of the evidence. Article 1636 is mandatory, not discretionary. Williams v. Williams, 06-2491 (La. App. 1 Cir. 9/14/07), 970 So. 2d 633, 640. The purpose of requiring a proffer is to preserve excluded evidence so that the testimony or evidence is available for appellate review of a trial court’s erroneous ruling. When legal error has been found and a complete record has been made through a proffer, the appellate court is able to conduct a de novo review of the record, including the proffered evidence, to render a decision on appeal. Id. We now review the proffered Agreement de novo to determine whether the trial court committed legal error in excluding the Agreement and whether that legal error prejudiced the LSU Board’s defense.
The Agreement is a one-page document signed by Ms. Fecke [*24] that contains eight paragraphs. The first three paragraphs provide as follows:
I understand and agree that there is a risk of serious injury to me while utilizing University Recreation facilities, equipment, and programs and recognize every activity has a certain degree of risk, some more than others. By participating, I knowingly and voluntarily assume any and all risk of injuries, regardless of severity, which from time to time may occur as a result of my participation in athletic and other activities through LSU University Recreation.
I hereby certify I have adequate health insurance to cover any injury or damages that I may suffer while participating, or alternatively, agree to bear all costs associated with any such injury or damages myself.
I further certify that I am in good health and have no mental or physical condition or symptoms that could interfere with my safety or the safety of others while participating in any activity using any equipment or facilitates of LSU University Recreation. I understand and agree that I alone am responsible to determine whether I am physically and mentally fit to participate, perform, or utilize the activities, programs, equipment or facilities [*25] available at Louisiana State University, and that I am not relying on any advice from LSU [Pg 16] University Recreation in this regard. To the extent I have any questions or need any information about my physical or mental condition or limitations, I agree to seek professional advice from a qualified physician.
The fourth paragraph of the Agreement provides as follows:
Further, I hereby RELEASE AND HOLD HARMLESS, the State of Louisiana, the Board of Supervisors of Louisiana State University and Agricultural & Mechanical College, and its respective members, officers, employees, student workers, student interns, volunteers, agents, representatives, institutions, and/or departments from any and all liability, claims, damages, costs, expenses, personal injuries, illnesses, death or loss of personal property resulting, in whole or in part, from my participation in, or use of, any facility, equipment, and/or programs of Louisiana State University.
The remaining paragraphs of the Agreement provide as follows:
I will wear proper protective equipment and I agree to abide by all rules of the sport as mandated by LSU University Recreation.
I, the undersigned, am at least eighteen (18) years of age [*26] or have a parent/legal guardian’s signature, will not use an auto-belay system if weighing less than 90 pounds, am physically fit, have read this participation agreement, and understand its terms and conditions. I agree not to climb onto the top of the structure and stay directly under the rope or belay system I am using. Any certifications, including belay certifications, are good only at the LSU’s Baton Rouge campus, Student Recreation Center, and are not transferable to any other person.
Any questions concerning equipment to be used should be directed to Climbing Wall Staff prior to engaging in this activity. The wall is not designed for rappelling from the top of the tower. Doing so may result in serious physical injury to the participant and/or bystanders.
At various times throughout the semester, University Recreation will be taking digital images, photographs, and/or videotapes of patrons [for] educational, promotional and informational purposes for use in department related print materials and on our Web site. When/if your likeness or image is used in a publication, there will be no identifying information provided. [Emphasis added.]
Louisiana Civil Code article 2004 provides:
[HN18] Any clause is null that, in advance, [*27] excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.
Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.
[Pg 17] Based on our review of the proffered Agreement, paragraph four is null pursuant to La. C.C. art. 2004 because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke. The trial court properly excluded that portion of the Agreement from consideration by the jury. The issue then becomes whether a redacted version of the Agreement, with the remaining paragraphs that do not exclude or limit the liability of the LSU Board, should have come into evidence. As per the agreement of the parties, the trial court gave the jury an instruction, instead of providing a redacted version of the Agreement, and disclosed these minimal facts to the jury:
They stipulate that when Brandy Fecke arrived at the LSU Recreational Center on that evening she certified to them that she was in good health and had no mental or physical condition or symptoms that could interfere with her safety or the safety of others while participating in any [*28] activity using any equipment or facilities of LSU University Recreation; further, that she was at least 18 years of age and was physically fit. So that’s again, as I said, a stipulation is the parties agree those are the facts and they don’t need to have witnesses and so forth testify to that.
Despite the trial court’s instruction to the jury, the LSU Board argues that each paragraph of the Agreement is highly probative as to the fault of the parties and that this probative value substantially outweighs any potential confusion or misleading of the jury that could have resulted from the introduction of the Agreement at trial. During the jury trial, a rock climbing expert for the plaintiff, Dan Pervorse, testified regarding the LSU Board’s duty to Ms. Fecke. Mr. Pervorse stated that the LSU Board failed to provide Ms. Fecke with an adequate warning as to the potential for significant physical injury associated with rock climbing. He further stated that the LSU UREC employees failed to properly screen and instruct Ms. Fecke prior to allowing her to climb. Mr. Pervorse further testified that the LSU Board failed to follow proper safety procedures, including the requirement that a climber [*29] who is bouldering must have a spotter standing behind the climber to provide assistance to the climber and help prevent injuries. [Pg 18] The LSU Board argues that had it been allowed to enter the Agreement into evidence and use it during its cross-examination of Mr. Pervorse, his expert testimony would have been significantly diminished and may have resulted in a different allocation of fault to the LSU Board.
[HN19] Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under the general negligence principles of La. C.C. art 2315. For liability for damages to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries (the cause in fact element); (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Rideau, 970 So. 2d at 573.
[HN20] Rock climbing is a recreational [*30] activity that involves substantial risk. Many other recreational activities such as weight lifting and swimming also involve a substantial degree of risk. The risks associated with these and other physically-challenging sports are well recognized. The duty on the gym operator, when these types of sports are conducted, is one of reasonable care under the circumstances — to provide a sound and secure environment for undertaking a clearly risky form of recreation and not that of removing every element of danger inherent in rock climbing. Ravey v. Rockworks, LLC, 12-1305 (La. App. 3 Cir. 4/10/13), 111 So. 3d 1187, 1192. The LSU Board did not have a duty to warn Ms. Fecke as a climber about the potential effect of gravity. A warning that “if you fall you might get hurt,” is obvious and universally known. See Henshaw v. Audubon Park Com’n., 605 So. 2d 640, 643 (La. App. 4 Cir.) [Pg 19], writ denied, 607 So. 2d 570 (La. 1992).
A gym and its facilities are not the insurers of the lives or safety of its patrons. A gym cannot be expected to foresee or guard against all dangers. Furthermore, the gym must only take reasonable precautions under the circumstances to avoid injury . Ravey, 111 So. 3d at 1190-91. To prove negligence on the part of the LSU Board, Ms. Fecke must show both a failure to provide reasonable training and supervision under the circumstances, as well as [*31] proof of a causal connection between the lack of reasonable training/supervision and the accident. See Ravey, 111 So. 3d at 1191.
The LSU UREC maintains an “Indoor Climbing Wall Manual,” which governs the rules, use, and maintenance of the indoor rock wall climbing facility. The manual requires the following of all employees of the indoor rock wall climbing facility:
1. Full knowledge of facilities and programs ….
2. Ability to seek answers to questions.
3. Provide consistency and continuity.
4. Carry out assigned routine and non-routine tasks.
5. Follow and enforce staff and program policies and procedures.
6. Maintain a safe and enjoyable recreation environment.
Employees are required to know and enforce all climbing wall and LSU UREC rules.
The manual distinguishes between the climbing wall and the bouldering wall. The climbing wall utilizes a safety rope belay system, where a climber climbs the wall while strapped into a harness and is “belayed” via ropes by an LSU UREC employee. Bouldering, as opposed to rope climbing while wearing a harness, does not involve the use of ropes and requires the climber to traverse the boulder wall from side-to-side instead of climbing up the wall. The manual lists the following [*32] rules for bouldering:
[Pg 20] 1. Before bouldering the climber must check in at the desk.
2. The number of climbers at any one time may be limited to ensure proper supervision. When people are using climbing ropes, bouldering on walls behind them, may be stopped. Bouldering may be limited based on climber’ s/belayer’s location on the wall.
3. The climber may not boulder above or below any other climbers and must be sure that pants pockets are empty.
4. A bouldering sequence may be marked with tape.
5. Only the climbing staff may switch holds if necessary.
6. Spotting is required as bouldering can become quite demanding and may involve moves increasing the possibility of the climber coming off the wall in an awkward position. A spotter is required, to provide assistance to prevent injuries. Help all spotters to make sure that they are using proper technique and understand the purpose of spotting.
7. Participants are required to properly use crash pads at all times, a spotter may help to position crash pads.
8. Intentional jumping off the wall is not allowed. Please, climb down.
9. Please remove all hand jewelry and long necklaces. Clean athletic shoes, running shoes, or climbing shoes are the [*33] only shoes permitted. Shirts must be worn at all times. Tie hair back when necessary.
10. Be safe, be creative, have fun! [Emphasis added.]
Furthermore, the LSU UREC employees are required to instruct patrons who intend to climb in accordance with the guidelines contained in a “safety clinic” document. The safety clinic requires the LSU UREC employees to give examples of danger areas and instruct climbers where to fall on crash pads, which must be placed underneath bouldering climbers at all times. The safety clinic requires the LSU UREC employees to give an example of the technique of spotting and have the participating climbers demonstrate spotting. Section 6 of the safety clinic provides:
a. Every climber must request a spotter when applicable, i.e. when climbing at one’s limit or climbing into a situation that could yield a long or awkward fall.
b. Proper spotting techniques:
i. The role of the spotter is to first assist the climber in landing properly on their feet in the upright position. Secondly, to protect the climber’s head from hitting something hard (floor, wall, etc).
ii. Hands up, thumbs in (spoons not forks).
iii. Dominant leg back, to use as a brace.
iv. Do not catch the climber; [*34] help them regain proper balancing while landing.
[Pg 21] The safety clinic also requires the LSU UREC employees to demonstrate how to properly descend the wall, and in the event of a fall, how to properly land on the ground to reduce injuries.
At trial, Ms. Fecke, her friend Mr. Culotta, and the two LSU UREC employees who were working the night of the accident, Emanuel Andrews and Andrew Whitty, testified as to the events.7 Ms. Fecke testified that after having her course form signed and executing the Agreement, Mr. Whitty gave Ms. Fecke and Mr. Culotta a “few minutes or so” of instruction. She stated that the climbing wall employees made no clear distinction between rope climbing with a harness or bouldering. Mr. Whitty asked if she wanted to wear a harness, but she declined, stating that she and Mr. Culotta wanted to climb “whatever [wall] was easiest,” to which he indicated they could climb the back 13′ 1″ bouldering wall located on the rear wall. Ms. Fecke also testified that Mr. Whitty indicated to her that most people climbed without a harness and that it was “up to her” whether she wanted to climb while wearing a harness. Mr. Culotta suggested that she wear a harness, which Ms. [*35] Fecke took as a joke stating, “[t]he worker at the wall didn’t make me feel like it was necessary and said most people didn’t, so I didn’t think it was something I had to do.”
7 The deposition of Andrew Whitty was read in open court.
Ms. Fecke testified that the employees did not ask her to demonstrate her climbing ability. She further stated that the employees did not explain the technique of climbing with a spotter or that spotting was required in order to climb the boulder wall and that she and Mr. Culotta never spotted each other. In terms of climbing instruction given by the employees, Ms. Fecke testified that “[o]ne of the guys climbed about half the wall quickly and came back down” in about thirty seconds and asked if they had any questions, which she stated she and Mr. Culotta [Pg 22] did not have at the time. Ms. Fecke testified that there wasn’t anything she “didn’t get” in terms of instruction about climbing the wall.
Mr. Culotta testified that he and Ms. Fecke arrived at the indoor rock wall climbing facility about an hour before closing. He stated that after he and Ms. Fecke indicated their relative climbing experience, the employees gave a “few minutes” of “some basic instruction,” [*36] and one of the employees demonstrated climbing up the wall in about thirty seconds. Mr. Culotta stated that he did not remember any discussion of the spotting technique during the instruction by the climbing wall employees. Mr. Culotta further testified that he never spotted Ms. Fecke.
Andrew Whitty, one of the climbing wall employees working the night of Ms. Fecke’s accident, testified that he went over the rules and regulations of the climbing facility with Ms. Fecke and Mr. Culotta since they were both new climbers. Mr. Whitty testified that if a patron was new to the climbing wall, the employees would have to give a “brief sort of instruction” during which the employees would go over certain things,” such as the difference between climbing with a rope and bouldering. Mr. Whitty stated that since Ms. Fecke and Mr. Culotta opted to climb the boulder wall since it was more convenient, he went over spotting techniques. Mr. Whitty testified that Mr. Culotta was spotting Ms. Fecke at the time of her fall. Mr. Whitty stated that he could not recall if there was a policy in place at the LSU UREC that required a spotter for a climber on the bouldering wall. He also could not recall whether [*37] there was policy or procedures manual for the climbing wall, and if there was, he stated he did not refer to it often. Mr. Whitty testified that climbers were not tested for proficiency prior to climbing.
Emanuel Andrews, the other employee working the night of Ms. Fecke’s accident, witnessed Ms. Fecke as she fell from the wall. Mr. Andrews was standing approximately twenty feet from where Ms. Fecke and Mr. Culotta were [Pg 23] climbing, in the middle of the room, Mr. Andrews testified that while Ms. Fecke climbed the wall, Mr. Culotta was standing in the correct position to spot her, but that as she fell, Mr. Culotta moved away from the wall and out of the spotting position.
We also note that the plaintiff’s expert on rock wall climbing, Mr. Pervorse, testified that the spotting technique, which should be used any time a climber traverses a bouldering wall, involves “having a good stance, one foot forward, one foot back, slightly wider than shoulder width so that you have a good support base and, then your hands up.” He further stated that the purpose of spotting is to “slow [the climbers] fall, to keep them upright, keep them from falling over and hurting their self further by potentially [*38] falling off a mat and hitting their head, to help steadying them when they do land.”
After our de novo review of the testimony and evidence presented at trial, we conclude that the LSU UREC employees failed to properly instruct, demonstrate, and certify that Ms. Fecke and Mr. Culotta understood the proper techniques for climbing the bouldering wall in accordance with their duties as described in the LSU UREC “Indoor Climbing Wall Manual” and the safety clinic document. While the employees may have explained the spotting technique, Ms. Fecke and Mr. Culotta both testified that neither spotted the other as they climbed. Despite the LSU Board’s contention that the Agreement represents Ms. Fecke’s acknowledgment of the risks involved in rock wall climbing, as stated above, those risks are well-known. The only portion of the excluded Agreement that might have prejudiced the LSU Board’s case is the portion in paragraph five wherein Ms. Fecke certified that she “agree[d] to abide by all rules of the sport as mandated by LSU University Recreation.” As discussed above, however, instruction as to those “rules” was not provided to Ms. Fecke by the LSU UREC employees nor was she properly screened or supervised [*39] as she climbed the bouldering wall.
[Pg 24] Paragraph four of the Agreement is null because it, in advance, excludes the liability of the LSU Board for causing physical injury to Ms. Fecke, but the remaining paragraphs of the Agreement are not illegal waivers of liability. Thus, we find that the trial court legally erred in excluding a redacted version of the Agreement; however, we hold that the trial court’s error was not prejudicial. The inclusion of the remainder of the Agreement at trial could not have permissibly changed the jury’s verdict based on our de novo review of the record.
Assignment of Error 3:
In the third and final assignment of error, the LSU Board asserts that the trial court improperly instructed the jury on the award of damages for the “loss of future earnings” when the trial court should have instructed the jury on damages for the “loss of future earning capacity.” It is undisputed that at the time of Ms. Fecke’s accident, she was an unemployed senior college student at LSU. Ms. Fecke later graduated from LSU with a degree in kinesiology and obtained a secondary degree as a physical therapy assistant. At the time of trial, she was employed as a physical therapy assistant, [*40] but testified that she had recently taken on a less strenuous, and lower paid, physical therapy assistant job due to her injuries. The LSU Board argues that because Ms. Fecke was unemployed at the time of her accident, she suffered no loss of earning or loss of future earnings, but rather suffered a loss of future earning capacity.
The distinction between a damage award for the loss of future earnings and the loss of future earning capacity is crucial in this case because as a state agency, the LSU Board’s liability for damages for an award of loss of future earning capacity is included in the $500,000.00 cap on damages pursuant to La. R.S. 13:5106(B)(1). In contrast, damages for a loss of future earnings, as was awarded by the jury to Ms. Fecke based on the instruction given by the trial court, are excluded from the $500,000.00 damages cap, La. R.S. 13:5106(B)(1); see also [Pg 25] Cooper v. Public Belt R.R., 03-2116 (La. App. 4 Cir. 10/6/04), 886 So. 2d 531, 539, writ denied, 04-2748 (La. 1/28/05), 893 So. 2d 75 (the $500,000.00 cap on damages in actions against governmental units applied to damages for loss of future earning capacity; loss of future earning capacity was not the same as a loss of future earnings, and thus, it did not fall within an exception to the cap). It therefore behooves this court to determine whether or not the jury [*41] instruction given by the trial court on a loss of future earnings was proper.
Louisiana Code of Civil Procedure article 1792(B) [HN21] requires a district judge to instruct the jury on the law applicable to the case submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. Wooley v. Lucksinger, 09-0571 (La. 4/1/11), 61 So. 3d 507, 573. The question here is whether the district judge adequately instructed the jury, as that concept has been defined in the jurisprudence:
[HN22] Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error.
Wooley, 61 So. 3d at 574 (citing Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So. 2d 798, 804.).
Generally, the giving of an allegedly erroneous jury instruction will not constitute grounds for reversal unless the instruction is erroneous and the complaining [*42] party has been injured or prejudiced thereby. In fact, Louisiana jurisprudence is well established that a reviewing court must exercise great restraint before it reverses a jury verdict due to an erroneous jury instruction. Wooley, 61 So. 3d at 574. When a reviewing court finds the jury was erroneously instructed and the error probably [Pg 26] contributed to the verdict, an appellate court must set aside the verdict. Wooley, 61 So. 3d at 574.
[HN23] In order to determine whether an erroneous jury instruction was given, reviewing courts must assess the targeted portion of the instruction in the context of the entire jury charge to determine if the charges adequately panicle the correct principles of law as applied to the issues framed in the pleadings and the evidence and whether the charges adequately guided the jury in its determination. The ultimate inquiry on appeal is whether the jury instructions misled the jury to such an extent that the jurors were prevented from dispensing justice. The law is clear the review function is not complete once error is found. Prejudice to the complaining party cannot automatically be assumed from the mere fact of an error. Instead, the reviewing court must then compare the degree of the error with the [*43] adequacy of the jury instructions as a whole and the circumstances of the case. Wooley, 61 So. 3d at 574.
Louisiana Revised Statutes 13:5106(D)(2) [HN24] defines “loss of future earnings” as “any form of economic loss which the claimant will sustain after the trial as a result of the injury … which forms the basis of the claim.” In contrast, loss of earning capacity is not the same as lost earnings. Rather, earning capacity refers to a person’s potential. Batiste v New Hampshire Ins. Co., 94-1467 (La. App. 3 Cir. 5/3/95), 657 So. 2d 168, 170, writ denied, 95-1413 (La. 9/22/95), 660 So. 2d 472. The Louisiana Supreme Court has held that damages for a loss of earning capacity should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury. Earning capacity in itself is not necessarily determined by actual loss. Hobgood v. Aucoin, 574 So. 2d 344, 346 (La. 1990); Folse v. Fakouri, 371 So. 2d 1120, 1124 (La. 1979). The claimant need not be working or even in a certain profession to recover an award for loss of future earning capacity. Brandao v. Wal-Mart Stores, Inc., 35,368 (La, App. 2 Cir. 12/19/01), 803 So. 2d 1039, 1043 [Pg 27], writ denied, 02-0493 (La. 4/26/02), 814 So. 2d 558. Damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he [*44] never profited from it monetarily. Hobgood, 574 So 2d at 346; Folse, 371 So. 2d at 1124.
[HN25] An award for loss of earning capacity is inherently speculative and cannot be calculated with absolute certainty. The most the courts can do is exercise sound discretion and make an award that in light of all facts and circumstances is fair to both parties while not being unduly oppressive to either. In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiffs current condition disadvantages her in the work force. Henry v. National Union Fire Ins. Co., 542 So. 2d 102, 107, writ denied, 544 So. 2d 405 (La. 1989) and 544 So. 2d 405 (La. 1989). Factors to be considered in fixing awards for loss of earning capacity include: age, life expectancy, work life expectancy, past work record, appropriate discount rate, the annual wage rate increase or productivity increase, prospects for rehabilitation, probable future earning capacity, loss of earning ability, and the inflation factor or decreasing purchasing power of the applicable currency. Henry, 542 So. 2d at 107; Brandao, 803 So. 2d at 1043.
Experts at trial testified that Ms. Fecke would likely have to change career paths — from a [Pg 28] physical therapy assistant to a job in a more sedentary position — at some undetermined point [*45] in the future due to her injuries. Stephanie Chalfin, a vocational rehabilitation expert, presented options for potential new careers for Ms. Fecke. Harold Asher, a certified public accountant and an expert in the projection of economic loss testified as to Ms. Fecke’s potential maximum salary as a physical therapy assistant (which was provided by Ms. Chalfin). Mr. Asher then calculated the difference between the hypothetical salary and Ms. Fecke’s potential earning capacity under three scenarios: Ms. Fecke remaining in her field as a physical therapy assistant, obtaining employment as a social worker, or obtaining employment as a rehabilitation counselor. Mr. Asher projected his figures over the anticipated work life of Ms. Fecke and considered a number of factors including her age, how long he expected her to continue working, her motivation to work, growth rate, and wages anticipated each year of her work life.
The jury instructions were lengthy, and this is the only reference therein to a damage award for “loss of future earnings”:
Under the loss of future earnings component of damages, the plaintiff is entitled to recover damages for the deprivation of what she should have earned [*46] but for the injury. Such damages are calculated on the plaintiff’s ability to earn money in her chosen career compared to what she can now earn because of her injury. In determining such an award, you may consider plaintiff’s physical condition and mental status before and after this incident, her work record, her earnings in prior years, the probability or improbability that she would have earned similar amounts in the remainder of her work life, and similar factors. And since, if you make an award, plaintiff would be receiving today sums of money that otherwise she would only receive over a number of years in the future, the law requires that you discount or reduce it to its present value, which is what the experts in this case have already done.
The LSU Board objected to the jury instruction given by the trial court regarding damages for “loss of future earnings.” The trial court, after citing to the Fourth Circuit’s decision in Cooper, 886 So. 2d 531, and the Louisiana Supreme Court’s decision in Folse, 371 So. 2d 1120, stated:
The cases dealing with loss of future earnings dealt with cases where the injured plaintiff was already in a certain career or profession or job description and they could not continue on in that same [*47] job. The evidence in this case was that Ms. Fecke was, despite her injury, able to qualify and go into her chosen profession of physical therapy assistant, but because of her injury will not be able to continue in that type of employment and must therefore seek other employment which may or may not pay less, as indicated by the experts who testified.
[Pg 29] So for that reason, I felt that this was more loss of future earnings as opposed to loss of earning capacity. So that’s why I gave that charge as opposed to a future earning capacity charge or a future earning capacity entry on the verdict form.
Unlike the trial court’s reasoning, [HN26] the Louisiana Supreme Court has drawn a distinction between “pecuniary loss” and a “loss of earning capacity.” The supreme court explained the rationale behind the concept of loss of future earning capacity as opposed to loss of future earnings by stating that “the theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.” Folse, 371 So. 2d at 1123. Further, by noting that proof of loss of future earning capacity does not require proof of future monetary loss, the supreme court reinforces [*48] the conclusion that loss of future earning capacity is not an “economic loss” within the intendment of La. R.S. 13:5106(D)(2). See Folse, 371 So. 2d at 1123. Therefore, like the Fourth Circuit in Cooper, we hold that “pecuniary loss,” as used in Folse by the supreme court, is synonymous with “economic loss” as employed in La. R.S. 13:5106(D)(2). See Cooper, 886 So. 2d at 539. Thus, Ms. Fecke suffered a loss of future earning capacity as a result of her injury. It is impossible for her to receive an award for loss of earnings or loss of future earnings because she suffered no economic loss as a result of her accident since she was unemployed at the time.
The jury awarded damages estimated on Ms. Fecke’s potential to earn money in the future, which is her future earning capacity. Based on the law, the expert testimony, and the evidence introduced at trial, we find that the trial court’s instruction regarding loss of future earnings was erroneous. Furthermore, we find that the error was prejudicial to the LSU Board, particularly with regard to the $500,000.00 liability cap, pursuant to La. R.S. 13:5106(B)(1), on a damage award for a loss of future earning capacity. The error resulted in an award to Ms. Fecke that was a larger amount than she was statutorily entitled to receive. The judgment [Pg 30] warrants [*49] amendment based on the degree of this error combined with the adequacy of the jury instructions as a whole and the circumstances of this case. Therefore, we amend the portion of the October 3, 2014 judgment of the trial court, which awarded Ms. Fecke damages for loss of future earnings, to award Ms. Fecke those damages as her loss of future earning capacity. We furthermore amend the judgment to cap Ms. Fecke’s damages, exclusive of her medical care and related benefits, at $500,000.00 in accordance with La. R.S. 13:5106(B)(1).
We further note that the modification of Ms. Fecke’s damages award extinguishes the loss of consortium award to Karen Fecke. Louisiana Revised Statutes 13:5106(D)(4) [HN27] provides that “‘[d]erivative claims’ include but are not limited to claims for survival or loss of consortium.” A claim for loss of consortium pursuant to La. C.C. art. 2315(B) is a derivative claim, derived from damages to the primary plaintiff. An award of general damages in the maximum amount of $500,000.00 as allowed by statute in actions against state agencies and/or political subdivisions of the state serves to legally extinguish any derivative awards for loss of consortium, services, and society. See Jenkins v. State ex rel. Dept. of Transp, & Dev., 06-1804 (La. App. 1 Cir. 8/19/08), 993 So. 2d 749, 778, writ denied, 08-2471 (La. 12/19/08), 996 So. 2d 1133. We therefore reverse the trial court’s judgment in part and vacate [*50] the award of damages for loss of consortium to Karen Fecke.
We amend the portion of the trial court’s October 3, 2014 final judgment, which orders that Ms. Fecke’s award of $750,000.00 for medical care and related benefits incurred subsequent to judgment be placed in a reversionary “Future Medical Care Trust,” to order that Ms. Fecke’s award of $750,000,00 for medical care and related benefits incurred subsequent to judgment be paid from the Future Medical Care Fund in accordance with La. R.S. 39:1533.2. The portions of the [Pg 31] judgment awarding interest directly to Ms. Fecke and ordering that attorney’s fees and costs be paid out of Ms. Fecke’s damage award for her medical care and related benefits incurred subsequent to judgment are hereby reversed. Furthermore, the portion of the October 3, 2014 judgment of the trial court, which awarded Ms. Fecke damages in the following amounts:
Physical Pain and Suffering, Past and Future: $112,500.00
Mental Pain and Suffering, Past and Future: $93,750.00
Loss of Enjoyment of Life: $56,250.00
Permanent Disability and Scarring: $123,750.00
Loss of Future Earnings: $262,500.00
TOTAL (exclusive of medical care and related benefits) $648,750.00
is hereby amended [*51] to cap the total amount of damages, exclusive of medical care and related benefits, to $500,000.00 as mandated by La. R.S. 13:5106(B)(1). We reverse and vacate the trial court’s award for loss of consortium to Karen Fecke. The remainder of the judgment is affirmed,
REVERSED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.
Thomas H. Schoonbeck, Plaintiff-Appellant, v Casey J. Kelly, a/k/a Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen, Defendants-Appellees.
COURT OF APPEALS OF MICHIGAN
2015 Mich. App. LEXIS 223
February 10, 2015, Decided
NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE DECISIS.
PRIOR HISTORY: [*1] Muskegon Circuit Court. LC No. 12-048517-NO.
CORE TERMS: gate, trespassing, cable, gross negligence, wanton misconduct, willful, causes of action, installed, trail, nuisance claims, grossly negligent, recreational, material fact, premises liability, motorcycles, installing, favorable, struck, tenant, lessee, bike, snowmobiles, land use, claims of negligence, facts giving rise, questions of fact, de novo, genuine issue, nonmoving party, reasonable minds
COUNSEL: For THOMAS H. SCHOONBECK: ALANA LYNN WIADUCK, MUSKEGON, MI.
For CASEY J. KELLY: JAMES M SEARER, MUSKEGON, MI.
For ROGER W. NIELSEN: JOSEPH P VANDERVEEN, GRAND RAPIDS, MI.
JUDGES: Before: O’CONNELL, P.J., and SAWYER and MARKEY, JJ.
Plaintiff, Thomas H. Schoonbeck, appeals as of right the trial court’s order granting summary disposition under MCR 2.116(C)(10) in favor of defendants, Casey James Kelly, Nicholas Thomas Donajkowski, and Roger W. Nielsen. Schoonbeck was injured when he struck a cable gate while riding a dirt bike on property that Nielsen had leased to Donajkowski and Kelly. The trial court ruled that the recreational land use act (the Act), 324.73301, barred Schoonbeck’s claims. We affirm.
In September 2010, Schoonbeck was riding a dirt bike on Nielsen’s property when he struck a cable gate that was suspended across a trail between two trees. According to Trooper Brian Cribbs’s report of the incident, the cable was installed along a fairly straight section of the trail that had a “very slight curve” about 87 feet before where Schoonbeck struck it. A 10 x 14-inch sign that read “Private Property — No Trespassing” was attached to the middle of the cable. The sign faced the opposite direction from which Schoonbeck was traveling.
At his deposition, Nielsen testified that he had rented the property for hunting [*2] and recreational purposes to Donajkowski and Kelly at the time of the accident. A two-track trail traversed the property from the southwest to the northeast. In affidavits, various neighbors stated that the property did not have “no trespassing” signs and that they walked, rode bikes, and used motorcycles or snowmobiles on the property’s trails. Nielsen testified that he had previously seen some evidence that people rode motorcycles or snowmobiles across the property. However, according to Nielsen and Donajkowski, there were “no trespassing” ribbons at the corners of the property and “no trespassing” signs along its borders.
Kelly testified that he was not aware that motorcycles or snowmobiles crossed the property, but he wanted to inform people that the property was private because it abutted state land. Donajkowski testified that he wanted to put a gate on the trail to stop traffic. Nielsen testified that Donajkowski asked to install a gate on the property and complained that people were trespassing on it with motorcycles and off-road vehicles.
According to Kelly, about a week after leasing the property, he and Donajkowski installed “no trespassing” signs and a cable gate with a “no [*3] trespassing” sign on it. They installed a cable gate because it was the easiest kind of gate to install. It was Kelly’s first time on the property and Donajkowski’s second time on the property. Donajkowski testified that the “no trespassing” sign faced outward from the property.
In August 2012, Schoonbeck filed this suit. He alleged claims of negligence and gross negligence against Nielsen, Donajkowski, and Kelly. In May 2013, Nielsen moved for summary disposition under MCR 2.116(C)(8) and (10). In pertinent part, Nielsen contended that the Act barred Schoonbeck’s claims because Donajkowski and Kelly’s act of installing the cable gate was not grossly negligent or malicious. Donajkowski and Kelly also moved for summary disposition, adopting Nielsen’s arguments and further contending that they were not grossly negligent and did not commit willful or wanton misconduct. Schoonbeck responded that the Act did not apply and, even if it did apply, there were material questions of fact regarding whether Donajkowski and Kelly were grossly negligent or committed willful and wanton misconduct.
In a brief written opinion, the trial court granted the defendants’ motions under MCR 2.116(C)(10). It determined that the Act barred Schoonbeck’s [*4] claims. Schoonbeck now appeals.
II. STANDARDS OF REVIEW
This Court reviews de novo the trial court’s decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must consider all the documentary evidence in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Maiden, 461 Mich at 120. A genuine issue of material fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
This Court reviews de novo issues of statutory interpretation. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). When interpreting a statute, our goal is to give effect to the intent of the Legislature. Id. at 665. The statute’s language is the best indicator of the Legislature’s intent. Id. If the language of a statute is unambiguous, we must enforce the statute as written. United States Fidelity & Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). This Court should not read language into an unambiguous statute. McCormick v Carrier, 487 Mich 180, 209; 795 NW2d 517 (2010).
III. APPLICATION OF THE RECREATIONAL LAND USE ACT
First, Schoonbeck contends the Act does not apply because it is limited to premises liability causes of action. We disagree.
The Act provides that “a [*5] cause of action” generally does not arise from a nonpaying outdoor recreational user’s use of an owner’s land unless the user’s injuries were caused by the owner’s gross negligence or willful and wanton misconduct:
Except as otherwise provided in this section, a cause of action shall not arise for injuries to a person who is on the land of another without paying to the owner, tenant, or lessee of the land a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use, with or without permission, against the owner, tenant, or lessee of the land unless the injuries were caused by the gross negligence or willful and wanton misconduct of the owner, tenant, or lessee. [MCL 324.73301(1).]
A cause of action is a “concurrence of facts giving rise to the obligation sought to be enforced against the defendant.” Davis v Kramer Bros Freight Lines, Inc, 361 Mich 371, 376-377; 105 NW2d 29 (1960); also see Black’s Law Dictionary (9th ed) (“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”).
The plain language of the statute bars any cause of action, not only those [*6] causes of action that sound in premises liability. Had the Legislature wished to limit the statute to a narrower set of circumstances, it could have used the words “cause in action sounding in premises liability” rather than the more general term “cause of action.” See Neal, 470 Mich at 665-666. It did not do so. We decline to read additional language into the statute and, therefore, we reject Schoonbeck’s argument that the Act only applies to claims sounded in premises liability.
Second, Schoonbeck contends that the trial court erred by granting summary disposition because the Act does not apply to nuisance claims. “A public nuisance is an unreasonable interference with a common right enjoyed by the general public.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995). In this case, regardless of whether revoking an implied license to trespass constitutes a nuisance or whether the Act bars nuisance claims, Schoonbeck did not assert a nuisance claim in his complaint. He asserted only claims of negligence and gross negligence. Since Schoonbeck did not plead a nuisance claim, nor does he provide argument to support that the trial court erred by granting summary disposition on potentially meritorious claims that the plaintiff did not raise, we fail to see how he [*7] can be deemed to have addressed a nuisance claim. Moreover, we decline to make Schoonbeck’s arguments for him. See VanderWerp v Plainfield Charter Twp, 278 Mich App 624, 633; 752 NW2d 479 (2008). Accordingly, we reject this assertion because Schoonbeck did not allege a nuisance claim.
IV. GROSS NEGLIGENCE AND WILLFUL OR WANTON MISCONDUCT
Schoonbeck contends that the trial court erroneously granted summary disposition because there was a question of material fact regarding whether Donajkowski and Kelly’s installation of the cable gate showed a deliberate indifference to the likelihood that an injury would result. We conclude that Schoonbeck did not show a genuine issue of material fact regarding whether Donajkowski and Kelly acted with gross negligence or willful and wanton misconduct.
A person’s conduct is grossly negligent if the person engages in “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Maiden, 461 Mich at 123; Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). “Evidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Maiden, 461 Mich at 122-123. Willful and wanton misconduct occurs when the defendant acted “with a set purpose to accomplish the results which followed the act,” which “implies malice.” Boumelhem v Bic Corp, 211 Mich App 175, 185; 535 NW2d 574 (1995). “Willful and wanton misconduct is not a high degree [*8] of negligence; rather, it is in the same class as intentional wrongdoing.” Id.
Even accepting Schoonbeck’s assertions that Donajkowski and Kelly should have installed a gate at the other end of the property, faced a second sign inward on the gate, or informed the neighbors they were installing the gate, these allegations do not show a genuine question of material fact on the issue of gross negligence. An allegation that an actor could have done more or acted differently is not evidence of ordinary negligence, much less gross negligence. Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). To be grossly negligent, a person must disregard precautions or safety in a way that suggests that he or she does not care about the welfare of others. Id. At best, Schoonbeck has only alleged that Donajkowski and Kelly could have done more. He has not provided any evidence that their actions showed a substantial lack of concern for whether an injury might result.
In contrast, Donajkowski and Kelly provided evidence that they did not act with a deliberate indifference of whether an injury could result from installing the cable gate. Donajkowski and Kelly installed a “no trespassing” sign near the entrance to the property and hung a “no trespassing” [*9] sign from the cable gate. They installed the cable gate and sign on a fairly straight area of the trail. They also installed additional “no trespassing” signs. These signs faced toward the road, the logical direction from which to expect traffic would approach the gate. We conclude that, viewing the evidence in the light most favorable to Schoonbeck, reasonable minds could not differ concerning whether Donajkowski and Kelly’s action was so reckless that it showed a substantial lack of concern for whether an injury resulted. We conclude that the trial court did not err by granting summary disposition under MCR 2.116(C)(10).
We conclude that the Act is not limited to premises liability actions. Further, we conclude that the trial court did not err by granting summary disposition under MCR 2.116(C)(10) when Schoonbeck provided no evidence from which a reasonable juror could conclude that Donajkowski and Kelly acted recklessly.
We affirm. As the prevailing parties, defendants may tax costs. MCR 7.219.
/s/ Peter D. O’Connell
/s/ David H. Sawyer
/s/ Jane E. Markey
Stone v Neustradter, 129 A.D.3d 1615; 2015 N.Y. App. Div. LEXIS 5188; 2015 NY Slip Op 05327; 12 N.Y.S.3d 450Posted: September 7, 2015
[***1] Carol M. Stone and Roger E. Stone, Plaintiffs-Appellants, v Jesse D. Neustradter and Craig E. Brittin, Defendants-Respondents.
626 CA 14-02028
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
129 A.D.3d 1615; 2015 N.Y. App. Div. LEXIS 5188; 2015 NY Slip Op 05327; 12 N.Y.S.3d 450
June 19, 2015, Decided
June 19, 2015, Entered
THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
CORE TERMS: bicycle, driver, driveway, proximate cause, bicycling, matter of law, questions of fact, approached, collided, yelled, struck, bike, lane, feet, looked
COUNSEL: [**1] SMITH, MINER, O’SHEA & SMITH, LLP, BUFFALO (PHILIP J. O’SHEA, JR., OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
TIFFANY L. D’ANGELO, ROCHESTER, FOR DEFENDANTS-RESPONDENTS.
JUDGES: PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.
[*1616] Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered January 14, 2014. The order granted the motion of defendants for summary judgment and dismissed the complaint.
[EDITOR’S NOTE: This document reflects the format of the Official New York Appellate Division Reports.] It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.
Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Carol M. Stone (plaintiff) when her bicycle collided with the bicycle of her husband, Roger E. Stone (husband), after he took evasive action to avoid a vehicle driven by defendant Jesse D. Neustradter (driver) and owned by defendant Craig E. Brittin (owner). From the driveway of the owner’s residence, the driver approached the road on which plaintiffs were bicycling and stopped. He looked right, then looked left, and to his left he observed the bicycles colliding. It is undisputed that the vehicle did not make contact with either [**2] of the plaintiffs or their bicycles. Following discovery, defendants moved for summary judgment dismissing the complaint on the grounds that the driver was not negligent, the sole proximate cause of the accident was the “uncontrolled” operation of the bicycle ridden by the husband, and plaintiff assumed the risk of bicycling.
We agree with plaintiffs that Supreme Court erred in granting the motion. We conclude that defendants failed to meet their burden of establishing as a matter of law that the driver was not negligent or that his actions were not a proximate cause of the accident (see generally Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595). Specifically, defendants’ submissions failed to eliminate all questions of fact whether the driver was negligent in encroaching onto the shoulder of the road, thereby blocking the pathway of the oncoming bicycles, or in operating the vehicle as it approached the road from the driveway that was partially obscured by landscaping. Defendants therefore also failed to establish as a matter of law that the husband’s operation of his bicycle was the sole proximate cause of the accident. Defendants’ submissions included the deposition testimony of the husband, who testified that he was bicycling [**3] just ahead of plaintiff, with both of them traveling to the right of the white fog line in a “bike lane.” The husband further testified that plaintiffs were descending a hill [*1617] when he saw the vehicle moving in the driveway approximately 15 feet ahead of them, and that the vehicle moved past the end of the driveway approximately two feet into the “bike lane.” He also testified that when he first saw the vehicle, he yelled to the driver as loud as he could to alert the driver to their presence. He then veered to the left for fear of being struck by the vehicle, and plaintiff’s bicycle struck his bicycle. After the bicycles collided, he yelled at the driver and occupants of the vehicle for “barreling out of [the] driveway” without looking. We conclude that there are questions of fact whether the driver was driving in a reasonable manner and whether the driver’s actions set off a chain of [***2] events that caused the husband to take action in evading the vehicle, which led to the collision between the plaintiffs’ bicycles (see Sheffer v Critoph, 13 AD3d 1185, 1186, 787 N.Y.S.2d 584; see generally Tutrani v County of Suffolk, 10 NY3d 906, 907, 891 N.E.2d 726, 861 N.Y.S.2d 610). We agree with plaintiffs that the lack of contact between a bicycle and the vehicle would not preclude a factual finding that the driver was negligent [**4] in his operation of the vehicle and that any such negligence proximately caused the accident (see Tutrani, 10 NY3d at 907).
Finally, we conclude that “assumption of the risk does not apply to the fact pattern in this appeal, which does not fit comfortably within the parameters of the doctrine” (Custodi v Town of Amherst, 20 NY3d 83, 89, 980 N.E.2d 933, 957 N.Y.S.2d 268).
Entered: June 19, 2015
Nicholi Rogatkin, Minor by His Father and Next Friend, Vladmir Rogatkin1 v. Raleigh America Inc./Diamondback Bmx, and John Does 1-8
1 Nicholi Rogatkin was a minor at the commencement of this lawsuit. As he has since reached his majority, the court will regard him as the proper plaintiff.
CIVIL ACTION NO. 13-11574
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
69 F. Supp. 3d 294; 2014 U.S. Dist. LEXIS 164154
November 24, 2014, Decided
November 24, 2014, Filed
PRIOR HISTORY: Rogatkin v. Raleigh Am., 2013 U.S. Dist. LEXIS 130561 (D. Mass., Sept. 12, 2013)
CORE TERMS: team, bike, summary judgment, rider, photograph, advertising, sponsorship, biography, website, defamatory, bicycle, travel, written consent, unjust enrichment, promissory estoppel, defamatory meaning, false statement, email, reasonably susceptible, misrepresentation, defamation, portrait, catalog, greatly increased, business practices, negligent misrepresentation, material fact, unauthorized, benefitted, discovery
COUNSEL: [**1] For Nicholi Rogatkin, Plaintiff: Stephen J. Atkins, Jr., LEAD ATTORNEY, Atkins & Goulet LLC, Nashua, NH; Shane D. Goulet, Atlas Tack Corporation, Boston, MA.
For Raleigh America, Inc./Diamondback BMX, Defendant: Patrick M. Curran, Jr., LEAD ATTORNEY, Nicole S. Corvini, Ogletree Deakins Nash Smoak & Stewart, Boston, MA.
JUDGES: Richard G. Stearns, UNITED STATES DISTRICT JUDGE.
OPINION BY: Richard G. Stearns
[*296] MEMORANDUM AND ORDER ON DEFENDANT RALEIGH AMERICA, INC.’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Nicholi Rogatkin, a professional freestyle BMX (bicycle motocross) rider, alleges that defendant Raleigh America, Inc., a bicycle manufacturer and the sponsor of the Diamondback BMX Team, unfairly exploited his youth and inexperience during his 5-year stint as a rider for Team Diamondback. Discovery having been completed, Raleigh moves for summary judgment on all seven counts of the Amended Complaint. For the reasons stated, the motion will be allowed.
2 The facts are viewed most favorably to Rogatkin as the nonmoving party.
Rogatkin became an accomplished BMX rider at an early age. In 2007, at age 11, Rogatkin joined Team Diamondback. At the time of his enlistment, Rogatkin and Raleigh did not [**2] enter into any written agreement, nor did Rogatkin request or receive any monetary compensation from Raleigh.
While competing for Team Diamondback, Rogatkin used equipment provided by Raleigh and wore Raleigh’s logo. Raleigh, in turn, used images of Rogatkin in its catalogs and advertisements,3 and publicized Rogatkin on its diamondbackbmx.com website. A mini-biography of Rogatkin, published on the website until at least November of 2011, described Rogatkin as 12 years old, 4 feet 10 inches tall, and sporting the monikers “little dude” and/or “little kid.” The website featured several photographs of Rogatkin performing tricks on a 16-inch bicycle, see Pl.’s Opp’n Ex. Q, and included a link to Rogatkin’s personal Youtube page.
3 In 2008, Raleigh paid for Rogatkin to travel to and from a photo shoot, where photos of Rogatkin were taken for Raleigh’s catalog. Raleigh also furnished Rogatkin a new bicycle expressly for the photo shoot.
Periodically, Rogatkin sent photos, videos, and biographical information about himself to Raleigh for use on the website. Rogatkin complained on occasion that Raleigh was giving him too little attention on the website. He also repeatedly asked Raleigh to update [**3] his biography and photos to reflect his coming-of-age, and particularly [*297] his switch to bigger bicycles.4 Raleigh, however, delayed in doing so because it used Rogatkin’s image to promote sales of its 16-inch bikes.
4 Rogatkin began competing on an 18-inch bike in 2009. He first competed on a 20-inch bike in 2010, and by 2011 was competing exclusively on 20-inch bikes.
Sometime in 2009 and 2010, Rogatkin broached the topic of compensation with Raleigh for his efforts on behalf of Team Diamondback. Although Raleigh stated that it would only consider limited financial support for the time being, it hinted at a bright future for Rogatkin. Rogatkin relates several oral and email5 conversations with Raleigh representatives Mike Hammond, Trevor Knesal, Sharon Robinson, and Kristian Jamieson6 in which he was assured that he would receive “greatly increased support,” that he had a “green light” to feel optimistic about his career at Team Diamondback, and that he could look forward to a “golden life” if he stayed with Raleigh. Rogatkin Dep. at 39:19-23; 108:15-17; & 71:11-22.
5 Rogatkin believes that certain of these emails have been deleted from his account.
6 Jamieson was not employed by Raleigh. He rather [**4] served as athletic manager for TAOW Productions, LLC and Windells Camps/NW School of Freeride, the promotors Raleigh had contracted to manage Team Diamondback through June of 2009.
In 2010, Raleigh agreed to provide Rogatkin with a $2,000 travel budget.7 In June of 2011, Rogatkin and Raleigh executed a Diamondback Team Rider Sponsorship Agreement effective from April 1, 2011 to March 31, 2012.8 The Sponsorship Agreement provided that Rogatkin would receive a monthly retainer of $416.66, and up to $5,000 in result-based incentive bonuses from Raleigh.9 Rogatkin Dep. Ex. 8 at Addendum A. In return, Raleigh was permitted to make unlimited promotional use of Rogatkin’s name and likeness. Id. ¶ 2.
7 Rogatkin invested substantially more than $2,000 to travel to competitions with his father.
8 Rogatkin’s father, Vladmir Rogatkin, signed on Rogatkin’s behalf.
9 It is undisputed that Rogatkin received the full amount he was entitled to under the Sponsorship Agreement.
Rogatkin left Team Diamondback in June of 2012.10 While still at Team Diamondback, Rogatkin was approached by Bulldog Bikes (in 2009), DK Bikes (in 2010), and KHE (in 2011), with sponsorship nibbles. Out of loyalty to Team Diamondback, Rogatkin [**5] did not pursue any of these overtures.11 After leaving Team Diamondback, however, Rogatkin became a fulltime rider for KHE. At present, KHE pays Rogatkin a $30,000 annual salary and $8,000 in travel expenses. On or about June 6, 2012, Raleigh removed any references to Rogatkin from the Team Diamondback webpage.
10 Rogatkin made the following public statement concerning his departure from Raleigh.
After five great years, I am sad to say I’m leaving Diamondback. I’ve had the best time with the company and with my forever teammates. I want to especially thank Trevor Knesal, who signed me on to the pro team when I was only 11 and sent me on the best trips and the biggest contests around the world. However, a great opportunity has come up for me outside of DB and I will keep you guys updated when it’s final. Thanks again to everyone at Diamondback.
Rogatkin Dep. Ex. 6.
11 Rogatkin began promoting Kali Protectives and Monster Energy in 2009. Both Kali and Monster have provided Rogatkin with travel expenses. Rogatkin began a limited relationship with KHE in 2011.
[*298] Rogatkin brought this lawsuit in Middlesex Superior Court in May of 2013. The Amended Complaint lists seven counts: unauthorized use of name [**6] and portrait or picture in violation of Mass. Gen. Laws ch. 214 § 3A (Count I); unfair and/or deceptive business practices in violation of Mass. Gen. Laws ch. 93A, §§ 2 & 11 (Count II); defamation (Count III); negligent misrepresentation (Count IV); unjust enrichment (Count V); promissory estoppel (Count VI); and intentional misrepresentation (Count VII). Invoking diversity jurisdiction, Raleigh removed the Complaint to this court in July of 2013. Raleigh filed its motion for summary judgment in July of 2014, following the completion of discovery.
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one which has the “potential to affect the outcome of the suit under applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). For a dispute to be “genuine,” the “evidence relevant to the issue, viewed in the light most flattering to the party opposing the motion, must be sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.” Nat’l Amusements v. Town of Dedham, 43 F.3d 731, 736 (1st Cir. 1995) (citation omitted).
Defamation (Count III)
Rogatkin alleges as defamatory Raleigh’s repeated publication of a biography characterizing him as a 12-year old “kid” and of [**7] photographs depicting him as a 16-inch bike rider.12 To prove defamation, a plaintiff must establish that “the defendant was at fault for the publication of a false statement regarding the plaintiff, capable of damaging the plaintiff’s reputation in the community, which either caused economic loss or is actionable without proof of economic loss.” White v. Blue Cross & Blue Shield of Mass., Inc., 442 Mass. 64, 66, 809 N.E.2d 1034 (2004); see also Phelan v. May Dep’t Stores Co., 443 Mass. 52, 56, 819 N.E.2d 550, (2004).
12 Although Rogatkin admits that the accused material was accurate and non-defamatory when published, he contends that as he grew in age and skill, his static portrayal by Raleigh took on a defamatory undertone.
A false statement is defamatory if it “would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community.” Phelan, 443 Mass. at 56. “[WJhether a communication is reasonably susceptible of a defamatory meaning  is a question of law for the court.” Id. “The court [must] examine the statement in its totality in the context in which it was uttered or published. The court must consider all the words used, not merely a particular phrase or sentence.” Amrak Prods., Inc. v. Morton, 410 F.3d 69, 73 (1st Cir. 2005).
The publication of Rogatkin’s age (12) and characterizing him as a “kid” in a biography is no more susceptible to a defamatory [**8] meaning than biographical references to Ambassador Shirley Temple as a child actor or as “America’s Little Darling.” A defamatory statement must be false. There is no dispute that Rogatkin’s biographical details were accurate when initially published (Rogatkin supplied Raleigh with the biography). The publication of true but historical facts (even if outdated) about a person cannot be defamatory as a matter of law. A biography, like a photograph, is a faithful snapshot of a [*299] person taken at a particular time in his or her life. Although Raleigh did not update Rogatkin’s biography with the march of time (the court knows of no duty the law imposes to do as much), it published Rogatkin’s accurate date of birth on the same page — a reasonable assurance that the public would never confuse Rogatkin with, say, Peter Pan or Benjamin Button.
By the same principle, the authentic photographs of Rogatkin performing and riding on a 16-inch bike are also not reasonably capable of a defamatory meaning. Although photographs may take on a defamatory cast if published in a demeaning or derogatory context, see, e.g., Stanton v. Metro Corp., 438 F.3d 119, 125-129 (1st Cir. 2006) (concluding that photograph of high school student juxtaposed with article on teenage [**9] sex was reasonably susceptible of defamatory meaning), or manipulated as in Soviet days to depict something other than reality, there is no suggestion that Raleigh published photographs of Rogatkin that lent themselves to any interpretation other than that he was an accomplished 16-inch bike rider.13 Because the accused publications are not reasonably susceptible for defamatory meaning, Raleigh is entitled to summary judgment on Count III.
13 Rogatkin alleges that Raleigh’s continued publication of images of him as a 16-inch bike rider led to ridicule and scorn because he was not shown riding a larger bike. This is not an objection to the publications, but to the lack of publication of photos showing Rogatkin riding larger bikes. Rogatkin has not identified any support for the novel proposition that the absence of publication may form the basis of a defamation claim.
Unauthorized Use of Name and Portrait/Image (Count I)
Rogatkin alleges that because no written contract governed his relationship with Raleigh outside of the April of 2011 to March of 2012 Sponsorship Agreement, Raleigh’s use of his name and image on its website and in its catalogs and other advertising violates Chapter 214, Section 3A [**10] of Massachusetts General Laws. Section 3A grants a right of private action to “[a]ny person whose name, portrait or picture is used within the commonwealth for advertising purposes or for the purposes of trade without his written consent . . . to prevent and restrain the use thereof; and [to] recover damages for any injuries sustained by reason of such use.” (emphasis added).
Raleigh contends that Rogatkin’s email communications constitute sufficient written consent because Section 3A does not require that written consent be memorialized in any particular format. See, e.g., Rogatkin Dep. Ex. 12 (3/10/2007 email from Rogatkin to Knesal) (“Trevor, whatever you’re saying in your letter — make a frame for me?!!, having me in a Diamondback Catalog?!! already sounds like a dream come true. What can I do for Diamondback?”). Moreover, Rogatkin does not disagree that he condoned Raleigh’s use of his name and images for purposes of advertising at the time of publication, or that he attended the various photo shoots (such as the one in Seattle in 2008) with any expectation other than that his name and image would be used by Raleigh to promote sales of its bikes. Rogatkin supplied Raleigh photographs and videos of himself for use on the Raleigh website over the course of his career at Team Diamondback, and if he complained of anything, it was that Raleigh was posting too few of his feats.14
14 Section 3A protects [**11] “the interest in not having the commercial value of one’s name, portrait or picture appropriated to the benefit of another.” Tropeano v. Atl. Monthly Co., 379 Mass. 745, 749, 400 N.E.2d 847 (1980). As the title of Section 3A makes clear, that interest is infringed only when the use is “unauthorized.” To protect the interests of the parties, consent is optimally memorialized in a written instrument. However, at common law, consent may be given orally or through a course of conduct. Although the language of Section 3A references “written consent,” nothing in the statute suggests a legislative intent to displace common law or the equitable defenses of acquiescence and waiver.
[*300] Even if the court were to adopt Rogatkin’s argument for purposes of summary judgment, that his enthusiastic emails, voluntary participation in the production of his images, and his condonation of their publication are insufficient to satisfy the formalities of the “written consent” required by Section 3A, Rogatkin cannot show any personal damages resulting in Raleigh’s use of his image in its advertisements. His complaint rather is that Raleigh benefitted more from the sales of bikes generated by his image than he did from the exposure. The court knows of no theory of quasi-contract (other than unjust enrichment, [**12] see discussion of Count V infra) that would permit a party to recoup the benefits that the other acquires from an otherwise consensual relationship.15 Moreover, the only evidence that Rogatkin submits in support of the claim that Raleigh benefitted disproportionately from the association — a chart showing Raleigh’s total sales of 16-inch and 18-inch bikes from October of 2008 to September of 2013 — offers no basis on which a finder of fact could determine what, if any, percentage of these sales is reasonably attributable to the use of Rogatkin’s image in Raleigh’s advertising “in the commonwealth” (or anywhere else). See Bonacorso Const. Co. v. Master Builders, Inc., 1991 U.S. Dist. LEXIS 6057, 1991 WL 72796, at *10 (D. Mass. Apr. 24, 1991) (“The plaintiff has not demonstrated that it will be able to analyze this data [of variable year-to-year sales in Massachusetts] to prove by a preponderance of the evidence that any of the amount of the increase was due to use of its name and likeness.”).16 Because Rogatkin has adduced no material evidence of damages attributable to the use of his name and image, Raleigh is entitled to summary judgment on Count I.
15 Rogatkin’s testimony that Raleigh treated other riders more generously is inadmissible hearsay, and at best, simply evidence that other riders struck more advantageous [**13] bargains with Raleigh (as Rogatkin later did with KHE). So too with Rogatkin’s complaint that he suffered harm from his failure to pursue sponsorships with other bike companies because of his loyalty to Team Diamondback. There is no evidence of the terms of any concrete competing offer that Rogatkin received and rejected, or any evidence that Raleigh forbid or restrained Rogatkin from entering a relationship with another team or bicycle manufacturer.
16 Raleigh also contends that its use of Rogatkin’s name and images for advertising was not “within the commonwealth.” It is undisputed, however, that Rogatkin’s rider page, featuring his biography and photographs, was accessible in Massachusetts over the internet. Moreover, advertising for Diamondback featuring Rogatkin appeared in BMX magazines that circulated in Massachusetts. See Rogatkin Dep. Ex. 10.
Intentional/Negligent Misrepresentation, and Promissory Estoppel, (Counts IV, VI, and VII)
Rogatkin’s claims of intentional and negligent misrepresentation and promissory estoppel also fail for the lack of any evidence of damages. “To sustain a claim of misrepresentation, a plaintiff must show a false statement of material fact made to induce [**14] the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiff’s detriment. . . . The speaker need not know ‘that the statement is false if the truth is reasonably susceptible of actual knowledge, or otherwise [*301] expressed, if, through a modicum of diligence, accurate facts are available to the speaker.'” Zimmerman v. Kent, 31 Mass. App. Ct. 72, 77, 575 N.E.2d 70 (1991), quoting Acushnet Fed. Credit Union v. Roderick, 26 Mass. App. Ct. 604, 605, 530 N.E.2d 1243 (1988)). “Where a plaintiff does not prove that he is worse off than if there had been no misrepresentation he has not made out a case of deceit.” Connelly v. Bartlett, 286 Mass. 311, 315, 190 N.E. 799 (1934). To prove a claim of promissory estoppel under Massachusetts law,
a plaintiff must allege that (1) a promisor makes a promise which he should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (2) the promise does induce such action or forbearance, and (3) injustice can be avoided only by enforcement of the promise.
Neuhoff v. Marvin Lumber & Cedar Co., 370 F.3d 197, 203 (1st Cir. 2004).
These theories, as with tort claims generally, require proof of actual damages — here based on reasonable reliance on Raleigh’s representations17 or promises.18 There is no evidence that Rogatkin was required by Raleigh to reject other (unspecified) sponsorship offers or that Rogatkin was contractually bound to represent Raleigh [**15] exclusively. As Rogatkin himself admits, he did represent other companies, including KHE, his current primary sponsor, while still a member of Team Diamondback. Without any showing of material damages, Raleigh is entitled to summary judgment on Counts IV, VI, and VII.
17 The statements Rogatkin allegedly relied upon — “greatly increased support,” “green light,” and “golden life” — “fall within the ordinary rule that false statements of opinion, of conditions to exist in the future, or of matters promissory in nature are not actionable” as misrepresentations. Yerid v. Mason, 341 Mass. 527, 530, 170 N.E.2d 718 (1960); see also Deming v. Darling, 148 Mass. 504, 505, 20 N.E. 107 (1889) (Holmes, J.).
18 Under Massachusetts law, “as with a claim for breach of contract, [i]n order to establish the existence of an enforceable promise under promissory estoppel, the plaintiff must show that the defendants’ promise included enough essential terms so that a contract including them would be capable of being enforced.” Armstrong v. Rohm & Haas Co., 349 F. Supp. 2d 71, 82 (D. Mass. 2004) (internal quotation marks omitted). Although Rogatkin alleges that Raleigh gave him assurances of future compensation, he cannot recall a specific number that was ever discussed. General statements of optimism such as “greatly increased support,” “green light” and “golden life” are simply too vague to [**16] form the basis of an enforceable promise.
Unjust Enrichment (Count V)
Rogatkin alleges that Raleigh unfairly profited from his efforts to promote Raleigh (both by appearing in Raleigh advertising and competing with Team Diamondback) while compensating him minimally for his efforts. To establish a claim of unjust enrichment, Rogatkin must prove
(1) a benefit conferred upon the defendant by the plaintiff;
(2) an appreciation or knowledge of the benefit by the defendant; and
(3) the acceptance or retention of the benefit by the defendant under circumstances which make such acceptance or retention inequitable.
Stevens v. Thacker, 550 F. Supp. 2d 161, 165 (D. Mass. 2008). Because unjust enrichment is a theory of equitable recovery, and not a separate cause of action, Lopes v. Commonwealth, 442 Mass. 170, 179, 811 N.E.2d 501 (2004), a court may not order restitution as a form of damages; it may only require a party to disgorge property [*302] that has been wrongfully appropriated from the rightful possession of the other party. Santagate v. Tower, 64 Mass. App. Ct. 324, 336, 833 N.E.2d 171 (2005).
The court here sees no inequity in any benefit that Raleigh may have derived from its association with Rogatkin. The undisputed evidence is that Rogatkin’s relationship with Raleigh was voluntary from its inception and throughout. Rogatkin is an avid BMX athlete and he competed not only to promote [**17] Raleigh as his sponsor, but to also to gain experience and advance his standing in the world of BMX biking. Rogatkin was aware of Raleigh’s use of his name and image in advertising and never objected for the obvious reason that he was a direct beneficiary of the publicity. He also benefitted materially from the relationship in terms of equipment, gear, and travel expenses. If Rogatkin found the terms of his association with Raleigh unsatisfactory, he was free to renegotiate, or leave to pursue other opportunities (both of which he eventually did). Because Raleigh did not unfairly retain any benefit conferred by Rogatkin, Raleigh in entitled to summary judgment on Count V.
Unfair and/or Deceptive Business Practices under Chapter 93A (Count II)
Having found that Raleigh is entitled to summary judgment on all of the foundational claims, the court also finds that Raleigh is entitled to summary judgment on the unfair and deception business practices (Chapter 93A) claim. Rogatkin has not shown that Raleigh’s actions fell within “the penumbra of some common-law, statutory, or other established concept of unfairness . . . or [was] immoral, unethical, oppressive or unscrupulous . . . [or] cause[d] substantial [**18] injury to consumers (or competitors or other businessmen).” PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596, 321 N.E.2d 915 (1975).
For the foregoing reasons, Raleigh’s motion for summary judgment is ALLOWED. The claims against the John Doe defendants are also DISMISSED.19 The Clerk will enter judgment for Raleigh and close the case.
19 This case was removed to this court in July of 2013. Fact discovery closed in April of 2014. Plaintiff has yet to identify and serve the John Doe defendants. “[A] district court otherwise prepared to act on dispositive motions is not obligated to wait indefinitely for [the plaintiff] to take steps to identify and serve . . . unknown defendants.” Figueroa v. Rivera, 147 F.3d 77, 83 (1st Cir. 1998) (internal quotation marks omitted).
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
Megan Soucy, Plaintiff, v. Nova Guides, Inc., Defendant.
Civil Action No. 14-cv-01766-MEH
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
2015 U.S. Dist. LEXIS 95438
July 20, 2015, Decided
July 20, 2015, Filed
COUNSEL: [*1] For Megan Soucy, Plaintiff: Gregory A. Gold, Sommer D. Luther, LEAD ATTORNEYS, Gold Law Firm, L.L.C, The, Greenwood Village, CO; Joel Stuart Rosen, Cohen Placitella & Roth, Philadelphia, PA.
For Nova Guides, Inc., Defendant: David James Nowak, Tracy Lynn Zuckett , White & Steele, P.C., Denver, CO.
JUDGES: Michael E. Hegarty, United States Magistrate Judge.
OPINION BY: Michael E. Hegarty
ORDER ON MOTION FOR SUMMARY JUDGMENT
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant’s Motion for Summary Judgment [filed May 28, 2015; docket #18]. The motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the motion. Based on the record herein and for the reasons that follow, the Court denies the Defendant’s motion.1
1 On September 8, 2014, the parties consented to this Court’s jurisdiction pursuant to 28 U.S.C. § 636(c).
I. Procedural History
Plaintiff Megan Soucy (“Soucy”) initiated this action on June 24, 2014, alleging essentially that Defendant Nova Guides, Inc. (“Nova”) was negligent in causing her injuries when the all-terrain vehicle (“ATV”) she was driving overturned during a trail ride. Complaint, docket #1. In response to the Complaint, Nova filed [*2] an Answer asserting 13 affirmative defenses, including “Plaintiff’s claims may be barred or limited by contracts entered into by the parties.” Answer, docket #7.
Thereafter, the Court held a Scheduling Conference on September 22, 2014 at which the Court set deadlines for discovery and the filing of dispositive motions. Dockets ## 12, 13. Discovery progressed and, well before the deadline, Nova filed the present motion for summary judgment arguing no triable issues exist as to whether Soucy contractually waived her claims in this action. See docket #18. Specifically, Nova contends that its Waiver of Liability is valid pursuant to Colorado law and the waiver is enforceable despite lacking Plaintiff’s signature. Id.
Soucy counters that she was never presented with nor signed a Waiver of Liability before the July 11, 2012 tour during which she was injured. She argues that the July 9, 2012 waiver she signed before a Jeep tour did not apply to the July 11 ATV tour, since only the Jeep tour was referenced in the July 9 waiver. She further asserts that any release that may be construed as signed on her behalf by her mother is unenforceable. Finally, Soucy contends that any evidence of her intent [*3] is factually and legally irrelevant.
Nova replies arguing that Soucy’s own testimony demonstrates she intended to be bound by the Waiver of Liability, despite its lack of her signature.
II. Findings of Fact
The Court makes the following findings of fact viewed in the light most favorable to Soucy, who is the non-moving party in this matter.
1. While vacationing in Vail, Colorado in July 2012, Soucy, her mother, and her sisters participated in a jeep tour on July 9, 2012 and an ATV tour on July 11, 2012, both guided by Ben Hilley of Nova Guides, Inc. Deposition of Megan Soucy, April 6, 2015 (“Soucy Depo”), 97: 20-25; 129: 12 – 130: 16, docket #19-1.
2. Soucy was 20 years old in July 2012. Id., 136: 23 – 137: 4.
3. Based on her past experience, Soucy understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “safari trip” (also referred to as the “Jeep tour”). Id., 143: 13-20; 145: 16-20.
4. Prior to participating in the Jeep tour on July 9, 2012, Soucy signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “Jeep tour” as the type of tour selected (the other options are “ATV,” “Mtn. Bike,” and “Hiking”). Id., 144: [*4] 4-145: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 9, 2012, docket #19-2.
5. Nova’s Waiver of Liability includes the following language:
PARTICIPANT’S AGREEMENT TO ASSUME THE RISKS OF PERSONAL INJURY AND PROPERTY DAMAGE ASSOCIATED WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, AND JEEP TOURS AND TO RELEASE NOVA GUIDES, INC., ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, THE U.S. FOREST SERVICE, AND THE U.S. GOVERNMENT FROM ANY AND ALL LIABILITY IN CONNECTION WITH MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HUMMER AND JEEP TOURING ACTIVITIES.
*THIS IS A RELEASE OF LIABILITY. PLEASE READ BEFORE SIGNING. DO NOT SIGN OR INITIAL THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.
1. I/We have asked to participate in the sports of mountain biking, all terrain vehicle riding, hiking, and jeep touring and related activities with Nova Guides, Inc. … I understand mountain biking, all terrain vehicle use, hiking and jeep touring also include the risk of falling from said vehicles. I understand that accidents or illness can occur in remote places without medical facilities. … I understand that route or activity, chosen as a part of our outdoor [*5] adventure may not be the safest, but has been chosen for its interest. I UNDERSTAND THAT THE ACTIVITIES OF MOUNTAIN BIKING, ALL TERRAIN VEHICLE RIDING, HIKING, JEEP TOURING, like all outdoor activities involve the risk of contact with wild animals, falls, equipment failure, collisions and/or contact with manmade or natural objects and other riders and drivers which can result in personal injury, property damage and death.
2. I expressly assume all risk of personal injury, death, and property damage set forth in paragraph 1 above which may result from my participation and my minor children’s participation in mountain biking, all terrain vehicle riding, hiking, and jeep touring and waive any claims based on negligence or breach of warranty I might assert on my own behalf or on behalf of my minor children against Nova Guides, Inc., its officers, directors, agents and employees, the U.S. Forest Service, and the U.S. Government for personal injuries, death, and/or property damage sustained while participating in mountain biking activities, all terrain vehicle riding, hummer and jeep touring with Nova Guides, Inc.
Nova Guides Lease Agreement and Waiver of Liability, docket #19-2.
6. Soucy recognized [*6] that operating an ATV involves a risk of injury. Id.; see also Soucy Depo, 154: 8-13.
7. Prior to Soucy’s and her family’s participation in the ATV tour on July 11, 2012, Soucy’s mother, Susan Pesot, completed and signed a Lease Agreement and Waiver of Liability, on which a handwritten check mark appears next to “ATV” as the type of tour selected. Deposition of Susan Pesot, April 7, 2015 (“Pesot Depo”), 92: 2 – 93: 7; see also Nova Guides Lease Agreement and Waiver of Liability, July 11, 2012, docket #19-3.
8. Soucy did not sign the July 11, 2012 Waiver of Liability. Id.
9. Pesot signed the waiver only on behalf of herself and her two minor children (Soucy’s sisters). Pesot Depo, 92: 12-17. She listed Soucy and Soucy’s other sister as participants on the ATV tour “because Ben told [her] to write down all the people who will be driving the vehicles.” Id., 93: 2-13.
10. Pesot did not sign the waiver on behalf of Soucy, who was not a minor, nor asked Soucy to sign the waiver because “that was not [her] responsibility to have [Soucy] sign it.” Id., 92: 12-25, 93: 1.
11. Also, Hilley did not ask Soucy to sign the waiver; however, Soucy would have signed the Waiver of Liability completed by Pesot on July 11, [*7] 2012, had it been presented to her by Hilley or Pesot and she were asked specifically to sign it. Soucy Depo, 215: 4-8 and 217: 7-15.
12. Soucy thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012. Id., 144: 4 – 145:14.
13. Soucy participated in the ATV tour on July 11, 2012. Id., 171: 17-21.
A motion for summary judgment serves the purpose of testing whether a trial is required. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party’s claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence [*8] may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007) (“[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation omitted); see also Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.'” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” [*9] Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005).
Here, it is undisputed that Soucy did not sign a form waiver of liability for the ATV tour guided by Nova on July 11, 2012. According to Soucy, that is the end of the story. However, Nova argues the lack of a signature on a written agreement “is not always necessary to create a binding agreement.” Motion, docket #18 at 10. Nova contends that Colorado law allows consideration of the parties’ intent in the formation of a contract. Id. Soucy counters that extrinsic evidence, such as the parties’ intent, “is not admissible in a case where the court properly determines as a matter of law that an agreement is unambiguous.” Response, docket #19 at 17. Soucy argues alternatively that, “whether the parties have entered a contract is a question of fact.” Id. at 18.
The Court finds that, because Soucy does not challenge the validity and enforceability of Nova’s waiver of liability, the question is not whether terms of a formal contract are ambiguous (since no formal contract exists between Soucy and Nova from July 11, 2012), but whether an agreement between Soucy and Nova was formed on July 11, 2012 before Soucy was injured on the tour.
Under Colorado law, contractual conditions may be express [*10] or implied. Lane v. Urgitus, 145 P.3d 672, 679 (Colo. 2006) (determining whether an agreement to arbitrate existed between the parties) (citing Goodson v. Am. Standard Ins. Co., 89 P.3d 409, 414 (Colo. 2004)). When interpreting a contract, courts consider “the facts and circumstances attending its execution, so as to learn the intentions of the parties.” Id. (quoting Eisenhart v. Denver, 27 Colo. App. 470, 478, 150 P. 729, (1915), aff’d, 64 Colo. 141, 170 P. 1179 (1918)). “In contractual settings, [courts] can look to the circumstances surrounding the contract’s formation in construing the contract, in order to carry out the intent of the contracting parties.” Id. (citing Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998)); see also James H. Moore & Assocs. Realty, Inc. v. Arrowhead at Vail, 892 P.2d 367, 372 (Colo. App. 1994) (“Generally, whether a contract exists is a question of fact to be determined by all of the surrounding circumstances.”).
Whether the parties to an oral agreement become bound prior to the drafting and execution of a contemplated formal writing is a question largely of intent on their part. Mohler v. Park Cnty. Sch. Dist. RE-2, 32 Colo. App. 388, 515 P.2d 112, 114 (Colo. App. 1973). “That intent can be inferred from their actions and may be determined by their conduct prior to the time the controversy arose.” Id. (citing Coulter v. Anderson, 144 Colo. 402, 357 P.2d 76 (Colo. 1960)); see also Moore, 892 P.2d at 372.
“A release [of liability] is an agreement to which the general rules of interpretation and construction apply.” Squires v. Breckenridge Outdoor Educ. Ctr., 715 F.3d 867, 878 (10th Cir. 2013). In Squires, the court analyzed extrinsic evidence including a letter and the plaintiff’s statements of belief to determine whether a waiver of liability was [*11] procured through fraudulent inducement. Id. at 878-79.
Here, in response to questions by Nova’s counsel, Soucy testified during her deposition that:
o Based on her past experience, she understood she must typically execute a waiver of liability before engaging in activities such as “ATVing” and the “Jeep tour”;
o Prior to participating in the Jeep tour on July 9, 2012, she signed a Nova Guides Lease Agreement and Waiver of Liability;
o She recognized that operating an ATV involves a risk of injury;
o She did not sign an identical form Waiver of Liability prior to participating in the ATV tour on July 11, 2012;
o She would have signed the Waiver of Liability completed by her mother on July 11, 2012, had it been presented to her by Hilley or her mother and she were asked specifically to sign it; and
o She thought the Waiver of Liability she signed on July 9, 2012 “carried over” for the ATV tour in which she participated on July 11, 2012.
While Soucy’s counsel asked her questions during the deposition, his questions did not concern any waiver of liability. Soucy Depo, 254: 9 – 255: 17. In addition, Soucy did not provide an affidavit or other testimony in response to the present motion. Nova argues that [*12] “the clear, undisputed evidence from plaintiff’s own testimony is that she intended to assent and be bound by Nova Guide’s Waiver of Liability when she participated in the July 11, 2012 ATV tour.” Reply, docket #22 at 5. The Court must agree.
At her deposition, Soucy confirmed not only that she understood the concept of a waiver of liability, but also that she was familiar with such a document, as she had executed waivers in the past.
Q. Are you familiar with the concept of a waiver of liability?
Q. Have you executed those type of documents in certain situations where you wanted to do an activity and it required a waiver?
A. Yes, yes.
Soucy Depo, 125: 1-7. Moreover, with respect to the tours with Nova in July 2012, Soucy testified that, had a waiver of liability been presented to her on July 11, 2012, she would have signed it. Id., 215: 4-8 and 217: 7-15. In fact, Soucy attested that she believed the waiver of liability she executed on July 9, 2012 for the Jeep tour carried over for her participation in the July 11, 2012 ATV tour.
Q. — did you understand before engaging in an activity such as ATV’ing, that you would typically execute a waiver of liability?
THE WITNESS: Yes.
Q. So that’s [*13] something you were familiar with. Did you at the time think that that was the document that he gave your mother?
A. I think, actually, the day before, when we got on that thing, Melissa and I filled something out.
Q. So you think that when you kind of took the safari trip —
Q. — where you were in a vehicle, that you actually filled something out?
A. We may have, yeah.
Q. You, yourself, as opposed to your mother?
Q. Did you read it?
A. I don’t remember.
Q. Do you remember what it was or what it said?
Q. And when you say “we,” do you mean you and all your sisters?
A. Melissa and I, separate from my mom.
Q. Did your mother also execute a document on the safari trip?
A. I believe so.
Q. And did Mr. Hilley, on the safari trip, explain what you were executing?
A. I don’t remember.
Q. Did you at the time think it was a waiver of liability?
A. Yeah. I think– and that’s why when we were in the car the next day, I just thought that kind of carried over or something.
Q. So when you were in the bus, going to do the ATV tour, you thought that what you had signed the day before carried over?
THE WITNESS: Right.
Q. But you generally understood that with respect to these type of activities, [*14] you did need to execute a waiver of liability?
THE WITNESS: Yes.
Soucy Depo, 143: 16 – 145: 20. Importantly, Soucy then participated in the ATV tour on July 11, 2012, which presumes that Soucy paid the required fee and Nova performed the requested service of guiding the tour. Soucy’s testimony does not appear to be vague. She assents to the proposition that she believed a waiver of liability she actually signed relating to one activity applied to another activity as well. She does not attempt to contradict that sworn testimony, so it was uncontroverted.
Accordingly, the Court concludes it is not disputed that Soucy paid for a commercial service, willingly received that service, and believed the waiver she signed on July 9, 2012 — in which she “assume[d] the risk of personal injury, death, and property damage … which may result from [her] participation … in … all terrain vehicle riding” and waived “any claims based on negligence or breach of warranty [she] might assert on [her] own behalf … against Nova Guides, Inc.” — was valid and necessary for her participation in the ATV tour on July 11, 2012.
However, an agreement requires intent to be bound by all parties. “A contract implied in [*15] fact arises from the parties’ conduct that evidences a mutual intention to enter into a contract, and such a contract has the same legal effect as an express contract. … [thus, t]o be enforceable, a contract requires mutual assent to an exchange for legal consideration.” Winter v. Indus. Claim Appeals Office, 321 P.3d 609, 614, 2013 COA 126 (Colo. App. 2013) (citations omitted) (emphasis added). Nova has proffered no evidence of its intention that Soucy be bound by an agreement to waive liability for the ATV tour on July 11, 2012; that is, nothing in the record demonstrates that either Hilley or any Nova personnel asked Soucy to execute or otherwise agree to a waiver for that tour, either by verbally asking her or by presenting her with a written agreement. Nor has Nova provided any affidavit evidencing, or even an argument by Nova concerning, its intent for this verbal agreement. Under the circumstances presented here, the Court will not infer such intention. See Celotex Corp., 477 U.S. at 323 (the moving party bears the initial responsibility of providing to the court the factual basis for its motion).
Accordingly, a genuine issue of material fact exists as to whether an agreement was formed by both parties on July 11, 2012 before Soucy participated in the ATV tour and, thus, summary judgment is [*16] improper.
Soucy’s deposition testimony reflects her conduct, beliefs and intent regarding whether she agreed to waive Nova’s liability for any negligence claims resulting from the ATV tour on July 11, 2012. No genuine issues of material fact arise from this testimony or any other evidence provided by Soucy as to whether her assent to such agreement existed. The Court must conclude, then, that the evidence demonstrates Soucy’s agreement to waive Nova’s liability for the injuries she suffered on July 11, 2012.
However, for an oral agreement to be enforceable, there must be mutual assent from both parties. The evidence proffered by the parties does not show that Nova intended to be bound by an agreement with Soucy to waive liability for the ATV tour on July 11, 2012. Because an issue as to this material fact exists, the Defendant’s Motion for Summary Judgment [filed May 28, 2015; docket #18] is denied.
Entered and dated at Denver, Colorado, this 20th day of July, 2015.
BY THE COURT:
/s/ Michael E. Hegarty
Michael E. Hegarty
United States Magistrate Judge
Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308Posted: August 15, 2015
Patton v. United States Of America Rugby Football, Union, LTD., 381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308
Judith Edwards Patton, Individually, and as the surViving Spouse of Donald Lee Patton, and as Personal Representative and Executor for the Estate of Donald Lee pattOn, et al. V. United States of America Rugby Football, Union, ltd. D/b/a USA Rugby, et al.
No. 113, September Term, 2003
Court of Appeals of Maryland
381 Md. 627; 851 A.2d 566; 2004 Md. LEXIS 308
June 10, 2004, Filed
Prior History: [***1] Appeal from the Circuit Court for Anne Arundel County pursuant to certiorari to the Court of Special Appeals. Rodney C. Warren, JUDGE.
Patton v. USA Rugby, 379 Md. 224, 841 A.2d 339, 2004 Md. LEXIS 61 (2004)
Headnotes: Torts – Negligence – Duty – Special Relationship
An amateur rugby player and his father, who was a spectator, were struck by lightning at a rugby tournament. The player was injured and the spectator killed. Various members of the family filed suit alleging negligence against the rugby tournament organizers, the game referee, and related organizations for not taking precautions to avert the incident.
Held: The element of dependence and ceding of control by the injured party that is needed to find a “special relationship” is absent in this case. Our decision is consistent with our view of narrowly construing the “special relationship” exception so as not to impose broad liability for every group activity. The rugby player and spectator were free to leave the voluntary, amateur tournament at any time and their movements were not restricted by the tournament organizers. An amateur sporting event is a voluntary affair, and the participants are capable of leaving the field under their own volition if they feel their lives are in danger. The changing weather conditions were visible to all competent adults. The spectators and participants could have sought shelter at any time they deemed it appropriate to do so. It is unreasonable to impose a duty on the organizers of amateur outdoor events to warn spectators or adult participants of a weather condition that everyone present is fully able to observe and react to on his or her own. The approach of a thunderstorm is readily apparent to reasonably prudent adults and, therefore, it is every adult ‘s responsibility to protect himself or herself from the weather. There was no “special relationship” and, therefore, no legal duty to protect spectators and participants from the storm.
Counsel: Argued by W. David Allen of Crofton, MD. for Appellants.
Argued BY Kristine A. Crosswhite (Crosswhite, McKenna, Limbrick & Sinclair, LLP of Baltimore, MD) on brief for Appellees.
Judges: Bell, C.J., Raker, Wilner, Cathell, Harrell, Battaglia, Greene, JJ.
Opinion by Harrell, J. Bell, C.J., joins in judgment only.
Opinion by: Harrell
[*630] [**567] Opinion by Harrell, J.
On 17 June 2000, Robert Carson Patton, II, and his father, Donald Lee Patton, while at an amateur rugby tournament in Annapolis, were struck by lightning. Robert, a player in the tournament, was seriously injured, but survived. Donald, a spectator watching his son play, died. Robert and various other members of the Patton family filed suit in the Circuit Court for Anne Arundel County alleging negligence against the rugby tournament organizers, referee, and related organizations with regard to the episode.
Defendants filed Motions to Dismiss arguing they owed no legal duty to Robert and Donald Patton. A hearing was held and, on 10 July 2003, the Circuit Court dismissed the action. The Patton family appealed. This Court, on its own initiative and before the appeal could be decided in the Court of Special Appeals, issued a writ of certiorari to determine whether any of the defendants, under the circumstances alleged in the complaint, owed a legal duty [***2] to Robert and Donald Patton. Patton v. USA Rugby, 379 Md. 224, 841 A.2d 339 (2004).
A. The Lightning Strike
Based on Appellants’ amended complaint, we assume the [*631] truth of the following factual allegations: n1
[**568] Sometime during the early morning of 17 June 2000, Robert and Donald Patton arrived at playing fields adjacent to the Annapolis Middle School in Anne Arundel County, Maryland. Robert was to play rugby for the Norfolk Blues Rugby Club. Donald intended to support his son as a spectator. Robert and Donald, along with other participants and spectators, placed their equipment and belongings under a row of trees adjacent to the playing fields.
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n1 See Valentine v. On Target, Inc., 353 Md. 544, 548, 727 A.2d 947, 949 (1999) (“as the result of the trial court’s granting a motion to dismiss, as opposed to the granting of summary judgment or judgment entered after trial, the Court will assume the truth of all well- pleaded facts and any reasonable inferences that can be properly drawn therefrom”) (citations omitted).
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The rugby tournament was coordinated by Steven Quigg and was sanctioned by the United States of America Rugby Football Union, Ltd., d/b/a USA Rugby, and Mid-Atlantic Rugby Football Union, Inc. Rugby matches involving over two dozen teams began at approximately 9:00 a.m. and were planned to continue throughout the day. It was a warm, muggy day. The weather forecast for Annapolis was for possible thunderstorms. At some point prior to the start of the twenty minute match between the Norfolk Blues and the Washington Rugby Football Club (“the match”), a thunderstorm passed through the area surrounding the Annapolis Middle School. At the start of the match, rain commenced; lightning could be seen and thunder could be heard proximate to the lightning flashes. By this time, the National Weather Service had issued a thunderstorm “warning” for the Annapolis area.
Kevin Eager, a member of the Potomac Society of Rugby Football Referees, Inc., was the volunteer referee for the afternoon match in which Robert Patton was a participant. Under the direction of Eager, the match continued as the rain increased in intensity, the weather conditions deteriorated, and the lighting flashed directly overhead. [***4] Other matches at [*632] the tournament ended. Robert Patton continued to play the match through the rain and lightning and his father continued to observe as a spectator until the match was stopped just prior to its normal conclusion.
Upon the termination of the match, Robert and Donald fled the playing fields to the area under the trees where they left their possessions. As they began to make their exit from under the trees to seek the safety of their car, each was struck by lightning. Donald died. Robert Patton sustained personal injuries and was hospitalized, but recovered.
B. Circuit Court Proceedings
Appellants here and Plaintiffs below are Judith Edwards Patton (wife of Donald Patton), acting in both an individual capacity and as personal representative of the estate of Donald Patton; Sophia P. Patton and Robert C. Patton (the parents of Donald Patton); Robert Carson Patton, II; and Meredith Patton (Donald’s daughter). They sued the United States of America Rugby Football Union, Ltd., d/b/a USA Rugby (“USA Rugby”), the Mid- Atlantic Rugby Football Union, Inc. ( “MARFU”), the Potomac Rugby Union, Inc. (“PRU”), the Potomac Society of Rugby Football Referees, Inc. (“Referees’ Society”), [***5] Kevin Eager, n2 and Steven Quigg, alleging that Defendants were liable in tort for the death of Donald Patton and the injuries suffered by Robert Patton. This liability, Appellants contended, was due to Defendants’/Appellees’ failure to employ proper policies and procedures to protect players and spectators at the tournament from lightning strikes.
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n2 Kevin Eager never was served with process.
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Appellants alleged that Appellees each had a duty to, but failed to, do one or more of the following acts:
“(a) Have and implement proper policies and procedures regarding the protection [**569] of players and spectators from adverse weather conditions and lightning; [*633]
“(b) Have and implement a policy regarding the safe evacuation of players and spectators from the fields of play at its matches when lightning is present;
“(c) Safeguard the health, safety, and welfare of the players and spectators at its matches;
“(d) Terminate the rugby match and tournament when lightning is present;
“(e) Monitor and detect dangerous conditions [***6] associated with its matches; and
“(f) Train, supervise, monitor and control actions of officials prior to ensure the safety of the participants and spectators from dangerous lightning strikes.”
On 26 August 2002, the Referees’ Society filed a Motion to Dismiss all claims pending against it on the ground that the Referees’ Society owed no tort duty to Robert or Donald Patton as a matter of law. Thereafter, on 16 September 2002, USA Rugby, MARFU, and Steven Quigg filed a joint Motion to Dismiss in which they adopted the arguments of the Referees’ Society and advanced the additional argument that Maryland’s Recreational Land Use Statute, found in Maryland Code (1974, 2000 Repl. Vol., 2003 Supp.), § 5-1101, et seq. of the Natural Resources Article, conferred tort immunity on them for injuries arising from recreational use of premises, i.e., playing rugby on the Annapolis Middle School fields. n3
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n3 PRU was not served with process at the time that USA Rugby, MARFU, and Mr. Quigg filed their Motion to Dismiss and, consequently, PRU was not included in that motion as a moving party. PRU timely filed an Answer to Appellants’ original Complaint on 15 October 2002, and thereafter, was included as a moving party on all pending defense motions.
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Appellants, on 30 December 2002, filed an amended complaint. On 9 January 2003, USA Rugby, MARFU, PRU, and Mr. Quigg filed a second Motion to Dismiss, or in the alternative, for Summary Judgment. The Motion to Dismiss argued that: (1) Appellees owed the Pattons no legally cognizable tort duty as a matter of law; (2) Appellees are immune from tort liability under Maryland’s Recreational Land Use Statute; [*634] and (3) the claims of Robert were barred by waiver. On 13 January 2002, the Referees’ Society also filed a Motion to Dismiss the amended complaint.
The pending motions were heard on 5 February 2003. The Circuit Court, subsequently, issued an order granting the pending motions to dismiss and, on 17 November 2003, issued a Memorandum Opinion explaining the reasons for the dismissal.
Based on Maryland precedents and caselaw from other jurisdictions, the Circuit Court concluded that Appellees did not owe a duty of care to Robert or Donald Patton. The Circuit Court noted generally that courts in other jurisdictions have found that “landowners” or their equivalent do not have a duty to warn invitees of the risk of lightning. As regards Donald Patton, the Circuit Court stated:
“Decedent [***8] Donald Patton was a nonpaying spectator at a rugby match organized and overseen by [Appellees]. There is no indication from the record that Decedent had entrusted himself to the control and protection of [Appellees], indeed he was free to leave the tournament at any time. Additionally, there is no indication that he had lost the ability to monitor changing weather conditions and act accordingly. While [Appellants] allege the storm began near the beginning of the match, it was not until the conclusion of the game, that Decedent and plaintiff Robert Patton, attempted to escape the storm by running towards [**570] the tree line adjacent to the open field to retrieve their belongings. It was here that both were struck by lightning.
“The inherently unpredictable nature of weather and the patent dangerousness of lightning make it unreasonable to impose a duty upon [Appellees] to protect spectators from the type [of] injury that occurred here.”
As regards Robert Patton, the Circuit Court stated that “while it is arguable that [Appellees] had a greater duty to protect plaintiff Robert Patton, a player/participant from injury, they were under no duty to protect and warn him of [***9] lightening strikes and other acts of nature.” The hearing [*635] judge relied on cases from other jurisdictions involving lightning strikes on golf courses to conclude that “lightning is a universally known danger created by the elements” and, in the absence of evidence that Appellants created a greater hazard than brought about by natural causes, there is no duty to warn and protect. The Circuit Court expressly rejected as grounds for its grant of Appellees’ motions to dismiss both Maryland’s Recreational Land Use Statute, and waiver argument based on language contained in Robert Patton’s alleged execution of a USA Rugby Participant Enrollment Form. This appeal follows, therefore, from a dismissal of the amended complaint based solely on the ground that there was no legal duty owed to Robert or Donald Patton. Appellants present the following question for our consideration:
Did the trial court err, when it found that Appellees had no duty to protect Appellants from lightning injuries and granted Appellees’ motions to dismiss for failure to state a claim upon which relief can be granted?
Maryland Rule 2-322(b)(2) provides for the filing of a motion to dismiss for failure to state a [***10] claim upon which relief can be granted. We have stated that:
The granting of a motion to dismiss is proper when, even if the facts and allegations as set forth in the complaint were proven to be true, the complaint would nevertheless fail to state a claim upon which relief could be granted. . . . It will be affirmed if the record reveals any legally sound reason for the decision.
Valentine v. On Target, Inc., 353 Md. 544, 548-49, 727 A.2d 947, 949 (1999) (citations omitted).
For a plaintiff to state a prima facie claim in negligence, he or she must prove the existence of four elements by [*636] alleging facts demonstrating
“(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Remsburg v. Montgomery, 376 Md. 568, 582, 831 A.2d 18, 26 (2003) (quoting Muthukumarana v. Montgomery Co., 370 Md. 447, 486, 805 A.2d 372, 395 (2002), and cases cited therein). Generally, whether there is adequate proof of the required [***11] elements to succeed in a negligence action is a question of fact to be determined by the fact-finder. The existence of a legal duty, however, is a question of law to be decided by the court. Valentine, 353 Md. at 549, 727 A.2d at 949. As established in Maryland jurisprudence over a century ago: there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person [**571] owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury. . . . As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty. Bobo v. State, 346 Md. 706, 714, 697 A.2d 1371, 1375 (1997) (quoting West Virginia Cent. & P.R. v. State ex rel. Fuller, 96 Md. 652, 666, 54 A. 669, 671-72 (1903)). [***12] “Our analysis of a negligence cause of action usually begins with the question of whether a legally cognizable duty existed.” Remsburg , 376 Md. at 582, 831 A.2d at 26.
When assessing whether a tort duty may exist, we often have recourse to the definition in W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 53 (5th ed. 1984), which characterizes “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular [*637] standard of conduct toward another.” Id. In determining the existence of a duty, we consider, among other things: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986) [***13] (citation omitted). Where the failure to exercise due care creates risks of personal injury, “the principal determinant of duty becomes foreseeability.” Jacques v. First Nat’l Bank of Maryland, 307 Md. 527, 535, 515 A.2d 756, 760 (1986) (citations omitted). The foreseeability test “is simply intended to reflect current societal standards with respect to an acceptable nexus between the negligent act and the ensuing harm.” Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 348, 658 A.2d 675, 678 (1995) (quoting Henley v. Prince George’s County, 305 Md. 320, 333, 503 A.2d 1333, 1340 (1986)).
In determining whether a duty exists, “it is important to consider the policy reasons supporting a cause of action in negligence. The purpose is to discourage or encourage specific types of behavior by one party to the benefit of another party.” Valentine, 353 Md. at 550, 727 A.2d at 950. “While foreseeability is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law.” Remsburg, 376 Md. at 583, 831 A.2d at 26. As we clarified [***14] in Ashburn: the fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a “special relationship” exists either between [*638] the actor and the third person or between the actor and the person injured. Ashburn, 306 Md. at 628, 510 A.2d at 1083 (citations omitted). In addition, “a tort [**572] duty does not always coexist with a moral duty.” Jacques, 307 Md. at 534, 515 A.2d at 759 (citing W. Page Keeton, et al., Prosser and Keeton on The Law of Torts § 56 (5th ed. 1984)). We have held that such a “special duty” to protect another may be established “(1) by statute or rule; (2) by contractural or other private relationship; or (3) indirectly or impliedly by virtue of the relationship between the tortfeasor and a third party.” Bobo, 346 Md. at 715, 697 A.2d at 1376 (internal citations omitted).
Appellants allege that a “special relationship” existed between Appellees (USA Rugby, MARFU, [***15] PRU, the Referees’ Society, and Steven Quigg) and Robert and Donald Patton sufficient to recognize the existence of a duty to protect the latter, the breach of which gave rise to an action for negligence.
Appellants argue that:
A participant in a sporting event, by the very nature of the sport, trusts that his personal welfare will be protected by those controlling the event. Stated another way, it is reasonably foreseeable that both the player, and the player’s father, will continue to participate in the match, as long as the match is not stopped by the governing bodies in charge. It also is reasonably foreseeable that, when matches are played in thunderstorms, there is a substantial risk of injury from lightning. And finally, it is reasonably foreseeable that a father will not abandon his son, when he sees those who have assumed responsibility for his son’s welfare placing his son in a perilous condition . . . .
Appellants essentially contend that the tournament organizers had a duty to protect Robert and Donald, and to extricate them, from the dangers of playing in and viewing, respectively, a sanctioned rugby match during a thunderstorm. [*639] Appellees counter that [***16] “there is no ‘special relationship’ between Mr. Patton, Sr., Mr. Patton and the Appellees which would require the Appellees to protect and warn these individuals of the dangers associated with lightning.” Appellees argue that they “had no ability to control the activities of players or spectators at any time,” and “there is no evidence in the record that Mr. Patton, Sr. and Mr. Patton were dependent upon or relied upon the Appellees in any way, shape or form.”
We said in Remsburg that “the creation of a ‘special duty’ by virtue of a ‘special relationship’ between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often inducing reliance upon the conduct of the acting party.” Remsburg, 376 Md. at 589-90, 831 A.2d at 30. We conclude that Appellants here did not establish by either of these methods a triable issue as to the existence of a “special relationship.” Id.
In Remsburg, among other issues, we focused on whether a “special relationship” was created because of an implied or indirect relationship between the parties. [***17] Id. We held that the leader of a hunting party was under no special duty to protect a property owner who was shot by a member of the leader’s hunting party. We found insufficient the relationship of dependence between the leader of the hunting party and the injured property owner. This meant there was no duty on the part of the leader to protect the property owner from being accidentally shot by a hunting party member. 376 Md. at 593, 831 A.2d at 33. In holding that the inherent nature of the relationship between the parties did not give rise to a “special relationship” and, hence, a tort duty, we again approved [**573] the traditional “special relationships” that consistently have been associated with the “special relationship” doctrine. 376 Md. at 593-94, 831 A.2d at 32-33. We adopted previously as Maryland common law § 314A of the Restatement, entitled “Special Relations Giving Rise to a Duty to Aid or Protect,” which provides that:
[*640] (1) [a] common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm . . . .
(2) An innkeeper is under a similar duty to his guests.
(3) [***18] A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstance such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.
Restatement (Second) of Torts § 314A (1965); see Southland Corp. v. Griffith, 332 Md. 704, 719, 633 A.2d 84, 91 (1993). Although the foregoing list is not exhaustive, our caselaw where we have found a duty arises consistently requires an element of dependence that is lacking in the present case. See, e.g., Todd v. Mass Transit Admin., 373 Md. 149, 165, 816 A.2d 930, 939 (2003) (finding that an employee of a common carrier has a legal duty to take affirmative action for the aid or protection of a passenger under attack by another passenger); Southland, 332 Md. at 720, 633 A.2d at 91 (finding that a convenience store, through its employee and by virtue of a special relationship between the business and its customers, owed a legal duty to a customer being [***19] assaulted in store parking lot to call the police for assistance when requested to do so).
As stated in Remsburg, “while we have permitted some flexibility in defining this limited exception, such as including the employer-to-employee relationship and also that of business owner-to-patron, we have been careful not to expand this class of ‘special relationships’ in such a manner as to impose broad liability for every group outing.” Remsburg, 376 Md. at 594, 831 A.2d at 33. Similarly, in Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002), we declined to recognize that a “special relationship” existed between two child victims of the sequelae of a domestic dispute and an emergency telephone operator. In Muthukumarana, the operator, [*641] a police services aide, received a frantic call from Ms. Muthukumarana reporting that her husband had assaulted her in their house and then run upstairs. 370 Md. at 468-70, 805 A.2d at 384-86. The police services aide talked with Ms. Muthukumarana on the phone for one minute and forty seconds until the husband returned downstairs and shot and killed the two children huddled at her side [***20] and then himself. Id. Ms. Muthukumarana sued the police services aide and her supervisors alleging that they had a tort duty of care to the decedent children and herself and that that duty was breached by, among other things, a failure to timely advise her to leave the premises. Id.
In Fried v. Archer, the companion case to Muthukumarana, we also declined to find that a “special relationship” existed between a woman who died of hypothermia due to exposure to the elements and an emergency telephone system operator who erroneously reported the location of the woman to police officers on patrol who therefore failed to discover the victim before her demise. In Fried, a communications officer employed by the Harford County Sheriff’s Office received an anonymous [**574] call n4 reporting a female laying semi- conscious in the woods behind a particular building. 370 Md. at 458, 805 A.2d at 379. The communications officer, however, provided police officers with the wrong location of the woman. 370 Md. at 460, 805 A.2d at 379. The responding officers were unable to locate the victim, who died of hypothermia. 370 Md. at 460, 805 A.2d at 380. [***21] The decedent’s mother sued the communications officer and her supervisors alleging that they had a tort duty of care to the decedent and that that duty was breached by the failure to provide the police officers with the decedent’s correct location. 370 Md. at 461, 805 A.2d at 380.
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n4 The call, it turned out, was placed by one of the young men who caused the young woman to become unconscious and placed her in the vulnerable location outdoors on a cold, rainy night.
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We applied the “special relationship” doctrine to the circumstances surrounding the emergency telephone operators in both cases and held that no “special relationship” existed [*642] between them and the plaintiffs. 370 Md. at 486, 805 A.2d at 395. We reasoned that for a “special relationship” to exist between an emergency telephone operator and a person in need of assistance, it must be shown that the telephone operator affirmatively acted to protect the decedent or a specific group of individuals like the decedent, thereby inducing [***22] specific reliance by an individual on the telephone operator’s conduct. 370 Md. at 496, 805 A.2d at 401.
The element of dependence and ceding of self-control by the injured party that is needed under Remsberg and Muthukumarana/Fried is absent in the present case. n5 There is no credible evidence that the two adults, Robert and Donald Patton, entrusted themselves to the control and protection of Appellees.
Accordingly, we follow our admonition in Remsburg to avoid expanding the “special relationship” exception in such a manner as to impose broad liability for every group activity. Remsburg, 376 Md. at 594, 831 A.2d at 33. Our decision here, in line with Remsberg and Muthukumarana/Fried, is consistent with our view of narrowly construing the “special relationship” exception.
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n5 There may be a degree of dependency and ceding of control that could trigger a “special relationship” in, for example, a Little League game where children playing in the game are reliant on the adults supervising them.
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Of the relevant cases from our sister states, we find Dykema v. Gus Macker Enters., Inc., 196 Mich. App. 6, 492 N.W.2d 472 (Mich. Ct. App. 1992) to be particularly persuasive in the present case. In Dykema, the Michigan Court of Appeals held that the sponsors of an outdoor basketball tournament had no duty to warn a tournament spectator of an approaching thunderstorm that ultimately caused his injury. Dykema, 492 N.W.2d at 474-75. A thunderstorm struck the area of the tournament. The plaintiff, while running for shelter, was struck by a falling tree limb and paralyzed. Dykema, 492 N.W.2d at 473.
Like Maryland, Michigan recognizes the general rule that there is no tort duty to aid or protect another in the absence [*643] of a generally recognized “special relationship.” Dykema, 492 N.W.2d at 474. The Michigan court stated that:
The rationale behind imposing a legal duty to act in these special relationships is based on the element of control. In a special relationship, one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is [***24] imposed upon the person in control because he is in the best position to provide a place of safety. Thus, the determination whether a duty-imposing special relationship exists in a particular [**575] case involves the determination whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself.
Id. (citations omitted). Like the situation of the plaintiff and tournament sponsors in Dykema, Appellants here cannot be said to have entrusted themselves to the control and protection of the rugby tournament organizers. Id. ( “Plaintiff was free to leave the tournament at anytime, and his movements were not restricted by Defendant.”). We do not agree that, as Appellants argue, “the participants in the tournament, in effect, cede control over their activities to those who are putting on the event.” Robert and Donald Patton were free to leave the voluntary, amateur tournament at any time and their ability to do so was not restricted in any meaningful way by the tournament organizers. An adult amateur sporting event is a voluntary affair, and the participants are capable of leaving the playing field on their [***25] own volition if they feel their lives or health are in jeopardy. The changing weather conditions in the present case presumably were observable to all competent adults. Robert and Donald Patton could have sought shelter at any time they deemed it appropriate to do so. n6
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n6 The Dykema court continued its reasoning by assuming that, “even if [Dykema] had succeeded in establishing that a special relationship existed . . . we are unable to find precedent for imposing a duty upon an organizer of an outdoor event such as this basketball tournament to warn a spectator of approaching severe weather.” Dykema, 492 N.W.2d at 475. Citing Hames v. State, 808 S.W.2d 41, 45 (Tenn. 1991), the Michigan Court of Appeals alternatively held that, because the “approach of a thunderstorm is readily apparent to reasonably prudent people . . . it would be unreasonable to impose a duty . . . to warn . . . of a condition that the spectator is fully able to observe and react to on his own.” Id.
There is a line of cases, not dependent on analysis of whether a special relationship existed, that rely on the ability of competent adults to perceive the approach of thunderstorms and to appreciate the natural risks of lightning associated with thunderstorms to justify finding no breach of an ordinary duty of care owed to a plaintiff, whether that duty is recognized by common law, undertaken by the conduct of a defendant, or implied from the conduct of a defendant. For example, in Hames, the Supreme Court of Tennessee held that the State’s failure to provide lightning proof shelters and lightning warning devices at a State-owned golf course was not actionable in negligence. Hames, 808 S.W.2d at 45. Like Robert and Donald Patton, the golfer in Hames began to play his sport of choice on an overcast day. On the day that the golfer was struck by lightning, no signs were posted informing patrons what to do in the event of a thunderstorm and no effort was made to clear the golf course by course employees. Hames, 808 S.W.2d at 42. Approximately 25 minutes after the golfer began to play golf, a thunderstorm moved through the area. He was struck and killed by lightning while seeking cover on a small hill underneath some trees.
The plaintiff in Hames argued that the U.S. Golf Association’s Rules and Regulations created a golf course standard of care that required posting of lightning warnings and precautions. Hames, 808 S.W.2d at 43. The plaintiff’s argument in Hames is analogous to Appellants’ argument in the present case, i.e., the National Collegiate Athletic Association guidelines constitute a lightning safety standard of care for outdoor sporting events.
As well as finding no proximate cause, the Tennessee Court found that the “risks and dangers associated with playing golf in a lightning storm are rather obvious to most adults.” Hames, 808 S.W.2d at 45. The Court noted that it would have taken the decedent golfer two minutes to reach the relative safety of the clubhouse, but instead he remained on the golf course. Id. The Court concluded that “it is reasonable to infer that a reasonably prudent adult can recognize the approach of a severe thunderstorm and know that it is time to pack up the clubs and leave before the storm begins to wreak havoc.” Id. Accordingly, even though the State, as owner-operator of the golf course, owed Hames a general duty “to exercise reasonable care under all the attendant circumstances to make the premises safe . . . the defendant’s conduct did not fall below the applicable standard of care.” Hames, 808 S.W.2d at 44-46.
In Caldwell v. Let the Good Times Roll Festival, 717 So. 2d 1263, 1274 (La. Ct. App. 1998), the Louisiana Court of Appeals held that the City of Shreveport and two co-sponsors of an outdoor festival had neither a general nor specific duty to warn spectators of an approaching severe thunderstorm that caused injuries due to its high winds. The court in Caldwell observed that:
Most animals, especially we who are in the higher order, do not have to be told or warned about the vagaries of the weather, that wind and clouds may produce a rainstorm; that a rainstorm and wind and rain may suddenly escalate to become more severe and dangerous to lives and property. A thundershower may suddenly become a thunderstorm with destructive wind and lightning. A thunderstorm in progress may escalate to produce either or both tornadoes and hail, or even a rare and unexpected micro burst . . . all of which are extremely destructive to persons and property. Caldwell, 717 So. 2d at 1271. See also Seelbinder v. County of Volusia, 821 So. 2d 1095, 1097 (Fla. Dist. Ct. App. 2002) (“We begin by joining the almost universally agreed view that the County, in its capacity as “landowner” or the equivalent, did not have a duty to warn invitees, including beachgoers that there was a risk of being struck by lightning.”) (citations omitted); Grace v. City of Oklahoma City, 1997 OK CIV APP 90, 953 P.2d 69, 71 (Okla. Civ. Ct. App. 1997) (“Lightning is a universally known danger created by the elements. [The golf course owner] has no duty to warn its invitees of the patent danger of lightning or to reconstruct or alter its premises to protect against lightning[,]” and “all persons on the property are expected to assume the burden of protecting themselves from them.”); McAuliffe v. Town of New Windsor, 178 A.D.2d 905, 906, 577 N.Y.S.2d 942 (N.Y. App. Div. 1991) (upon the commencement of rain and thunder, the danger of lightning was admittedly apparent to plaintiff and there is no special duty to warn a specific swimmer against a condition that is readily observable by the reasonable use of one’s senses). The reasoning in the foregoing cases, although not explicated in terms of special relationship analysis as such, is consistent with the result reached in the present case.
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[*645] [**576] JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.
Chief Judge Bell joins in the judgment only.
Barone, v. St. Joseph’s Villa, 255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242
Carol Barone, Appellant, v. St. Joseph’s Villa, Respondent.
(Appeal No. 2.)
Supreme Court of New York, Appellate Division, Fourth Department
255 A.D.2d 973; 679 N.Y.S.2d 782; 1998 N.Y. App. Div. LEXIS 12242
November 13, 1998, Decided
November 13, 1998, Filed
Prior History: [***1] (Appeal No. 2.) (Appeal from Order of Supreme Court, Monroe County, Bergin, J. – Reargument.)
Judges: Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.
Opinion: [*973] [**783] Order unanimously reversed on the law with costs, motion for summary judgment denied and complaint reinstated.
Plaintiff commenced this action to recover for personal injuries that she sustained in a fall while participating in a “challenge” course owned by defendant. Supreme Court granted defendant’s motion for summary judgment dismissing the complaint based on a release signed by plaintiff before she was injured and, upon reargument, adhered to its determination. On appeal, plaintiff contends that the release is unenforceable under General Obligations Law § 5-326 and cannot be construed to bar a claim alleging defendant’s negligence.
General Obligations Law § 5-326 does not apply to this case because defendant is not the owner or operator of a “pool, gymnasium, place of amusement or recreation, or similar establishment” (General Obligations Law § 5-326; see, Lago v Krollage, 78 NY2d 95, 101; Gross v Sweet, 49 NY2d 102, 107; [***2] [*974] Tedesco v Triborough Bridge & Tunnel Auth., 250 AD2d 758; Chieco v Paramarketing, Inc., 228 AD2d 462, 463; Perelman v Snowbird Ski Shop, 215 AD2d 809, 810). Defendant is a not-for-profit entity that operates a residence for needy adolescents and provides mental health and other community services; it maintains the “challenge” course for therapeutic purposes as part of its mission to deliver mental health and other support services. Because the statute does not apply to this case, the release is not void thereunder.
We conclude, however, that the release may not be construed to exculpate defendant for its own negligence absent clear and explicit language to that effect (see, Gross v Sweet, supra, at 107-110; see also, Lago v Krollage, supra, at 99-100; Ciofalo v Tanney Gyms, 10 NY2d 294, 297). The release recites that plaintiff will hold defendant and its agents “harmless from all damages, losses and expenses” “arising out of [plaintiff’s] use of the premises, operations, or facilities of [defendant].” Defendant’s negligence is not mentioned. Thus, the release [***3] may not be construed to bar the claim that plaintiff was injured as a result of defendant’s negligence (see, Bennett v Genesee Marina, 237 AD2d 908, 908-909; Machowski v Gallant, 234 AD2d 933, 934). (Appeal from Order of Supreme Court, Monroe County, Bergin, J.—Reargument.)
Present—Denman, P. J., Hayes, Pigott, Jr., and Fallon, JJ.