McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

McPhail v. Bismarck Park District, 2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

Scott Kondrad, a minor, by and through Shari McPhail as next friend, Plaintiff and Appellant v. Bismarck Park District, Defendant and Appellee

No. 20020196

Supreme Court of North Dakota

2003 ND 4; 655 N.W.2d 411; 2003 N.D. LEXIS 3

January 17, 2003, Filed

Prior History:      [***1] Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.

Disposition:    AFFIRMED.

Counsel: Michael Ray Hoffman, Bismarck, N.D., for plaintiff and appellant.

Randall J. Bakke, Smith Bakke Oppegard Porsborg Wolf, Bismarck, N.D., for defendant and appellee.

Judges: Opinion of the Court by Maring, Justice. Mary Muehlen Maring, William A.

Neumann, Dale V. Sandstrom, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J.

Opinion By: Mary Muehlen Maring

Opinion

[**412] Maring, Justice.

[*P1] Scott Kondrad, a minor, by and through his mother, Shari McPhail, as next friend, appealed from a summary judgment dismissing his action for damages against the Bismarck Park District for injuries suffered in a bicycle accident.

We hold a waiver and release signed by McPhail exonerates the Park District for its alleged negligence in this case, and we affirm.

I

[*P2] The bicycle accident occurred on September 9, 1999, at the Pioneer Elementary School while Kondrad was [***2] participating in BLAST, an after-school care program operated by the Park District. Kondrad fell on the school grounds while riding a bicycle owned by a child who was not part of the BLAST program. Kondrad injured his arm in the fall, and McPhail subsequently sued the Park District for damages on Kondrad’s behalf, asserting Kondrad’s injuries were the result of the Park District’s negligent supervision of the children in the BLAST program. The Park District moved for a summary judgment, claiming McPhail had released the Park District from liability for the accident.

The district court construed the waiver and release signed by McPhail, determined it exonerated the Park District from liability, and granted the Park District’s motion for dismissal of the case.

II

[*P3] On appeal, Kondrad asserts the district court erred in granting the summary judgment dismissal and in concluding that the waiver and release signed by McPhail exonerated the Park District from liability for its alleged negligence.

[*P4] Summary judgment under N.D.R.Civ.P. 56 is a procedural device for properly disposing of a lawsuit without trial if, after viewing the evidence in the light most favorable to [***3] the nonmoving party, there are no genuine issues of material fact or conflicting inferences which can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Jose v. Norwest Bank, 1999 ND 175, P7, 599 N.W.2d 293. Whether the district court properly granted summary judgment is a question of law and is reviewed de novo. Garofalo v. St. Joseph’s Hosp., 2000 ND 149, P6, 615 N.W.2d 160. On appeal, we review the evidence in the light most favorable to the party opposing the motion for summary judgment, giving that party the benefit of all favorable inferences that reasonably can be drawn from the evidence. Olander [**413] Contracting Co. v. Gail Wachter Invs., 2002 ND 65, P9, 643 N.W.2d 29.

[*P5] Resolution of this appeal requires us to interpret the “Parent Agreement” signed by McPhail when she enrolled Kondrad in the BLAST program, which included the following waiver and release language:

I recognize and acknowledge that there are certain risks of physical injury to participant in this program and I agree to assume the full risk of any such injuries, damages or loss regardless of [***4] severity which I or my child/ward may sustain as a result of participating in any activities associated with this program. I waive and relinquish all claims that I, my insurer, or my child/ward may have against the Park District and its officers, servants, and employees from any and all claims from injuries, damages or loss which I or my child/ward may have or which may accrue to me or my child/ward on account of my participation of my child/ward in this program.

Kondrad argues this language must be interpreted as exonerating the Park District from liability for damages only as to injuries sustained during “activities associated with” the BLAST program. The Park District has conceded that riding a bicycle was not an activity associated with the program. Kondrad asserts the release does not, therefore, exonerate the Park District from liability if its negligence resulted in Kondrad incurring injuries while riding the bicycle. The Park District asserts the waiver is unambiguous and released the Park District from liability for any and all injuries sustained by Kondrad while participating in the BLAST program. The Park District argues the waiver and release exonerated it from [***5] liability for negligence resulting in injury or damages to Kondrad while participating in the program irrespective of whether, at the time of the injury, Kondrad was involved in a planned activity associated with the program.

[*P6] Generally, the law does not favor contracts exonerating parties from liability for their conduct. Reed v. Univ. of North Dakota, 1999 ND 25, P22, 589 N.W.2d 880. However, the parties are bound by clear and unambiguous language evidencing an intent to extinguish liability, even though exculpatory clauses are construed against the benefitted party. Id. When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible. N.D.C.C. § 9-07-04; Meide v. Stenehjem ex rel. State, 2002 ND 128, P7, 649 N.W.2d 532. The construction of a written contract to determine its legal effect is a question of law for the court to decide, and, on appeal, this Court will independently examine and construe the contract to determine if the trial court erred in its interpretation of it. Egeland v. Continental Res., Inc., 2000 ND 169, P10, 616 N.W.2d 861. [***6] The issue whether a contract is ambiguous is a question of law. Lenthe Invs., Inc. v. Serv. Oil, Inc., 2001 ND 187, P14, 636 N.W.2d 189. An unambiguous contract is particularly amenable to summary judgment. Meide, 2002 ND 128, P7, 649 N.W.2d 532.

[*P7] We conclude the language of waiver and release under the agreement signed by McPhail is clear and unambiguous. We construe all provisions of a contract together to give meaning to every sentence, phrase, and word. U.S. Bank Nat’l Ass’n v. Koenig, 2002 ND 137, P9, 650 N.W.2d 820. The assumption of risk and waiver clauses are separate and distinct. Each contains a clearly expressed meaning and consequence. Under the assumption of risk clause, McPhail agreed to assume the full risk of injury and damages resulting from Kondrad participating in [**414] any activities associated with the BLAST program. In addition, under the waiver and release clause, McPhail waived and relinquished all claims against the Park District for injuries or damages incurred on account of Kondrad’s participation in the BLAST program. The language of waiver and release is not limited to only those injuries incurred [***7] while participating in activities associated with the program, but to all injuries incurred by the child on account of his participation in the program.

[*P8] It is undisputed that Kondrad’s bicycle accident occurred on the school grounds while Kondrad was participating in the BLAST program. This is the very type of situation for which the Park District, under the release language, insulated itself from liability for alleged negligence while operating the after-school care program. Under the unambiguous language of the agreement, McPhail exonerated the Park District from liability for injury and damages incurred by Kondrad while participating in the program and caused by the alleged negligence of the Park District. 1

- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -1

Under N.D.C.C. § 9-08-02 a party is precluded from contractually exonerating itself from liability for willful acts. See Reed v. Univ. of North Dakota, 1999 ND 25, P22 n.4, 589 N.W.2d 880. The release in this case is not specifically limited to exonerating the Park District from liability for only negligent conduct.

However, Kondrad’s claim against the Park District is based on negligence, and he has not argued the release is invalid because it purports to exonerate the Park District from liability for intentional or willful acts. We do not, therefore, address that issue in this opinion.

- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -

[***8] III

[*P9] We hold the Parent Agreement signed by McPhail clearly and unambiguously exonerates the Park District for injuries sustained by Kondrad while participating in the BLAST program and which were allegedly caused by the negligent conduct of the Park District. We further hold, therefore, the district court did not err in granting summary judgment dismissing Kondrad’s action against the Park District, and we affirm.

[*P10] Mary Muehlen Maring

William A. Neumann

Dale V. Sandstrom

Carol Ronning Kapsner

Gerald W. VandeWalle, C.J.

WordPress Tags: McPhail,Bismarck,Park,District,LEXIS,Scott,Kondrad,Shari,friend,Plaintiff,Appellant,Defendant,Appellee,Supreme,Court,North,Dakota,January,Prior,History,Appeal,Burleigh,South,Central,Judicial,Honorable,Bruce,Romanick,Judge,Disposition,Counsel,Michael,Hoffman,Randall,Bakke,Smith,Oppegard,Porsborg,Wolf,Judges,Opinion,Justice,Mary,Muehlen,William,Neumann,Dale,Sandstrom,Carol,Kapsner,Gerald,VandeWalle,judgment,action,injuries,bicycle,accident,waiver,negligence,September,Pioneer,Elementary,School,BLAST,supervision,dismissal,Summary,device,lawsuit,fact,inferences,Jose,Norwest,Bank,Whether,Garofalo,Joseph,Hosp,Olander,Gail,Wachter,Invs,Resolution,Parent,Agreement,injury,participant,ward,insurer,officers,servants,employees,account,participation,Univ,clauses,intention,Meide,Stenehjem,State,construction,interpretation,Egeland,Continental,Lenthe,Serv,Koenig,assumption,consequence,Under,clause,addition,situation,Footnotes

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Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870

Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870

Kendra Knight, Plaintiff and Appellant, v. Michael Jewett, Defendant and Respondent.

No. S019021

SUPREME COURT OF CALIFORNIA

3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870

August 24, 1992, Decided

PRIOR HISTORY: Superior Court of San Diego County, No. N39325, Don Martinson, Judge.

DISPOSITION: The judgment of the Court of Appeal, upholding the summary judgment entered by the trial court, is affirmed.

CASE SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY Plaintiff brought an action for negligence and assault and battery for injuries she sustained when defendant knocked her over and stepped on her finger during an informal touch football game. The trial court granted summary judgment for defendant. (Superior Court of San Diego County, No. N39325, Don Martinson, Judge.) The Court of Appeal, Fourth Dist., Div. One, No. D010463, affirmed.

Plaintiff brought an action for negligence and assault and battery for injuries she sustained when defendant knocked her over and stepped on her finger during an informal touch football game. The trial court granted summary judgment for defendant. (Superior Court of San Diego County, No. N39325, Don Martinson, Judge.) The Court of Appeal, Fourth Dist., Div. One, No. D010463, affirmed.

The Supreme Court affirmed. Addressing the continued viability of the doctrine of implied assumption of risk in light of the adoption of comparative negligence principles, the court held that in cases involving primary assumption of the risk, where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury, the plaintiff’s recovery is completely barred. By contrast, the court held, in cases involving secondary assumption of the risk, where the defendant does owe a duty of care to the plaintiff but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty, the doctrine has been merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties. The court held that the trial court properly granted summary judgment for defendant, since he did not breach a legal duty of care owed to plaintiff when he engaged in the conduct that injured her and, therefore, her action was barred by the primary assumption of the risk doctrine. At most, the court held, the declarations established that defendant was careless or negligent, and his conduct was not even closely comparable to the type of conduct that is so reckless as to be totally outside of the range of the ordinary activity involved in the sport, which type of conduct is a prerequisite to the imposition of legal liability upon a participant in such a sport. (Opinion by George, J., with Lucas, C. J., and Arabian, J., concurring. Separate concurring and dissenting opinion by Mosk, J. Separate concurring and dissenting opinion by Panelli, J., with Baxter, J., concurring. Separate dissenting opinion by Kennard, J.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1a) (1b) (1c) (1d) (1e) Negligence § 37–Exercise of Care by Plaintiff–Assumption of Risk–Viability in Light of Comparative Negligence Doctrine–Primary Versus Secondary Assumption of Risk: Words, Phrases, and Maxims–Primary Assumption of Risk; Secondary Assumption of Risk. –Primary assumption of the risk, which involves conduct of a defendant that does not breach a legal duty of care to the plaintiff, has not been merged into the comparative negligence system, but continues to operate as a complete bar to a plaintiff’s recovery. This is so because by engaging in such conduct, the defendant has not breached a legal duty of care to the plaintiff, and thus there is no reason to invoke comparative fault principles. By contrast, secondary assumption of risk, which involves a breach of a duty owed to a plaintiff who knowingly encounters a risk of injury caused by that breach, has been merged into the comparative fault system, and a defendant’s liability in such a case is assessed in terms of the percentage of his or her fault. In such a case, the injury may have been caused by the combined effect of the defendant’s and the plaintiff’s culpable conduct, and to retain assumption of risk as a complete defense in such a case would be contrary to the basic principle that when both parties are partially at fault, placing all of the loss on one of the parties is inherently inequitable.

[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1104 et seq.]

(2) Negligence § 48.5–Exercise of Care Toward Particular Persons–Fireman’s Rule. –Under the firefighter’s rule, a person who starts a fire is not liable for an injury sustained by a firefighter who is summoned to fight the fire. The most persuasive explanation for this rule is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that he or she is employed to confront. (Per George, J., Lucas, C. J., and Arabian, J.)

(3) Negligence § 9–Elements of Actionable Negligence–Duty of Care–Sports Activities–Question for Court. –In cases involving personal injury sustained during sports activities, the question of the existence and scope of a defendant’s duty of care is a legal question that depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court rather than the jury. (Per George, J., Lucas, C. J., and Arabian, J.)

(4) Negligence § 36–Exercise of Care by Plaintiff–Comparative Negligence. –The comparative fault doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury, whether their responsibility rests on negligence, strict liability, or other theories of responsibility, in order to arrive at an equitable apportionment or allocation of loss. (Per George, J., Lucas, C. J., and Arabian, J.)

(5) Premises Liability § 6–Owner’s Duty of Care–Dangerous Conditions. –A property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. (Per George, J., Lucas, C. J., and Arabian, J.)

(6a) (6b) Premises Liability § 6–Owner’s Duty of Care–Dangerous Conditions–Ski Resorts. –Although moguls on a ski run pose a risk of harm to skiers that might not exist if those configurations were removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. A ski resort does, however, have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The latter type of risk, posed by a ski resort’s negligence, clearly is not an inherent risk of the sport assumed by a participant. (Per George, J., Lucas, C. J., and Arabian, J.)

(7a) (7b) Negligence § 10–Elements of Actionable Negligence–Standard of Care–Lower Standard for Sports Activities. –Although a defendant generally has no legal duty to eliminate, or to protect a plaintiff against, the risks inherent in a sport, a defendant generally does have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. In some situations, the careless conduct of others is considered an inherent risk of a sport for which recovery is barred. (Per George, J., Lucas, C. J., and Arabian, J.)

(8a) (8b) Negligence § 9–Elements of Actionable Negligence–Duty of Care–Sports Activities–Participant’s Duty of Care. –A sporting event participant is not liable for ordinary careless conduct engaged in during the sport, but only for intentionally injuring another player or engaging in reckless conduct that is totally outside the range of ordinary activity involved in the sport. This is so because in the heat of an active sporting event, a participant’s normal energetic conduct often includes accidentally careless behavior, and vigorous participation in sporting events might be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. In such a sport, even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.

(9a) (9b) Negligence § 37–Exercise of Care by Plaintiff–Assumption of Risk–Player Injured in Touch Football Game. –In a touch football player’s action against an opposing player for negligence and assault and battery arising from an injury sustained during a touch football game, the trial court properly granted summary judgment for defendant. Defendant, in engaging in the conduct that injured plaintiff, did not breach a legal duty of care owed to plaintiff and, therefore, plaintiff’s recovery was barred by the primary assumption of risk doctrine. The declarations filed in support of and in opposition to the motion established that defendant was, at most, careless or negligent in knocking over plaintiff, stepping on her hand, and injuring her finger. Although plaintiff maintained that defendant’s rough play was reckless, the conduct alleged was not even closely comparable to the type of conduct that is so reckless as to be totally outside of the range of the ordinary activity involved in the sport, which type of conduct is a prerequisite to the imposition of legal liability upon a participant in such a sport.

COUNSEL: Steven H. Wilhelm for Plaintiff and Appellant.

Daley & Heft, Sarah H. Mason, Dennis W. Daley, Joseph M. Hnylka and Patricia A. Shaffer for Defendant and Respondent.

JUDGES: Opinion by George, J., with Lucas, C. J., and Arabian, J., concurring. Separate concurring and dissenting opinion by Mosk, J. Separate concurring and dissenting opinion by Panelli, J., with Baxter, J., concurring. Separate dissenting opinion by Kennard, J.

OPINION BY: GEORGE, J.

OPINION

[*299] [**697] [***3] In this case, and in the companion case of Ford v. Gouin, post, page 339 [11 Cal.Rptr.2d 30, 834 P.2d 724], we face the question of the [*300] proper application of the “assumption of risk” doctrine in light of this court’s adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393]. Although the Li decision itself addressed this issue, subsequent Court of Appeal decisions have differed in their interpretation of Li‘s discussion of this point. We granted review to resolve the conflict among the Courts of Appeal.

I

We begin with a summary of the facts of this case, as set forth in the declarations and deposition transcripts submitted in support of and in opposition to defendant’s motion for summary judgment.

On January 25, 1987, the day of the 1987 Super Bowl football game, plaintiff Kendra Knight and defendant Michael Jewett, together with a number of other social acquaintances, attended a Super Bowl party at the home of a mutual friend. During half time of the Super Bowl, several guests decided to play an informal game of touch football on an adjoining dirt lot, using a “peewee” football. Each team had four or five players and included both women and men; plaintiff and defendant were on opposing teams. No rules were explicitly discussed before the game.

Five to ten minutes into the game, defendant ran into plaintiff during a play. According to plaintiff, at that point she told defendant “not to play so rough or I was going to have to stop playing.” Her declaration stated that “[defendant] seemed to acknowledge my statement and left me with the impression that he would play less rough prospectively.” In his deposition, defendant recalled that plaintiff had asked him to “be careful,” but did not remember plaintiff saying that she would stop playing.

On the very next play, plaintiff sustained the injuries that gave rise to the present lawsuit. As defendant recalled the incident, his team was on defense on that play, and he jumped up in an attempt to intercept a pass. He touched the ball but did not catch it, and in coming down he collided with plaintiff, knocking her over. When he landed, he stepped backward onto plaintiff’s right hand, injuring her hand and little finger.

Both plaintiff and Andrea Starr, another participant in the game who was on the [**698] [***4] same team as plaintiff, recalled the incident differently from defendant. According to their declarations, at the time plaintiff was injured, Starr already had caught the pass. Defendant was running toward Starr, when he ran into plaintiff from behind, knocked her down, and stepped on her hand. Starr also stated that, after knocking plaintiff down, defendant continued [*301] running until he tagged Starr, “which tag was hard enough to cause me to lose my balance, resulting in a twisting or spraining of my ankle.”

The game ended with plaintiff’s injury, and plaintiff sought treatment shortly thereafter. After three operations failed to restore the movement in her little finger or to relieve the ongoing pain of the injury, plaintiff’s finger was amputated. Plaintiff then instituted the present proceeding, seeking damages from defendant on theories of negligence and assault and battery.

After filing an answer, defendant moved for summary judgment. Relying on the Court of Appeal decision in Ordway v. Superior Court (1988) 198 Cal.App.3d 98 [243 Cal.Rptr. 536], defendant maintained that “reasonable implied assumption of risk” continues to operate as a complete defense after Li v. Yellow Cab Co., supra, 13 Cal.3d 804 (hereafter Li), and that plaintiff’s action was barred under that doctrine. In this regard, defendant asserted that “[b]y participating in [the touch football game that resulted in her injury], plaintiff … impliedly agreed to reduce the duty of care owed to her by defendant … to only a duty to avoid reckless or intentionally harmful conduct,” and that the undisputed facts established both that he did not intend to injure plaintiff and that the acts of defendant which resulted in plaintiff’s injury were not reckless. In support of his motion, defendant submitted his own declaration setting forth his version of the incident, as summarized above, and specifically stating that he did not intend to step on plaintiff’s hand or to injure her. Defendant also attached a copy of plaintiff’s deposition in which plaintiff acknowledged that she frequently watched professional football on television and thus was generally familiar with the risks associated with the sport of football, and in which she conceded that she had no reason to believe defendant had any intention of stepping on her hand or injuring her.

In opposing the summary judgment motion, plaintiff first noted that, in contrast to the Ordway decision, the Court of Appeal decision in Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162 [191 Cal.Rptr. 578] specifically held that the doctrine of “reasonable implied assumption of risk” had been eliminated by the adoption of comparative fault principles, and thus under Segoviano the basic premise of defendant’s summary judgment motion was untenable and plaintiff was entitled to have the lawsuit proceed under comparative fault principles.

Furthermore, plaintiff maintained that even were the trial court inclined to follow the Ordway decision, there were numerous disputed material facts that precluded the granting of summary judgment in favor of defendant. First, plaintiff noted there was a clear dispute between defendant’s and [*302] plaintiff’s recollection of the specific facts of the play in which plaintiff was injured, and, in particular, of the details of defendant’s conduct that caused plaintiff’s injury. She claimed that under the facts as described by plaintiff and Starr, defendant’s conduct was at least reckless.

Second, plaintiff vigorously disputed defendant’s claim that, by participating in the game in question, she impliedly had agreed to reduce the duty of care, owed to her by defendant, to only a duty to avoid reckless or intentionally harmful conduct. Plaintiff maintained in her declaration that in view of the casual, social setting, the circumstance that women and men were joint participants in the game, and the rough dirt surface on which the game was played, she anticipated from the outset that it was the kind of “mock” football game in which there would be no forceful pushing or hard hitting or shoving. Plaintiff also asserted that the declarations and depositions of other players in the game, included in her opposition papers, demonstrated that the other participants, including defendant, [**699] [***5] shared her expectations and assumptions that the game was to be a “mellow” one and not a serious, competitive athletic event. 1 Plaintiff claimed that there had been no injuries during touch football games in which she had participated on previous occasions, and that in view of the circumstances under which the game was played, “[t]he only type of injury which I reasonably anticipated would have been something in the nature of a bruise or bump.”

1 The portion of defendant’s deposition attached to plaintiff’s opposition included the following passage:

“Q: …. [F]rom your perspective–and I asked this same question of both of your friends yesterday–is the standard of care in which you were going to be dealing with people out there in the play field different, in your opinion, when you’re playing in that kind of a game, that is, the one that happened on that day versus if you’re out there playing in the exact same place and with a bunch of guys and no girls.

“A: Yeah, it would be different. Yes.

“Q: So, theoretically, you should be much more careful when the women are out there than if it was a bunch of guys?

“A: Right.”

In addition, in further support of her claim that there was at least a factual dispute as to whether she impliedly had agreed to assume the risk of injury from the type of rough play defendant assertedly engaged in, plaintiff relied on the portion of her declaration in which she stated that (1) she specifically had told defendant, immediately prior to the play in question, that defendant was playing too rough and that she would not continue to play in the game if he was going to continue such conduct, and (2) defendant had given plaintiff the impression he would refrain from such conduct. Plaintiff maintained that her statement during the game established that a disputed factual issue existed as to whether she voluntarily had chosen to assume the risks of the type of conduct allegedly engaged in by defendant.

[*303] In his reply to plaintiff’s opposition, defendant acknowledged there were some factual details–“who ran where, when and how”–that were in dispute. He contended, however, that the material facts were not in dispute, stating those facts were “that plaintiff was injured in the context of playing touch football.”

After considering the parties’ submissions, the trial court granted defendant’s motion for summary judgment. On appeal, the Court of Appeal, recognizing the existing conflict in appellate court decisions with regard to the so-called “reasonable implied assumption of risk” doctrine, concluded that Ordway v. Superior Court, supra, 198 Cal.App.3d 98, rather than Segoviano v. Housing Authority, supra, 143 Cal.App.3d 162, should be followed, and further concluded that under the Ordway decision there were no disputed material facts to be determined. The Court of Appeal, holding that the trial court properly had granted summary judgment in favor of defendant, affirmed the judgment.

As noted, we granted review to resolve the conflict among Court of Appeal decisions as to the proper application of the assumption of risk doctrine in light of the adoption of comparative fault principles in Li, supra, 13 Cal.3d 804.

II

As every leading tort treatise has explained, the assumption of risk doctrine long has caused confusion both in definition and application, because the phrase “assumption of risk” traditionally has been used in a number of very different factual settings involving analytically distinct legal concepts. (See, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 68, pp. 480-481; 4 Harper et al., The Law of Torts (2d ed. 1986) § 21.0, pp. 187-189; Schwartz, Comparative Negligence (2d ed. 1986) § 9.1, p. 154; 3 Speiser et al., The American Law of Torts (1986) § 12:46- 12:47, pp. 636-640.) Indeed, almost a half-century ago, Justice Frankfurter described the term “assumption of risk” as a classic example of a felicitous phrase, “undiscriminatingly used to express different and sometimes contradictory ideas,” and whose uncritical use “bedevils the law.” ( Tiller v. Atlantic Coast Line R. Co. (1943) 318 U.S. 54, 68 [87 L.Ed. 610, 618, 63 [***6] S. [**700] Ct. 444, 143 A.L.R. 967] (conc. opn. of Frankfurter, J.).)

In some settings–for example, most cases involving sports-related injuries–past assumption of risk decisions largely have been concerned with defining the contours of the legal duty that a given class of defendants–for example, owners of baseball stadiums or ice hockey rinks–owed to an [*304] injured plaintiff. (See, e.g., Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 729 [46 P.2d 144] [baseball stadium owner]; [***16] Shurman v. Fresno Ice Rink (1949) 91 Cal.App.2d 469, 474-477 [205 P.2d 77] [hockey rink owner].) In other settings, the assumption of risk terminology historically was applied to situations in which it was clear that the defendant had breached a legal duty of care to the plaintiff, and the inquiry focused on whether the plaintiff knowingly and voluntarily had chosen to encounter the specific risk of harm posed by the defendant’s breach of duty. (See, e.g., Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271 [32 Cal.Rptr. 193, 383 P.2d 777] [plaintiff hit in eye by flying piece of metal in area adjacent to drilling]; Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161-162 [265 P.2d 904] [plaintiff injured on wet sidewalk on store premises].)

Prior to the adoption of comparative fault principles of liability, there often was no need to distinguish between the different categories of assumption of risk cases, because if a case fell into either category, the plaintiff’s recovery was totally barred. With the adoption of comparative fault, however, it became essential to differentiate between the distinct categories of cases that traditionally had been lumped together under the rubric of assumption of risk. This court’s seminal comparative fault decision in Li, supra, 13 Cal.3d 804, explicitly recognized the need for such differentiation, and attempted to explain which category of assumption of risk cases should be merged into the comparative fault system and which category should not. Accordingly, in considering the current viability of the assumption of risk doctrine in California, our analysis necessarily begins with the Li decision.

In Li, our court undertook a basic reexamination of the common law doctrine of contributory negligence. As Li noted, contributory negligence generally has been defined as ” ‘conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.’ ” ( Li, supra, 13 Cal.3d at p. 809, quoting Rest.2d Torts, § 463.) Prior to Li, the common law rule was that ” ‘[e]xcept where the defendant has the last clear chance, the plaintiff’s contributory negligence bars recovery against a defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him.’ ” ( Li, supra, at pp. 809-810, italics added, quoting Rest.2d Torts, § 467.)

In Li, supra, 13 Cal.3d 804, we observed that “[i]t is unnecessary for us to catalogue the enormous amount of critical comment that has been directed over the years against the ‘all-or-nothing’ approach of the doctrine of contributory negligence. The essence of that criticism has been constant and [*305] clear: the doctrine is inequitable in its operation because it fails to distribute responsibility in proportion to fault …. The basic objection to the doctrine–grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability–remains irresistible to reason and all intelligent notions of fairness.” (Id. at pp. 810-811, italics added.) After taking additional note of the untoward practical consequences of the doctrine in the litigation of cases and the increasing rejection of the doctrine in other jurisdictions, the Li court concluded that “[w]e are likewise persuaded that logic, practical experience, and fundamental justice counsel against the retention of the doctrine rendering contributory negligence a complete bar to recovery–and that it should be replaced in this [**701] state by a [***7] system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault.” (Id. at pp. 812-813.)

After determining that the “all-or-nothing” contributory negligence doctrine should be replaced by a system of comparative negligence, the Li court went on to undertake a rather extensive discussion of the effect that the adoption of comparative negligence would have on a number of related tort doctrines, including the doctrines of last clear chance and assumption of risk. ( Li, supra, 13 Cal.3d at pp. 823-826.)

Under the last clear chance doctrine, a defendant was rendered totally liable for an injury, even though the plaintiff’s contributory negligence had played a role in the accident, when the defendant had the “last clear chance” to avoid the accident. With regard to that doctrine, the Li decision, supra, 13 Cal.3d 804, observed: “Although several states which apply comparative negligence concepts retain the last clear chance doctrine [citation], the better reasoned position seems to be that when true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the ‘all-or-nothing’ rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. [Citations.]” (Id. at p. 824.) Accordingly, the court concluded that the doctrine should be “subsumed under the general process of assessing liability in proportion to fault.” (Id. at p. 826.)

(1a) With respect to the effect of the adoption of comparative negligence on the assumption of risk doctrine–the issue before us today–the Li decision, supra, 13 Cal.3d 804, stated as follows: “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a [*306] specific known risk imposed by a defendant’s negligence, plaintiff’s conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence …. Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant’s duty of care.’ ( Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245-246 [53 Cal.Rptr. 545, 418 P.2d 153]; see also Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 368-369 [104 Cal.Rptr. 566]; see generally, 4 Witkin, Summary of Cal. Law [(8th ed. 1974)], Torts, § 723, pp. 3013-3014; 2 Harper & James, The Law of Torts [(1st ed. 1956)] § 21.1, pp. 1162-1168; cf. Prosser, Torts [(4th ed. 1971)] § 68, pp. 439-441.) We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. (See generally, Schwartz, [Comparative Negligence (1st ed. 1974)] ch. 9, pp. 153-175.)” ( Li. supra, 13 Cal.3d at pp. 824-825, original italics.)

As this passage indicates, the Li decision, supra, 13 Cal.3d 804, clearly contemplated that the assumption of risk doctrine was to be partially merged or subsumed into the comparative negligence scheme. Subsequent Court of Appeal decisions have disagreed, however, in interpreting Li, as to what category of assumption of risk cases would be merged into the comparative negligence scheme.

A number of appellate decisions, focusing on the language in Li indicating that assumption of risk is in reality a form [**702] [***8] of contributory negligence “where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence” (13 Cal.3d at p. 824), have concluded that Li properly should be interpreted as drawing a distinction between those assumption of risk cases in which a plaintiff “unreasonably” encounters a known risk imposed by a defendant’s negligence and those assumption of risk cases in which a plaintiff “reasonably” encounters a known risk imposed by a defendant’s negligence. (See, e.g., Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 103-105.) These decisions interpret Li as subsuming into the comparative fault scheme those cases in which the plaintiff acts unreasonably in encountering a specific known risk, but retaining the assumption of risk doctrine as a complete bar to recovery in those cases in which the plaintiff acts reasonably in encountering such a risk. Although aware of the apparent anomaly of a rule under which a plaintiff who acts reasonably is completely barred from recovery while a plaintiff who acts unreasonably [*307] only has his or her recovery reduced, these decisions nonetheless have concluded that this distinction and consequence were intended by the Li court. 2

2 In Ordway v. Superior Court, supra, 198 Cal.App.3d 98, the court suggested that the differentiation in the treatment accorded reasonable and unreasonable plaintiffs under an approach viewing “reasonable implied assumption of risk” as a complete bar to recovery was only “superficially anomalous” (Id. at p. 104), and could be explained by reference to “the expectation of the defendant. He or she is permitted to ignore reasonably assumed risks and is not required to take extraordinary precautions with respect to them. The defendant must, however, anticipate that some risks will be unreasonably undertaken, and a failure to guard against these may result in liability.” (Id. at p. 105.)

Even when the matter is viewed from the defendant’s perspective, however, this suggested dichotomy is illogical and untenable. From the standpoint of a potential defendant, it is far more logical to require that the defendant take precautions with respect to risks that the defendant reasonably can foresee being undertaken, than it would be to impose liability only for risks that the defendant is less likely to anticipate will be encountered.

Ordway also attempted to explain the anomaly by reformulating the distinction between reasonable and unreasonable assumption of risk as one between plaintiffs who make a “knowing and intelligent” choice and those who act “negligent[ly] or careless[ly]” ( Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 105), and the dissenting opinion cites this reformulated terminology with approval. (See dis. opn. by Kennard, J., post, p. 332.) The Li decision, however, specifically subsumed within comparative fault those assumption of risk cases in which a defendant ” ‘unreasonably undertakes to encounter a specific known risk’ ” ( Li, supra, 13 Cal.3d 804, 824, italics omitted and added), i.e., cases in which a defendant makes a knowing, but unreasonable, choice to undertake a risk. Indeed, in recasting the “unreasonable” assumption of risk category to include only those cases in which the plaintiff merely was careless and did not act with actual knowledge of the risk, Ordway inadvertently redefined the unreasonable assumption of risk category out of existence. The pre-Li decisions clearly held that where a plaintiff was injured as the result of a defendant’s breach of duty, the assumption of risk doctrine applied only to those instances in which the plaintiff actually knew of and appreciated the specific risk and nonetheless chose to encounter the risk. (See, e.g., Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271 ["Actual, and not merely constructive, knowledge of the danger is required."].)

In our view, these decisions–regardless whether they reached the correct result on the facts at issue–have misinterpreted Li by suggesting that our decision contemplated less favorable legal treatment for a plaintiff who reasonably encounters a known risk than for a plaintiff who unreasonably encounters such a risk. Although the relevant passage in Li indicates that the assumption of risk doctrine would be merged into the comparative fault scheme in instances in which a plaintiff ” ‘unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence’ ” (13 Cal.3d at p. 824), nothing in this passage suggests that the assumption of risk doctrine should survive as a total bar to the plaintiff’s recovery whenever a plaintiff acts reasonably in encountering such a risk. Instead, this portion of our opinion expressly contrasts the category of assumption of risk cases which ” ‘involve contributory negligence’ ” (and which therefore [**703] [***9] should be merged into the comparative fault scheme) with those assumption of risk [*308] cases which involve ” ‘a reduction of defendant’s duty of care.’ ” (Id. at p. 825.)

Indeed, particularly when the relevant passage in Li, supra, 13 Cal.3d at pages 824-825, is read as a whole and in conjunction with the authorities it cites, we believe it becomes clear that the distinction in assumption of risk cases to which the Li court referred in this passage was not a distinction between instances in which a plaintiff unreasonably encounters a known risk imposed by a defendant’s negligence and instances in which a plaintiff reasonably encounters such a risk. Rather, the distinction to which the Li court referred was between (1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk–the category of assumption of risk that the legal commentators generally refer to as “primary assumption of risk”–and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty–what most commentators have termed “secondary assumption of risk.” 3 Properly interpreted, the relevant passage in Li provides that the category of assumption of risk cases that is not merged into the comparative negligence system and in which the plaintiff’s recovery continues to be completely barred involves those cases in which the defendant’s conduct did not breach a legal duty of care to the plaintiff, i.e., “primary assumption of risk” cases, whereas cases involving “secondary assumption of risk” properly are merged into the comprehensive comparative fault system adopted in Li. 4

3 The introductory passage from the Harper and James treatise on The Law of Torts, that was cited with approval in Li, stated in this regard: “The term assumption of risk has led to no little confusion because it is used to refer to at least two different concepts, which largely overlap, have a common cultural background, and often produce the same legal result. But these concepts are nevertheless quite distinct rules involving slightly different policies and different conditions for their application. (1) In its primary sense the plaintiff’s assumption of a risk is only the counterpart of the defendant’s lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria. (2) A plaintiff may also be said to assume a risk created by defendant’s breach of duty towards him, when he deliberately chooses to encounter that risk. In such a case, except possibly in master and servant cases, plaintiff will be barred from recovery only if he was unreasonable in encountering the risk under the circumstances. This is a form of contributory negligence. Hereafter we shall call this ‘assumption of risk in a secondary sense.’ ” (2 Harper & James, The Law of Torts (1st ed. 1956) § 21.1, p. 1162, fns. omitted, cited in Li, supra, 13 Cal.3d 804, 825.)

4 Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk distinct from both primary and secondary assumption of risk (see, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 68, p. 496), cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk. Thus in this respect express assumption of risk properly can be viewed as analogous to primary assumption of risk. One leading treatise describes express assumption of risk in the following terms: “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone …. The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” (Prosser & Keeton on Torts, supra, § 68, pp. 480-481, fn. omitted, second italics added.)

Since Li, California cases uniformly have recognized that so long as an express assumption of risk agreement does not violate public policy (see, e.g., Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 95-101 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]), such an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. (See, e.g., Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597-602 [250 Cal.Rptr. 299], and cases cited.)

[*309] Although the difference between the “primary assumption of risk”/”secondary [**704] [***10] assumption of risk” nomenclature and the “reasonable implied assumption of risk”/”unreasonable implied assumption of risk” terminology embraced in many of the recent Court of Appeal decisions may appear at first blush to be only semantic, the significance extends beyond mere rhetoric. First, in “primary assumption of risk” cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in “secondary assumption of risk” cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable. Third and finally, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport. (2) (See fn. 5) For these reasons, use of the “reasonable implied assumption of risk”/”unreasonable implied assumption of risk” terminology, as a means of differentiating between the cases in which a plaintiff is barred from bringing an action and those in which he or she is not barred, is more misleading than helpful. 5

5 In addition to the sports setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the “firefighter’s rule.” (See Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 437 [218 Cal.Rptr. 256].) In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. (See, e.g., Walters v. Sloan (1977) 20 Cal.3d 199, 202 [142 Cal.Rptr. 152, 571 P.2d 609].) Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. (See, e.g., Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719-721 [181 Cal.Rptr. 311]; Nelson v. Hall (1985) 165 Cal.App.3d 709, 714 [211 Cal.Rptr. 668]. See generally 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 739, pp. 69-70 [discussing rule as one illustration of duty approach]; Anicet v. Gant (Fla.Dist.Ct.App. 1991) 580 So.2d 273, 276 ["a person specifically hired to encounter and combat particular dangers is owed no independent tort duty by those who have created those dangers ...."].) Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk. This example again demonstrates that primary assumption of risk is not the same as “reasonable implied assumption of risk.”

[*310] (1b) Our reading of Li, supra, 13 Cal.3d 804, insofar as it draws a distinction between assumption of risk cases in which the defendant has not breached any legal duty to the plaintiff and those in which the defendant has breached a legal duty, is supported not only by the language of Li itself and the authorities it cites, but also, and perhaps most significantly, by the fundamental principle that led the Li court to replace the all-or-nothing contributory negligence defense with a comparative fault scheme. In “primary assumption of risk” cases, it is consistent with comparative fault principles totally to bar a plaintiff from pursuing a cause of action, because when the defendant has not breached a legal duty of care to the plaintiff, the defendant has not committed any conduct which would warrant the imposition of any liability whatsoever, and thus there is no occasion at all for invoking comparative fault principles. (See Prosser & Keeton on Torts, supra, § 68, at pp. 496-497.) By contrast, in the “secondary assumption of risk” context, the defendant has breached a duty of care owed to the plaintiff. When a risk of harm is created or imposed by a defendant’s breach of duty, and a plaintiff who chose to encounter the risk is injured, comparative fault principles preclude automatically placing [**705] [***11] all of the loss on the plaintiff, because the injury in such a case may have been caused by the combined effect of the defendant’s and the plaintiff’s culpable conduct. To retain assumption of risk as a complete defense in such a case would fly in the face of Li‘s basic holding that when both parties are partially at fault for an injury, a rule which places all of the loss on one of the parties is inherently inequitable. (See id. at pp. 497-498.)

Thus, just as the court in Li reasoned it would be improper to retain the last clear chance doctrine as a means of imposing all liability on a defendant in cases in which the defendant is aware of the risk of harm created by the plaintiff’s negligence but fails to take the “last clear chance” to avoid the injury ( Li, supra, 13 Cal.3d at p. 824), we believe the Li court similarly recognized that, in the assumption of risk context, it would be improper to [*311] impose all responsibility on a plaintiff who is aware of a risk of harm created by the defendant’s breach of duty but fails to avert the harm. In both instances, comparative fault principles call for a sharing of the burden of liability.

The dissenting opinion suggests, however, that, even when a defendant has breached its duty of care to the plaintiff, a plaintiff who reasonably has chosen to encounter a known risk of harm imposed by such a breach may be totally precluded from recovering any damages, without doing violence to comparative fault principles, on the theory that the plaintiff, by proceeding in the face of a known risk, has “impliedly consented” to any harm. (See dis. opn. by Kennard, J., post, pp. 331-333.) For a number of reasons, we conclude this contention does not withstand analysis.

First, the argument that a plaintiff who proceeds to encounter a known risk has “impliedly consented” to absolve a negligent defendant of liability for any ensuing harm logically would apply as much to a plaintiff who unreasonably has chosen to encounter a known risk, as to a plaintiff who reasonably has chosen to encounter such a risk. As we have seen, however, Li explicitly held that a plaintiff who ” ‘unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence’ ” ( Li, supra, 13 Cal.3d at p. 824) is not completely barred from recovery; instead, the recovery of such a plaintiff simply is reduced under comparative fault principles. Thus, the dissenting opinion’s implied consent argument is irreconcilable with Li itself.

Second, the implied consent rationale rests on a legal fiction that is untenable, at least as applied to conduct that represents a breach of the defendant’s duty of care to the plaintiff. It may be accurate to suggest that an individual who voluntarily engages in a potentially dangerous activity or sport “consents to” or “agrees to assume” the risks inherent in the activity or sport itself, such as the risks posed to a snow skier by moguls on a ski slope or the risks posed to a water skier by wind-whipped waves on a lake. But it is thoroughly unrealistic to suggest that, by engaging in a potentially dangerous activity or sport, an individual consents to (or agrees to excuse) a breach of duty by others that increases the risks inevitably posed by the activity or sport itself, even where the participating individual is aware of the possibility that such misconduct may occur.

A familiar example may help demonstrate this point. Although every driver of an automobile is aware that driving is a potentially hazardous activity and that inherent in the act of driving is the risk that he or she will be injured by the negligent driving of another, a person who voluntarily [*312] chooses to drive does not thereby “impliedly consent” to being injured by the negligence of another, nor has such a person “impliedly excused” others from performing their duty to use due care for the driver’s safety. Instead, the driver reasonably expects that if he or she is injured by another’s negligence, i.e., by the breach of the other person’s duty to use due care, the driver will be entitled to compensation for his or her injuries. Similarly, although a patient who undergoes elective surgery is aware that inherent in such an operation is the risk of injury in the event the surgeon [**706] [***12] is negligent, the patient, by voluntarily encountering such a risk, does not “impliedly consent” to negligently inflicted injury or “impliedly agree” to excuse the surgeon from a normal duty of care, but rather justifiably expects that the surgeon will be liable in the event of medical malpractice.

Thus, there is no merit to the dissenting opinion’s general claim that simply because a person is aware an activity involves a risk of harm that may arise from another’s negligence and voluntarily proceeds to participate in that activity despite such knowledge, that person should be barred from obtaining any recovery on the theory that he or she impliedly consented to the risk of harm. As we shall discuss in part III, legal liability for an injury which occurs during a sporting event is significantly affected by the assumption of risk doctrine, but only because the doctrine has been utilized in framing the duty of care owed by a defendant in the context of a sporting event, and not because the plaintiff in such a case has, in any realistic sense of the term, “consented” to relieve the defendant of liability.

Third, the dissenting opinion’s claim that the category of cases in which the assumption of risk doctrine operates to bar a plaintiff’s cause of action after Li properly should be gauged on the basis of an implied consent analysis, rather than on the duty analysis we have described above, is, in our view, untenable for another reason. In support of its implied consent theory, the dissenting opinion relies on a number of pre-Li cases, which arose in the “secondary assumption of risk” context, and which held that, in such a context, application of the assumption of risk doctrine was dependent on proof that the particular plaintiff subjectively knew, rather than simply should have known, of both the existence and magnitude of the specific risk of harm imposed by the defendant’s negligence. (See Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271- 275; Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161-162.) Consequently, as the dissenting opinion acknowledges, were its implied consent theory to govern application of the assumption of risk doctrine in the sports setting, the basic liability of a defendant who engages in a sport would depend on variable factors that the defendant frequently would have no way of ascertaining (for example, the particular plaintiff’s subjective knowledge and expectations), rather than on [*313] the nature of the sport itself. As a result, there would be drastic disparities in the manner in which the law would treat defendants who engaged in precisely the same conduct, based on the often unknown, subjective expectations of the particular plaintiff who happened to be injured by the defendant’s conduct.

Such an approach not only would be inconsistent with the principles of fairness underlying the Li decision, but also would be inimical to the fair and efficient administration of justice. If the application of the assumption of risk doctrine in a sports setting turned on the particular plaintiff’s subjective knowledge and awareness, summary judgment rarely would be available in such cases, for, as the present case reveals, it frequently will be easy to raise factual questions with regard to a particular plaintiff’s subjective expectations as to the existence and magnitude of the risks the plaintiff voluntarily chose to encounter. (3) By contrast, [HN1] the question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury. (See, e.g., 6 Witkin, Summary of Cal. Law, supra, Torts, § 748, pp. 83-86 and cases cited.) Thus, the question of assumption of risk is much more amenable to resolution by summary judgment under a duty analysis than under the dissenting opinion’s suggested implied consent approach.

(1c) An amicus curiae in the companion case has questioned, on a separate ground, the duty approach to the post-Li assumption of risk doctrine, suggesting that if a plaintiff’s action may go forward whenever a defendant’s breach of duty has played some role, however minor, in a plaintiff’s [**707] [***13] injury, a plaintiff who voluntarily engages in a highly dangerous sport–for example, skydiving or mountain climbing–will escape any responsibility for the injury so long as a jury finds that the plaintiff was not “unreasonable” in engaging in the sport. This argument rests on the premise that, under comparative fault principles, a jury may assign some portion of the responsibility for an injury to a plaintiff only if the jury finds that the plaintiff acted unreasonably, but not if the jury finds that the plaintiff knowingly and voluntarily, but reasonably, chose to engage in a dangerous activity. Amicus curiae contends that such a rule frequently would permit voluntary risk takers to avoid all responsibility for their own actions, and would impose an improper and undue burden on other participants.

Although we agree with the general thesis of amicus curiae’s argument that persons generally should bear personal responsibility for their own actions, the suggestion that a duty approach to the doctrine of assumption of risk is inconsistent with this thesis rests on a mistaken premise. (4) Past [*314] California cases have made it clear that [HN2] the “comparative fault” doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an “equitable apportionment or allocation of loss.” (See Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 734-742 [144 Cal.Rptr. 380, 575 P.2d 1162]; Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 328-332 [146 Cal.Rptr. 550, 579 P.2d 441]; Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 804, fn. 7 [251 Cal.Rptr. 202, 760 P.2d 399].)

(1d) Accordingly, contrary to amicus curiae’s assumption, we believe that under California’s comparative fault doctrine, a jury in a “secondary assumption of risk” case would be entitled to take into consideration a plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable, in determining whether the plaintiff properly should bear some share of responsibility for the injuries he or she suffered. (See, e.g., Kirk v. Washington State University (1987) 109 Wn.2d 448 [746 P.2d 285, 290-291]. See generally Schwartz, Comparative Negligence, supra, § 9.5, p. 180; Diamond, Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine (1991) 52 Ohio St. L.J. 717, 748-749.) Thus, [HN3] in a case in which an injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.

It may be helpful at this point to summarize our general conclusions as to the current state of the doctrine of assumption of risk in light of the adoption of comparative fault principles in Li, supra, 13 Cal.3d 804, general conclusions that reflect the view of a majority of the justices of the court (i.e., the three justices who have signed this opinion and Justice Mosk (see conc. and dis. opn. by Mosk, J., post, p. 321)). 6 [HN4] In cases involving “primary assumption of [**708] [***14] risk”–where, by virtue of the nature of the activity and the parties’ [*315] relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery. [HN5] In cases involving “secondary assumption of risk”–where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty–the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.

6 Although Justice Mosk agrees that, in this context, a defendant’s liability should be analyzed under a duty analysis, he is of the view that the “primary” and “secondary” assumption of risk terminology is potentially confusing and would prefer entirely to eliminate the doctrine of implied assumption of risk as a bar to recovery and simply to apply comparative fault principles to determine liability. (See conc. and dis. opn. by Mosk, J., post, pp. 321-322.) Because the Li decision, supra, 13 Cal.3d 804, 824-825, indicated that the preexisting assumption of risk doctrine was to be only partially merged into the comparative fault system, the analysis set forth in the present opinion (distinguishing between primary and secondary assumption of risk) in our view more closely reflects the Li holding than does Justice Mosk’s proposal.

Accordingly, in determining the propriety of the trial court’s grant of summary judgment in favor of the defendant in this case, our inquiry does not turn on the reasonableness or unreasonableness of plaintiff’s conduct in choosing to subject herself to the risks of touch football or in continuing to participate in the game after she became aware of defendant’s allegedly rough play. Nor do we focus upon whether there is a factual dispute with regard to whether plaintiff subjectively knew of, and voluntarily chose to encounter, the risk of defendant’s conduct, or impliedly consented to relieve or excuse defendant from any duty of care to her. Instead, our resolution of this issue turns on whether, in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff. We now turn to that question.

III

[HN6] As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ. Code, § 1714 .) (5) Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. (See, e.g., Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. (6a) Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. (See generally Annot. (1987) 55 A.L.R.4th 632.) In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.

(7a) [HN7] Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well [*316] established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. (6b) Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. (See generally Annot. (1979) 95 A.L.R.3d 203.)

(7b) In some situations, however, the careless conduct of others is treated as an “inherent risk” of a sport, thus barring recovery by the plaintiff. For example, numerous cases recognize that in a game of baseball, a player generally cannot recover if he or she is hit and injured by a carelessly thrown ball (see, e.g., Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 734-735 [289 P.2d 282]), and that in a game of basketball, recovery is not permitted for an injury caused by a carelessly extended elbow (see, e.g., Thomas v. Barlow (1927) 5 N.J. Misc. 764 [138 A. 208]). The divergent results of the foregoing cases lead naturally to the question how courts are to determine when careless conduct of another properly should [***15] be considered an “inherent [**709] risk” of the sport that (as a matter of law) is assumed by the injured participant.

Contrary to the implied consent approach to the doctrine of assumption of risk, discussed above, the duty approach provides an answer which does not depend on the particular plaintiff’s subjective knowledge or appreciation of the potential risk. Even where the plaintiff, who falls while skiing over a mogul, is a total novice and lacks any knowledge of skiing whatsoever, the ski resort would not be liable for his or her injuries. (See Brown v. San Francisco Baseball Club (1950) 99 Cal.App.2d 484, 488- 492 [222 P.2d 19] [baseball spectator's alleged ignorance of the game did not warrant imposing liability on stadium owner for injury caused by a carelessly thrown ball].) And, on the other hand, even where the plaintiff actually is aware that a particular ski resort on occasion has been negligent in maintaining its towropes, that knowledge would not preclude the skier from recovering if he or she were injured as a result of the resort’s repetition of such deficient conduct. In the latter context, although the plaintiff may have acted with knowledge of the potential negligence, he or she did not consent to such negligent conduct or agree to excuse the resort from liability in the event of such negligence.

Rather than being dependent on the knowledge or consent of the particular plaintiff, resolution of the question of the defendant’s liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to [*317] protect the plaintiff against a particular risk of harm. As already noted, the nature of a defendant’s duty in the sports context depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant’s role in, or relationship to, the sport.

The latter point is demonstrated by a review of one of the numerous cases involving an injury sustained by a spectator at a baseball game. In Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733 [81 P.2d 625], a baseball spectator was injured when, walking in the stands between home plate and first base during a game, she was hit by an accidentally thrown bat. She sued both the player who threw the bat and the baseball stadium owner. The jury returned a verdict in favor of the player, but found the stadium owner liable. On appeal, the Court of Appeal affirmed.

Had the Ratcliff court utilized an implied consent analysis, the court would have looked only to the knowledge of the particular plaintiff (the spectator) to determine whether the risk of being hit by an accidentally thrown bat was an inherent risk of the sport of baseball assumed by the plaintiff, and would have treated the plaintiff’s action against both defendants similarly with regard to such risk. The Ratcliff court did not analyze the case in that manner, however. Instead, the court implicitly recognized that two different potential duties were at issue–(1) the duty of the ballplayer to play the game without carelessly throwing his bat, and (2) the duty of the stadium owner to provide a reasonably safe stadium with regard to the relatively common (but particularly dangerous) hazard of a thrown bat. Because each defendant’s liability rested on a separate duty, there was no inconsistency in the jury verdict absolving the batter of liability but imposing liability on the stadium owner for its failure to provide the patron “protection from flying bats, at least in the area where the greatest danger exists and where such an occurrence is reasonably to be expected.” ( Ratcliff v. San Diego Baseball Club, supra, 27 Cal.App.2d at p. 736.)

Other cases also have analyzed in a similar fashion the duty of the owner of a ballpark or ski resort, in the process defining the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport. (See, e.g., Quinn v. Recreation Park Assn., supra, 3 Cal.2d 725, 728-729 [discussing separately the potential liability of a player and a baseball stadium owner for injury to a spectator]; [**710] Shurman v. Fresno Ice Rink, supra, 91 Cal.App.2d 469, 474-477 [discussing duty owed by owner of ice hockey rink to spectators].) [*318]

Even a cursory review of the numerous sports injury cases reveals the diverse categories of defendants whose alleged misconduct may be at issue in such cases. Thus, for example, suits have been brought against owners of sports facilities such as baseball stadiums and ski resorts (see, e.g., Quinn v. Recreation Park Assn., supra, 3 Cal.2d 725; Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111 [266 Cal.Rptr. 749]), against manufacturers and reconditioners of sporting equipment (see, e.g., Holdsworth v. Nash Mfg., Inc. (1987) 161 Mich.App. 139 [409 N.W.2d 764]; Gentile v. MacGregor Mfg. Co. (1985) 201 N.J.Super. 612 [493 A.2d 647]), against sports instructors and coaches (see, e.g., Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399 [239 Cal.Rptr. 916]; Morris v. Union High School Dist. A (1931) 160 Wash. 121 [294 P. 998]), and against coparticipants (see, e.g., [**716] Tavernier v. Maes (1966) 242 Cal.App.2d 532 [51 Cal.Rptr. 575]), alleging that such persons, either by affirmative misconduct or by a failure to act, caused or contributed to the plaintiff’s injuries. These cases demonstrate that in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.

In the present case, defendant was a participant in the touch football game in which plaintiff was engaged at the time of her injury, and thus the question before us involves the circumstances under which a participant in such a sport may be held liable for an injury sustained by another participant.

(8a) The overwhelming majority of the cases, both within and outside California, that have addressed the issue of coparticipant liability in such a sport, have concluded that [HN8] it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport–for example, for an injury resulting from a carelessly thrown ball or bat during a baseball game–and that liability properly may be imposed on a participant only when he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport. (See, e.g., Gauvin v. Clark (1989) 404 Mass. 450 [537 N.E.2d 94, 96-97] and cases cited.)

In reaching the conclusion that a coparticipant’s duty of care should be limited in this fashion, the cases have explained that, in the heat of an active sporting event like baseball or football, a participant’s normal energetic conduct often includes accidentally careless behavior. The courts have concluded that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. The cases have recognized that, in such a sport, even when a participant’s conduct violates a rule of the game and [*319] may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.

A sampling of the cases that have dealt with the question of the potential tort liability of such sports participants is instructive. In Tavernier v. Maes, supra, 242 Cal.App.2d 532, for example, the Court of Appeal upheld a verdict denying recovery for an injury sustained by the plaintiff second baseman as an unintended consequence of the defendant baserunner’s hard slide into second base during a family picnic softball game. Similarly, in Gaspard v. Grain Dealers Mutual Insurance Company (La.Ct.App. 1961) 131 So.2d 831, the plaintiff baseball player was denied recovery when he was struck on the head by a bat which accidentally flew out of the hands of the defendant batter during a school game. (See also Gauvin v. Clark, supra, 404 Mass. 450 [537 N.E.2d 94, 96-97] [plaintiff hockey player injured when hit [**711] [***17] with hockey stick by opposing player; court held that defendant’s liability should be determined by whether he acted “with reckless disregard of safety”]; Marchetti v. Kalish (1990) 53 Ohio.St.3d 95 [559 N.E.2d 699, 703] [child injured while playing "kick the can"; "we join the weight of authority ... and require that before a party may proceed with a cause of action involving injury resulting from recreational or sports activity, reckless or intentional conduct must exist"]; Kabella v. Bouschelle (1983) 100 N.M. 461 [672 P.2d 290, 294] [plaintiff injured in informal tackle football game; court held that "a cause of action for personal injuries between participants incurred during athletic competition must be predicated upon recklessness or intentional conduct, 'not mere negligence' "]; Ross v. Clouser (Mo. 1982) 637 S.W.2d 11, 13-14 [plaintiff third baseman injured in collision with baserunner; court held that "a cause of action for personal injuries incurred during athletic competition must be predicated on recklessness, not mere negligence"]; Moe v. Steenberg (1966) 275 Minn. 448 [147 N.W.2d 587, 33 A.L.R.3d 311] [plaintiff ice skater denied recovery for injury incurred when another skater, who was skating backwards, accidentally tripped over her after she had fallen on the ice]; Thomas v. Barlow, supra, 5 N.J. Misc. 764 [138 A. 208] [recovery denied when appellate court concluded that plaintiff's injury, incurred during a basketball game, resulted from an accidental contact with a member of the opposing team].)

By contrast, in Griggas v. Clauson (1955) 6 Ill.App.2d 412 [128 N.E.2d 363], the court upheld liability imposed on the defendant basketball player who, during a game, wantonly assaulted a player on the opposing team, apparently out of frustration with the progress of the game. And, in Bourque v. Duplechin (La.Ct.App. 1976) 331 So.2d 40, the court affirmed a judgment [*320] imposing liability for an injury incurred during a baseball game when the defendant baserunner, in an ostensible attempt to break up a double play, ran into the plaintiff second baseman at full speed, without sliding, after the second baseman had thrown the ball to first base and was standing four to five feet away from second base toward the pitcher’s mound; in upholding the judgment, the court stated that defendant “was under a duty to play softball in the ordinary fashion without unsportsmanlike conduct or wanton injury to his fellow players.” (Id. at p. 42.) (See also Averill v. Luttrell (1957) 44 Tenn.App. 56 [311 S.W.2d 812] [defendant baseball catcher properly held liable when, deliberately and without warning, he hit a batter in the head with his fist]; Hackbart v. Cincinnati Bengals, Inc. (10th Cir. 1979) 601 F.2d 516 [trial court erred in absolving defendant football player of liability when, acting out of anger and frustration, he struck a blow with his forearm to the back of the head of an opposing player, who was kneeling on the ground watching the end of a pass interception play]; Overall v. Kadella (1984) 138 Mich.App. 351 [361 N.W.2d 352] [hockey player permitted to recover when defendant player intentionally punched him in the face at the conclusion of the game].)

In our view, the reasoning of the foregoing cases is sound. Accordingly, we conclude that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. 7

7 As suggested by the cases described in the text, the limited duty of care applicable to coparticipants has been applied in situations involving a wide variety of active sports, ranging from baseball to ice hockey and skating. Because the touch football game at issue in this case clearly falls within the rationale of this rule, we have no occasion to decide whether a comparable limited duty of care appropriately should be applied to other less active sports, such as archery or golf. We note that because of the special danger to others posed by the sport of hunting, past cases generally have found the ordinary duty of care to be applicable to hunting accidents. (See, e.g., Summers v. Tice (1948) 33 Cal.2d 80, 83 [199 P.2d 1, 5 A.L.R.2d 91].)

(9a) As applied to the present case, the foregoing legal principle clearly supports [**712] [***18] the trial court’s entry of summary judgment in favor of defendant. The declarations filed in support of and in opposition to the summary judgment motion establish that defendant was, at most, careless or negligent in knocking over plaintiff, stepping on her hand, and injuring her finger. Although plaintiff maintains that defendant’s rough play as described in her declaration and the declaration of Andrea Starr properly can be characterized as “reckless,” the conduct alleged in those declarations is not even closely comparable to the kind of conduct–conduct so reckless as to be totally [*321] outside the range of the ordinary activity involved in the sport–that is a prerequisite to the imposition of legal liability upon a participant in such a sport.

Therefore, we conclude that defendant’s conduct in the course of the touch football game did not breach any legal duty of care owed to plaintiff. Accordingly, this case falls within the primary assumption of risk doctrine, and thus the trial court properly granted summary judgment in favor of defendant. Because plaintiff’s action is barred under the primary assumption of risk doctrine, comparative fault principles do not come into play.

The judgment of the Court of Appeal, upholding the summary judgment entered by the trial court, is affirmed.

Lucas, C. J., and Arabian, J., concurred.

DISSENT BY: MOSK, J., PANELLI, J.,

DISSENT

Concurring and Dissenting.

(1e)

(8b)

(9b)

Because I agreed with the substance of the majority opinion in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393] (see id. at p. 830), I concur generally with Justice George’s analysis as set forth in part II of the lead opinion. And like the lead opinion, I conclude that the liability of sports participants should be limited to those cases in which their misconduct falls outside the range of the ordinary activity involved the sport. As part I of the lead opinion explains, the kind of overexuberant conduct that is alleged here was not of that nature. I therefore agree that defendant was entitled to summary judgment, for the reasons set forth in part III of the lead opinion.

But I would go farther than does the lead opinion. Though the opinion’s interpretation of Li v. Yellow Cab Co. (supra, 13 Cal.3d 804) is reasonable, I believe the time has come to eliminate implied assumption of risk entirely. The all-or- nothing aspect of assumption of risk is as anachronistic as the all-or- nothing aspect of contributory negligence. As commentators have pointed out, the elements of assumption of risk “are accounted for already in the negligence prima facie case and existing comparative fault defense.” (Wildman & Barker, Time to Abolish Implied Assumption of a Reasonable Risk in California (1991) 25 U.S.F. L.Rev. 647, 679.) Plaintiffs’ behavior can be analyzed under comparative fault principles; no separate defense is needed. (See ) Wildman and Barker explain cogently that numerous California cases invoke both a duty analysis–which I prefer–and an unnecessary implied assumption of risk analysis in deciding a defendant’s liability. (See id. at p. 657 & fn. 58.) In the case before us, too, the invocation of assumption of risk is superfluous: far better to limit the [*322] analysis to concluding that a participant owes no duty to avoid conduct of the type ordinarily involved in the sport.

Were we to eliminate the doctrine of assumption of risk, we would put an end to the doctrinal confusion that now surrounds apportionment of fault in such cases. Assumption of risk now stands for so many different legal concepts that its utility has diminished. A great deal of the confusion surrounding the concept “stems from the fact that the term ‘assumption of risk’ has several different meanings and is often applied without recognizing these different meanings.” ( Rini v. Oaklawn Jockey Club (8th Cir. 1988) 861 F.2d 502, 504-505.) Courts vainly attempt to analyze conduct in such esoteric terms as primary assumption of risk, secondary assumption of risk, reasonable implied assumption of risk, unreasonable implied assumption of risk, etc. Since courts have difficulty in assessing [**713] [***19] facts under the rubric of such abstruse distinctions, it is unlikely that juries can comprehend such distinctions.

Justice Frankfurter explained in a slightly different context, “The phrase ‘assumption of risk’ is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.” ( Tiller v. Atlantic Coast Line R. Co. (1943) 318 U.S. 54, 68 [87 L.Ed. 610, 618, 63 S.Ct. 444, 143 A.L.R. 967] (conc. opn. of Frankfurter, J.).) Thus the Rini court, in attempting to determine the viability of assumption of risk in light of the Arkansas comparative fault law, was forced to identify “four types of assumption of risk ….” ( Rini v. Oaklawn Jockey Club, supra, 861 F.2d at p. 505.) These included “implied secondary reasonable assumption of risk” and “implied secondary unreasonable assumption of risk.” (Id. at p. 506.)

I would eliminate the confusion that continued reliance on implied assumption of risk appears to cause, and would simply apply comparative fault principles to determine liability.

Concurring and Dissenting.

I concur in the majority opinion solely with respect to the result reached. The majority correctly affirms the judgment of the Court of Appeal, which upheld the summary judgment entered by the trial court. I dissent, however, from the reasoning of the majority opinion. Instead, I reach a like result by adopting and applying the “consent-based” analysis set forth in the dissenting opinion by Justice Kennard. While I subscribe to the analysis of the dissenting opinion with respect to the doctrine of implied assumption of the risk, I am not in accord [*323] with how it would dispose of this case. I believe that defendant met the burden of demonstrating that plaintiff assumed the risk of injury by her participation in the touch football game.

As the dissenting opinion explains: “To establish the defense [of implied assumption of the risk], a defendant must prove that the plaintiff voluntarily accepted a risk with knowledge and appreciation of that risk. (Prescott v. Ralphs Grocery Co. [(1954)] 42 Cal.2d 158, 161 [265 P.2d 904].)” (Dis. opn., post, p. 326.) As the dissenting opinion further explains: “A defendant need not prove, however, that the plaintiff ‘had the prescience to foresee the exact accident and injury which in fact occurred.’ ( Sperling v. Hatch (1970) 10 Cal.App.3d 54, 61 [88 Cal.Rptr. 704].)” (Ibid.)

There is no question that plaintiff voluntarily chose to play touch football. 1 The undisputed facts in this case also show that plaintiff knew of and accepted the risks associated with the game. Plaintiff was an avid football fan. She had participated in games of touch football in the past. She was aware of the fact that in touch football players try to deflect the ball from receiving players. Plaintiff admitted that the players in the game in question could expect to receive “bumps” and “bruises.” These facts indicate that plaintiff knew and appreciated that physical injury resulting from contact, such as being knocked to the ground, was possible when playing touch football. Defendant was not required to prove more, such as that plaintiff knew or appreciated that a “serious injury” or her particular injury could result from the expected physical contact.

1 Plaintiff points to her request to the defendant during the game to temper his roughness to demonstrate that she did not assume the risk of being injured. She claims that defendant “seemed to acknowledge [her] statement” and “left [her] with the impression that he would play less rough.” Plaintiff’s reported request to defendant does not defeat summary judgment. She continued to play the game. As demonstrated below, she knew that physical contact and resulting injury could occur during a touch football game.

To support the conclusion that summary judgment be reversed under the consent-based approach, the dissenting opinion stresses the broad range of activities that [**714] [***20] can be part of a “touch football game” and that few rules were delineated for the particular game in which plaintiff was injured. I find these facts to be irrelevant to the question at hand. The risk of physical contact and the possibility of resulting injury is inherent in the game of football, no matter who is playing the game or how it is played. While the players who participated in the game in question may have wanted a “mellow” and “noncompetitive” game, such expectations do not alter the fact that anyone who has observed or played any form of football understands that it is a contact sport and that physical injury can result from such physical contact.

[*324] The undisputed facts of this case amply support awarding defendant summary judgment based upon plaintiff’s implied assumption of the risk. I, therefore, concur in affirming the judgment of the Court of Appeal.

Baxter, J., concurred.

KENNARD, J.

I disagree with the plurality opinion both in its decision to affirm summary judgment for defendant and in its analytic approach to the defense of assumption of risk.

We granted review in this case and its companion, Ford v. Gouin (post, p. 339 [11 Cal.Rptr.2d 30, 834 P.2d 724]), to resolve a lopsided conflict in the Courts of Appeal on whether our adoption 17 years ago of a system of comparative fault in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393] (hereafter Li) necessarily abolished the affirmative defense of implied assumption of risk. 1 When confronted with this issue, the overwhelming majority of appellate courts in this state have held that, except to the extent it was subsumed within the former doctrine of contributory negligence this court abolished in Li, implied assumption of risk continues as a complete defense. I would so hold in this case, adhering to the traditional analysis of implied assumption of risk established by a long line of California cases, both before and after Li.

1 Of the several Court of Appeal decisions that considered this issue, only one concluded that our adoption in Li of a system of comparative fault necessarily abolished the traditional defense of assumption of risk.

Not content with deciding the straightforward issue before us–whether the defense of implied assumption of risk survived Li–the plurality opinion uses this case as a forum to advocate a radical transformation of tort law. The plurality proposes to recast the analysis of implied assumption of risk from a subjective evaluation of what a particular plaintiff knew and appreciated about the encountered risk into a determination of the presence or absence of duty legally imposed on the defendant. By thus transforming an affirmative defense into an element of the plaintiff’s negligence action, the plurality would abolish the defense without acknowledging that it is doing so.

The plurality opinion also announces a rule that those who engage in active sports do not owe coparticipants the usual duty of care–as measured by the standard of a reasonable person in like or similar circumstances–to avoid inflicting physical injury. According to the plurality, a sports participant has no duty to avoid conduct inherent in a particular sport. Although I agree that in organized sports contests played under well-established rules participants have no duty to avoid the very conduct that constitutes the sport, [*325] I cannot accept the plurality’s nearly boundless expansion of this general principle to eliminate altogether the “reasonable person” standard as the measure of duty actually owed between sports participants.

The ultimate question posed by this case is whether the trial court properly granted summary judgment for defendant. Deriving the facts from the evidence that the parties presented to the trial court on defendant’s motion for summary judgment, and relying on well-established summary judgment principles, I conclude that defendant is not entitled to summary judgment. In reaching a contrary conclusion, the plurality mischaracterizes the nature of the athletic contest during which plaintiff incurred [**715] [***21] her injury. The evidence reveals that rather than an organized match with well-defined rules, it was an impromptu and informal game among casual acquaintances who entertained divergent views about how it would be played. This inconclusive record simply does not permit a pretrial determination that plaintiff knew and appreciated the risks she faced or that her injury resulted from a risk inherent in the game.

I

To explain my conclusion that implied assumption of risk survives as an affirmative defense under the system of comparative fault this court adopted in Li in 1975, I first summarize the main features of the defense as established by decisions published before Li.

In California, the affirmative defense of assumption of risk has traditionally been defined as the voluntary acceptance of a specific, known and appreciated risk that is or may have been caused or contributed to by the negligence of another. ( Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 162 [265 P.2d 904]; see Hayes v. Richfield Oil Corp. (1952) 38 Cal.2d 375, 384-385 [240 P.2d 580].) Assumption of risk may be proved either by the plaintiff’s spoken or written words (express assumption of risk), or by inference from the plaintiff’s conduct (implied assumption of risk). Whether the plaintiff knew and appreciated the specific risk, and voluntarily chose to encounter it, has generally been a jury question. (See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1110, p. 523.)

The defense of assumption of risk, whether the risk is assumed expressly or by implication, is based on consent. ( Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271 [32 Cal.Rptr. 193, 383 P.2d 777]; see Prosser & Keeton, Torts (5th ed. 1984) § 68, p. 484.) Thus, in both the express and implied forms, the defense is a specific application of the maxim that one “who consents to an act is not wronged by it.” ( Civ. Code, § 3515.) This [*326] consent, we have explained, “will negative liability” ( Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161; see also Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498, fn. 10 [102 Cal.Rptr. 795, 498 P.2d 1043] ["In assumption of the risk the negligent party's liability is negated ...."]), and thus provides a complete defense to an action for negligence.

The elements of implied assumption of risk deserve some explanation. To establish the defense, a defendant must prove that the plaintiff voluntarily accepted a risk with knowledge and appreciation of that risk. ( Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161.) The normal risks inherent in everyday life, such as the chance that one who uses a public highway will be injured by the negligence of another motorist, are not subject to the defense, however, because they are general rather than specific risks. (See Hook v. Point Montara Fire Protection Dist. (1963) 213 Cal.App.2d 96, 101 [28 Cal.Rptr. 560].)

The defense of implied assumption of risk depends on the plaintiff’s “actual knowledge of the specific danger involved.” ( Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 274.) Thus, one who “knew of the general danger in riding in a bucket of the mine owner’s aerial tramway, did not assume the risk, of which he had no specific knowledge, that the traction cable was improperly spliced.” (Id. at p. 272, italics added, referring to Bee v. Tungstar Corp. (1944) 65 Cal.App.2d 729, 733 [151 P.2d 537]; see also Carr v. Pacific Tel. Co. (1972) 26 Cal.App.3d 537, 542-543 [103 Cal.Rptr. 120].) A defendant need not prove, however, that the plaintiff “had the clairvoyance to foresee the exact accident and injury which in fact occurred.” ( Sperling v. Hatch (1970) 10 Cal.App.3d 54, 61 [88 Cal.Rptr. 704].) “Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge and there may be an assumption of the risk ….” ( Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d at 162.) Indeed, certain well-known risks of harm may be within the general “common knowledge. [***22] ” ( Tavernier v. Maes (1966) 242 Cal.App.2d 532, 546 [51 Cal.Rptr. 575].)

As set forth earlier, a person’s assumption of risk must be voluntary. “The plaintiff’s acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him [or her] no reasonable alternative course of conduct in order to [P] (a) avert harm to himself [or herself] or another, or [P] (b) exercise or protect a right or privilege of which the defendant has no right to deprive him [or her].” ( Rest.2d Torts, § 496E, subd. (2); see also Curran v. Green Hills Country Club (1972) 24 Cal.App.3d 501, 505-506 [101 Cal.Rptr. 158].) [*327]

This requirement of voluntariness precludes assertion of the defense of assumption of risk by a defendant who has negligently caused injury to another through conduct that violates certain safety statutes or ordinances such as those designed to protect a class of persons unable to provide for their own safety for reasons of inequality of bargaining power or lack of knowledge. (See Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 430-431 [218 P.2d 17] [violation of fire- safety ordinance]; Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 366, 368 [104 Cal.Rptr. 566] [violation of safety order requiring scaffolding and railings at bridge construction site]; see also Mason v. Case (1963) 220 Cal.App.2d 170, 177 [33 Cal.Rptr. 710].) Thus, a worker who, to avoid loss of livelihood, continues to work in the face of safety violations does not thereby assume the risk of injury as a result of those violations. (See, e.g., Lab. Code, § 2801; Fonseca v. County of Orange, supra, 28 Cal.App.3d 361.) In such cases, the implied agreement upon which the defense is based is contrary to public policy and therefore unenforceable.

Our 1975 decision in Li, supra, 13 Cal.3d 804, marked a fundamental change in California law governing tort liability based on negligence. Before Li, a person’s own lack of due care for his or her safety, known as contributory negligence, completely barred that person from recovering damages for injuries inflicted by the negligent conduct of another. In Li, we held that a lack of care for one’s own safety would no longer entirely bar recovery, and that juries thereafter should compare the fault or negligence of the plaintiff with that of the defendant to apportion loss between the two. (Id. at pp. 828-829.)

Before it was abolished by Li, supra, 13 Cal.3d 804, the defense of contributory negligence was sometimes confused with the defense of implied assumption of risk. Although this court had acknowledged that the two defenses may “arise from the same set of facts and frequently overlap” ( Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271), we had emphasized that they were nonetheless “essentially different” (Ibid.) because they were “based on different theories” ( Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161). Contributory negligence was premised on a lack of due care or, stated another way, a departure from the reasonable person standard, whereas implied assumption of risk has always depended on a voluntary acceptance of a risk with knowledge and appreciation of that risk. (Id. at pp. 161-162; Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878 [142 Cal.Rptr. 503].)

The standards for evaluating a plaintiff’s conduct under the two defenses were entirely different. Under contributory negligence, the plaintiff’s conduct was measured against the objective standard of a hypothetical reasonable person. ( Gonzalez v. Garcia, supra, 75 Cal.App.3d 874, 879.) Implied [*328] assumption of risk, in contrast, has always depended upon the plaintiff’s subjective mental state; the relevant inquiry is whether the plaintiff actually knew, appreciated, and voluntarily consented to assume a specific risk of injury. ( Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 243-245 [53 Cal.Rptr. 545, 418 P.2d 153].)

We said in Li, albeit in dictum, that our adoption of a system of comparative fault would to some extent necessarily impact [**717] [***23] the defense of implied assumption of risk. ( Li, supra, 13 Cal.3d 804, 826.) We explained: “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, plaintiff’s conduct, although he [or she] may encounter that risk in a prudent manner, is in reality a form of contributory negligence …. Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him [or her]. Such a situation would not involve contributory negligence, but rather a reduction of defendant’s duty of care.’ [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.” ( Li, supra, 13 Cal.3d 804, 824-825, original italics.)

Although our adoption in Li of a system of comparative fault eliminated contributory negligence as a separate defense, it did not alter the basic attributes of the implied assumption of risk defense or call into question its theoretical foundations, as we affirmed in several cases decided after Li. For example, in Walters v. Sloan (1977) 20 Cal.3d 199 [142 Cal.Rptr. 152, 571 P.2d 609], we said that “one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.” (At p. 204; see also Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 406 [143 Cal.Rptr. 13, 572 P.2d 1155] [acknowledging the continued viability of the assumption of risk defense after the adoption of comparative fault].) Thereafter, in Lipson v. Superior Court (1982) 31 Cal.3d 362 [182 Cal.Rptr. 629, 644 P.2d 822], we reiterated that “the defense of assumption of risk arises when the plaintiff voluntarily undertakes to encounter a specific known risk imposed by defendant’s conduct.” (At p. 375, fn. 8.)

The Courts of Appeal directly addressed this issue in several cases, which were decided after Li, supra, 13 Cal.3d 804, and which considered whether, [*329] and to what extent, implied assumption of risk as a complete defense survived our adoption in Li of a system of comparative fault. The first of these cases was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162 [191 Cal.Rptr. 578] (hereafter Segoviano).

In Segoviano, the plaintiff was injured during a flag football game when an opposing player pushed him to the ground as the plaintiff was running along the sidelines trying to score a touchdown. Although the jury found that the opposing player was negligent, and that this negligence was a legal cause of the plaintiff’s injury, it also found that the plaintiff’s participation in the game was a negligent act that contributed to the injury. Applying the instructions it had been given on comparative negligence, the jury apportioned fault for the injury between the two players and reduced the plaintiff’s award in accord with that apportionment. (143 Cal.App.3d at p. 166.)

To determine whether the jury had acted properly in making a comparative fault apportionment, the Segoviano court began its analysis by distinguishing those cases in which the plaintiff’s decision to encounter a known risk was “unreasonable” from those in which it was “reasonable.” ( Segoviano, supra, 143 Cal.App.3d 162, 164.) In so doing, Segoviano relied on this court’s language in Li, which I have quoted on page 328, ante, that a plaintiff’s conduct in “unreasonably” undertaking to encounter a specific known risk was “a form of contributory negligence” that would be merged “into the general scheme of assessment of liability in proportion to [***24] [**718] fault.” ( Li, supra, 13 Cal.3d 804, 824-825.)

The Segoviano court defined an “unreasonable” decision to encounter a known risk as one that “falls below the standard of care which a person of ordinary prudence would exercise to avoid injury to himself or herself under the circumstances.” ( Segoviano, supra, 143 Cal.App.3d 162, 175, citing Rest.2d Torts, § 463.) The Segoviano court cited a person’s voluntary choice to ride with a drunk driver as an example of an “unreasonable” decision. (Id. at p. 175; see Gonzalez v. Garcia, supra, 75 Cal.App.3d 874, 881; Paula v. Gagnon (1978) 81 Cal.App.3d 680, 685 [146 Cal.Rptr. 702].) Because an “unreasonable” decision to risk injury is neglect for one’s own safety, the Segoviano court observed, a jury can appropriately compare the negligent plaintiff’s fault with that of the negligent defendant and apportion responsibility for the injury, applying comparative fault principles to determine the extent of the defendant’s liability. ( Segoviano, supra, at pp. 164, 170.)

By contrast, the plaintiff’s decision to play flag football was, in the Segoviano court’s view, an example of a “reasonable” decision to encounter a known risk of injury. Although the risk of being injured during a flag [*330] football game could be avoided altogether by choosing not to play, this did not render the plaintiff’s decision to play “unreasonable.” ( Segoviano, supra, 143 Cal.App.3d 162, 175.) Rather, the court said, a person who participates in a game of flag football is not negligent in doing so, because the choice does not fall below the standard of care that a person of ordinary prudence would exercise to avoid being injured. The Segoviano court concluded that such cases, in which there is no negligence of the plaintiff to compare with the negligence of the defendant, cannot be resolved by comparative fault apportionment of the plaintiff’s damages. (Id. at pp. 174-175.)

The Segoviano court next considered whether the defense of implied assumption of risk, to the extent it had not merged into comparative fault, continued to provide a complete defense to an action for negligence following our decision in Li (supra, 13 Cal.3d 804). The court asked, in other words, whether a plaintiff’s voluntary and nonnegligent decision to encounter a specific known risk was still a complete bar to recovery, or no bar at all.

In resolving this issue, the court found persuasive a commentator’s suggestion that ” ‘it would be whimsical to treat one who has unreasonably assumed the risk more favorably … than one who reasonably assumed the risk ….’ ” ( Segoviano, supra, 143 Cal.App.3d 162, 169, quoting Fleming, The Supreme Court of California 1974-1975, Forward: Comparative Negligence at Last–By Judicial Choice (1976) 64 Cal.L.Rev. 239, 262.) To avoid this “whimsical” result, in which “unreasonable” plaintiffs were allowed partial recovery by way of a comparative fault apportionment while “reasonable” plaintiffs were entirely barred from recovery of damages, the Segoviano court concluded that our decision in Li, supra, 13 Cal.3d 804, must mean that the defense of implied assumption of risk had been abolished in all those instances in which it had not merged into the system of comparative fault, and that only express assumption of risk survived as a complete defense to an action for negligence. ( Segoviano, supra, 143 Cal.App.3d 162, 169-170.) The Segoviano court thus held that the defense of implied assumption of risk “plays no part in the comparative negligence system of California.” (Id. at p. 164.) Various Court of Appeal decisions soon challenged this holding of Segoviano.

One decision characterized Segoviano‘s analysis as “suspect.” ( Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 800, fn. 4 [202 Cal.Rptr. 900].) Another case disregarded it entirely in reaching a contrary result ( Nelson v. Hall (1985) 165 Cal.App.3d 709, 714 [211 Cal.Rptr. [***25] 668] [**719] ["Where assumption of the risk is not merely a form of contributory negligence," it remains "a complete defense."]; accord, Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183 [229 Cal.Rptr. 612]; Willenberg v. Superior Court (1986) 185 Cal.App.3d 185, 186-187 [229 Cal.Rptr. [*331] 625]). And in Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 104 [243 Cal.Rptr. 536] (hereafter Ordway), the court rejected Segoviano outright, holding instead that “reasonable” implied assumption of risk continued as a complete defense under the newly adopted system of comparative fault.

The Court of Appeal that decided Ordway, supra, interpreted Li‘s reference to a form of assumption of risk under which ” ‘plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him [or her]‘ ” ( Li, supra, 13 Cal.3d at p. 824) as describing a doctrine that the Ordway court termed “reasonable” implied assumption of risk. This doctrine, the Ordway court concluded, was unaffected by Li‘s adoption of a system of comparative negligence and remained a complete defense after Li. ( Ordway, supra, 198 Cal.App.3d 98, 103-104.) According to Ordway, a plaintiff who voluntarily and reasonably assumes a risk, “whether for recreational enjoyment, economic reward, or some similar purpose,” is deemed thereby to have agreed to reduce the defendant’s duty of care and “cannot prevail.” (Id. at p. 104.)

After concluding that the defense of implied assumption of risk remained viable after this court’s decision in Li, supra, 13 Cal.3d 804, the Ordway court discussed the preclusive impact of the defense on the facts of the case before it. Ordway involved a negligence action brought by a professional jockey who had been injured in a horse race when another jockey, violating a rule of the California Horse Racing Board, crossed into the plaintiff’s lane. The court first noted that professional jockeys must be aware that injury-causing accidents are both possible and common in horse racing, as in other sports activities. ( Ordway, supra, 198 Cal.App.3d 98, 111.) The court observed that although the degree of risk to be anticipated would vary with the particular sport involved, a plaintiff may not recover from a coparticipant for a sports injury if the coparticipant’s injury-causing actions fell within the ordinary expectations of those engaged in the sport. (Id. at pp. 111-112.) On this basis, the Ordway court held that the plaintiff jockey’s action was barred.

Other decisions by the Courts of Appeal that have addressed implied assumption of risk have followed Ordway, supra, 198 Cal.App.3d 98. ( Nunez v. R’Bibo (1989) 211 Cal.App.3d 559, 562- 563 [260 Cal.Rptr. 1]; Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477-1478 [255 Cal.Rptr. 755]; King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 1316 [253 Cal.Rptr. 140].) In my view, Ordway was correct in its conclusions that the defense of implied assumption of risk survived this court’s adoption in Li (supra, 13 Cal.3d 804) of a system of comparative fault, and that the defense remains a complete bar to recovery in negligence cases in which the plaintiff has knowingly and voluntarily consented to encounter a specific risk. [*332]

Ordway was also correct in its observation that the terms “unreasonable” and “reasonable” are confusing when used to distinguish the form of implied assumption of risk that has merged into the system of comparative fault from the form that has not so merged. As Ordway suggested, the reasonable/unreasonable labels would be more easily understood by substituting the terms “knowing and intelligent,” for “reasonable,” and “negligent or careless” for “unreasonable.” ( Ordway, supra, 198 Cal.App.3d 98, 105.)

The defense of implied assumption of risk is never based on the “reasonableness” of the plaintiff’s conduct, as such, but rather on a recognition that a person generally should be required to accept responsibility for the normal consequences of a freely chosen course of conduct. (See Simons, [**720] [***26] Assumption of Risk and Consent in the Law of Torts: A Theory of Full Preference (1987) 67 B.U. L.Rev. 213, 258 [“consent is neither reasonable nor unreasonable[;] [i]t simply expresses what plaintiff wants or prefers”].) In implied assumption of risk situations, the plaintiff’s conduct often defies legal characterization as either reasonable or unreasonable. Even when this is not so, and a court or jury could appropriately determine whether the plaintiff’s conduct was reasonable, the distinction to be drawn is not so much between reasonable and unreasonable conduct. Rather, the essential distinction is between conduct that is deliberate and conduct that is merely careless. Referring to “reasonable” implied assumption of risk lends unwarranted credence to the charge that the law is “whimsical” in treating unreasonable behavior more favorably than behavior that is reasonable. There is nothing arbitrary or whimsical in requiring plaintiffs to accept responsibility for the consequences of their considered and deliberate choices, while at the same time apportioning liability between a plaintiff and a defendant who have both exhibited carelessness.

In those cases that have merged into comparative fault, partial recovery is permitted, not because the plaintiff has acted unreasonably, but because the unreasonableness of the plaintiff’s apparent choice provides compelling evidence that the plaintiff was merely careless and could not have truly appreciated and voluntarily consented to the risk, or because enforcement of the implied agreement on which the defense is based would be contrary to sound public policy. In these cases, implied assumption of risk is simply not available as a defense, although comparative negligence may be.

In those cases in which a plaintiff’s decision to encounter a specific known risk was not the result of carelessness (that is, when the plaintiff’s conduct is not merely a form of contributory negligence), nothing in this court’s adoption in Li (supra, 13 Cal.3d 804) of a system of comparative fault suggests that implied assumption of risk must or should be eliminated [*333] as a complete defense to an action for negligence. I would hold, therefore, that the defense continues to exist in such situations unaffected by this court’s adoption in Li of a comparative fault system.

II

The plurality opinion approaches the viability of implied assumption of risk after Li, supra, 13 Cal.3d 804, in a fashion altogether different from the traditional consent analysis I have described. It begins by conceding that Li effected only a partial merger of the assumption of risk defense into the system of comparative fault. It then concludes, with no foundational support in California law, that the actual effect of this partial merger was to bifurcate implied assumption of risk into two subcategories that the plurality calls “primary” and “secondary” assumption of risk.

The plurality’s “secondary assumption of risk” category includes those situations in which assumption of risk is merely a variant of contributory negligence. In those situations, under the plurality approach, implied assumption of risk merges into comparative fault; a trial court presented with a “secondary” case would therefore instruct the jury only on the principles of damage apportionment based on comparative fault, but not on implied assumption of risk as a separate and complete defense. Thus, implied assumption of risk does not survive as a separate and complete defense in these “secondary” cases.

Under the plurality’s approach, implied assumption of risk fares no better in the “primary assumption of risk” cases. That category includes only those cases in which the defendant owes no duty to the plaintiff. Without duty, of course, there is no basis for a negligence action and thus no need for an affirmative defense to negligence. Consequently, implied assumption of risk ceases to operate as an affirmative defense in these “primary” cases.

The plurality purports to interpret Li, supra, 13 Cal.3d 804, but instead works a sleight-of-hand switch on the assumption of risk defense. [**721] [***27] In those situations in which implied assumption of risk does not merge into comparative fault, the plurality recasts what has always been a question of the plaintiff’s implied consent into a question of the defendant’s duty. This fundamental alteration of well-established tort principles was not preordained by Li nor was it a logical evolution of California law either before or after this court’s decision in Li. Seizing on Li‘s statement that a plaintiff who assumes the risk thereby reduces a defendant’s duty of care, the plurality concludes that defendants had no duty of care in the first place. The plurality presents its analysis as merely an integration of the defense of implied [*334] assumption of risk into the system of comparative fault, but this “integration” is in truth a complete abolition of a defense that California courts have adhered to for more than 50 years. I see no need or justification for this drastic revision of California law.

III

On a motion for summary judgment, a defendant can establish implied assumption of risk as a complete defense to negligence by submitting uncontroverted evidence that the plaintiff sustained the injury while engaged in voluntarily chosen activity under circumstances showing that the plaintiff knew or must have known that the specific risks of the chosen activity included the injury suffered. (See Code Civ. Proc., § 437c, subds. (a), (c), (f); Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1560 [142 Cal.Rptr. 503]; Fireman’s Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 994 [216 Cal.Rptr. 796].) In this case, the trial court entered summary judgment for defendant, ruling that the evidence supporting the motion established assumption of risk under the traditional consent analysis.

The undisputed, material facts are as follows: Plaintiff, defendant, and six or eight other guests gathered at the home of a mutual friend to watch a television broadcast of the 1987 Super Bowl football game. During the game’s half time, the group went to an adjacent dirt lot for an informal game of touch football. The participants divided into two teams, each including men as well as women. They used a child’s soft, “peewee-size” football for the game. The players expected the game to be “mellow” and “noncompetitive,” without any “forceful pushing, hard hitting or hard shoving.”

Plaintiff and defendant were on opposing teams. Plaintiff was an avid fan of televised professional football, but she had played touch football only rarely and never with this particular group. When defendant ran into her early in the game, plaintiff objected, stating that he was playing too roughly and if he continued, she would not play. Plaintiff stated in her declaration that defendant “seemed to acknowledge [her] statement” and “left [her] with the impression that he would play less rough.” On the very next play, defendant knocked plaintiff down and inflicted the injury for which she seeks recovery.

We have held that summary judgment “is a drastic measure” that should “be used with caution.” ( Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) On appeal from a summary judgment, well-settled rules dictate that the moving party’s evidence supporting the motion be strictly construed and that doubts about granting the motion be [*335] resolved in favor of the party that opposed the motion. (Ibid.) Applying those rules here, I conclude that defendant has not established implied assumption of risk as a complete defense to plaintiff’s action for negligence.

Notably missing from the undisputed facts is any evidence that plaintiff either knew or must have known that by participating in this particular game she would be engaging in a sport that would subject players to being knocked to the ground. She had played touch football only rarely, never with these players, and just before her injury had expressly told defendant that her participation in the touch football game was conditioned on him not being so rough. Moreover, the game was not even a regular game of touch football. When deposed, defendant conceded that this [**722] [***28] touch football game was highly unusual because the teams consisted of both men and women and the players used a child’s peewee ball. He agreed that the game was not “regulation football,” but was more of a “mock” football game.

“Touch football” is less the name of a game than it is a generic description that encompasses a broad spectrum of activity. At one end of the spectrum is the “traditional” aggressive sandlot game, in which the risk of being knocked down and injured should be immediately apparent to even the most casual observer. At the other end is the game that a parent gently plays with young children, really little more than a game of catch. Here, defendant may prevail on his summary judgment motion only if the undisputed facts show that plaintiff knew this to be the type of game that involved a risk of being knocked to the ground. As explained above, such knowledge by the plaintiff was not established. Accordingly, the trial court erred in granting summary judgment for defendant on the ground that plaintiff had assumed the risk of injury.

IV

To uphold the grant of summary judgment for defendant, the plurality relies on a form of analysis virtually without precedent in this state. As an offshoot of its advocacy of the primary/secondary approach to implied assumption of risk, the plurality endorses a categorical rule under which coparticipants in active sports have no duty to avoid conduct “inherent” in the sport, and thus no liability for injuries resulting from such conduct. Applying the rule to the facts shown here, the plurality concludes that plaintiff’s injury resulted from a risk “inherent” in the sport she played and that defendant owed her no duty to avoid the conduct that caused this injury.

Generally, a person is under a legal duty to use ordinary care, measured by the conduct of a hypothetical reasonable person in like or similar circumstances, to avoid injury to others. ( Civ. Code, § 1714, subd. (a).) Judicially [*336] fashioned exceptions to this general duty rule must be clearly supported by public policy. ( Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1079 [9 Cal.Rptr.2d 615, 831 P.2d 1197].) The plurality’s no-duty-for-sports rule is such a judicially fashioned exception to the general duty rule. Under the plurality’s rule, a sports participant’s conduct is not evaluated by the “reasonable person” standard. Rather, the player is exempted from negligence liability for all injuries resulting from conduct that is “inherent” in the sport.

The plurality’s no-duty-for-sports rule derives from cases in a few jurisdictions concluding that a participant’s liability for injuries to a coparticipant during competitive sports must be based on reckless or intentional conduct. (See Gauvin v. Clark (1989) 404 Mass. 450 [537 N.E.2d 94]; Kabella v. Bouschelle (1983) 100 N.M. 461 [672 P.2d 290]; Ross v. Clouser (Mo. 1982) 637 S.W.2d 11; Nabozny v. Barnhill (1975) 31 Ill.App.3d 212 [334 N.E.2d 258, 77 A.L.R.3d 1294].) Although these courts have chosen to explain the rule in terms of the absence of duty, the consent analysis of implied assumption of risk would provide an equally satisfactory explanation. (See Ordway, supra, 198 Cal.App.3d 98, 110-112.) The reason no duty exists in these competitive sports situations is that, as the Massachusetts Supreme Court has explained in Gauvin, each participant has a right to infer that the others have agreed to undergo a type of physical contact that would otherwise constitute assault and battery. 2 ( Gauvin v. Clark, supra, 537 N.E.2d at p. 96.) Without some reference to mutual consent or implied agreement among coparticipants, the no-duty-for-sports rule would be difficult to explain and justify. Thus, the rationale of the rule, even in no-duty garb, is harmonious with the traditional logic of implied assumption of risk.

2 In adopting a rule of no duty for organized competitive sports, the Massachusetts court candidly acknowledged that legislative abolition of the assumption of risk defense had forced it to shift the focus of analysis from the plaintiff’s knowing confrontation of risk to the scope of the defendant’s duty of care. ( Gauvin v. Clark, supra, 537 N.E.2d at p. 97, fn. 5.)

[**723] [***29] Although there is nothing inherently wrong with the plurality’s no-duty rule as applied to organized, competitive, contact sports with well- established modes of play, it should not be extended to other, more casual sports activities, such as the informal “mock” football game shown by the evidence in this case. Outside the context of organized and well-defined sports, the policy basis for the duty limitation–that the law should permit and encourage vigorous athletic competition ( Gauvin v. Clark, supra, 537 N.E.2d at p. 96)–is considerably weakened or entirely absent. Thus, the no-duty-for-sports rule logically applies only to organized sports contests played under well-settled, official rules ( Gauvin v. Clark, supra, 537 N.E.2d 94 [college varsity hockey game]; Ross v. Clouser, supra, 637 S.W.2d 11 [church league softball game]; Nabozny v. Barnhill, supra, 334 N.E.2d 258 [organized, [*337] amateur soccer game]), or on unequivocal evidence that the sport as played involved the kind of physical contact that generally could be expected to result in injury ( Kabella v. Bouschelle, supra, 670 P.2d 290).

The plurality may believe that its no-duty rule for sports participants will facilitate early resolution of personal injury actions by demurrer or motions for summary judgment and thus provide relief to overburdened trial courts by eliminating the need for jury trials in many of these cases. But the plurality fails to explain just how trial courts will be able to discern, at an early stage in the proceedings, which risks are inherent in a given sport.

Under the plurality’s no-duty-for-sports rule, a sports participant is exempted from negligence liability for all injuries resulting from conduct that is within “the range of ordinary activity involved in the sport.” (Plur. opn., ante, at p. 320.) Under this approach, as the plurality acknowledges, “the nature of a defendant’s duty in the sports context depends heavily on the nature of the sport itself.” (Id., ante, at p. 317.)

The issue framed by the plurality’s no-duty approach can be decided on demurrer only if the plaintiff has alleged in the complaint that the injury resulted from a risk inherent in an injury-causing sport, something careful pleaders are unlikely to do. And because summary judgment depends on uncontroverted material facts, early adjudication of the duty issue by summary judgment is equally doubtful. In cases involving all but the most well-known professional sports, plaintiffs will usually be able to counter defense evidence seeking to establish what risks are inherent in the sport. Cases that cannot be resolved by demurrer or summary judgment will, under the plurality’s approach, proceed to trial solely under comparative fault, leaving the jury no opportunity to decide whether the plaintiff made a knowing and voluntary decision to assume the risk.

The plurality’s resolution of this case amply illustrates the difficulty of attempting to decide the question of duty by motion for summary judgment. To sustain summary judgment under the plurality’s approach, the defendant must have conclusively negated the element of duty necessary to the plaintiff’s negligence case. ( Molko v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1107.) Therefore, under the plurality approach, defendant here is entitled to summary judgment only if he negated the element of duty by presenting undisputed evidence showing that his injury-causing conduct was within the range of activity ordinarily involved in the sport he was then playing.

But what is “the range of the ordinary activity” involved in touch football? As I have previously explained, the generic term “touch football” encompasses such a broad range of activity that it is difficult to conceive of an [*338] “ordinary” game. Even if such a game could be identified, defendant offered no evidence in support of his motion for summary judgment to show that players are knocked to the ground in the “ordinary” game. In the absence of uncontroverted evidence on this material fact, defendant was not entitled to summary judgment.

[**724] [***30] As mentioned earlier, defendant admitted at his deposition that this was not a “regulation football” game, and that it was more of a “mock” game because it was played by both men and women using a child’s peewee ball. Given the spontaneous and irregular form of the game, it is not surprising that the participants demonstrated uncertainty about the bounds of appropriate conduct. One participant, asked at deposition whether defendant had done anything “out of the normal,” touched the nub of the problem by replying with this query: “Who’s [sic; whose] normal? My normal?”

Defendant did not present uncontroverted evidence that his own rough level of play was “inherent” in or normal to the particular game being played. In the view of one of the players, defendant was playing “considerably rougher than was necessary.” Other players described defendant as a fast runner and thought he might have been playing too hard. Absent uncontroverted evidence that defendant’s aggressive style of play was appropriate, there is no basis for the plurality’s conclusion that his injury-causing conduct in knocking plaintiff to the ground was within the range of ordinary and acceptable behavior for the ill-defined sports activity in which plaintiff was injured.

Defendant did not meet his burden to establish by undisputed evidence a legal entitlement to summary judgment. The record fails to support summary judgment under either the traditional consent approach to the defense of assumption of risk or the plurality’s no-duty approach. Thus, the trial court erred in granting defendant’s motion for summary judgment, and the Court of Appeal erred in affirming that judgment. I would reverse.


Redmond v. Sirius International Insurance Corporation, 2014 U.S. Dist. LEXIS 5089

Redmond v. Sirius International Insurance Corporation, 2014 U.S. Dist. LEXIS 5089

Ryan M. Redmond, Plaintiff, v. Sirius International Insurance Corporation, Defendant.

Case No. 12-CV-587

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

2014 U.S. Dist. LEXIS 5089

January 15, 2014, Decided

January 15, 2014, Filed

PRIOR HISTORY: Redmond v. Sirius Int’l Ins. Corp., 2012 U.S. Dist. LEXIS 110594 (E.D. Wis., Aug. 7, 2012)

CORE TERMS: skiing, bad faith claim, coverage, mountaineering, summary judgment, marked, choice of law, ski, territory, in-bound, mountain, insurer, dictionary, insurance contracts, insurance policies, recreational, insured, climbing, ambiguous, snow, forum selection clause, jury trial, deposition, moot, climb, descent, http, www, com, interest of justice

COUNSEL: [*1] For Ryan M Redmond, Plaintiff: Dean P Laing, Douglas P Dehler, LEAD ATTORNEYS, O’Neil Cannon Hollman DeJong & Laing SC, Milwaukee, WI.

For Sirius International Insurance Corporation, Defendant: Barry A Chasnoff, Mary M Pena, LEAD ATTORNEYS, Akin Gump Strauss Hauer & Feld LLP, San Antonio, TX; Jeffrey A Evans, von Briesen & Roper SC, Milwaukee, WI.

JUDGES: AARON E. GOODSTEIN, U.S. Magistrate Judge.

OPINION BY: AARON E. GOODSTEIN

OPINION

DECISION AND ORDER

I. PROCEDURAL HISTORY

Ryan M. Redmond (“Redmond”) was seriously injured while skiing at Grand Teton National Park on July 2, 2011. When his health insurer, Sirius International Insurance Corporation (“Sirius”), [*2] denied coverage for his injuries, Redmond filed the present action, initially in Waukesha County Circuit Court. Sirius removed the action to federal court on June 8, 2012 based upon the diversity of the parties. On June 14, 2012, Sirius filed its answer and a counterclaim along with a motion to transfer the case to the Southern District of Indiana. Redmond responded to the motion and also filed motions asking that the court strike the defendant’s answer and counterclaim and asking the court to require the defendant to post bond in accordance with Wisconsin law.

On August 7, 2012, the court denied the plaintiff’s motions. With respect to Sirius’ motion to transfer the action to the Southern District of Indiana, the court found that the record was insufficient to permit the court to resolve the motion and therefore held the motion in abeyance as the parties engaged in discovery. On March 20, 2013, the court denied without prejudice the motion to transfer.

On September 9, 2013, the parties filed a total of eight separate motions. (Docket Nos. 54, 56, 58, 60, 63, 66, 70, 75.) The plaintiff subsequently filed two additional motions. (Docket Nos. 84, 107.) Of these 10 motions, the court must [*3] first address the defendant’s renewed motion to transfer the case to Southern District of Indiana, (Docket No. 54), and thus decide whether this court or the Southern District of Indiana should resolve the 9 other motions.

II. MOTION TO TRANSFER

The relevant policy contains a forum selection clause providing that venue for any action related to the policy shall be in “the Circuit and/or Superior Courts of Marion County [Indiana] and in the United States District Court for the Southern District of Indiana, Indianapolis Division (assuming that federal jurisdiction is otherwise appropriate and lawful).” (Docket No. 7 at 3-4.) If the forum selection clause is valid, pursuant to 28 U.S.C. § 1404(a), the “court should transfer the case unless extraordinary circumstances unrelated to the convenience of the parties clearly disfavor a transfer.” Atl. Marine Constr. Co. v. United States Dist. Court, 517 U.S. , , 187 L. Ed. 2d 487, 494, 134 S. Ct. 568 (2013).

Wisconsin law bars such forum selection clauses in insurance policies. Wis. Stat. § 631.83(3)(b). But Wisconsin’s prohibition applies to only “insurance policies and group certificates delivered or issued for delivery in this state, on property ordinarily [*4] located in this state, on persons residing in this state when the policy or group certificate is issued, or on business operations in this state.” Wis. Stat. § 631.01(1). The defendant’s argument against the application of this provision is limited to its view that Redmond was not “residing in” Wisconsin at the time the policy was issued. Sirius does not present, and therefore the court shall not consider any other arguments that may be raised as to why this statutory proscription may be inapplicable to the present dispute.

As the court discussed at length in its prior order, Redmond v. Sirius Int’l Ins. Corp., 2012 U.S. Dist. LEXIS 110594 (E.D. Wis. Aug. 7, 2012), there is a dispute as to whether Redmond was “residing in” Wisconsin when the policy was issued. The court concluded that “residing in” “include[s] [*5] not only those who dwell within the state for a long-term or extended period of time, but also, to the extent that the categories are not redundant, those who have Wisconsin as their domicile, i.e. ‘an individual’s true, fixed, and permanent home where the individual intends to remain permanently and indefinitely and to which, whenever absent, the individual intends to return.'” 2012 U.S. Dist. LEXIS 110594 at *21 (quoting Wis. Stat. §§ 71.01(1n), 71.22(1t)).

Redmond traveled frequently. In fact, the insurance policy that is at issue here was designed specifically to serve the needs of such travelers. He lived in his mother’s home in Delafield, Wisconsin until November 5, 2006 when he left for about six months of missionary work in Peru. He returned to Wisconsin and lived in Wisconsin until August 29, 2010, aside from a total of 30 days of missionary work in Peru and a month working on a Canadian dude ranch.

On August 25, 2010, from his home in Wisconsin, Redmond electronically submitted an application for renewal of his health insurance for the period of October 20, 2010 to October 20, 2011. (Docket No. 88, ¶8.) In doing so, he requested that the policy documents be sent to him in Vermont where he would be attending [*6] school. The application was approved the following day and the declaration and certificate were issued. (Docket No. 88, ¶9.) On August 29, 2010, Redmond left Wisconsin to travel to Vermont where he leased an apartment and attended school from August 30, 2010 through May 20, 2011, returning to Wisconsin in the interim for holidays. (Docket No. 88, ¶¶11-12.) Following May 20, 2011, Redmond returned to Wisconsin. (Docket No. 88, ¶13.)

The court finds that notwithstanding his travels and attendance at school in Vermont, Wisconsin remained Redmond’s domicile, and thus he was “residing in” Wisconsin when the policy was issued. This conclusion is further supported by the facts that Redmond filed taxes, had bank accounts, voted, and registered a vehicle in only Wisconsin. (Docket No. 88, ¶¶16-19.) Consequently, the policy’s forum selection clause is unenforceable under Wis. Stat. § 631.83(3)(b).

Having concluded that the forum selection clause is invalid, the court must turn to Sirius’ alternative argument and consider whether, after balancing all relevant factors, transfer to the Southern District of Indiana remains appropriate pursuant to 28 U.S.C. § 1404(a). “For the convenience of parties [*7] and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a).

Section 1404 (a) reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice. Thus, as the Court recognized in Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 27, 80 S. Ct. 1470, 4 L. Ed. 2d 1540, [(1960)], the purpose of the section is to prevent the waste “of time, energy and money” and “to protect litigants, witnesses and the public against unnecessary inconvenience and expense….”

Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) (footnotes omitted). There is no dispute that this action could have been filed in the Southern District of Indiana. Thus, the court’s analysis is limited to consideration of the convenience of the parties and witnesses and the interest of justice. The movant “has the burden of establishing, by reference to particular circumstances, that the transferee forum is clearly more convenient.” Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986).

“With respect to the convenience evaluation, [*8] courts generally consider the availability of and access to witnesses, and each party’s access to and distance from resources in each forum. Other related factors include the location of material events and the relative ease of access to sources of proof.” Research Automation, Inc. v. Schrader-Bridgeport Int’l, Inc., 626 F.3d 973, 978 (7th Cir. 2010) (citations omitted). “The ‘interest of justice’ is a separate element of the transfer analysis that relates to the efficient administration of the court system.” Id.

For this element, courts look to factors including docket congestion and likely speed to trial in the transferor and potential transferee forums; each court’s relative familiarity with the relevant law; the respective desirability of resolving controversies in each locale; and the relationship of each community to the controversy. The interest of justice may be determinative, warranting transfer or its denial even where the convenience of the parties and witnesses points toward the opposite result.

Id. (citations omitted).

Neither forum is especially more convenient for the parties or witnesses. Of the witnesses identified by the parties as likely to testify at trial, four live [*9] in Wyoming, one lives in Colorado, two (or three using the defendant’s count of potential witnesses) live in Indiana, one (the plaintiff) lives in Wisconsin (not Vermont as the defendant states), and one lives in Florida but maintains an apartment and office in Wisconsin. (Docket Nos. 87 at 15; 55 at 10.) The plaintiff’s attorneys have offices in Milwaukee, Wisconsin; the defendant’s attorneys are located in San Antonio, Texas, and are assisted by local counsel. Thus, a number of people are going to have to travel for trial. When traveling from Wyoming, Colorado, or Texas, it makes little difference whether the destination is Indianapolis or Milwaukee. The convenience of a trial in Indianapolis for the witnesses in Indiana would be countered by the inconvenience to the plaintiff, his attorneys, as well as his expert.

The defendant also notes that evidence, such as the plaintiff’s insurance documents, is more likely to be found at offices in Indiana. (Docket No. 55 at 10.) The court finds that in the usual case, the location of documentary evidence is generally an inconsequential consideration. Routine discovery in any case will involve digitizing documents and thus whether parties are [*10] separated by city blocks or time zones, the means and ease of exchange will be the same. The court has no reason to believe this would not be the case here. And after all, discovery is complete so this truly is a non-issue.

The court also recognizes that, although it is unenforceable under Wisconsin law, the fact that the parties agreed to a forum selection may be given some weight in the analysis under § 1404(a). See IFC Credit Corp. v. Aliano Bros. Gen. Contrs., Inc., 437 F.3d 606, 608 (7th Cir. 2006) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988). However, the fact of the parties’ agreement is counterbalanced by Wisconsin’s strong public policy against forum selection clauses in insurance contracts; thus, the interests of justice lead to the conclusion that this fact merits negligible weight. Cf. id.

With further respect to the interests of justice factor, the defendant points to the fact that the policy states, “Indiana law shall govern all rights and claims raised under this Certificate of Insurance.” (Docket No. 55-1 at ¶6.) Whether Indiana law actually governs this case is the subject of a separate motion. (Docket No. 58.) As discussed below, the court finds [*11] that Indiana law does govern the interpretation of the present contract. Nonetheless, the court does not find that this factor is sufficient to overcome the presumption of preference for the plaintiff’s chosen forum. Although a federal court in Indiana will naturally be more familiar with Indiana law, applying laws from other states is a routine task for federal courts. The defendant has not identified any reason for the court to believe that the legal questions in this action will involve especially novel or complex interpretations of Indiana law such that there is a strong reason to have this matter overseen by a court with more intimate familiarity with Indiana law.

Therefore, having concluded that the forum selection clause is not enforceable and consideration of all the § 1404(a) factors fails to show that the Southern District of Indiana is clearly more convenient and/or favored as a result of a consideration of the interests of justice, the defendant’s motion to transfer this action, (Docket No. 54), shall be denied.

III. CHOICE OF LAW

The relevant insurance policy states, “Indiana law shall govern all rights and claims raised under this Certificate of Insurance.” (Docket No. 55-1 [*12] at ¶6.) Relying upon this provision, the defendant asks the court to conclude that Indiana law applies to the claims raised in this case. (Docket Nos. 58, 59.) The plaintiff responds that Wisconsin law should apply because: (1) the defendant waived its opportunity to make a choice of law argument; (2) the choice of law provision is unconscionable; (3) the choice of law provision is contrary to Wisconsin public policy; (4) the choice of law provision would not apply to the plaintiff’s bad faith claim; (5) a common law choice of law analysis indicates that Wisconsin law should govern. (Docket No. 86.) The defendant replies that a common law choice of law analysis would actually favor Indiana, but in any event, the choice of law provision remains enforceable, is applicable to all the plaintiff’s claims, and the defendant did not waive the choice of law argument.

The court finds that Indiana law governs the present action. The court does not find that the defendant waived the choice of law argument. Choice of substantive law was not relevant to the court’s prior decisions and concluding now that Indiana law applies does not require the court to reassess any prior conclusion.

Nor does the [*13] court find the relevant provision unconscionable. Even accepting the plaintiff’s arguments that a reasonable person would not read the entire policy to recognize that it contained this choice of law provision, much less recognize its implications if he did, the court does not find the provision satisfies the high standard of unconscionability. The plaintiff does not point out what is supposedly so unfavorable about Indiana law that it would make it extremely unfair or oppressive to apply it in this case. If a reasonable person in the plaintiff’s position had been fully aware of the presence and consequences of the choice of law clause, the court has no reason to believe he would not have still agreed to the insurance policy he was offered.

The court finds the plaintiff’s argument that the choice of law provision violates Wisconsin public policy, (Docket No. 86 at 7-8), to be novel but misguided. In the plaintiff’s view, only Wisconsin law could ever govern an insurance dispute involving a Wisconsin resident because Wisconsin’s laws embody the public policy of the state and an insurance contract cannot ever be interpreted in a manner that offends the public policy of the state of Wisconsin. [*14] This argument is founded upon an overly-expansive reading of a quote of Couch on Insurance contained in Appleton Papers, Inc. v. Home Indem. Co., 2000 WI App 104, ¶44, 235 Wis. 2d 39, 612 N.W.2d 760:

A provision that a contract of insurance shall be governed by the law of a given state is void where such an express provision violates a statute of the state of the contract or would, if given force, evade statutory provisions declaring a rule of public policy with reference to contracts made within the jurisdiction, or where the contract stipulation would violate the interests and public policy of the state, since these cannot be changed by the contract of the parties.

What the Wisconsin Court of Appeals was actually saying in this quoted passage is that Wisconsin will not enforce a provision of an insurance contract that offends Wisconsin law simply because the contract contained a choice of law provision stating that the law of another state shall govern. It is for this reason that, notwithstanding the presence of the forum selection clause, it is appropriate to apply Wisconsin law to conclude that the forum selection clause was invalid. The plaintiff does not point to any Wisconsin law or public policy similarly barring [*15] choice of law provisions in insurance contracts. The court rejects the plaintiff’s argument that the court of appeals in Appleton Papers effectively found any choice of law provision unlawful.

Thus, the court turns to the plaintiff’s remaining argument that Wisconsin law would still apply to his bad faith claim. (Docket No. 86 at 8-9.) In support of this argument, the plaintiff begins with the terms of the choice of law provision: “Indiana law shall govern all rights and claims raised under this Certificate of Insurance,” (Docket No. 55-1 at ¶6). Redmond reads this provision as being limited to claims for insurance coverage. (Docket No. 86 at 8.) In Redmond’s view, a claim of bad faith is not “raised under” the policy but rather is a wholly distinct claim.

The court disagrees. Although bad faith is a tort and is distinct from breach of contract, in this case, it is the existence of the contract that creates the relationship necessary for a bad faith claim. Anderson v. Cont’l Ins. Co., 85 Wis. 2d 675, 687, 271 N.W.2d 368, 374 (1978) (the court looks to Wisconsin law here because that is the basis for the plaintiff’s argument). If there was no contract, there could be no claim of bad faith. [*16] Any bad faith claim will depend upon the scope and provisions of the contract. Because a bad faith claim is inextricably linked to the contract, in the court’s view, it is appropriately regarded as a “claim raised under this Certificate of Insurance.”

Accordingly, the court concludes that the choice of law provision contained within the policy is enforceable and applies to all of the plaintiff’s claims. Therefore, the defendant’s motion, (Docket No. 58), shall be granted, and Indiana substantive law shall govern this matter. Consequently, the court shall not consider arguments presented by the plaintiff that are founded solely in Wisconsin law or otherwise unsupported by reference to Indiana law.

IV. MOTIONS FOR SUMMARY JUDGMENT

Having concluded that Indiana law applies and this court must decide the present motions, the court turns to the parties’ motions for summary judgment. Sirius seeks summary judgment in its favor on both Redmond’s breach of contract, (Docket No. 70), and bad faith, (Docket No. 75), claims, as well as its cross-claim for breach of contract, (Docket No. 70), and with respect to the issue of future medical expenses, (Docket No. 66). Redmond seeks summary judgment [*17] on the question of coverage. (Docket No. 63.) The issues raised in all of the motions are largely inter-related and therefore the court shall address them together. At the core of the present dispute is the question of whether the relevant insurance policy afforded coverage for the injuries Redmond suffered and thus the court begins there.

A. Facts

On July 2, 2011, 32-year-old Redmond joined three acquaintances on a trip to ski the Ellingwood Couloir, located in Grand Teton National Park in Wyoming. (Docket No. 83, ¶1.) All were experienced skiers and Redmond considered himself an “expert,” having skied since age two and having skied competitively in high school. (Docket No. 83, ¶¶7-8.) Setting out at 1:00 or 2:00 AM, the group hiked up the mountain using crampons and ice axes to assist their assent. (Docket No. 83, ¶17-18.) Photographs of the group’s ascent have been included in the record. (See Docket No. 68-5.) By about 10:00 AM, the group was about two-thirds of the way up the Ellingwood Couloir when they stopped to rest. (Docket No. 83, ¶19.) Two of the group, including Redmond, rested about 30 minutes, removed their climbing gear, and prepared for their descent; two others continued [*18] climbing, intending to reach the top of the couloir before skiing down. (Docket No. 83, ¶¶25-26.) Redmond was first to ski down the mountain but after skiing only a short distance, he lost his balance and fell. (Docket No. 83, ¶28.) When he ceased tumbling down the mountain, he remained motionless, unconscious, and unresponsive. (Docket No. 83, ¶29.) He was eventually airlifted from the park for medical treatment. (Docket No. 83, ¶29.)

The relevant insurance policy that provided coverage for Redmond for the period of October 20, 2010 to October 20, 2011, contains the following exclusions:

All charges, costs, expenses and/or claims (collectively “Charges”) incurred by the Insured Person and directly or indirectly relating to or arising from or in connection with any of the following acts …:

* * *

(11) Charges incurred for any surgery, Treatment or supplies relating to, arising from or in connection with, for, or as a result of:

* * *

(d) any Injury or Illness sustained while taking part in mountaineering activities where specialized climbing equipment, ropes or guides are normally or reasonably should have been used, Amateur Athletics, Professional Athletics, aviation (except when traveling [*19] solely as a passenger in a commercial aircraft), hang gliding and parachuting, snow skiing except for recreational downhill and/or cross country snow skiing (no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body), racing of any kind including by horse, motor vehicle (of any type) or motorcycle, spelunking, and subaqua pursuits involving underwater breathing apparatus (except as otherwise expressly set forth in Section Q. Recreational Underwater Activities). Practice or training in preparation for any excluded activity which results in injury will be considered as activity while taking part in such activity; and/or

(e) any Illness or Injury sustained while participating in any sporting, recreational or adventure activity where such activity is undertaken against the advice or direction of any local authority or any qualified instructor or contrary to the rules, recommendations and procedures of a recognized governing body for the sport or activity….

(Docket No. 83, ¶33 (emphasis added).) Relying upon section (d) quoted above, [*20] Sirius denied Redmond’s claim. (Docket No. 83, ¶¶36, 38.)

B. Summary Judgment Standard

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A material fact is one that might affect the outcome of the case, and a nonmoving party’s dispute is “genuine” only if a reasonable finder of fact could find in the nonmoving party’s favor at trial. Anderson, 477 U.S. at 248-49. The court views the facts in the light most favorable to the non-moving party, and likewise it draws all inferences in the non-movant’s favor. Ault v. Speicher, 634 F.3d 942, 945 (7th Cir. 2011). The court may not weigh the evidence or make credibility determinations. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Thus, the nonmoving party will defeat a motion for summary judgment if it is able to produce admissible evidence that, when viewed in the most favorable light, would be sufficient to enable the finder of fact to return a verdict in its favor. Fleishman v. Cont’l Cas. Co., 698 F.3d 598, 603 (7th Cir. 2012).

C. [*21] Analysis

“An insurance policy is a contract, and as such is subject to the same rules of construction as other contracts.” Dunn v. Meridian Mut. Ins. Co., 836 N.E.2d 249, 251 (Ind. 2005) (citing Allstate Ins. Co. v. Dana Corp., 759 N.E.2d 1049, 1054 (Ind. 2001)). Because contract interpretation is primarily a question of law, it is a matter that is generally well-suited for summary judgment. FLM, LLC v. Cincinnati Ins. Co., 973 N.E.2d 1167, 1174 (Ind. Ct. App. 2012) (citing Mahan v. Am. Std. Ins. Co., 862 N.E.2d 669, 676 (Ind. Ct. App. 2007)). “When interpreting an insurance contract courts must look at the contract as a whole.” Dunn, 836 N.E.2d at 252 (citing Meridian Mut. Ins. Co. v. Richie, 540 N.E.2d 27, 29 (Ind. 1989)). In construing an insurance contract, the court should do “so as not to render any words, phrases, or terms ineffective or meaningless.” FLM, 973 N.E.2d at 1174 (citing Mahan, 862 N.E.2d at 676). Terms should be given their plain and ordinary meaning. Id. (citing Mahan, 862 N.E.2d at 676). In determining the “plain and ordinary meaning” of a term, courts will frequently turn to dictionaries. See, e.g., Allgood v. Meridian Sec. Ins. Co., 836 N.E.2d 243, 247 (Ind. 2005); [*22] State Farm Mut. Auto. Ins. Co. v. D’Angelo, 875 N.E.2d 789, 797-98 (Ind. Ct. App. 2007).

However, if a provision of an insurance contract is ambiguous, it is to be construed strictly against the insurer. FLM, 973 N.E.2d at 1174 (quoting Lake States Ins. Co. v. Tech Tools, Inc., 743 N.E.2d 314, 318 (Ind. Ct. App. 2001)). An insurance contract is not ambiguous simply because parties each have their own interpretation of a provision. Id. (citing Mahan, 862 N.E.2d at 676). Rather, “[a]n insurance contract is ambiguous when it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning.” Id. (quoting Allstate Ins. Co. v. Bradtmueller, 715 N.E.2d 993, 997 (Ind. Ct. App. 1999)).

1. Mountaineering Exclusion

In its motion for summary judgment, the defendant begins with the contention that the plaintiff’s injuries directly or indirectly related to or arose from or were in connection with mountaineering activities “where specialized climbing equipment, ropes or guides are normally or reasonably should have been used.” Mountaineering is not defined in the policy.

There is no dispute between the parties that when he was ascending the mountain, [*23] Redmond was mountaineering. But Redmond was not injured on his ascent, and the parties disagree as to whether his descent on skis constituted mountaineering.

The Oxford English Dictionary defines “mountaineering” as, “The action or sport of climbing mountains.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/239554. Merriam-Webster similarly defines it as “the sport or technique of scaling mountains.” Merriam-Webster, (January 15, 2014), http://www.merriam-webster.com/dictionary/mountaineering. The definition within the American Heritage Dictionary states, “The climbing of mountains, especially using special equipment and techniques on rock, ice, or snow. Also called mountain climbing.” American Heritage Dictionary, (January 15, 2014), http://www.ahdictionary.com/word/search.html?q=mountaineering.

If a person uses the word “climb” or “climbing” in common conversation, the connotation will generally be of an action involving ascent, e.g. climb a ladder, climbing stairs, or climb a tree. This understanding is reflected in the Oxford English Dictionary’s first definition of “climb,” which states, “To raise oneself by grasping or clinging, or by the aid of hands [*24] and feet; ‘to mount by means of some hold or footing’ (Johnson); to creep up; to ascend, come, or go up, a perpendicular or steep place. Often with up.” Oxford English Dictionary, (December 2, 2013), http://www.oed.com/view/Entry/34342 (emphasis in original).

But as any parent knows from having to frequently call after a rambunctious child, the word “climb” is often used alongside “down,” to denote descent, as in, “Climb down from there before you get hurt!” The Oxford English Dictionary recognizes this usage of “climb” as its second definition of the word “climb” stating, “to descend by the same means.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/34342.

Thus, if “mountaineering” is defined by reference to “climbing” and climbing can denote either ascent or descent, then necessarily, “mountaineering” must include both ascent and descent. The court finds this understanding of mountaineering to be the only logical definition. After all, in the context of mountaineering, the proverb “What goes up, must come down,” is generally literally true.

But a person is not necessarily “mountaineering” when he is descending a mountain simply because he ascended through [*25] mountaineering. A person who has helicopter waiting for him at a peak or who chooses to parasail off a mountain could not be appropriately regarding as “mountaineering” on his descent, notwithstanding the means of his ascent. Rather, as the Oxford English Dictionary notes in its second definition of “climb,” when used in the context of descent, the action must be “by the same means.” The court understands the “same means” to be referring to the means stated in the first definition of “climb,” i.e. “grasping or clinging, or by the aid of hands and feet.” Thus, whether ascending or descending a mountain by means of “grasping or clinging, or by the aid of hands and feet,” the person is “mountaineering.”

Here, Redmond generally hiked and climbed up and attempted to ski down. Obviously, skiing involves “the aid of hands and feet” but so do countless other obviously distinct activities. Common sense and common usage would not equate skiing with mountaineering; the actions are distinct in both connotation and denotation. Redmond engaged in mountaineering in order to go skiing but that predicate or the fact that the skiing occurred on a mountain (as skiing obviously often will) did not transform [*26] his skiing into mountaineering.

Nor does the court find persuasive the defendant’s argument that the policy’s expansive language barring coverage for injuries “arising from or in connection with, for, or as a result of … mountaineering” operates to bar coverage. Obviously, this provision serves a valuable purpose. Without it, perhaps a person who fell while mountaineering could argue that the mountaineering exclusion should not bar coverage because he was injured when he fell, not when he was mountaineering, which, by definition, would not include an uncontrolled fall. But the defendant’s argument stretches this provision too far. In the view of the defendant, because the causal chain the resulted in Redmond’s injury included a mountaineering link, coverage must be barred. The court disagrees.

The court also rejects the defendant’s contention that the mountaineering exclusion encompasses “ski mountaineering,” which the defendant characterizes as a subset of mountaineering. The plaintiff contends that ski mountaineering requires ropes and other specialized equipment that he was not using on the descent, (Docket No. 64 at 23-24), but even accepting for present discussion that Redmond’s [*27] acts fell within a broad definition of “ski mountaineering,” the court finds that the mountaineering exclusion does not encompass the distinct activity of ski mountaineering. In describing the mountaineering exclusion, the policy states that mountaineering involves activities “where specialized climbing equipment, ropes or guides are normally or reasonably should have been used.” Here, Redmond’s downhill skiing would not have called for specialized climbing equipment, ropes, or guides, and thus, even if it came within a broad general definition of “ski mountaineering,” the activity would not come within the policy’s description of “mountaineering.”

Therefore, the court concludes that the mountaineering exclusion does not apply in this case. Thus, the court turns to whether any of the policy’s skiing exclusions apply.

2. Skiing Exclusions

In the portion of the insurance policy listing its exclusions, it also states:

“any Injury or Illness sustained while taking part in … snow skiing except for recreational downhill and/or cross country snow skiing (no cover provided whilst skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; [*28] and/or against the advice of the local ski school or local authoritative body)….”

This provision, moving back and forth between coverage and exclusions, is far from a model of clarity. It first excludes coverage for injuries sustained while snow skiing but then immediately excludes from the exclusion (and thus covers) injuries sustained while “recreational downhill and/or cross country snow skiing,” and then adds a parenthetical to now exclude from the exclusion to the exclusion (and thus deny coverage for) injuries sustained while “skiing in violation of applicable laws, rules or regulations; away from prepared and marked in-bound territories; and/or against the advice of the local ski school or local authoritative body.” The net effect of this provision is that injuries sustained as a result of recreational snow skiing are covered provided the skiing was not unlawful, against the advice of certain entities, or “away from prepared and marked in-bound territories.”

The defendant argues that the plaintiff’s skiing was not “recreational” and points to a case where a court found that a life insurance policy did not provide coverage for an insured who was killed in an avalanche while heli-skiing [*29] (traveling via helicopter to a remote location on a mountain and then skiing down the mountain) because, although the insured listed skiing as one of his “recreational activities” he did not disclose that he engaged in backcountry heli-skiing. (Docket No. 81 at 8-12 (discussing W. Coast Life Ins. Co. v. Hoar, 505 F. Supp. 2d 734 (D. Colo. 2007)).) However, Hoar is distinguishable in that the issue before that court was not whether a policy exclusion applied but rather whether the insurer had adequate notice of the risk it was undertaking when it relied upon his application to issue the policy. Moreover, the court’s conclusion that the insurer was not adequately informed of its risk was not based solely upon the fact that the insured identified simply skiing, as opposed to heli-skiing, as a recreational activity, but also the fact that the insured did not disclose heli-skiing when asked if he engaged in “any hazardous activities.” Id. at 744-49.

“Recreational” is not ambiguous. It is readily understood as, “An activity or pastime which is pursued for the pleasure or interest it provides.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/159954. Thus, competitive [*30] or commercial skiing likely would not be covered under the policy. There is no evidence that Redmond was skiing for any purpose other than the pure pleasure or interest the sport provides, and thus the court concludes that Redmond’s skiing on the day of his injury was recreational.

Nor is there reason to conclude that his skiing was unlawful or against the advice of any relevant entity. The next question is whether he was skiing “away from prepared and marked in-bound territories” when he was injured.

In Redmond’s view, this phrase, when read alongside the other exclusions, means simply that there is no coverage if he is skiing in an area where he has been told not to ski. (Docket No. 64 at 27.) Thus, the exclusion would not apply here because he was skiing in an area where skiing was permitted; in effect, because skiing was permitted anywhere within Grand Teton National Park, the whole park was a prepared and in-bound territory. (Docket No. 64 at 27.)

Moreover, the term “away from” is ambiguous in the view of the plaintiff. It may be interpreted strictly to suggest the skier’s direction. Thus, there would be no coverage if a skier started on a marked and prepared in-bound area but then [*31] left that area. Or, perhaps, there might be coverage for out-of-bounds skiing provided the skier’s path, at some point, would intersect a marked and prepared in-bound territory and thus he was going towards, rather than away from, the in-bound territory. Therefore, a skier taking a shortcut through an out-of-bounds area would still be covered because he was going towards in-bound territory. Alternatively “away from” might be much broader, meaning generally, “outside,” as in how one might say she is “away from home.”

The court does not find the phrase “away from” to be ambiguous. Simply because a term has more than one denotation does not make it ambiguous; otherwise, the majority of words would probably be ambiguous. The differing understandings must also be reasonable given the context before the court will find a term ambiguous. The latter understanding, i.e. that “away from” means, roughly, “outside,” is the only reasonable understanding of the term given the context in which it is used. There may be some arguable ambiguity as to how far from the prepared and in-bound territory a person must be to be “away from” such territory, e.g. whether the term should be read like the NFL rulebook [*32] where one foot on the line is out of bounds or if there might be a sort of “bubble” around a covered territory so that coverage does not necessarily end at a strict boundary line, see York v. Sterling Ins. Co., 114 A.D.2d 665, 666-67, 494 N.Y.S.2d 243 (N.Y. App. Div. 3d Dep’t 1985) (holding that policy provision excluding coverage for injuries “away from” the insured’s property did not bar coverage for injuries sustained when a person riding a dirt bike on insured’s property lost control, traveled over the insured’s property line, and was injured). The follow-up question as to precisely how far one must be to be “away from” is not an issue presently before this court, although it may be relevant for trial. Thus, the court turns its focus to what is meant by “prepared and marked in-bound territories.”

The court rejects the plaintiff’s contention that the court must lump all the exclusions together and conclude that they mean simply that there is coverage so long as he was not skiing in an area where skiing was not banned. Such an interpretation offends the maxim of contract interpretation that, to the extent possible, every term and provision must be given meaning. In saying that there is no coverage [*33] if Redmond was skiing away from prepared and marked in-bound territories, this plainly encompasses more than simply skiing in an area where skiing is not barred. Thus, having concluded that “away from” means roughly “outside of,” restating this exclusion as a positive question, the issue before the court becomes, “Was Redmond skiing in a prepared and marked in-bound territory when he was injured?” Only if he was would the policy possibly afford coverage for his injures.

The plaintiff’s focus upon “in-bound” overlooks two other essential components to the exclusion–“prepared” and “marked.” The plaintiff refers to these terms in only a single inconsequential footnote, (Docket No. 64 at 31, n. 14).) If the plaintiff does not regard his argument on this point worthy of inclusion of the text of his brief, the court hardly regards it as worthy of much consideration; in fact, the court previously expressed its disapproval of the plaintiff’s efforts to raise arguments in footnotes, (Docket No. 80 at 4).

The court agrees with the defendant that “prepared” and “marked” are words of ordinary use. However, this fact does not necessarily mean that the terms are unambiguous as used in the policy. [*34] The only argument offered by either party that approaches a definition of the term “prepared” is the defendant’s suggestion that it means “groomed.” (Docket Nos. 71 at 23; 103 at 3, 9.) As for “marked” there is only the defendant’s footnote where it notes that Redmond testified he did not observe ropes, signs, fences, or other defined physical boundaries on the mountain that day. (Docket No. 71 at 21-22, fn.78.)

The court finds that both “prepared” and “marked” are subject to different interpretations. Again, simply because there are differing interpretations does not mean that the terms are ambiguous or that the policy affords coverage. Rather, for the term to be ambiguous, the differing interpretations must both be reasonable such that “intelligent persons would honestly differ as to its meaning.” Stevenson by Freeman v. Hamilton Mut. Ins. Co., 672 N.E.2d 467, 471 (Ind. Ct. App. 1996) (citing Harden v. Monroe Guaranty Ins. Co., 626 N.E.2d 814, 817 (Ind. Ct. App. 1993)). There is coverage only if one of those reasonable understandings is consistent with coverage. Thus, the court looks to the various meanings of these terms.

While “marked” is readily understood as having some sort of [*35] visible identification, see Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/114174, what is unclear is what sort of mark must be utilized or what these marks must indicate. The court presumes that if a ski area is bordered on the sides by signs and ropes demarcating the boundaries of the permissible skiing area, it is likely “marked” within the scope of the policy. But is this the only kind of identification that will render an area “marked?” What if the area is depicted on a map that includes boundary lines indicating the recommended areas for skiing? If markings on a map are sufficient, who must prepare such a map to render the area marked? Must the map be prepared by the entity in charge of the area, e.g. the National Park Service, or would a map prepared by a person with special knowledge of the area suffice? Or must the markings even relate to the in-bound territories? Would a sign in the vicinity of the mountain stating “Ski at your own risk,” suffice as a marking? Perhaps there are many other plausible understandings of this term.

As for “prepared,” again this term has a readily understandable common meaning, e.g. “To bring into a suitable condition [*36] for some future action or purpose; to make ready in advance; to fit out, equip.” Oxford English Dictionary, (January 15, 2014), http://www.oed.com/view/Entry/150447. This definition is exceptionally broad and thus its application to the context of skiing is unclear. Even the defendant’s own expert testified that he was not familiar with what this might mean in the context of skiing. (Docket No. 68-15 at 32.)

If ground has snow on it, to many persons, it is “prepared” for skiing in that it has been brought into a suitable condition for skiing, and thus the policy may be simply excluding coverage when persons attempt to ski on surfaces not suitable for skiing. Or must there be some sort of human intervention? (See Docket No. 68-12 at 12.) If so, what sort of intervention? In the context of backcountry skiing, would inspection for or the mitigation of avalanche dangers be adequate preparation of the territory? If so, who must do this? Or must there be, as the defendant seems to suggest, formal grooming of the area, using, for example, a snow grooming machine? If the latter definition is appropriate, then would there be coverage under the policy if an insured was making a run after a fresh [*37] snowfall, or must he wait for the snow grooming machine to make a pass over the slopes?

The court finds that neither party has adequately articulated, much less supported, an appropriate conclusive meaning for these terms. While the defendant’s understanding of the terms “prepared” and “marked” is, as discussed below in conjunction with the plaintiff’s bad faith claim, reasonable, this understanding is not necessarily the only reasonable understanding. Therefore, because the court is not satisfied that the terms are unambiguous and support the conclusion that there is no coverage under the policy, the court cannot grant the defendant’s motion for summary judgment. However, nor can the court grant the plaintiff’s motion for summary judgment because the plaintiff has not adequately demonstrated that the terms are, in fact, ambiguous and/or support a finding of coverage. The plaintiff largely asks the court to read the terms out of the policy rather than presenting an alternative reasonable understanding of these terms that is consistent with coverage. Although the court offers here hypothetical interpretations of these terms to demonstrate how they terms are not necessarily un-ambiguous, [*38] absent the defendant’s opportunity to respond to these interpretations, the court is not prepared to conclude that any of these proffered interpretations is reasonable. And in any event, even if reasonable, the court could not conclude that the proffered interpretation would be consistent with coverage because the plaintiff has not presented any such factual support to the court.

Consequently, neither party has succeeded in establishing that summary judgment is warranted on their respective motions relating to coverage. Because the understanding of “in-bound” appears to be at least partially dependent upon the definitions of both “prepared” and “marked,” the court finds itself similarly unable to fix a definition of this term at this time. Therefore, the parties’ motions for summary judgment regarding coverage, (Docket Nos. 63, 70), shall be denied.

3. Future Medical Expenses

Based upon its reading of the plaintiff’s complaint, the defendant understood that the plaintiff was seeking payment for medical expenses related to the accident but not incurred prior to the time the policy terminated. Thus, the defendant filed a motion seeking to foreclose this perceived request for damages. (Docket [*39] No. 66.) In response, the plaintiff states that he is seeking coverage only for medical expenses incurred between the date of the accident, July 2, 2011, and the date his coverage expired, October 19, 2012. The reference in the complaint to “costs of the medical care he will continue to receive in the future,” (Docket No. 1-1 at ¶40), was not a demand for coverage beyond the policy period but rather was necessitated by the fact that the complaint was filed within the policy period. In reply, the defendant asks the court to strike the pertinent portion of the complaint and declare that future medical expenses are not available to the plaintiff.

The court finds that the defendant’s motion, (Docket No. 66), is moot and therefore shall be denied as such. Further, the court finds no reason to strike any portion of the plaintiff’s complaint. The parties agree that the plaintiff is not entitled to payment for medical expenses incurred outside the policy period and the court does not read the complaint as seeking such damages. Thus, there is no controversy on this point that requires action by this court.

4. Bad Faith

It is well-established that insurers have a duty to deal in good faith with [*40] their insureds. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind. 2005) (citing Freidline v. Shelby Ins. Co., 774 N.E.2d 37, 40 (Ind. 2002). “As a general proposition, ‘[a] finding of bad faith requires evidence of a state of mind reflecting dishonest purpose, moral obliquity, furtive design, or ill will.'” Magwerks, 829 N.E.2d 968, 977 (Ind. 2005) (quoting Colley v. Indiana Farmers Mut. Ins. Group, 691 N.E.2d 1259, 1261 (Ind. Ct. App. 1998)). This may be proven if the plaintiff can establish by clear and convincing evidence “that the insurer had knowledge that there was no legitimate basis for denying liability.” Id. at 976 (quoting Freidline, 774 N.E.2d at 40). “Poor judgment or negligence do not amount to bad faith.” Lumbermens Mut. Cas. Co. v. Combs, 873 N.E.2d 692, 714 (Ind. Ct. App. 2007) (quoting State Farm Mut. Auto Ins. Co. v. Gutierrez, 844 N.E.2d 572, 580 (Ind. Ct. App. 2006). Nor is the lack of a diligent investigation sufficient to support a finding of bad faith. Id. (quoting Gutierrez, 844 N.E.2d at 580). Thus, bad faith is not synonymous with a breach of contract. Even if a denial of coverage was improper, it was not necessarily done in bad faith. Id. [*41] (quoting Erie Ins. Co. v. Hickman, 622 N.E.2d 515 (Ind. 1993)).

Redmond’s claim of bad faith is two-pronged. The first prong is Sirius’ conduct before the suit was filed; the second is Sirius’ conduct in defending this suit and pursuing a counterclaim against Redmond.

With respect to Sirius’ pre-litigation conduct, Redmond contends that Sirius acted in bad faith when it failed to conduct an adequate investigation into his claim and denied his claim. Sirius contends that its investigation was appropriate and its decision reasonable. In support, it points primarily to its “claim log,” which it provided to the court, (Docket No. 73-24). However, absent appropriate foundation to establish that this document is a business record under Fed. R. Evid. 803(6), this document is inadmissible hearsay. The defendant fails to support this document by an affidavit or declaration, nor has the defendant directed the court to any relevant deposition testimony that could provide the necessary foundation.

The defendant also relies upon the deposition testimony of Tammie Peters (“Peters”), the person ultimately responsible for denying Redmond’s claim. However, the defendant has provided the court with only [*42] nine pages of her 154 page deposition (three of the provided pages comprise the cover and certification pages), and not always the pages relied upon by the defendant, (see, e.g., Docket No. 73 at ¶130 (citing “Ex. W, Peters Dep. 10:7-9″ which is not included in Docket No. 73-23).) In her deposition, Peters is asked to review Exhibit 11, (see Docket No. 68-10), which the questioner posits consists of articles found on the internet and placed in the claims file of Sirius’ underwriter. (Docket No. 73-23 at 6.) At no point in the deposition excerpts provided to the court by the defendant does Peters authenticate these documents or testify that she relied solely upon them to make her coverage decision. Other documents attached to the defendant’s proposed findings of fact and cited by defendant in its proposed findings of fact and in its briefs are similarly un-authenticated. The only other testimony in the portion of Peters’ deposition provided to the court by the defendant that indicates the basis for Peters’ decision to deny Redmond’s claim is her statement that another employee offered his opinion that the claim was not covered because he reviewed an ambulance report and had done some [*43] internet research regarding where Redmond was skiing. (Docket No. 73-23 at 5.)

In contrast to the defendant’s submissions, the plaintiff has provided the court with the entirety of Peters’ deposition and thus the court turns to this document. (Docket No. 68-12.) Having reviewed this document, the court is able to fill in many of the gaps left by the defendant. In her deposition, Peters discusses Exhibit 7, which she describes as “insured notes” comprised of “notes that were put under the insured, Ryan Redmond.” (Docket No. 68-12 at 15.) Exhibit 7, which was provided to the court by the plaintiff as Docket No. 68-7, is largely the same as the “claim log,” (Docket No. 73-24), provided by the defendant, although the formatting of these documents differs and Docket No. 68-7 includes pages and entries beyond those included in the defendant’s excerpt. Based upon this more complete review, the court concludes that Peters’ testimony regarding this document is sufficient to bring the document within Fed. R. Evid. 803(6), and thus it may be appropriately considered by the court in deciding the present motion.

This document indicates that the decision to deny coverage was made by at least July [*44] 29, 2011. (Docket Nos. 73-24 at 3; 68-12 at 20.) The notes indicate that on July 5, 2011, the underwriter was informed that Redmond was in a “skiing accident with a head injury.” (Docket No. 73-24 at 6.) An hour later, another employer of the underwriter spoke with personnel at the hospital and noted, “Admitted through ER / head trauma / fall from cliff.” (Docket No. 73-24 at 5.) Ten days later, following a conversation with the helicopter ambulance service that assisted in Redmond’s rescue, the notes state, “Appeared scene was Lupine Meadows, but was unsure if that is a ski resort or park.” (Docket No. 73-24 at 4.) Later that day, a follow-up call confirmed that Lupine Meadows was in Grand Teton National Park. (Docket No. 73-24 at 4.) Four days thereafter, the underwriter communicated to the hospital that there might not be coverage because preliminary investigation indicated Redmond’s “injuries were as a result of backcountry skiing.” (Docket No. 73-24 at 4.)

The court is not able to find that the information contained in this document was necessarily sufficient to deny Redmond’s claim. Thus, the court looks to what other information was available to the underwriter. Peters testified [*45] that she also relied upon a report from the helicopter ambulance service that transported Redmond. (Docket No. 68-12 at 20.) This report is included in Exhibit AA to Sirius’ statement of proposed facts, (Docket No. 73-27 at 12-16), and, like many of the defendant’s exhibits, is not authenticated by way of a declaration, affidavit, or deposition testimony. Nonetheless, the court shall consider it because the plaintiff does not dispute that this document is the Omniflight Helicopters-Idaho medical records received by the underwriter. (Docket No. 96, ¶107.) The portion of this report captioned “History of Present Illness” states, in part, “Pt had been backcountry skiing when he fell down steep slope approx. 800 ft. Took approx. 2 hrs before pt could be reached.” (Docket No. 73-27 at 12.)

Taken together, all of this information provided a reasonable basis to deny Redmond’s claim pursuant to the skiing exclusion in the policy. As discussed above, the terms “prepared” and “marked,” as used within the skiing exclusion, can be reasonably understood in different ways. One such reasonable understanding would be the understanding that Peters testified she held, which there is no coverage for skiing [*46] outside of the boundaries of a ski run at a traditional ski resort. One could reasonably understand “backcountry skiing” to mean that Redmond was necessarily not skiing at a traditional ski resort. Subsequent information further corroborated the conclusion that Redmond was skiing in a remote wilderness area. (See Docket No. 73-14 (National Park Service Search & Rescue Report received by the underwriter on Sept. 15, 2011).) Thus, based upon the information provided, the decision to deny coverage was reasonable. This decision might prove incorrect, but it was not done in bad faith. There is simply no evidence that could permit a reasonable finder of fact to conclude by clear and convincing evidence that Peters’ decision to deny the claim was the result of a “dishonest purpose, moral obliquity, furtive design, or ill will.”

Thus, the court turns to the question of whether Sirius’ conduct in this litigation might form the basis for a claim of bad faith. Redmond argues that Sirius acted in bad faith by using tactics to try to get Redmond to concede Sirius’ counterclaim, which Sirius eventually withdrew, and by failing to reconsider the denial of coverage after certain deposition testimony. [*47] (Docket No. 89 at 9.)

On the issue of post-litigation conduct vis-à-vis bad faith, courts across the country have been dealing with two distinct issues. The first is evidentiary: whether an insurer’s conduct in litigation following the filing of a claim alleging bad faith might be used as evidence to support that claim of bad faith. The second is substantive: whether an insurer’s conduct in litigation might itself form the basis for a claim of bad faith. The Court of Appeals of Indiana addressed these issues in Gooch v. State Farm Mut. Auto. Ins. Co., 712 N.E.2d 38 (Ind. Ct. App. 1999), and noted the general reluctance of courts to permit post-litigation conduct as evidence to support a prior claim of bad faith. Id. at 42 (discussing Howard v. State Farm Mut. Auto. Ins. Co., 316 S.C. 445, 450 S.E.2d 582 (1994); Palmer v. Farmers Ins. Exch., 261 Mont. 91, 861 P.2d 895 (1993); Nationwide Mut. Ins. Co. v. Clay, 525 So. 2d 1339 (Ala.1987)). With respect to the second question, however, the Court of Appeals of Indiana concluded that when an insurer is sued, under certain circumstances, its post-litigation conduct might form an independent basis for a new bad faith claim.

In Gooch, the plaintiff [*48] sued her insurer seeking coverage under the uninsured motorist provision of her policy. After the action was filed, the defendant insurer insisted that she also pursue an action against another individual in a foreign jurisdiction, an action the plaintiff believed would be frivolous. Believing that the insurance company was making these demands to frustrate her suit and thus pressure her to settle, the plaintiff amended her complaint to also allege bad faith. The court of appeals concluded that such litigation conduct by an insurer might present a cognizable claim of bad faith, and in doing so the court emphasized that the plaintiff was relying upon conduct that occurred only before she filed her bad faith claim.

What Redmond is attempting to allege here are two distinct bad faith claims. The first related to the denial of his claim; the second related to Sirius’ conduct in the litigation. But as the court addressed in a prior order, (Docket No. 80), Redmond’s complaint raises bad faith only with respect to Sirius’ denial of his claim. Although Gooch involved a case initiated on a wholly distinct coverage claim, an insurer is likely not absolved of its duty of good faith simply because [*49] a plaintiff, like Redmond, initiates a suit alleging bad faith. If a suit is commenced containing a claim of bad faith and an insurer subsequently engages in litigation conduct that itself constitutes a distinct claim of bad faith, in accordance with Gooch, that plaintiff may amend her complaint to state a second distinct claim of bad faith.

Here, Redmond did not seek to amend his complaint to add a claim of post-litigation bad faith. Instead, he has attempted to expand the bad faith claim in his complaint by supplementing his discovery responses. The defendant objected and, as is fully discussed in this court’s prior order, (Docket No. 80), the court rejected this means of constructively amending his complaint. There was no amended complaint and therefore no such claim of post-litigation bad faith is properly before the court. Thus, Redmond necessarily cannot obtain the relief he seeks. Accordingly, the court shall grant the defendant’s motion for summary judgment as to the entirety of Redmond’s bad faith claim.

V. MOTION TO STRIKE PLAINTIFF’S DEMAND FOR A JURY TRIAL

Alongside its choice of law and venue provisions, the insurance policy also states, “All trials regarding disputes under [*50] this insurance shall be exclusively presented to and determined solely by the court as the trier of fact, without a jury.”

The plaintiff contends that this waiver of his right to a jury trial is unenforceable because it was not knowingly and intelligently made and the jury waiver provision is unconscionable. (Docket No. 95.) In reply, the defendant cites IFC Credit Corp. v. United Bus. & Indus. Fed. Credit Un., 512 F.3d 989, 993-94 (7th Cir. 2008), for the proposition that a jury waiver provision need not be knowing, voluntary, or intentional to be enforceable. (Docket No. 102 at 2-3.) However, the contract at issue in IFC was a traditional commercial contract under the Uniform Commercial Code. Although insurance policies are a form of contract and traditional rules of contract interpretation are applied, there is a vast difference between a UCC agreement for the sale of goods and a consumer insurance policy.

In deciding whether a contract provision waiving the right to a jury trial is enforceable, the court looks to the state substantive law that governs the contract. IFC, 512 F.3d at 994. Thus, the court looks to Indiana law. The plaintiff cites only Wisconsin law; the defendant, although [*51] citing Indiana law, does not identify any Indiana case explicitly addressing the question of a jury trial waiver in an insurance contract. The court’s own research has failed to identify any court that has applied Indiana law to directly answer this question.

Notwithstanding, the Court of Appeals for the Seventh Circuit noted that when it comes to the waiver of the right to a jury trial, an agreement to arbitrate a claim (and thus give up not only a jury trial but a judicial forum altogether) is arguably more onerous than an agreement to simply have a claim heard by a court instead of a jury, yet arbitration agreements are regularly enforced in all sorts of contracts without any special requirements. Id. Thus, in the absence of any case law addressing the validity of an insurance contract provision waiving simply the right to a jury trial, the court looks to how Indiana would regard a similar provision waiving the right to present a claim in any judicial forum.

Indiana law does not prohibit the use of arbitration provisions in insurance contracts, see Ind. Code sec. 34-57-2-1; rather, Indiana has a strong policy in favor of enforcing arbitration provisions in all contracts, including [*52] insurance contracts, see, e.g., Pekin Ins. Co. v. Hanquier, 984 N.E.2d 227, 228 (Ind. Ct. App. 2013); HemoCleanse, Inc. v. Phila. Indem. Ins. Co., 831 N.E.2d 259, 262 (Ind. Ct. App. 2005).

If an insurer can include in a standard insurance contract a provision whereby an insured will give up his right to not only a trial by jury but also the right to bring his action in any court, the court has little reason to conclude that a provision waiving the right to a jury trial is inherently unenforceable or any extraordinary means are necessary to render it effective. Thus, the court shall enforce the contract as written.

The plaintiff also raises separate arguments limited to the applicability of the waiver of the right to a jury trial to his bad faith claim. These arguments are basically a restatement of the arguments the plaintiff offered to support his contention that the choice of law provision did not apply to the bad faith claim. For the same reasons set forth above in the discussion of that motion, the court would reject these arguments. But more importantly, having concluded that the defendant is entitled to summary judgment on the plaintiff’s bad faith claim, this aspect of the plaintiff’s [*53] argument is moot.

Finally, the court rejects the plaintiff’s argument that the defendant waived the opportunity to object to the plaintiff’s demand for a jury trial. Under the circumstances of this case, the court finds the present stage of litigation to be an appropriate time for the defendant to raise its objection. Therefore, the defendant’s motion to strike the plaintiff’s demand for a trial by jury, (Docket No. 50), shall be granted.

VI. DEFENDANT’S MOTION TO STRIKE PLAINTIFF’S EXPERT REPORT

The defendant objects to opinions offered by the plaintiff’s expert, Daniel Doucette (“Doucette”), many of which are now moot in light of the court’s decisions on other motions. Thus, having concluded that the defendant is entitled to summary judgment on the plaintiff’s bad faith claim, Doucette’s opinions on this topic are no longer relevant. The only topic on which Doucette opined that remains to be resolved is the question of what the phrase “away from prepared and marked in-bound territories” means.

On this topic, Doucette’s conclusions read more like a legal brief than the opinions of an expert. (See Docket No. 61-1 at 19.) He does not opine as to how this phrase is commonly understood in [*54] the insurance industry, but rather offers general conclusions as to what this phrase might mean in the context of skiing. Although Redmond argues that Doucette is qualified to testify also as a ski expert, (Docket No. 91 at 9-10), the court is not persuaded. Doucette may be an experienced skier, but absent additional knowledge, skill, training, or education, the court finds that Doucette is not qualified to testify as an expert on skiing. The court is not going to open the witness stand to a parade of recreational skiers, each of whom would opine as to the meaning of the relevant phrase. An expert is supposed to assist the trier of fact and Doucette’s opinion on these phrases is not at all helpful.

Therefore, to the extent that his opinions are not moot, the court shall grant the defendant’s motion to exclude Doucette from testifying and strike his expert report, (Docket No. 60).

VII. MOTIONS TO STRIKE

Redmond moved to strike portions of the Sirius’ brief in support of its motion for summary judgment on the plaintiff’s bad faith claim, (Docket No. 84), and to strike Sirius’s reply to its proposed findings of fact, (Docket No. 107.)

The first motion to strike, (Docket No. 84), relates to [*55] the fact that in its brief in support of its motion for summary judgment, Sirius relied upon an email exchange it had not previously disclosed in discovery on the grounds that it was privileged, (see Docket No. 76 at 9-10). In response, Sirius apparently does not oppose the motion to strike, (Docket No. 97 at 4 (“Sirius will withdraw the previously withheld document at issue…”); its opposition is limited to the request for sanctions. Having considered the parties’ briefs on the matter, the court does not find that sanctions are appropriate. Therefore, the motion to strike shall be granted; the request for sanctions shall be denied.

The second motion to strike relates to the fact that Sirius replied to Redmond’s response to Sirius’ proposed findings of fact. Responding to this motion, Sirius’ counsel acknowledges that he misread what was permissible under the relevant local rule, Civ. L.R. 56(b)(3)(B), and agrees to withdraw the pleading. (Docket No. 109.) Therefore, the defendant having withdrawn the relevant pleading, (Docket No. 106), the motion to strike, (Docket No. 107), is moot.

VIII. CONCLUSION

Notwithstanding his travels, Redmond was “residing in” Wisconsin when he renewed his [*56] travel insurance policy with Sirius. Therefore, under Wis. Stat. § 631.83(3)(b), the policy’s forum selection clause is unenforceable. Balancing all other relevant factors, the court does not find that transfer to the Southern District of Indiana pursuant to 28 U.S.C. § 1404(a) is appropriate. Therefore, Sirius’ motion to transfer will be denied.

However, the choice of law provision within the contract shall be given its effect, and therefore Sirius’ motion for an order holding that Indiana law applies to the present case will be granted.

As for the parties’ motions for summary judgment, the court concludes that the mountaineering exclusion is unambiguous and does not exclude coverage for Redmond’s injuries. As for the skiing exclusion, Redmond was engaged in recreational skiing, and there is no evidence that Redmond was skiing “in violation of applicable laws, rules or regulations … and/or against the advice of the local ski school or local authoritative body.” However, the provision excluding coverage for skiing “away from prepared and marked in-bound territories” is subject to varying interpretations and the evidence before the court is insufficient to enable the court to conclude [*57] that either party is entitled to summary judgment on the question of whether the policy provides coverage for Redmond’s injuries.

The court shall grant the defendant’s motion for summary judgment with respect to the plaintiff’s bad faith claim. The evidence is insufficient to permit a reasonable finder of fact to conclude that Sirius acted in bad faith in denying Redmond’s claim. Moreover, Sirius’ litigation conduct cannot form the basis for a bad faith claim because Redmond never amended his complaint to state such a claim.

The defendant’s motion to strike the plaintiff’s demand for a jury trial is granted in accordance with the plain language of the policy, and therefore in any trial in this matter, the court shall serve as the finder of fact.

The report of plaintiff’s expert Daniel Doucette is largely moot in light of other conclusions by the court, but to the extent it is not moot, the defendant’s motion to strike is granted. The plaintiff lacks the qualifications to testify as an expert on skiing and his opinions regarding the meaning of the phrase “away from prepared and marked in-bound territories” are insufficiently supported to come within the appropriate ambit of an expert.

Finally, [*58] with respect to the plaintiff’s motions to strike, the defendant concedes both. Therefore, the plaintiff’s motion to strike portions of the defendant’s brief in support of its motion for summary judgment is granted and its reply to the plaintiff’s response to the defendant’s proposed findings of fact is deemed withdrawn. The court declines to impose sanctions.

IT IS THEREFORE ORDERED that the defendant’s motion to transfer this case to the United States District Court for the Southern District of Indiana, (Docket No. 54), is denied.

IT IS FURTHER ORDERED that the defendant’s motion to strike the plaintiff’s demand for a jury trial, (Docket No. 56), is granted.

IT IS FURTHER ORDERED that the defendant’s motion for an order that Indiana law governs the plaintiff’s claims, (Docket No. 58), is granted.

IT IS FURTHER ORDERED that the defendant’s motion to exclude and strike the expert report of Daniel Doucette, (Docket No. 60), is granted to the extent that the motion is not moot.

IT IS FURTHER ORDERED that the plaintiff’s motion for summary judgment on coverage, (Docket No. 63), is denied.

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment on future medical expenses, (Docket [*59] No. 66), is denied as moot.

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment on the plaintiff’s breach of contract claim and the defendant’s breach of contract counterclaim, (Docket No. 70), is denied

IT IS FURTHER ORDERED that the defendant’s motion for summary judgment on the plaintiff’s bad faith claim, (Docket No. 75), is granted.

IT IS FURTHER ORDERED that the plaintiff’s expedited non-dispositive motion to strike, (Docket No. 84), is granted. The request for sanctions is denied.

IT IS FURTHER ORDERED that the plaintiff’s expedited non-dispositive motion to strike, (Docket No. 107), is denied as moot. The defendant’s reply, (Docket No. 106), is considered withdrawn.

IT IS FURTHER ORDERED that the court shall hold a telephonic conference on January 28, 2014 at 9:00 AM (CST) to discuss scheduling this matter for trial. The court will initiate the call. Not less than 48 hours before the call, counsel participating in the call shall provide to the court via email to GoodsteinPO@wied.uscourts.gov a direct telephone number where counsel may be reached for the call. The court strongly discourages the use of mobile phones for conference calls.

Dated at Milwaukee, Wisconsin [*60] this 15th day of January, 2014.

/s/ Aaron E. Goodstein

AARON E. GOODSTEIN

U.S. Magistrate Judge

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Fleury v. IntraWest Winter Park Operations Corporation, 2014 Colo. App. LEXIS 242

Fleury v. IntraWest Winter Park Operations Corporation, 2014 Colo. App. LEXIS 242

Salynda E. Fleury, individually, on behalf of Indyka Norris and Sage Norris, and as surviving spouse of Christopher H. Norris, Plaintiff Appellant, v. IntraWest Winter Park Operations Corporation, Defendant Appellee.

Court of Appeals No. 13CA0517

COURT OF APPEALS OF COLORADO, DIVISION VII

2014 Colo. App. LEXIS 242

February 13, 2014, Decided

OPINION

[*1]

Grand County District Court No. 12CV132 Honorable Mary C. Hoak, Judge

Opinion by JUDGE FOX

Navarro, J., concurs

J. Jones, J., dissents

Announced February 13, 2014

Burg Simpson Eldridge Hersh & Jardine, P.C., Diane Vaksdal Smith, Nelson P. Boyle, James G. Heckbert, Englewood, Colorado, for Plaintiff-Appellant

Reitz Law Firm, LLC, Peter W. Reitz, Kimberly A. Viergever, Brian A. Birenbach, Dillon, Colorado, for Defendant-Appellee

¶ 1 This case arises from the death of Christopher H. Norris, who was killed by an avalanche while skiing at Winter Park Resort. Mr. Norris’s wife, Salynda E. Fleury, individually and on behalf of her minor children Indyka and Sage Norris, sued defendant, IntraWest Winter Park Operations Corporation (IntraWest), the operator of Winter Park Resort. The district court granted IntraWest’s motion for determination of law and judgment on the pleadings, ruling that an avalanche is an inherent danger or risk of skiing under the Ski Safety Act, § 33-44-101 to -114, C.R.S. 2013 (the Act), and therefore IntraWest cannot be liable for Mr. Norris’s death. We agree and affirm.

I. Background and Procedural History

¶ 2 On January 22, 2012, Mr. Norris was fatally injured in an avalanche [*2] while skiing inbounds at Winter Park Resort on a run known as Trestle Trees/Topher’s Trees (Trestle Trees). Ms. Fleury asserted claims for negligence and wrongful death. Ms. Fleury claimed that IntraWest knew or should have known that an avalanche was likely to occur on Trestle Trees on January 22, 2012, and that IntraWest’s failure to warn skiers about the likelihood of

1

avalanches or failure to close Trestle Trees caused Mr. Norris’s death. Ms. Fleury sought an unspecified amount of economic and noneconomic damages, and punitive damages for IntraWest’s alleged willful and wanton conduct.

¶ 3 IntraWest moved for a determination of law under C.R.C.P. 56(h), and a judgment on the pleadings under C.R.C.P. 12(c), asserting immunity from liability because an avalanche is an inherent danger or risk of skiing under the Act. See §§ 33-44-103(3.5) (defining inherent dangers and risks of skiing) and 33-44-112 (granting immunity when an injury results from an inherent danger or risk of skiing). IntraWest also asserted that the Act caps the maximum amount of compensatory damages for derivative claims at $250,000, present value. See § 33-44-113.

¶ 4 The court held that the avalanche that killed Mr. [*3] Norris was an inherent risk of skiing, and thus IntraWest was not liable for his death. The court dismissed Ms. Fleury’s claims with prejudice, but opined that were Ms. Fleury allowed to proceed with her claims, compensatory damages would be capped at $250,000, individually and on behalf of her minor children.

2

II. Liability Under the Act

¶ 5 Ms. Fleury contends that the district court erred in determining that the avalanche was an inherent risk of skiing under § 33-44-103(3.5). We disagree and therefore affirm.

A. Standard of Review

¶ 6 We review a district court’s order granting a judgment on the pleadings under C.R.C.P. 12(c) de novo. In re Estate of Johnson, 2012 COA 209, ¶ 18. We likewise review a district court’s determination of a question of law under C.R.C.P. 56(h) de novo. Henisse v. First Transit, Inc., 247 P.3d 577, 579 (Colo. 2011). An order deciding a question of law is proper “[i]f there is no genuine issue of any material fact necessary for the determination of the question of law.” C.R.C.P. 56(h). The nonmoving party is entitled to all favorable inferences. Henisse, 247 P.3d at 579.

¶ 7 Statutory interpretation, the matter we must address here, presents a question of law [*4] and is also subject to de novo review. Stamp v. Vail Corp., 172 P.3d 437, 442 (Colo. 2007). When the language of the statute is clear and unambiguous, we give effect to its plain and ordinary meaning. Id. Likewise, when the General

3

Assembly defines a term, we must apply that definition. People v. Swain, 959 P.2d 426, 429 (Colo. 1998); In re M.D.E., 2013 COA 13, ¶ 10. However, when the language is ambiguous – that is, reasonably susceptible of multiple meanings – we may consider extrinsic indications of the General Assembly’s intent. Stamp, 172 P.3d at 442; In re M.D.E., ¶ 10.

B. Applicable Law

¶ 8 In adopting the Act, the General Assembly recognized that there are dangers inherent to the sport of skiing, regardless of the safety measures that may be employed by ski area operators. § 33-44-102. The Act’s stated purposes are to “define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.” Id. Consistent with these purposes, the Act grants ski area operators immunity from claims for injuries [*5] resulting from any of the inherent dangers and risks of skiing. § 33-44-112. Accordingly, a skier may not

4

recover if his injury – or death, see Stamp, 172 P.3d at 447 – is

the result of an inherent danger or risk of skiing.

C. Avalanches as Inherent Dangers or Risks of Skiing

¶ 9 Ms. Fleury contends that because an “avalanche” is not specifically listed as an inherent danger or risk of skiing in § 33-44-103(3.5), the General Assembly did not intend that it should be so regarded for purposes of the Act. Relying on Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (holding that a court cannot add words to a statute), and Lunsford v. Western States Life Insurance, 908 P.2d 79, 84 (Colo. 1995) (where the legislature has spoken with exactitude, a court must construe the statute to mean that inclusion or specification of a particular set of conditions necessarily excludes others), she argues that the definition of “inherent dangers and risks of skiing” is [*6] a finite list. According to Ms. Fleury, construing the definition to include avalanches would expand the scope of a ski area operator’s immunity under the Act in contravention of the intent of the General Assembly. We disagree, for two reasons.

1. Plain Meaning of the Act

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¶ 10 First, giving effect to the plain meanings of the words in the Act, we conclude that an avalanche fits the definition of inherent dangers and risks of skiing. As relevant here, the inherent dangers and risks of skiing include:

those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; [and] variations in steepness or terrain, whether natural or as a result of slope design[.]

§ 33-44-103(3.5). We must apply this definition as written. Swain,

959 P.2d at 429.

¶ 11 The operative definition contains the word “including” before listing nonexclusive examples. Because the General Assembly typically uses “include” as a word of extension or enlargement, listing examples in a statutory definition does not restrict the term’s [*7] meaning. See S. Ute Indian Tribe v. King Consol. Ditch Co., 250 P.3d 1226, 1233 n.4 (Colo. 2011); see also Lyman v. Town of Bow Mar, 188 Colo. 216, 222, 533 P.2d 1129, 1133 (1975) (stating that the word “‘include'” in a statute ordinarily signifies extension or

enlargement, and it is not synonymous with the word “‘mean'”).

6

The list is illustrative and not, as Ms. Fleury argues, confined to the

identified dangers.

¶ 12 In Kumar v. Copper Mountain, Inc., the Tenth Circuit held thata cornice, which is not listed in the Act, is an inherent danger or risk of skiing. 431 F. App’x 736, 738 (2011). This cornice regularly formed at the intersection of two ski runs, but the resort did not post any warning signs alerting skiers to its existence or the potential danger of the steep drop-off at the edge. Id. at 737. The injuries in Kumar occurred when the skier did not see the edge of the cornice, and he unintentionally skied off of that edge. Id. The Tenth Circuit concluded that a cornice falls within the statutory definition of an inherent danger or risk of skiing either “within the section relating to snow conditions as they exist or change, or the provision covering variations in steepness or [*8] terrain.” Id. at 738.

¶ 13 Similar to a cornice, an avalanche – “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice,” see Webster’s Third New International Dictionary Unabridged 150 (2002);see also Union Ins. Co. v. Houtz, 883 P.2d 1057, 1068 (Colo. 1994) (an appellate court

7

may consult recognized dictionaries to determine the ordinary meanings of words) – fits one or more of the statutory examples of inherent dangers or risks of skiing.

¶ 14 Ms. Fleury’s complaint alleges that the avalanche that killed Mr. Norris was caused by new snowfall on top of a weak and unstable snowpack on a north-facing slope of greater than thirty degrees. Thus, even pursuant to Ms. Fleury’s own allegations, the avalanche resulted from changing snow conditions (new snowfall) and existing snow conditions (weak and unstable snowpack) caused by weather and slope steepness (slope exceeding thirty degrees).

¶ 15 An avalanche falls neatly into the examples of dangers in the Act, and comports with the common understanding of a “danger”: a “[p]eril; exposure to harm, loss, pain, or other negative result.”

Black’s Law Dictionary 450 (9th ed. 2009); see also [*9] Union Ins. Co., 883 P.2d at 1068. An avalanche is itself a danger resulting from certain conditions of snow, and the degree of danger is affected by “changing weather conditions” across “variations of steepness and terrain.” See Mannhard v. Clear Creek Skiing Corp., 682 P.2d 64, 66

8

(Colo. App. 1983) (characterizing avalanche danger as arising from

dangerous natural snow conditions).

¶ 16 We thus construe the definition of inherent dangers and risks of skiing in § 33-44-103(3.5) as written to include an avalanche. See Swain, 959 P.2d at 429; Kumar, 431 F. App’x at 738. This construction is fully consistent with the legislative recognition that, regardless of all reasonable safety measures a ski area operator may employ, skiing is fraught with dangers. See § 33-44-102; see also Mannhard, 682 P.2d at 66.

2. Legislative Intent

¶ 17 Since its enactment in 1979, the General Assembly has amended the Act to increasingly limit a ski area operator’s liability

for skiing-related injuries.1 In 1990, the General Assembly added section 112, which immunizes ski area operators from liability for a

1 It is true that statutes granting immunity are in derogation of the common law and must be strictly construed. [*10] See State v. Nieto, 993 P.2d 493, 506 (Colo. 2000) . It is equally true, however, that we must assume that General Assembly knew this law when it increasingly broadened ski area operators’ immunity. See Smith v. Miller, 153 Colo. 35, 39, 384 P.2d 738, 740 (1963) (“[I]t must be assumed that the legislature acted with full knowledge of relevant constitutional provisions, inherent judicial powers existing, and of previous legislation and decisional law on the subject[.]“).

9

skier’s injury resulting from any of the inherent dangers and risks of skiing. See Ch. 256, sec. 7, § 33-44-112, 1990 Colo. Sess. Laws 1543; see also Stamp, 172 P.3d at 443-44 (Colo. 2007) (“By narrowly defining the claims that can be brought by injured skiers against ski area operators and by limiting the recovery in successful skiers’ claims, the 1990 amendments broaden the [Act's] protection of ski area operators.”).

¶ 18 In 2004, the General Assembly changed the definition of inherent dangers and risks of skiing from “dangers or conditions which are an integral part of the sport of skiing” to “dangers or conditions that are part of the sport of skiing,” thereby broadening the types of inherent risks covered by the [*11] Act and decreasing the liability of ski area operators. See Ch. 341, sec. 1, § 33-44-103(3.5), 2004 Colo. Sess. Laws. 1393. Removing the words “an integral” effectively abrogated the part of the supreme court’s holding in Graven v. Vail Associates, 909 P.2d 514, 520 (Colo. 1995), that required courts to determine if a danger encountered on the ski

10

slopes was “integral to the sport,”2 and only granted immunity for

such dangers.

¶ 19 We conclude that the inclusion of an avalanche as an inherent danger or risk of skiing is consistent with the General Assembly’s intent, as evidenced by the evolution of the Act.

D. Duty to Warn

¶ 20 We also reject Ms. Fleury’s argument that IntraWest is liable for Mr. Norris’s death because it failed to close Trestle Trees – and failed to post closure signage – or warn skiers about the avalanche danger on January 22, 2012.

¶ 21 The Act prescribes the rights and responsibilities of ski area operators, see § 33-44-102, and two sections of the Act require sign placement throughout the ski area. Section 33-44-106 requires specific signs at the loading and unloading positions of ski lifts or tramways, and section 33-44-107 requires signs noting the difficulty of [*12] each slope, the entry point of extreme and freestyle

2 Following Graven and construing the Act’s definition of “inherent dangers and risks of skiing,” Rowan v. Vail Holdings, Inc., 31 F. Supp. 2d 889, 903 (D. Colo. 1998), defined “integral to the sport” as those risks that are so integrally related to skiing that the sport cannot be undertaken without confronting those risks. Id.

11

terrain, closed trails or slopes, ski area boundaries, and man-made structures along the slopes. Significantly, the Act’s signage requirements relate to man-made obstacles, ski area boundaries, and the steepness of the terrain. An avalanche is neither man-made nor a constant feature on the terrain.

¶ 22 Further, the General Assembly’s 2004 amendments removed a part of § 33-44-107(2)(d) that previously required ski area operators to post a sign notifying skiers of “danger areas,” which exclude “areas presenting inherent dangers and risks of skiing.” See Ch. 341, sec. 2, § 33-44-107(2)(d), 2004 Colo. Sess. Laws. 1393. This change further evinces that the General Assembly intended to broaden the immunity of ski areas by decreasing their obligations and responsibilities.

¶ 23 Again, Kumar, 431 F. App’x 736, is instructive. [*13] It held that Copper Mountain was not required to warn skiers about the cornice because “[a] ski area operator is negligent for failure to warn only when it violates the specific and detailed warning requirements of [the Act] as set forth in §§ 33-44-106 and -107.” Id. at 739. Additionally, Kumar held that inherent dangers and risks of skiing

12

include skiing over features, like cornices, that are not subject to

the statute’s signage requirements. Id.

¶ 24 We see nothing in the Act to support Ms. Fleury’s interpretation that IntraWest was required to close Trestle Trees or post warning signs, notwithstanding the fact that IntraWest may have had the ability to do so. The Act enumerates specific sign requirements and does not require ski area operators to warn skiers of possible avalanches or to close slopes with avalanche danger. Therefore, IntraWest was under no duty to post a warning sign at, or to close, Trestle Trees on January 22, 2012. See Kumar, 431 F. App’x at 739.

¶ 25 As discussed above, the General Assembly has increasingly broadened ski area operators’s immunity for skier injuries. While Mr. Norris’s death was tragic, IntraWest is not liable under the Act. If the General Assembly [*14] wishes to hold ski areas accountable for avalanche-related injuries or deaths, it should amend the Act.

¶ 26 We thus conclude that the district court properly dismissed Ms. Fleury’s claims against IntraWest.

III. Recovery Limits

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¶ 27 Because we find no liability, we decline to address Ms. Fleury’s claim that the district court erred in determining that her recovery is statutorily capped at $250,000.

¶ 28 The judgment is affirmed.

JUDGE NAVARRO concurs.

JUDGE J. JONES dissents.

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J. JONES, J., dissenting.

¶ 29 I respectfully dissent from the majority’s conclusion that an avalanche is an inherent danger or risk of skiing as defined in subsection 33-44-103(3.5), C.R.S. 2013. In my view, that provision does not expressly or by clear implication include avalanches occurring on open, designated ski trails within its definition; therefore, the grant of immunity in section 33-44-112, C.R.S. 2013, for injuries resulting from the inherent dangers and risks of skiing does not apply to injuries resulting from such avalanches. Because Mr. Norris was killed as a result of an avalanche on an open, designated trail within the ski area – an event for which IntraWest does not have immunity – I would reverse [*15] the district court’s judgment and allow his family members’ claims to proceed.

I. The Relevant Statutes

¶ 30 Section 33-44-112 provides in relevant part that “[n]otwithstanding any judicial decision or any other law or statute to the contrary, . . . no skier may make any claim against or recover from any ski area operator for injury resulting from any of the inherent dangers and risks of skiing.” This provision therefore

15

grants any “ski area operator” (a term defined in subsection 33-44-

103(7)) immunity from suit and damages for injuries resulting from

inherent dangers and risks of skiing. See Johnson v. Bodenhausen,

835 F. Supp. 2d 1092, 1094-96 (D. Colo. 2011); see also Air Wis.

Airlines Corp. v. Hoeper, 2012 CO 19, ¶¶ 19-25 (discussing the

distinction between immunity from suit and immunity from

damages), rev’d on other grounds, 561 U.S. ___ (2014).1

¶ 31 Subsection 33-44-103(3.5), in turn, defines “inherent dangers

and risks of skiing.” It provides in full as follows:

“Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, [*16] packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming

1 It is undisputed that the claims asserted here are those of a “skier,” and that IntraWest is a “ski area operator.”

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operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities. The term ‘inherent dangers and risks of skiing’ does not include the negligence of a ski area operator as set forth in section 33-44-104(2). Nothing in this section shall be construed to limit the liability of the ski area operator for injury caused by the use or operation of ski lifts.

See also § 33-44-107(8)(c), C.R.S. 2013 (setting forth what a

warning [*17] on every lift ticket must state).

¶ 32 The question here is whether an avalanche occurring on an open, designated ski trail within a ski area clearly fits within this statutory definition of “inherent dangers and risks of skiing.” If it does, the suit is barred. If it does not, the suit is not barred.

II. Standard of Review

¶ 33 The district court granted IntraWest’s motion for judgment on the pleadings pursuant to C.R.C.P. 12(c), and its motion for a determination of a question of law pursuant to C.R.C.P. 56(b). As the majority correctly notes, we review decisions granting both such motions de novo. And the sole question presented in the context of

17

those motions is one of statutory interpretation, the resolution of

which is a question of law that we also review de novo.

III. Applicable Principles of Statutory Interpretation

¶ 34 Our primary goals in applying any statute are to discern and then give effect to the General Assembly’s intent. Hassler v. Account Brokers of Larimer Cnty., Inc., 2012 CO 24, ¶ 15; Commercial Research, LLC v. Roup, 2013 COA 163, ¶ 7. We first look to the statutory language, giving the words and phrases used therein their plain and ordinary meanings. Hassler, ¶ [*18] 15; Krol v. CF & I Steel, 2013 COA 32, ¶ 15. But we do not consider those words and phrases in isolation. Rather, we must read the relevant statutory language in the dual contexts of the particular statute at issue and the entire related statutory scheme. Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010); Commercial Research, ¶ 7. And we must do this so as to give consistent, harmonious, and sensible effect to all parts of the statute. Jefferson Cnty. Bd. of Equalization, 241 P.3d at 935.

¶ 35 If this analysis shows that the relevant statutory language is unambiguous, we apply it as written, without resorting to other

18

methods of ascertaining legislative intent. Id.; accord Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). But if this analysis shows that the relevant statutory language is ambiguous, we may consider other indicators of legislative intent. Jefferson Cnty. Bd. of Equalization, 241 P.3d at 935; Commercial Research,

¶ 7. Such indicators may include, for example, legislative history, the General Assembly’s declaration of purpose, prior law, and the consequences of a particular construction. See § 2-4-203, C.R.S. 2013; Jefferson Cnty. Bd. of Equalization, 241 P.3d at 935; [*19] Bd. of Cnty. Comm’rs v. Costilla Cnty. Conservancy Dist., 88 P.3d 1188, 1193 (Colo. 2004).

¶ 36 Statutory language is ambiguous if it is susceptible of more than one reasonable interpretation. See A.M. v. A.C., 2013 CO 16,

¶ 8; see also Jefferson Cnty. Bd. of Equalization, 241 P.3d at 936 (“A statute is ambiguous when it ‘is capable of being understood by reasonably well-informed persons in two or more different senses.'” (quoting in part 2A Norman J. Singer & J.D. Shambie Singer,

Sutherland Statutory Construction § 45:2, at 13 (7th ed. 2007))).

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¶ 37 Ordinarily, the foregoing general principles supply a sufficient framework for resolving a question of statutory interpretation. But because the statutes at issue in this case grant an immunity from suit, other principles come into play. Specifically, we must strictly construe such statutes because they are in derogation of the common law. State v. Nieto, 993 P.2d 493, 506 (Colo. 2000); see Clyncke v. Waneka, 157 P.3d 1072, 1077 (Colo. 2007) (per Bender, J., with two justices concurring and one justice concurring in the judgment; applying this principle to a statute granting limited immunity to persons involved in equine activities). And, [*20] if the General Assembly “wishes to abrogate rights that would otherwise be available under the common law, it must manifest its intent either expressly or by clear implication.” Van Waters & Rogers, Inc. v. Keelan, 840 P.2d 1070, 1076 (Colo. 1992); see Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654, 661 (Colo. 2000) (“A statute may modify or restrict a common law right ‘only to the extent embraced by the statute, which may not be enlarged by construction, nor its application extended beyond its specific terms.'” (ultimately quoting in part Robinson v. Kerr, 144 Colo. 48,

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52, 355 P.2d 117, 119-20 (1960))); Farmers Grp., Inc. v. Williams, 805 P.2d 419, 423 (Colo. 1991) (same; and citing cases for the proposition that the intent to abrogate a common law right must appear clearly, either “directly or by necessary implication” (internal quotation marks omitted)).

IV. Analysis

¶ 38 The majority errs, I believe, in giving the definition of “inherent dangers and risks of skiing” in subsection 33-44-103(3.5) an expansive reading rather than a narrow one. Avalanches are not

mentioned in that definition.2 The majority concludes that they are nevertheless included within the definition by [*21] cobbling together

three categories of covered dangers and risks – “changing weather conditions,” “snow conditions as they exist or may change,” and “variations in steepness and terrain.” Fundamentally, I believe that approach contravenes the governing principles that a statute’s grant of immunity must be strictly construed, may not be expanded by construction, and must appear expressly or by clear implication.

2 Avalanches are not mentioned anywhere in the Ski Safety Act.

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¶ 39 It also seems to me that the General Assembly has spoken with exactitude in defining inherent dangers and risks of skiing, delineating with specificity the types of conditions and events which fall within that definition. In Vigil v. Franklin, 103 P.3d 322 (Colo. 2004), the supreme court, in construing a statute limiting liability, made clear that “‘when the legislature speaks with exactitude, [a court] must construe the statute to mean that the inclusion or specification of a particular set of conditions necessarily excludes others.'” Id. at 327 (quoting Lunsford v. W. States Life Ins., 908 P.2d 79, 84 (Colo. 1995)).

¶ 40 It is not as if avalanches are unheard of occurrences in mountainous areas, or even on or [*22] near ski areas. And yet the General Assembly – despite formulating a lengthy definition identifying numerous specific conditions and events – did not expressly (or otherwise clearly) include avalanches. Given the exactitude with which the General Assembly has spoken, I do not believe it is appropriate for us to essentially add another event to the definition.

22

¶ 41 Even were I to agree with the majority that we may aggregate categories of conditions and events to infer inclusion of unmentioned conditions or events, I would not agree with the majority that aggregation of the three categories on which it relies unambiguously shows that avalanches are included within the statutory definition.

¶ 42 An avalanche is “a large mass of snow, ice, earth, rock, or other material in swift motion down a mountainside or over a precipice.” Webster’s Third New Int’l Dictionary 150 (2002). It is, therefore, an event – one that not even necessarily involves snow. Thus understood, I believe that the majority’s effort to fit avalanche within the statutory definition fails on its own terms.

¶ 43 The statute includes “changing weather conditions” within the definition. Though, to be sure, a change in weather [*23] conditions may contribute to the creation of an avalanche, the fact remains that an avalanche cannot be characterized as a change in weather conditions – avalanches and changing weather conditions are qualitatively different kinds of events.

23

¶ 44 In including “snow conditions as they exist or may change” within the definition, the General Assembly explained what it meant by that term by following it with “such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow.” These examples describe types of snow by the snow’s physical properties or source. An avalanche is not such a condition.

¶ 45 Nor is an avalanche a “variation[] in steepness or terrain.” Again, the General Assembly explained that term. It includes variations “whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications.” This describes conditions as encountered by a skier in the ordinary course of skiing, and in static condition. An avalanche is not such a condition.3

¶ 46 Further, an avalanche may not be caused by a combination of changing weather [*24] conditions, snow conditions, and variation in

3 In this way an avalanche is distinguishable from the cornice at issue in Kumar v. Copper Mountain, Inc., 431 F. App’x 736 (10th Cir. 2011). A cornice is clearly a variation in steepness or terrain.

24

steepness or terrain. Other factors, such as human conduct, may

contribute to the creation of such an event.

¶ 47 The majority’s analysis also fails to account for the fact that the General Assembly identified particular events which would fit within the statutory definition – collisions with natural objects, impacts with man-made objects, and collisions with other skiers. The event at issue here – an avalanche – is not among them.4

¶ 48 In sum, I do not believe that the statutory categories of dangers and risks, considered fully, in context, and as a whole, unambiguously encompass avalanches occurring on open, designated ski trail. See Jefferson Cnty. Bd. of Equalization, 241 P.3d at 935 (the meaning of a statutory term must be determined by considering its context).

4 The statutes certainly cover events which occur because of a skier’s encountering the conditions identified, and in that sense cover other events. See § 33-44-112 (providing immunity [*25] for claims for injuries “resulting from” those conditions). But that merely begs the question whether the skier encountered such a condition. If the condition or event was not one within the definition in subsection 33-44-103(3.5), there is no immunity. The “resulting from” language in section 33-44-112 is not an expansion of the definition in subsection 33-44-103(3.5).

25

¶ 49 Because, as noted above, a grant of immunity must appear expressly or by clear implication, this conclusion arguably ends the analysis. But there is some authority to the effect that looking to legislative history is appropriate in these circumstances. See Picher v. Roman Catholic Bishop of Portland, 974 A.2d 286, 294 (Me. 2009). To be on the safe side, I have considered the legislative history, as well as other indicators of legislative intent.

¶ 50 The legislative history is not enlightening. The General Assembly’s declaration of purpose, however, is of some help. It provides that one of the purposes of the Ski Safety Act is to further define the legal responsibilities of ski area operators with respect to “the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which [*26] can be employed . . . .” § 33-44-102, C.R.S. 2013. “Inhere” has been defined as “[t]o exist as a permanent, inseparable, or essential attribute or quality of a thing; to be intrinsic to something.” Black’s Law Dictionary 853 (9th ed. 2009); see also Webster’s Third New Int’l Dictionary 1163 (defining “inherent” as “structural or involved in the constitution or essential character of something: intrinsic, essential”).

26

¶ 51 In my view, avalanches are not “intrinsic” to “the sport of skiing” on open, designated ski trails within ski areas. They stand in contrast to the conditions and events listed in subsection 33-44-103(3.5), all of which seem to me to be such as a reasonable skier would reasonably anticipate or expect.

¶ 52 Lastly, my research of similar statutes in other states turned up one revealing nugget. Statutes in several other states relating to ski area operator immunity define inherent dangers and risks of skiing in terms almost identical to those in subsection 33-44-103(3.5). See, e.g., Idaho Code Ann. § 6-1106 (2013); Mont. Code Ann. § 23-2-702(2) (2013); N.M. Stat. Ann. § 24-15-10 (2014); Or. Rev. Stat. § 30.970(1) (2014); Utah Code Ann. § 78B-4-402(1) (West 2013). As [*27] far as I can tell, they do not mention avalanches, with one exception – Montana’s statute.

¶ 53 Mont. Code Ann. § 23-2-702(2) includes within the definition of “[i]nherent dangers and risks of skiing” all of the conditions and events included in section 33-44-103(3.5). But it adds one more – “avalanches, except on open, designated ski trails.” § 22-2-702(2)(c). This tells me two things. First, Montana’s legislature did

27

not believe avalanches were covered by the other portions of the

definition – including those on which the majority relies in this

case. And second, the Montana legislature did not view avalanches

occurring on open, designated ski trails as an inherent danger or

risk of skiing.5 Unless the Montana legislature’s view is to be

regarded as unreasonable as a matter of law, see A.M., ¶ 8 (a

statute is ambiguous if it is susceptible of more than one

reasonable interpretation), I think this indicates at the very least

some ambiguity in Colorado’s statute – an ambiguity which must

be resolved by concluding that there is no immunity for injuries

resulting from avalanches. See Van Waters & Rogers, 840 P.2d at

1076 (an abrogation of a common law right must appear expressly

or by [*28] clear implication).

¶ 54 For the foregoing reasons, I respectfully dissent.

5 This last point is further supported by the fact that, in 2007, a bill was introduced in the Montana legislature which would have (in part) deleted the language “except on open, designated ski trails” from subsection (2)(c); however, the final bill that was enacted did not make that deletion.

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Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

Sauter v. Perfect North Slopes, et. al., 2014 U.S. Dist. LEXIS 468

James Stephen Sauter and Piper Sauter, Individually and as the Natural Guardians of M.S., a minor, Plaintiffs, v. Perfect North Slopes, Inc., Andrew Broaddus, Stephanie Daniel, Christopher Daniel, Jenny Warr, and Anthony Warr, Defendants.

Case No. 4:12-cv-00027-TWP-WGH

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA, NEW ALBANY DIVISION

2014 U.S. Dist. LEXIS 468

January 3, 2014, Decided

January 3, 2014, Filed

PRIOR HISTORY: Sauter v. Perfect North Slopes, Inc., 2012 U.S. Dist. LEXIS 95882 (S.D. Ind., July 11, 2012)

CORE TERMS: snow, slope, tube, tubing, lane, summary judgment, patrons, ambiguity, skiing, signor, duty of care, snowboarding, tuber, ski, affirmatively, ambiguous, signing, safely, trail, authorization, extrinsic, collision, skier, sport, seal, language used, patent, release form, ride, top

COUNSEL: [*1] For JAMES STEPHEN SAUTER, Individually and as Natural Guardian of M.S., a Minor, PIPER SAUTER, Individually and as Natural Guardians of M.S., a Minor, Plaintiffs: Louise M Roselle, Paul M. De Marco, MARKOVITS, STOCK & DEMARCO, LLC, Cincinnati, OH; Wilmer E. Goering, II, ALCORN GOERING & SAGE, LLP, Madison, IN.

For PERFECT NORTH SLOPES, INC., Defendant: Michael C. Peek, CHRISTOPHER & TAYLOR, Indianapolis, IN.

JUDGES: Hon. Tanya Walton Pratt, United States District Judge.

OPINION BY: Tanya Walton Pratt

OPINION

ENTRY ON SUMMARY JUDGMENT

Following a tragic accident which occurred at Defendant Perfect North Slopes, Inc. (“Perfect North Slopes”) on January 30, 2011, Plaintiffs James Stephen Sauter (“Mr. Sauter”) and Piper Sauter (“Mrs. Sauter”) (collectively, “the Sauters”) filed this negligence action. Perfect North Slopes is a ski resort which among other activities, offers snow tubing, a recreational activity that involves sitting on an inner tube and sliding down a hill. The Sauters were at Perfect North Slopes with their three children, T.S. age 8, J.S., and M.S. age 10 (collectively, “the Sauter children”), on January 30, 2011, for a Boy Scouts event. While snow tubing, the Sauter children veered into Defendants’, [*2] Andrew Broaddus, Stephanie Daniel,1 Christopher Daniel, Jenny Warr, and Anthony Warr (collectively, “Snow Tube Defendants”), snow tube lane, after which the Snow Tube Defendants collided into the Sauter children. As a result of the collision, M.S. suffered a brain injury.

1 The Court notes that the Complaint and CM/ECF caption use this spelling for Stephanie Daniel’s name. However, Snow Tube Defendants’ briefing uses the spelling, “Stephany Daniel.” If “Stephanie” is incorrect, the parties are ordered to file a motion to correct the error.

The Sauters filed suit against both Perfect North Slopes and the Snow Tube Defendants for negligence. Before the Court are the Defendants’ separate Motions for Summary Judgment. The issue of Perfect North Slopes’ alleged negligence has not been briefed, and the sole issue before the Court regarding Perfect North Slopes is the validity and applicability of the release form signed by Mrs. Sauter. For the reasons set forth below, Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED and the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED.

I. BACKGROUND

A. Snow Tubing and Perfect North Slopes

Perfect North Slopes is a [*3] ski resort located in Lawrenceburg, Indiana. It has terrain parks, ski slopes, and a snow tubing hill. Snow tubing involves sitting or lying inside a round inner tube and riding at a quick speed down a snow-covered slope. To reach the top of the snow tubing hill, patrons at Perfect North Slopes ride a moving walkway called the “magic carpet” up to the top of the hill. The snow tube hill is divided into multiple lanes separated by packed snow barriers approximately one foot high. On January 30, 2011, there were nine express lanes, nine regular lanes, and four super lanes on the snow tubing hill. Express lanes were longer than regular lanes and the super lanes were wider than regular lanes. The snow tubing hill flattens into a gravel lot called the “run-out” area, which is approximately 180 feet long. Snow tubers can average between 20 and 40 miles per hour down the hill.

Perfect North Slopes employees are located at the top of the snow tubing hill to direct the flow of patrons down the hill. The employees specifically determine when it is safe for patrons to proceed down the hill and they assist the patrons’ start by pushing or pulling the tubes into the designated lane. Perfect North [*4] Slopes also has employees located at the bottom of the hill to assist patrons exiting the snow tube area.

On January 30, 2011, Perfect North Slopes had rules and regulations governing use of the snow tubing hill. The rules and regulations were posted throughout the park, as well as broadcast on a loud speaker system. Only one rider was allowed per tube. Linking — allowing a number of tubers going at one time in one lane — was allowed as conditions warranted. Linking was to be single file and “[w]hen linking, tubers must hold on to each other’s short tube handles the entire time.” Dkt. 85-23 at 2. Perfect North Slopes’ website FAQs stated that, “[o]n the main hill, as many as three tubes can ‘link’ together.” Dkt. 129-10 at 2. Perfect North Slopes also recommended that parents supervise their children at all times.

B. The Releases

Before participating in snow tubing, all patrons were required to sign a release form prepared by Perfect North Slopes. On January 30, 2011, Perfect North Slopes provided the Snow Tube Defendants with a release titled “Skiing/Snowboarding/Tubing Waiver”. Mrs. Sauter was provided a release titled “Snow Tubing Release of Liability”. The [*5] two forms differed in language.

The Skiing/Snowboarding/Tubing Waiver included the following language in its “YOUR RESPONSIBILITY CODE”:

A. Always stay in control, and be able to stop or avoid other people or objects.

B. People ahead of you have the right of way. It is your responsibility to avoid them.

C. You must not stop where you will obstruct a trail, or are not visible from above.

D. Whenever starting downhill or merging into a trail, look uphill and yield to others.

E. Always use devices to help prevent runaway equipment.

F. Observe all posted signs and warnings. Keep off closed trails and out of closed areas.

G. Prior to using any lift, you must have knowledge and ability to load and unload safely.

This is a partial list. Be safety conscious.

Dkt. 85-21 at 1. This waiver also states that, “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. Each of the five Snow Tube Defendants signed this release.

Conversely, the Snow Tubing Release of Liability form did not have a personal responsibility code. It included language releasing Perfect North Slopes of liability for claims of personal injury, death and/or property [*6] damage. Dkt. 85-20 at 1 (under seal). It acknowledged acceptance of risk of snow tubing as a hazardous activity and risk of injury. It specifically stated, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). It further stated:

I, the undersigned, acknowledge that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself. I understand that my signature below expressly waives any rights I may have to sue Perfect North Slopes, Inc. for injuries and damages.

Dkt. 85-20 at 1 (under seal). Mrs. Sauter filled in the names of her three children and signed and dated this release.

C. The Collision

After Mrs. Sauter signed the release, Mr. Sauter took their three children to the “magic carpet,” where he escorted the children in line and then left. The Sauter children and Snow Tube Defendants each made their way to the top of the snow tubing hill. The Sauter children went to Express Lane 7 and the Snow Tube [*7] Defendants went to Express Lane 8. The Sauter children linked their tubes and were pushed down the lane by Perfect North Slopes employee Kelsi Carlson (“Ms. Carlson”). Unfortunately, at some point during their ride, the Sauter children veered out of their lane into Express Lane 8 and came to a stop before the end of the lane 8. Two of the Sauter children got out of their tubes and were pulling the third child in his or her tube toward the “magic carpet”. The Snow Tube Defendants had linked their five tubes and were pushed down lane 8 by Ms. Carlson. Stephanie Daniel went down the hill backwards in her tube and could not see where the tube was going. The Snow Tube Defendants collided with the Sauter children in Express Lane 8, approximately 25 feet short of the end of the snow tube slope. The Snow Tube Defendants’ tubes continued down Express Lane 8 after the collision and came to a stop in the gravel run-out area. Both Stephanie Daniel and Christopher Daniel suffered minor injuries from the collision. M.S. was knocked unconscious by the collision and was seriously injured.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the pleadings, [*8] depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 489-90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court reviews “the record in the light most favorable to the nonmoving party and draw[s] all reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490 (citation omitted). “In much the same way that a court is not required to scour the record in search of evidence to defeat a motion for summary judgment, nor is it permitted to conduct a paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001) (citation and internal quotations omitted). Finally, “neither the mere existence [*9] of some alleged factual dispute between the parties nor the existence of some metaphysical doubt as to the material facts is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).

III. DISCUSSION

As previously discussed, the Sauters’ Complaint alleges both Perfect North Slopes and the Snow Tube Defendants were negligent. Perfect North Slopes filed a motion for summary judgment based on the Snow Tubing Release of Liability and the Snow Tube Defendants move for summary judgment on the bases that they acted reasonably at all times and owed no duty to the Sauter Children. The motion’s are addressed in turn.

A. Snow Tube Defendants’ Motion for Summary Judgment

The Court must first address whether the Snow Tube Defendants owed a duty of care to M.S., because in the absence of duty a claim of negligence necessarily fails. See Kroger Co. v. Plonski, 930 N.E.2d 1, 6 (Ind. 2010). The Snow Tube Defendants contend they had no duty of care toward the Sauter children, and thus should be dismissed from the suit. The Sauters contend that the duty was assumed upon signing the Skiing/Snowboarding/Tubing [*10] Waiver. Specifically, the Sauters rely on the waiver’s clauses that signors agree to “[a]lways stay in control, and be able to stop or avoid other people or objects,” and “[tube] safely and in control.” Dkt. 85-21 at 1.

In Indiana, “[i]f a contract affirmatively evinces an intent to assume a duty of care, actionable negligence may be predicated upon the contractual duty.” Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1268 (Ind. Ct. App. 2002). To make this determination, “it is the court’s duty to ascertain the intent of the parties at the time the contract was executed as disclosed by the language used to express their rights and duties.” Walker v. Martin, 887 N.E.2d 125, 135 (Ind. Ct. App. 2008). “Generally, only parties to a contract or those in privity with the parties have rights under a contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1314-15 (Ind. 1996). The Indiana Supreme Court has stated that:

One not a party to an agreement may nonetheless enforce it by demonstrating that the parties intended to protect him under the agreement by the imposition of a duty in his favor. To be enforceable, it must clearly appear that it was the purpose or a purpose of the contract [*11] to impose an obligation on one of the contracting parties in favor of the third party. It is not enough that performance of the contract would be of benefit to the third party. It must appear that it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.

Id. at 1315 (quoting Kirtley v. McClelland, 562 N.E.2d 27, 37 (Ind. Ct. App. 1990)).

The Snow Tube Defendants argue that the Skiing/Snowboarding/Tubing Waiver does not affirmatively create a duty of care of the signor of the waiver to other patrons at Perfect North Slopes. The Court agrees. The waiver included the following general language:

A. Always stay in control, and be able to stop or avoid other people or objects.

B. People ahead of you have the right of way. It is your responsibility to avoid them.

C. You must not stop where you will obstruct a trail, or are not visible from above.

D. Whenever starting downhill or merging into a trail, look uphill and yield to others.

E. Always use devices to help prevent runaway equipment.

F. Observe all posted signs and warnings. Keep [*12] off closed trails and out of closed areas.

G. Prior to using any lift, you must have knowledge and ability to load and unload safely.

This is a partial list. Be safety conscious.

Dkt. 85-21 at 1. This list of responsibilities appears at the beginning of the waiver and by signing the waiver, a signor attests that he or she is “familiar with and will adhere to” the responsibilities. The waiver also states: “as a skier/snowboarder/slider, I have responsibilities to myself and others to ski/ride/tube safely and in control.” Dkt. 85-21 at 1. This statement appears within the first full paragraph of the waiver, in which the signor also acknowledges the risks of the snow sports offered at Perfect North Slopes, Perfect North Slopes’ lack of duty to warn of dangers, and that participating in snow sports is voluntary with knowledge of the aforesaid risks.

The Court is not persuaded by the Sauters’ argument that the recitation of these responsibilities, even with the acknowledgment of the signor to adhere to them, represents an affirmative assumption of a duty of care. First, the “Your Responsibility Code” includes basic safety instructions and concludes with the words, “This is a partial list. Be [*13] safety conscious.” This implies not that the list imposes affirmative duties that are actionable if ignored, but that it is a general guideline. Second, the statement that the signor will tube safely and in control is included as one of many acknowledgments in a paragraph that ends with the statement, “I . . . hereby expressly agree to accept and assume all such risks of [in]jury or death associated with the sport of snow skiing/boarding/tubing.” Dkt. 85-2 at 1. This affirmative assumption of the risks does not mention the responsibilities listed within the same paragraph. Instead, the language regarding the responsibilities includes the words “recognize,” “familiar,” and “agree.” However, it does not affirmatively state the signor “assumes” those responsibilities.

Especially considering that the Sauters are third parties to the contract between the Snow Tube Defendants and Perfect North Slopes, there is no evidence that “it was the intention of one of the parties to require performance of some part of it in favor of such third party and for his benefit, and that the other party to the agreement intended to assume the obligation thus imposed.” OEC-Diasonics, Inc., 674 N.E.2d at 1315. [*14] While performance of the responsibilities listed certainly would benefit third parties like the Sauters and M.S., there is no evidence of clear intent as required.

Further, to the extent the contract language is ambiguous regarding the assumption of a duty of care, the extrinsic evidence of record supports the Snow Tube Defendants’ position. The Director of Snow Sports Operations at Perfect North Slopes, Mike Mettler (“Mr. Mettler”), explained during his deposition that the “Your Responsibility Code” section of the Skiing/Snowboarding/Tubing Waiver was derived from the “Skier’s Responsibility Code” developed by the National Ski Areas Association as a standard code for all skiers and snowboarders. Dkt. 85-7 at 5, 111:14-20. Mr. Mettler testified that there are not standard rules for snow tubing, the “Your Responsibility Code” did not apply to snow tubing, and that snow tubing is inherently distinct from skiing or snowboarding, particularly because a snow tuber lacks the ability to steer and control the tube. Dkt. 85-7 at 5, 111:22-25; Dkt. 85-8 at 51-53, 214:22-216:21; Dkt. 85-8 at 51, 214:6-21. Perhaps also telling, the Snow Tubing Release of Liability signed by Mrs. Sauter did not [*15] include a “Your Responsibility Code” section or any similar language. Mr. Mettler testified that Perfect North Slopes was transitioning from the Skiing/Snowboarding/Tubing Waiver to the Snow Tubing Release of Liability for snow tubers and that it was by chance that the Snow Tube Defendants and Sauters signed different release forms. He further stated that there were no distinction between the forms in terms of responsibilities while snow tubing. Dkt. 85-8 at 50, 213:7-17.

Mr. Mettler’s explanations support the conclusion that the Snow Tube Defendants did not assume a specific duty of care to other patrons. First, Perfect North Slopes did not expect or intend for snow tubers to have the exact abilities and safety responsibilities as skiers and snow boarders given the differences between the sport activities. Second, Perfect North Slopes was phasing out use of the Skiing/Snowboarding/Tubing Waiver for snow tubing, and the new form, the Snow Tubing Release of Liability, did not include any mention of responsibilities to stop and give right of way to other patrons. It is illogical that Perfect North Slopes would intend for some snow tubers to affirmatively assume a duty of care to other [*16] patrons, while other snow tubers did not. The random nature of who signed which form is evidence that Perfect North Slopes considered the two forms to contain the same obligations and releases.

Accordingly, the Court finds that the Sauters have not established as a matter of law that the Snow Tube Defendants affirmatively assumed a duty of care to the Sauter children. Nor have the Sauters established a common law duty existed. Therefore, the Snow Tube Defendants’ motion is GRANTED and they will be dismissed from the suit.

B. Perfect North Slopes’ Motion for Summary Judgment

At first glance, Perfect North Slopes’ motion is seemingly straightforward, as it contends that the Sauters released all claims for liability when Mrs. Sauter signed the Snow Tubing Release of Liability form on behalf of her children. The Sauters respond with two arguments in the alternative. First, they ask the Court to invalidate the release on public policy grounds, an issue on which the Indiana Supreme Court has not spoken. Second, the Sauters contend the language of the release does not contain a waiver of claims on behalf of minors. Because the Court finds that the release is ambiguous and thus does not bar the [*17] Sauters’ claim against Perfect North Slopes, the Court will not speculate on the public policy issue raised by the Sauters.

The Sauters contend that the Snow Tubing Release of Liability does not waive a minor’s possible negligence claims against Perfect North Slopes. The Indiana standard of review for contract interpretation is as follows:

“Construction of the terms of a written contract is a pure question of law for the court, reviewed de novo.” Harrison v. Thomas, 761 N.E.2d 816, 818 (Ind. 2002). If an instrument’s language is unambiguous, the parties’ intent is determined from the four corners of the instrument. City of Indianapolis v. Kahlo, 938 N.E.2d 734, 744 (Ind. Ct. App. 2010), trans. denied. If a contract is ambiguous or uncertain, its meaning is determined by extrinsic evidence and its construction is a matter for the fact-finder. Kahlo, 938 N.E.2d at 744. An ambiguity exists where a provision is susceptible to more than one interpretation and reasonable persons would differ as to its meaning. Gregg v. Cooper, 812 N.E.2d 210, 215 (Ind. Ct. App. 2004). But the fact that the parties disagree over the meaning of the contract does not, in and of itself, establish an ambiguity. [*18] Everett Cash Mut. Ins. Co. v. Taylor, 926 N.E.2d 1008, 1013 (Ind. 2010) (citation omitted).

When interpreting a written contract, the court should attempt to determine the parties’ intent at the time the contract was made, which is ascertained by the language used to express their rights and duties. Kahlo, 938 N.E.2d at 744. A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Hammerstone v. Ind. Ins. Co., 986 N.E.2d 841, 846 (Ind. Ct. App. 2013).

Claire’s Boutiques, Inc. v. Brownsburg Station Partners LLC, 997 N.E.2d 1093, 1097 (Ind. Ct. App. 2013). Furthermore, an ambiguity may be patent or latent:

A patent ambiguity is apparent on the face of the instrument and arises from an inconsistency or inherent uncertainty of language used so that it either conveys no definite meaning or a confused meaning. Extrinsic evidence is not admissible to explain or remove a patent ambiguity. Conversely, a latent ambiguity does not emerge until one attempts to implement the words as directed in the instrument. Extrinsic evidence is admissible to explain a latent ambiguity.

Weinreb v. Fannie Mae, 993 N.E.2d 223, 232 (Ind. Ct. App. 2013) [*19] (internal citations omitted). If an ambiguity arises by reason of the language used, construction of the ambiguous contract is a question of law for the court. Farmers Elevator Co. of Oakville, Inc. v. Hamilton, 926 N.E.2d 68, 80 (Ind. Ct. App. 2010).

The Sauters present the release form as a dual-purpose document; a medical authorization on one hand, and a release of liability on the other. They argue that nowhere does the release explicitly release the claims of minors, and the only reference to minors is in regard to medical authorization. The Court agrees that at best, the release is ambiguous regarding whether a minor’s claims against Perfect North Slopes are waived.

Specifically, the release is written from the viewpoint of an adult signor. Each paragraph and sentence references that the signor understands, accepts, or agrees to the release’s terms. However, in the fourth paragraph, the release changes structure and states, “I authorize Perfect North Slopes Ski Patrol to administer treatment in the event of an injury to myself or to the minor for whom I am signing.” Dkt. 85-20 at 1 (under seal). In the seventh and final paragraph the release also states, “I, the undersigned, acknowledge [*20] that I have read this agreement and release of liability and I understand its contents and in the event that I am signing on behalf of any minors, that I have full authority to do so, realizing its binding effect on them as well as myself.” Dkt. 85-20 at 1 (under seal). Perfect North Slopes argues this final statement applies to the entirety of the agreement, while the Sauters argue it applies only to the medical authorization.

Contract interpretation requires “the contract to be read as a whole, and the language construed so as not to render any words, phrases, or terms ineffective or meaningless.” Stewart v. TT Commercial One, LLC, 911 N.E.2d 51, 56 (Ind. Ct. App. 2009). Here, the release inserts a specific reference to minors only regarding medical authorization. It does not reference minors regarding acceptance of risk, awareness that tubing is a hazardous activity, or releasing Perfect North Slopes from damage resulting from negligence, or any other clause. This disparity creates a susceptibility of more than one interpretation of the release’s provisions. However, if Perfect North Slopes’ interpretation that the final statement applies to the entire release was accepted, the specific [*21] reference to minors regarding medical authorization would be rendered redundant or unnecessary. Rather, it is reasonable to interpret the release as referencing minors when the release specifically applies to them, which is reiterated at the conclusion of the release. Thus, the Court finds the contract ambiguous. The ambiguity is a patent one, as it is inherent in the language of the document. In this circumstance, extrinsic evidence is not admissible or necessary to the Court’s determination. The release does not include a clear, unambiguous waiver of M.S.’s claims against Perfect North Slopes for its alleged negligence. Therefore, Perfect North Slopes’ motion is DENIED.

IV. CONCLUSION

For the reasons set forth above, the Snow Tube Defendants’ Motion for Summary Judgment (Dkt. 85) is GRANTED. The Sauters’ claims against the Snow Tube Defendants are DISMISSED with prejudice. Perfect North Slopes’ Motion for Summary Judgment (Dkt. 75) is DENIED. The Sauters’ negligence claim may proceed. No final judgment will issue for the Snow Tube Defendants until the remaining claims against Perfect North Slopes are resolved.

SO ORDERED.

Date: 01/03/2014

/s/ Tanya Walton Pratt

Hon. Tanya Walton Pratt, [*22] Judge

United States District Court

Southern District of Indiana

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Tunkl v. The Regents of the University of California, 60 Cal. 2d 92; 383 P.2d 441; 32 Cal. Rptr. 33; 1963 Cal. LEXIS 226; 6 A.L.R.3d 693

Tunkl v. The Regents of the University of California, 60 Cal. 2d 92; 383 P.2d 441; 32 Cal. Rptr. 33; 1963 Cal. LEXIS 226; 6 A.L.R.3d 693

OLGA TUNKL, as Executrix, etc., Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and   Respondent

L. A. No. 26984

Supreme Court of California

60 Cal. 2d 92; 383 P.2d 441; 32 Cal. Rptr. 33; 1963 Cal. LEXIS 226; 6 A.L.R.3d 693

July 9, 1963

PRIOR HISTORY:

APPEAL from a judgment of the Superior Court of Los Angeles County.  Jerold E. Weil, Judge.

Action for personal injuries alleged to have resulted from the negligence of physicians employed by a nonprofit charitable research hospital.

DISPOSITION:

Reversed.  Judgment for defendant reversed.

HEADNOTES: CALIFORNIA OFFICIAL REPORTS HEADNOTES

(1) Release–Validity–Agreements Affecting Public Interest.  –An attempted exculpatory release provision is invalid as affecting a public interest if it involves a transaction that exhibits some or all of the following characteristics: it concerns a business of a type generally thought suitable for public regulation; the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public; the party holds himself out as willing to perform such service for any member of the public who seeks it, or at least for any member coming within certain established standards; as a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services; in exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence; and, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

(2)  Id.–Validity: Hospitals–Liability–Release.  –A release from liability for future negligence imposed on a prospective patient as a condition for admission to a charitable research hospital falls within the category of agreements affecting the public interest and the exculpatory provisions included within it are invalid under Civ. Code, § 1668, providing that contracts having for their object, either directly or indirectly, the exemption of anyone from responsibility for his own fraud, or wilful injury to the person or property of another, or violation of law, are against the policy of the law.

(3)  Id.–Validity: Hospitals–Liability–Release.  –A release from liability for future negligence imposed on a prospective patient as a condition for admission to a charitable research hospital falls within the category of agreements affecting the public interest whether the prospective patient pays or does not pay for the treatment received in the hospital; there is no distinction in the hospital’s duty of care between a paying and a nonpaying patient.

(4)  Id.–Validity: Hospitals–Liability–Release.  –A charitable research hospital cannot obtain exemption, by means of an exculpatory release agreement imposed on a prospective patient as a condition for admission, from liability for the future negligence of its employees, as distinguished from exemption as to its “own” negligence.

JUDGES:

In Bank. Tobriner, J.  Gibson, C. J., Traynor, J., Schauer, J., McComb, J., Peters, J., and Peek, J., concurred.

OPINIONBY:

TOBRINER

OPINION:

[*94][**441][***33]  This case concerns the validity of a release from liability for future negligence imposed as a condition for admission to a charitable research hospital.  For the reasons we hereinafter specify, we have concluded that an agreement between a hospital  [**442][***34]  and an entering patient affects the public interest and that, in consequence, the exculpatory provision included within it must be invalid under Civil Code section 1668.

Hugo Tunkl brought this action to recover damages for personal injuries alleged to have resulted from the negligence of two physicians in the employ of the University of California Los Angeles Medical Center, a hospital operated and maintained by the Regents of the University of California as a nonprofit charitable institution.  Mr. Tunkl died after suit was brought, and his surviving wife, as executrix, was substituted as plaintiff.

The University of California at Los Angeles Medical Center admitted Tunkl as a patient on June 11, 1956.  The Regents maintain the hospital for the primary purpose of aiding and developing a program of research and education in the field of medicine; patients are selected and admitted if the study and treatment of their condition would tend to achieve these purposes.  Upon his entry to the hospital, Tunkl signed a document setting forth certain “Conditions of Admission.” The crucial condition number six reads as follows: “Release: The hospital is a nonprofit, charitable institution.  In consideration of the hospital and allied services to be rendered and the rates charged therefor, the patient or his legal representative agrees to and hereby releases The Regents of the University of California, and the hospital from any and all liability for the negligent or wrongful acts or omissions of its employees, if the hospital has used due care in selecting its employees.”

Plaintiff stipulated that the hospital had selected its employees with due care.  The trial court ordered that the issue of the validity of the exculpatory clause be first submitted to the jury and that, if the jury found that the provision did not bind plaintiff, a second jury try the issue of alleged malpractice.  When, on the preliminary issue, the jury returned a verdict sustaining the validity of the executed release, the  [*95]  court entered judgment in favor of the Regents.  n1 Plaintiff appeals from the judgment.

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n1 Plaintiff at the time of signing the release was in great pain, under sedation, and probably unable to read.  At trial plaintiff contended that the release was invalid, asserting that a release does not bind the releasor if at the time of its execution he suffered from so weak a mental condition that he was unable to comprehend the effect of his act ( Perkins v. Sunset Tel. & Tel. Co. (1909) 155 Cal. 712 [103 P. 190]; Raynale v. Yellow Cab Co. (1931) 115 Cal.App. 90 [300 P. 991]; 42 Cal.Jur.2d, Release § 20).  The jury, however, found against plaintiff on this issue.  Since the verdict of the jury established that plaintiff either knew or should have known the significance of the release, this appeal raises the sole question of whether the release can stand as a matter of law.

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We shall first set out the basis for our prime ruling that the exculpatory provision of the hospital’s contract fell under the proscription of Civil Code section 1668; we then dispose of two answering arguments of defendant.

We begin with the dictate of the relevant Civil Code section 1668.  The section states: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”

The course of section 1668, however, has been a troubled one.  Although, as we shall explain, the decisions uniformly uphold its prohibitory impact in one circumstance, the courts’ interpretations of it have been diverse.  Some of the cases have applied the statute strictly, invalidating any contract for exemption from liability for negligence.  The court in England v. Lyon Fireproof Storage Co. (1928) 94 Cal.App. 562 [271 P. 532], categorically states, “The court correctly instructed the jury that: ‘The defendant cannot limit its liability against its own negligence by contract, and any contract to that effect would be void.'” (P. 575.) (To  [**443][***35]  the same effect: Union Constr. Co. v. Western Union Tel. Co. (1912) 163 Cal. 298, 314-315 [125 P. 242].) n2 The recent case of Mills v. Ruppert (1959) 167 Cal.App.2d 58, 62-63 [333 P.2d 818], however, apparently limits “[Negligent] . . . violation of law” exclusively to statutory law.  n3 Other cases hold that  [*96]  the statute prohibits the exculpation of gross negligence only; n4 still another case states that the section forbids exemption from active as contrasted with passive negligence.  n5

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n2 Accord, Hiroshima v. Bank of Italy (1926) 78 Cal.App. 362, 377-378 [248 P. 947]; cf.  Estate of Garcelon (1894) 104 Cal. 570, 589 [38 P. 414, 43 Am.St.Rep. 134, 32 L.R.A. 595].

n3 To the same effect: Werner v. Knoll (1948) 89 Cal.App.2d 474 [201 P.2d 45]; 15 Cal.L.Rev. 46 (1926). This interpretation was criticized in Barkett v. Brucato (1953) 122 Cal.App.2d 264, 277 [264 P.2d 978], and 1 Witkin, Summary of California Law 228 (7th ed. 1960).  The latter states: “Apart from the debatable interpretation of ‘violation of law’ as limited strictly to violation of statutes, the explanation appears to make an unsatisfactory distinction between (1) valid exemptions from liability for injury or death resulting from types of ordinary or gross negligence not expressed in statutes, and (2) invalid exemptions where the negligence consists of violation of one of the many hundreds of statutory provisions setting forth standards of care.”

n4 See Butt v. Bertola (1952) 110 Cal.App.2d 128 [242 P.2d 32]; Ryan Mercantile Co. v. Great Northern Ry. Co. (D. C. Mont. 1960) 186 F.Supp. 660, 667-668. See also Smith, Contractual Controls of Damages in Commercial Transactions, 12 Hastings L.J. 122, 142 (1960), suggesting that section 1668 permits exculpatory clauses for all but intentional wrongs, an interpretation which would render the term “negligent . . . violation of law” totally ineffective.

n5 Barkett v. Brucato (1953) 122 Cal.App.2d 264, 277 [264 P.2d 978].

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In one respect, as we have said, the decisions are uniform.  The cases have consistently held that the exculpatory provision may stand only if it does not involve “the public interest.” n6 Interestingly enough, this theory found its first expression in a decision which did not expressly refer to section 1668. In Stephens v. Southern Pac. Co. (1895) 109 Cal. 86 [41 P. 783, 50 Am. St. Rep. 17, 29 L.R.A. 751], a railroad company had leased land, which adjoined its depot, to a lessee who had constructed a warehouse upon it.  The lessee covenanted that the railroad company would not be responsible for damage from fire “caused from any . . . means.” (P. 87.) This exemption, under the court ruling, applied to the lessee’s damage resulting from the railroad company’s carelessly burning dry grass and rubbish.  Declaring the contract not “violative of sound public policy” (p. 89), the court pointed out “. . . As far as this transaction was concerned, the parties when contracting stood upon common ground, and dealt with each other as A and B might deal with each other with reference to any private business undertaking.  . . .” (P. 88.) The court concluded “that the interests  [*97]  of the public in the contract are more sentimental than real” (p. 95; italics added) and that the exculpatory provision was therefore enforceable.

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n6 The view that the exculpatory contract is valid only if the public interest is not involved represents the majority holding in the United States. Only New Hampshire, in definite opposition to “public interest” test, categorically refuses to enforce exculpatory provisions.  The cases are collected in an extensive annotation in 175 A.L.R. 8 (1948). In addition to the California cases cited in the text and note 7 infra, the public interest doctrine is recognized in dictum in Sproul v. Cuddy (1955) 131 Cal.App.2d 85, 95 [280 P.2d 158]; Basin Oil Co. v. Baash-Ross Tool Co.  (1954) 125 Cal.App.2d 578, 594 [271 P.2d 122]; Hubbard v. Matson Navigation Co. (1939) 34 Cal.App.2d 475, 477 [93 P.2d 846]. Each of these cases involved exculpatory clauses which were construed by the court as not applicable to the conduct of the defendant in question.

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In applying this approach and in manifesting their reaction as to the effect of the exemptive clause upon the public interest, some later courts enforced, and others invalidated  [**444][***36]  such provisions under section 1668. Thus in Nichols v. Hitchcock Motor Co. (1937) 22 Cal.App.2d 151, 159 [70 P.2d 654], the court enforced an exculpatory clause on the ground that “the public neither had nor could have any interest whatsoever in the subject-matter of the contract, considered either as a whole or as to the incidental covenant in question.  The agreement between the parties concerned ‘their private affairs’ only.” n7

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n7 See also Hischemoeller v. National Ice etc. Storage Co. (1956) 46 Cal.2d 318, 328 [294 P.2d 433] (contract upheld as an “ordinary business transaction between businessmen”); Mills v. Ruppert (1959) 167 Cal.App.2d 58, 62 [333 P.2d 818] (lease held not a matter of public interest); Inglis v. Garland (1936) 19 Cal.App.2d Supp. 767, 773 [64 P.2d 501] (same); cf.  Northwestern M.F. Assn. v. Pacific etc. Co. (1921) 187 Cal. 38, 41 [200 P. 934] (exculpatory clause in bailment upheld because of special business situation).

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In Barkett v. Brucato (1953) 122 Cal.App.2d 264, 276 [264 P.2d 978], which involved a waiver clause in a private lease, Justice Peters summarizes the previous decisions in this language: “These cases hold that the matter is simply one of interpreting a contract; that both parties are free to contract; that the relationship of landlord and tenant does not affect the public interest; that such a provision affects only the private affairs of the parties.  . . .” (Italics added.)

On the other hand, courts struck down exculpatory clauses as contrary to public policy in the case of a contract to transmit a telegraph message ( Union Constr. Co. v. Western Union Tel. Co. (1912) 163 Cal. 298 [125 P. 242]) and in the instance of a contract of bailment ( England v. Lyon Fireproof Storage Co. (1928) 94 Cal.App. 562 [271 P. 532]). In Hiroshima v. Bank of Italy (1926) 78 Cal.App. 362 [248 P. 947], the court invalidated an exemption provision in the form used by a payee in directing a bank to stop payment on a check.  The court relied in part upon the fact that “the banking public, as well as the particular individual who may be concerned in the giving of any stop-notice, is interested in seeing that the bank is held accountable for the ordinary and regular performance of its duties and, also, in seeing that direction  [*98]  in relation to the disposition of funds deposited in [the] bank are not heedlessly, negligently, and carelessly disobeyed and money paid out, contrary to directions given.” (P. 377.) The opinion in Hiroshima was approved and followed in Grisinger v. Golden State Bank (1928) 92 Cal.App. 443 [268 P. 425]. n8

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n8 Exculpatory clauses were regarded as invalid, although without reference to the public interest doctrine, in Franklin v. Southern Pac. Co. (1928) 203 Cal. 680, 686 [265 P. 936, 59 A.L.R. 118] (common carrier); Dieterle v. Bekin (1904) 143 Cal. 683, 688 [77 P. 664] (bailment); George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 846 [205 P.2d 1037] (bailment, clause upheld as one for declaration of value and not complete exculpation); Hall-Scott Motor Car Co. v. Universal Ins. Co. (9th Cir. 1941) 122 F.2d 531, 533-534 (California law, clause upheld on ground that transaction not a bailment).

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If, then, the exculpatory clause which affects the public interest cannot stand, we must ascertain those factors or characteristics which constitute the public interest. The social forces that have led to such characterization are volatile and dynamic.  No definition of the concept of public interest can be contained within the four corners of a formula.  The concept, always the subject of great debate, has ranged over the whole course of the common law; rather than attempt to prescribe its nature, we can only designate the situations in which it has been applied.  We can determine whether the instant contract does or does not manifest the characteristics which have been held to stamp a contract as one affected with a public interest.

(1)In placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough outline of that type of transaction in which exculpatory provisions will  [**445] [***37]  be held invalid. Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics.  It concerns a business of a type generally thought suitable for public regulation. n9 The party seeking exculpation is engaged  [*99]  in performing a service of great importance to the public, n10 which is often a matter of practical necessity for some members of the public.  n11 The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.  n12 As a result of the essential nature  [**446][***38]  of the  [*100]  service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.  n13 In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, n14 and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection  [*101]  against negligence.  n15 Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, n16 subject to the risk of carelessness by the seller or his agents.

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n9 “Though the standard followed does not always clearly appear, a distinction seems to be made between those contracts which modify the responsibilities normally attaching to a relationship which has been regarded in other connections as a fit subject for special regulatory treatment and those which affect a relationship not generally subjected to particularized control.” (11 So.Cal.L.Rev. 296, 297 (1938); see also Note (1948) 175 A.L.R. 8, 38-41.)

In Munn v. Illinois (1877) 94 U.S. 113 [24 L.Ed. 77], the Supreme Court appropriated the common law concept of a business affected with a public interest to serve as the test of the constitutionality of state price fixing laws, a role it retained until Nebbia v. New York (1934) 291 U.S. 502 [54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469], and Olsen v. Nebraska (1941) 313 U.S. 236 [61 S.Ct. 862, 85 L.Ed. 1305, 133 A.L.R. 1500]. For discussion of the constitutional use and application of the “public interest” concept, see generally Hall, Concept of Public Business (1940); Hamilton, Affectation with a Public Interest (1930) 39 Yale L.J. 1089.

n10 See New York C. Railroad Co. v. Lockwood (1873) 84 U.S. (17 Wall.) 357, 378-382 [21 L.Ed. 627]; Millers Mut. Fire Ins. Assn. v. Parker (1951) 234 N.C. 20 [65 S.E.2d 341]; Hiroshima v. Bank of Italy (1926) 78 Cal.App. 362, 377 [248 P. 947]; cf.  Lombard v. Louisiana (1963) 373 U.S. 267 [83 S.Ct. 1122, 10 L.Ed.2d 338] [Douglas J., concurring] (holding that restaurants cannot discriminate on racial grounds, and noting that “places of public accommodation such as retail stores, restaurants, and the like render a ‘service which has become a public interest’ . . . in the manner of the innkeepers and common carriers of old.”); Charles Wolff Packing Co. v. Court of Industrial Relations (1923) 262 U.S. 522 [43 S.Ct. 630, 67 L.Ed. 1103] (“public interest” as test of constitutionality of price fixing); German Alliance Ins. Co. v. Lewis (1914) 233 U.S. 389 [34 S.Ct. 612, 58 L.Ed. 1011, L.R.A. 1915C 789] (same); Hamilton, Affectation with a Public Interest (1930) 39 Yale L.J. 1089 (same); Arterburn, The Origin and First Test of Public Callings (1927), 75 U.Pa.L.Rev. 411, 428 ( “public interest” as one test of whether business has duty to serve all comers). But see Simmons v. Columbus Venetian Stevens Buildings, Inc. (1958) 20 Ill.App.2d 1, 25-32 [155 N.E.2d 372, 384-387] (apartment leases, in which exculpatory clauses are generally permitted, are in aggregate as important to society as contracts with common carriers).

n11 See Bisso v. Inland Waterways Corp. (1955) 349 U.S. 85, 91 [75 S.Ct. 629, 99 L.Ed. 911] New York C. Railroad Co. v. Lockwood, supra; Fairfax Gas & Supply Co. v. Hadary (4th Cir. 1945) 151 F.2d 939; Millers Mut. Fire Ins. Assn. v. Parker (1951) 234 N.C. 20 [65 S.E.2d 341]; Irish & Swartz Stores v. First Nat. Bank of Eugene (1960) 220 Ore. 362, 375 [349 P.2d 814, 821]; 15 U.Pitt.L.Rev. 493, 499-500 (1954); Note (1948) 175 A.L.R. 8, 16-17; cf.  Charles Wolff Packing Co. v. Court of Industrial Relations (1923) 262 U.S. 522 [43 S.Ct. 630, 67 L.Ed. 1103] (constitutional law); Munn v. Illinois (1877) 94 U.S. 113 [24 L.Ed. 77] (same); Hall, Concept of Public Business, p. 94 (1940) (same).

n12 See Burdick, The Origin of the Peculiar Duties of Public Service Companies (1911), 11 Colum.L.Rev. 514, 616, 743; Lombard v. Louisiana, supra, fn. 10. There is a close historical relationship between the duty of common carriers, public warehousemen, innkeepers, etc. to give reasonable service to all persons who apply, and the refusal of courts to permit such businesses to obtain exemption from liability for negligence.  See generally Arterburn, supra, fn. 10.  This relationship has led occasional courts and writers to assert that exculpatory contracts are invalid only if the seller has a duty of public service.  28 Brooklyn L.Rev. 357, 359 (1962); see Ciofalo v. Vic Tanney Gyms, Inc. (1961) 10 N.Y.2d 294, 220 N.Y.S.2d 962 [177 N.E.2d 925]. A seller under a duty to serve is generally denied exemption from liability for negligence; (however, the converse is not necessarily true) 44 Cal.L.Rev. 120 (1956); cf. Charles Wolff Packing Co. v. Court of Industrial Relations (1923) 262 U.S. 522, 538 [43 S.Ct. 630, 67 L.Ed. 1103, 1109] (absence of duty to serve public does not necessarily exclude business from class of those constitutionally subject to state price regulation under test of Munn v. Illinois); German Alliance Ins. Co. v. Lewis (1914) 233 U.S. 389, 407 [34 S.Ct. 612, 58 L.Ed. 1011, 1020, L.R.A. 1915C 1189] (same).  A number of cases have denied enforcement to exculpatory provisions although the seller had no duty to serve.  See, e.g., Bisso v. Inland Waterways Corp. (1955) 349 U.S. 85 [75 S.Ct. 629, 99 L.Ed. 911]; Millers Mut. Fire Ins. Assn. v. Parker (1951) 234 N.C. 20 [65 S.E.2d 341]; cases on exculpatory provisions in employment contracts collected in 35 Am.Jur., Master & Servant, § 136.

n13 Prosser, Torts (2d ed. 1955) p. 306: “The courts have refused to uphold such agreements . . . where one party is at such obvious disadvantage in bargaining power that the effect of the contract is to put him at the mercy of the other’s negligence.” Note (1948) 175 A.L.R. 8, 18: “Validity is almost universally denied to contracts exempting from liability for its negligence the party which occupies a superior bargaining position.” Accord: Bisso v. Inland Waterways Corp. (1955) 349 U.S. 85, 91 [75 S.Ct. 629, 99 L.Ed. 911, 918]; Hiroshima v. Bank of Italy (1926) 78 Cal.App. 362, 377 [248 P. 947]; Ciofalo v. Vic Tanney Gyms, Inc. (1961) 13 App.Div.2d 702 [214 N.Y.S.2d 99] (Kleinfeld, J. dissenting); 6 Williston, Contracts (rev. ed. 1938) § 1751C; Note, The Significance of Comparative Bargaining Power in the Law of Exculpation (1937) 37 Colum.L.Rev. 248; 20 Corn. L.Q. 352 (1935); 8 U.Fla.L.Rev. 109, 120-121 (1955); 15 U.Pitt.L.Rev. 493 (1954); 19 So.Cal.L.Rev. 441 (1946); see New York C. Railroad Co. v. Lockwood (1873) 84 U.S. (17 Wall.) 357, 378-382 [21 L.Ed. 627]; Fairfax Gas & Supply Co. v. Hadary (4th Cir. 1945) 151 F.2d 939; Northwestern M.F. Assn. v. Pacific etc. Co. (1921) 187 Cal. 38, 43-44 [200 P. 934]; Inglis v. Garland (1936) 19 Cal.App.2d Supp. 767, 773 [64 P.2d 501]; Jackson v. First Nat. Bank of Lake Forest (1953) 415 Ill. 453, 462-463 [114 N.E.2d 721, 726]; Simmons v. Columbus Venetian Stevens Buildings, Inc. (1958) 20 Ill.App.2d 1, 26-32 [155 N.E.2d 372, 384-387]; Hall v. Sinclair Refining Co. (1955) 242 N.C. 707 [89 S.E.2d 396]; Millers Mut. Fire Ins. Assn. v. Parker (1951) 234 N.C. 20 [65 S.E.2d 341]; Irish & Swartz Stores v. First Nat. Bank of Eugene (1960) 220 Ore. 362, 375 [349 P.2d 814, 821]; 44 Cal.L.Rev. 120 (1956); 4 Mo.L.Rev. 55 (1939).

n14 See Simmons v. Columbus Venetian Stevens Buildings, Inc. (1958) 20 Ill.App.2d 1, 30-33 [155 N.E.2d 372, 386-387]; Irish & Swartz Stores v. First Nat. Bank of Eugene (1960) 220 Ore. 362, 376 [349 P.2d 814, 821]; Note (1948) 175 A.L.R. 8, 15-16, 112.

n15 See 6A Corbin, Contracts (1962) § 1472 at p. 595; Note (1948) 175 A.L.R. 8, 17-18.

n16 See Franklin v. Southern Pac. Co. (1928) 203 Cal. 680, 689-690 [265 P. 936, 59 A.L.R. 118]; Stephens v. Southern Pac. Co. (1895) 109 Cal. 86, 90-91 [41 P. 783, 50 Am.St.Rep. 17, 29 L.R.A. 751]; Irish & Swartz Stores v. First Nat. Bank of Eugene (1960) 220 Ore. 362, 377 [349 P.2d 814, 822]; 44 Cal.L.Rev. 120, 128 (1956); 20 Corn.L.Q. 352, 358 (1935).

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While obviously no public policy opposes private, voluntary transactions in which one party, for a consideration, agrees to shoulder a risk which the law would otherwise have placed upon the other party, the above circumstances pose a different situation.  In this situation the releasing party does not really acquiesce voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he receives an adequate consideration for the transfer. Since the service is one which each  [**447][***39]  member of the public, presently or potentially, may find essential to him, he faces, despite his economic inability to do so, the prospect of a compulsory assumption of the risk of another’s negligence.  The public policy of this state has been, in substance, to posit the risk of negligence upon the actor; in instances in which this policy has been abandoned, it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer.

(2)In the light of the decisions, we think that the hospital-patient contract clearly falls within the category of agreements affecting the public interest. To meet that test, the agreement need only fulfill some of the characteristics above outlined; here, the relationship fulfills all of them. Thus the contract of exculpation involves an institution suitable for, and a subject of, public regulation. (See Health & Saf. Code, §§ 1400- 1421, 32000- 32508.) n17 That the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity is hardly open to question.

- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -

n17 “[Providing] hospital facilities to those legally entitled thereto is a proper exercise of the police power of the county . . . as it tends to promote the public health and general welfare of the citizens of the county.” ( Goodall v. Brite (1936) 11 Cal.App.2d 540, 548 [54 P.2d 510]; see Jardine v. City of Pasadena (1926) 199 Cal. 64 [248 P. 225, 48 A.L.R. 509].)

- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -

[*102]  The hospital, likewise, holds itself out as willing to perform its services for those members of the public who qualify for its research and training facilities.  While it is true that the hospital is selective as to the patients it will accept, such selectivity does not negate its public aspect or the public interest in it.  The hospital is selective only in the sense that it accepts from the public at large certain types of cases which qualify for the research and training in which it specializes.  But the hospital does hold itself out to the public as an institution which performs such services for those members of the public who can qualify for them.  n18

- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -

n18 See Wilmington General Hospital v. Manlove (1961) 53 Del. 338 [174 A.2d 135]; holding that a private hospital which holds itself out as rendering emergency service cannot refuse to admit a patient in an emergency, and comment on the above case in 14 Stan.L.Rev. 910 (1962).

- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -

In insisting that the patient accept the provision of waiver in the contract, the hospital certainly exercises a decisive advantage in bargaining.  The would-be patient is in no position to reject the proffered agreement, to bargain with the hospital, or in lieu of agreement to find another hospital.  The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract.  As a result, we cannot but conclude that the instant agreement manifested the characteristics of the so-called adhesion contract. Finally, when the patient signed the contract, he completely placed himself in the control of the hospital; he subjected himself to the risk of its carelessness.

In brief, the patient here sought the services which the hospital offered to a selective portion of the public; the patient, as the price of admission and as a result of his inferior bargaining position, accepted a clause in a contract of adhesion waiving the hospital’s negligence; the patient thereby subjected himself to control of the hospital and the possible infliction of the negligence which he had thus been compelled to waive.  The hospital, under such circumstances, occupied a status different than a mere private party; its contract with the patient affected the public interest. We see no cogent current reason for according to the patron of the inn a greater protection than the patient of the hospital; we cannot hold the innkeeper’s performance affords a greater public service than that of the hospital.

[**448][***40]  We turn to a consideration of the two arguments urged by [*103]  defendant to save the exemptive clause.  Defendant first contends that while the public interest may possibly invalidate the exculpatory provision as to the paying patient, it certainly cannot do so as to the charitable one. Defendant secondly argues that even if the hospital cannot obtain exemption as to its “own” negligence it should be in a position to do so as to that of its employees.  We have found neither proposition persuasive.

(3)As to the first, we see no distinction in the hospital’s duty of due care between the paying and nonpaying patient. (But see Rest., Contracts, § 575(1)(b).) The duty, emanating not merely from contract but also tort, imports no discrimination based upon economic status.  (See Malloy v. Fong (1951) 37 Cal.2d 356, 366 [232 P.2d 241]; Rest., Torts, §§ 323-324.) Rejecting a proposed differentiation between paying and nonpaying patients, we refused in Malloy to retain charitable immunity for charitable patients. Quoting Rutledge, J. in President & Directors of Georgetown College v. Hughes (1942) 130 F.2d 810, 827, we said: “Retention [of charitable immunity] for the nonpaying patient is the least defensible and most unfortunate of the distinction’s refinements.  He, least of all, is able to bear the burden.  More than all others, he has no choice.  . . .  He should be the first to have reparation, not last and least among those who receive it.” (P. 365.) To immunize the hospital from negligence as to the charitable patient because he does not pay would be as abhorrent to medical ethics as it is to legal principle.

(4)Defendant’s second attempted distinction, the differentiation between its own and vicarious liability, strikes a similar discordant note.  In form defendant is a corporation.  In everything it does, including the selection of its employees, it necessarily acts through agents.  A legion of decisions involving contracts between common carriers and their customers, public utilities and their customers, bailees and bailors, and the like, have drawn no distinction between the corporation’s “own” liability and vicarious liability resulting from negligence of agents.  We see no reason to initiate so far-reaching a distinction now.  If, as defendant argues, a right of action against the negligent agent is in fact a sufficient remedy, then defendant by paying a judgment against it may be subrogated to the right of the patient against the negligent agent, and thus may exercise that remedy.

[*104]  In substance defendant here asks us to modify our decision in Malloy , which removed the charitable immunity; defendant urges that otherwise the funds of the research hospital may be deflected from the real objective of the extension of medical knowledge to the payment of claims for alleged negligence. Since a research hospital necessarily entails surgery and treatment in which fixed standards of care may not yet be evolved, defendant says the hospital should in this situation be excused from such care.  But the answer lies in the fact that possible plaintiffs must prove negligence; the standards of care will themselves reflect the research nature of the treatment; the hospital will not become an insurer or guarantor of the patient’s recovery.  To exempt the hospital completely from any standard of due care is to grant it immunity by the side-door method of a contractual clause exacted of the patient. We cannot reconcile that technique with the teaching of Malloy.

We must note, finally, that the integrated and specialized society of today, structured upon mutual dependency, cannot rigidly narrow the concept of the public interest.  From the observance of simple standards of due care in the driving of a car to the performance of the high standards of hospital practice, the individual citizen must be completely dependent upon the responsibility of others.  The fabric of this pattern is so closely woven that the snarling of a single thread affects the whole.  We cannot lightly accept a sought immunity from careless failure to provide the hospital service upon which many must depend.  Even if the  [**449][***41]  hospital’s doors are open only to those in a specialized category, the hospital cannot claim isolated immunity in the interdependent community of our time.  It, too, is part of the social fabric, and prearranged exculpation from its negligence must partly rend the pattern and necessarily affect the public interest.

The judgment is reversed.

WordPress Tags: Tunkl,Regents,California,Rptr,LEXIS,OLGA,Executrix,Plaintiff,Appellant,Defendant,Respondent,Supreme,Court,PRIOR,HISTORY,APPEAL,judgment,Superior,Angeles,Jerold,Weil,Judge,Action,injuries,negligence,physicians,hospital,DISPOSITION,HEADNOTES,OFFICIAL,REPORTS,Release,Agreements,Public,Interest,provision,transaction,characteristics,regulation,exculpation,importance,member,advantage,strength,adhesion,purchaser,protection,person,seller,agents,Hospitals,admission,category,Code,exemption,fraud,injury,violation,policy,treatment,distinction,agreement,employees,JUDGES,Bank,Tobriner,Gibson,Traynor,Schauer,McComb,Peters,Peek,OPINIONBY,OPINION,consequence,Civil,Hugo,Medical,Center,institution,wife,June,purpose,education,medicine,purposes,Upon,Conditions,omissions,clause,jury,malpractice,verdict,Footnotes,sedation,execution,Perkins,Sunset,Raynale,significance,basis,proscription,arguments,Although,decisions,impact,circumstance,interpretations,Some,statute,England,Lyon,Fireproof,Storage,Union,Constr,Western,Mills,Ruppert,Negligent,Accord,Hiroshima,Estate,Garcelon,Werner,Knoll,interpretation,Barkett,Brucato,Witkin,Summary,Apart,statutes,explanation,exemptions,death,Butt,Bertola,Ryan,Mercantile,Great,Northern,Mont,Supp,Smith,Contractual,Controls,Damages,Commercial,Transactions,Hastings,clauses,theory,decision,Stephens,Southern,depot,lessee,warehouse,reference,States,Hampshire,opposition,annotation,addition,text,doctrine,dictum,Sproul,Cuddy,Basin,Baash,Ross,Tool,Hubbard,Matson,Navigation,reaction,Thus,Nichols,Hitchcock,Motor,covenant,affairs,Hischemoeller,National,businessmen,Inglis,Garland,Northwestern,Assn,Pacific,situation,waiver,Justice,relationship,landlord,tenant,Italics,message,instance,payee,payment,fact,performance,duties,direction,relation,money,Grisinger,Golden,State,Exculpatory,Franklin,carrier,Dieterle,Bekin,George,Bekins,declaration,Hall,Scott,Universal,factors,characterization,definition,concept,formula,situations,Though,Note,Munn,Illinois,laws,role,Nebbia,York,Olsen,Nebraska,discussion,Hamilton,Affectation,Yale,Railroad,Lockwood,Wall,Millers,Fire,Parker,Lombard,Louisiana,Douglas,restaurants,accommodation,manner,innkeepers,carriers,Charles,Wolff,Industrial,Relations,German,Alliance,Lewis,Arterburn,Origin,Test,Callings,Simmons,Columbus,Venetian,Stevens,Buildings,apartment,Bisso,Inland,Waterways,Corp,Fairfax,Hadary,Irish,Swartz,Stores,Eugene,Pitt,Burdick,Peculiar,Service,Companies,Colum,refusal,writers,Brooklyn,Ciofalo,Tanney,Gyms,absence,enforcement,employment,Master,Servant,Prosser,Torts,disadvantage,mercy,Kleinfeld,Williston,Contracts,Comparative,Power,Corn,Jackson,Lake,Forest,Sinclair,Corbin,assumption,substance,actor,instances,Health,skill,facilities,welfare,citizens,Goodall,Brite,Jardine,Pasadena,aspect,Wilmington,General,Manlove,Stan,room,status,patron,innkeeper,proposition,Rest,tort,discrimination,Malloy,Fong,differentiation,Rutledge,President,Directors,Georgetown,College,Hughes,Retention,refinements,reparation,ethics,principle,corporation,selection,legion,customers,utilities,agent,extension,knowledge,surgery,plaintiffs,insurer,guarantor,recovery,door,method,technique,dependency,From,observance,citizen,fabric,failure,doors,himself,whereby,whether,patients,exemptive,neither,supra


Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

Philippi v. Sipapu, Inc., 961 F.2d 1492; 1992 U.S. App. LEXIS 6973

George Philippi, Plaintiff-Appellant, v. Sipapu, Inc., a New Mexico corporation; Sipapu Recreation Development Corporation, a New Mexico corporation; and their employees, Lawrence Gottschau, James Booth, and Olive Bolander; and American Home Assurance Corporation, a New York corporation, Defendants-Appellees.

No. 91-2253

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

961 F.2d 1492; 1992 U.S. App. LEXIS 6973

April 17, 1992, Filed

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-90-1178-JC). D.C. Judge JOHN E. CONWAY

DISPOSITION: DENIED. AFFIRMED

COUNSEL: Submitted on the briefs.

Patrick A. Casey and David C. Ruyle, Patrick A. Casey, P.A., Santa Fe, New Mexico, for the Plaintiff-Appellant.

Joe L. McClaugherty and Cameron Peters, McClaugherty, Silver & Downs, P.C., Santa Fe, New Mexico, for the Defendants-Appellees.

JUDGES: Before MOORE, TACHA, and BRORBY, Circuit Judges.

OPINION BY: TACHA

OPINION

[*1493] TACHA, Circuit Judge.

Plaintiff, George Philippi, appeals a district court order granting summary judgment to the defendants. 1 Philippi argues that the district court erred in granting the defendants summary judgment on Philippi’s negligence action. Philippi also argues that two unresolved issues of New Mexico law may be determinative in this case and urges this court to certify these issues to the Supreme Court of the State of New Mexico. We exercise jurisdiction under 28 U.S.C. 1291 and affirm.

1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

[**2] In January of 1984, Philippi suffered a physical injury during the course of a skiing lesson at Sipapu Ski Area in New Mexico. Philippi, a body builder, injured his right leg and knee while attempting to negotiate the “Lower Bambi” run at Sipapu. Philippi brought this action against the defendants claiming, among other things, that the defendants acted negligently in violation of the New Mexico Ski Safety Act, N.M. Stat. Ann. 24-15-1 to 24-15-14 (hereinafter referred to as “the Act” or “the Ski Safety Act”).

In their motion for summary judgment, the defendants argued that they were entitled to judgment as a matter of law because the Ski Safety Act is Philippi’s only remedy and because Philippi’s claim is barred by his statutory assumption of the risks of skiing and his own breaches of duty under the Act. As an alternative basis for summary judgment, the defendants argued that they did not breach any of their duties under the Act. Without stating the basis of its ruling, the district court found that the motion for summary judgment was “well taken and should be granted.”

Philippi raises two claims on appeal. First, he argues that the district court misconstrued and misapplied the doctrine [**3] of primary and secondary assumption of the risk, as embodied in the Ski Safety Act. Second, Philippi argues that even if his conduct constitutes secondary assumption of the risk, the Act embodies comparative negligence principles, and his conduct, therefore, cannot totally bar his recovery under the Act. Philippi urges us to certify both of these issues to the New Mexico Supreme Court.

Although the basis of the district court’s ruling is not evident, [HN1] “we may affirm the granting of summary judgment if any proper ground exists to support the district court’s ruling.” McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988). We find it unnecessary to reach the merits of Philippi’s arguments on appeal because both arguments presuppose that, but for the district court’s alleged errors in applying the doctrines of assumption of the risk and comparative negligence, the district court would have concluded that the defendants owed a duty to Philippi. Viewing the facts alleged in the complaint and in opposition [*1494] to the summary judgment motion in the light most favorable to Philippi, we hold as a matter of law that the defendants owed no duty to protect Philippi from the harm [**4] he allegedly sustained. Because Philippi cannot demonstrate a duty owed by the defendants, we find certification of the issues on appeal inappropriate, as these issues are not determinative of this action.

This case requires us to determine whether the Ski Safety Act imposes a duty on a ski area operator to warn, or in some way protect, a novice skier from the inherent perils and obstacles posed by the terrain of a narrow, steep and ungroomed ski slope. Philippi’s injury occurred during a skiing lesson. According to the amended complaint, Philippi fell repeatedly during the lesson and, despite the ski instructors’ demonstrations and instructions, he was unable to master turning and other skiing maneuvers. Philippi allegedly informed the instructors that he wanted to stop the lesson because he was frustrated and tired. The instructors encouraged Philippi to continue skiing to the end of the run because the remaining terrain was “relatively easy,” and there was “no place to stop or stand.” The complaint alleges that “following the instructions of one of the individual Defendants, Plaintiff entered onto a narrow, steep, ungroomed slope which required numerous turns to navigate. Plaintiff [**5] could not see obstacles on this slope until he was upon them and too late to avoid them. During this portion of the instruction Plaintiff fell and severely injured his right leg and knee. . . .”

[HN2] Under section 24-15-10(B) of the Ski Safety Act, a skier “accepts as a matter of law the dangers inherent in that sport insofar as they are obvious and necessary.” The Act goes on to state that a skier expressly assumes the risk of and legal responsibility for any injury to person or property which results from participation in the sport of skiing, in the skiing areas, including any injury caused by . . . variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees or other forms of forest growth or debris . . . .

[HN3] The Act specifically excludes from the scope of a skier’s assumption of risk “any injuries . . . resulting from any breach of duty imposed upon ski area operators under the provisions of Sections 24-15-7 and 24-15-8 [of the Act].” Id.

Philippi maintains that even though he assumed the obvious and necessary risks associated with skiing, including any injury caused by variations in terrain, the risks he encountered were not “obvious and necessary” [**6] to him as a novice skier. The Act imposes an affirmative duty on ski area operators “to warn of or correct particular hazards or dangers known to the operator where feasible to do so.” Id. 24-15-7(I). Philippi’s complaint alleges that the defendants were aware of Philippi’s difficulties in mastering even the simplest skiing maneuvers, the defendants knew of “particular hazards or dangers,” and they knew or should have known that Philippi was likely to injure himself if “allowed to continue” down the slope. Thus, Philippi alleges that under section 24-15-7(I) of the Act, the defendants had a duty to warn him of the obstacles of the lower portion of the ski slope — obstacles “which were not plainly visible and which created an immediate hazard to [Philippi] and the skiing public.”

In response to the defendants’ argument in support of summary judgment that the defendants owed no duty to Philippi, Philippi bore the burden of making a showing sufficient to establish the existence of the defendants’ duty. See High Plains Natural Gas v. Warren Petroleum Co., 875 F.2d 284, 290-91 (10th Cir. 1989). [HN4] “The party resisting [summary judgment] may not rest on the bare allegations [**7] or denials of his pleadings. Rather he must produce some evidence showing a genuine issue for trial.” Lowell Staats Mining Co. v. Philadelphia Elec. Co., 878 F.2d 1271, 1274 (10th Cir. 1989).

Philippi claims that the deposition testimony and affidavits, along with facts alleged in his complaint, demonstrate a genuine issue of material fact concerning the defendants’ violation of section 24-15-7(I) of the Act. Philippi points out that, despite the instructors’ awareness of Philippi’s inability [*1495] to master even the simplest skiing maneuvers, the instructors “failed to help” and “failed to warn” Philippi of the risks of the lower portion of the Bambi trail. Further, Philippi made some showing that the defendants were aware that novice skiers had “problems” on the portion of the trail on which Philippi’s injury occurred. In addition, Philippi points to the failure of the Sipapu ski instructor’s manual to advise the instructors of the need to warn students of dangers and alert them to safety considerations. Philippi argues that reasonable minds could differ on whether these circumstances give rise to a duty on behalf of the defendants and, therefore, that the issue should [**8] be left to the finder of fact.

[HN5] Under New Mexico law, however, the question of whether a defendant owes a duty to a particular plaintiff is a question of law to be determined by the court. Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36, 39 (N.M. 1990); Schear v. Board of County Comm’rs, 101 N.M. 671, 687 P.2d 728, 729 (N.M. 1984). Under section 24-15-7(I) of the Ski Safety Act, the defendants only have the duty to warn of or correct “particular hazards or dangers.” Philippi cannot rest on the bare allegation in his amended complaint that the defendants were aware of and failed to warn of “particular hazards or dangers.” Nothing in Philippi’s amended complaint, deposition or affidavits identifies any “particular hazard or danger” known to the defendants. Philippi merely asserts that his injury was caused by the defendants’ failure to warn him individually of the general conditions of the terrain on the lower portion of the beginner slope. Allegations of “thin and bare” terrain on a “narrow, steep and ungroomed” slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi. Likewise, allegations of the defendants’ knowledge of injuries [**9] to novice skiers on that same portion of the slope do not amount to a particular hazard of which the defendants had a duty to warn Philippi.

The purpose of the Ski Safety Act is to define “those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier expressly assumes and for which there can be no recovery.” N.M. Stat. Ann. 24-15-2. Philippi assumed the risk for variations in terrain, id. 24-15-10, and Philippi had the duty to ski within the limits of his own ability. Id. Section 24-15-13 of the Act clearly states that a skier cannot recover for injuries or damages resulting from the skier’s own violation of his duties, as set forth in section 24-15-10. In our view, the Act allocates to the skier the risks for the type of injury Philippi alleges. In light of the language and purpose of the New Mexico Ski Safety Act, we conclude as a matter of law that [HN6] the scope of the duty imposed on ski operators in section 24-15-7(I) of the Act is not broad enough to encompass the duty to provide a general warning to a novice skier that, because of the skier’s limited abilities, portions of a beginner [**10] slope may be dangerous.

The motion to certify questions of state law is DENIED and the order of the district court is AFFIRMED.

WordPress Tags: Philippi,Sipapu,LEXIS,George,Plaintiff,Appellant,Mexico,corporation,Recreation,Development,employees,Lawrence,Gottschau,James,Booth,Olive,Bolander,American,Home,Assurance,York,Defendants,Appellees,STATES,COURT,APPEALS,TENTH,CIRCUIT,April,PRIOR,HISTORY,APPEAL,FROM,DISTRICT,Judge,JOHN,CONWAY,DISPOSITION,COUNSEL,Patrick,Casey,David,Ruyle,Santa,Cameron,Peters,Silver,Downs,JUDGES,TACHA,BRORBY,OPINION,judgment,negligence,action,Supreme,State,jurisdiction,panel,argument,determination,January,injury,lesson,Area,builder,knee,Lower,Bambi,violation,Stat,assumption,basis,duties,doctrine,Second,recovery,Although,McKibben,Chubb,arguments,errors,doctrines,complaint,opposition,certification,operator,novice,perils,obstacles,terrain,instructors,instructions,instruction,Under,dangers,person,participation,areas,variations,trees,growth,debris,scope,injuries,operators,Sections,Thus,response,existence,High,Plains,Natural,Warren,Petroleum,allegations,denials,Rather,Lowell,Staats,Philadelphia,Elec,testimony,affidavits,fact,Further,addition,failure,instructor,students,finder,defendant,Calkins,Estates,Schear,Board,Comm,allegation,danger,beginner,Likewise,knowledge,purpose,Section,abilities,whether,skier,upon,skiers


Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995

Gwyn v. Loon Mountain Corporation, 350 F.3d 212; 2003 U.S. App. LEXIS 23995

Eileen Gwyn, on her own behalf, and as Executrix of the Estate of Howard Gwyn, and Margaret Do, Plaintiffs, Appellants, v. Loon Mountain Corporation, d/b/a Loon Mountain Ski Area, Defendant, Appellee.

No. 03-1047

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

350 F.3d 212; 2003 U.S. App. LEXIS 23995

November 25, 2003, Decided

SUBSEQUENT HISTORY: As Amended December 2, 3003.

PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Paul J. Barbadoro, U.S. District Judge.

Gwyn v. Loon Mt. Corp., 2002 U.S. Dist. LEXIS 9092 (D.N.H., 2002)

Gwyn v. Loon Mt. Corp., 2002 U.S. Dist. LEXIS 24625 (D.N.H., 2002)

DISPOSITION: Affirmed.

COUNSEL: Kevin M. Leach with whom Nixon, Raiche, Manning, Casinghino & Leach, P.C. was on brief for appellants.

Thomas Quarles, Jr. with whom Margaret O’Brien, Matthew R. Johnson and Devine, Millimet & Branch, P.A. were on brief for appellee.

JUDGES: Before Boudin, Chief Judge, Siler, * Senior Circuit Judge, and Lynch, Circuit Judge.

* Of the Sixth Circuit, sitting by designation.

OPINION BY: BOUDIN

OPINION

[*214] BOUDIN, Chief Judge. In this tragic case, two individuals were killed and a third badly injured in a skiing accident in New Hampshire. The details are set forth in two very able opinions by the district court. Thus, we confine ourselves to an abbreviated description focused on the two primary issues raised on this appeal: one is an important question of statutory construction and the other a narrower issue turning upon the pleadings.

Howard and Eileen Gwyn, their daughter Margaret Do, and Margaret’s fiance Mark Goss went on a ski vacation in Lincoln, New Hampshire. On January 25, 1999, they spent the morning together skiing down [**2] easy trails at Loon Mountain Ski Area (“Loon”). Shortly before lunch, Howard, Margaret, and Mark–all very experienced skiers–left Eileen and rode the chairlift up to the Summit Lodge to ski down some more difficult trails. Unbeknownst to them, Loon had closed one of the trails (named “Triple Trouble”) the night before because of icy conditions, a closure noted on the trail board at the bottom of the mountain.

[*215] From the summit, it was possible to ski directly down a trail named Big Dipper from which, part way down, Triple Trouble branched off to the skier’s right. Or, from the summit, one could head right on a trail called Haulback, then take a left fork onto Cant Dog, and enter Big Dipper just above the point where Triple Trouble branched off to the right. At this branching off point from Big Dipper to Triple Trouble, Loon had posted a sign warning that Triple Trouble was closed. It had also placed a rope across the entrance to Triple Trouble.

From the summit, Howard led the group to the right down Haulback and then took a left turn onto Cant Dog. At the intersection of Cant Dog and Big Dipper–right above the closed Triple Trouble trail–Howard slipped on ice, slid under the rope [**3] blocking off Triple Trouble, and tumbled nine hundred feet down the icy slope. He suffered severe injuries resulting in his death a few days later. Margaret Do and Mark Goss saw Howard Gwyn fall, removed their skis, and attempted to walk down the closed trail to rescue him. Both fell, sliding hundreds of feet down Triple Trouble trail. Goss died. Margaret Do suffered severe injuries and frostbite but was rescued several hours later. In this diversity suit, Margaret Do and Eileen Gwyn (as executrix of Howard Gwyn’s estate and on her own behalf) sued Loon for breach of multiple common law and statutory duties. The district court granted Loon’s motion to dismiss the majority of claims under New Hampshire’s “Skiers, Ski Area, and Passenger Tramway Safety Act,” N.H. Rev. Stat. Ann § 225-A:23 (2002) (“ski statute”). Two claims survived the motion to dismiss, but after discovery the district court granted summary judgment to Loon on both counts. Plaintiffs appealed, focusing attention on one statutory claim and one claim of common law negligence.

At the crux of this appeal is New Hampshire’s ski statute, N.H. Rev. Stat. Ann § 225-A. In this [**4] statute several duties are placed on ski operators–maintaining trail boards, marking the difficulty of various slopes, making trail maps available to all skiers–and operators can be sued for violations of these statutory duties. § 225-A:23; Nutbrown v. Mt. Cranmore, Inc., 140 N.H. 675, 671 A.2d 548, 553 (N.H. 1996). At the same time, the statute places the risk of injury from dangers inherent in the sport of skiing on the skiers themselves, and bars all actions against ski operators for injuries caused by these dangers. 1 § 225-A:24; Nutbrown, 671 A.2d at 553. New Hampshire case law is slowly filling in the gaps but uncertainties remain.

1 [HN1] The statute provides that “each person who participates in the sport of skiing accepts as a matter of law[] the dangers inherent in the sport, and to that extent may not maintain an action against the operator for any injuries which result from such inherent risks, dangers, or hazards.” § 225-A:24; see also Nutbrown, 671 A.2d at 553 (“By participating in the sport of skiing, a skier assumes this inherent risk and may not recover against a ski area operator for resulting injuries.”).

[**5] Here, most of the counts and theories pressed by plaintiffs at the start are no longer in issue, but two major claims remain open on this appeal. The first is that Loon did not comply with a statutory duty relating to marking closed trails. Under the ski statute, operators are not required to close a trail because of hazardous conditions, but if they do close a trail they must mark “the beginning of, and designated access points to” the closed trail with a sign, § 225-A:23 (III)(b), and note the closure on a permanent trail board at the base of the mountain, § 225-A:23 (II)(a). Here, it is undisputed that Loon properly [*216] noted the closure on the trail board and properly marked “the beginning” of Triple Trouble at the point that it branched off Big Dipper.

Nevertheless, the plaintiffs say that a closed sign for Triple Trouble was also required by the statute at the uphill juncture where Cant Dog forked off Haulback–a point where a sign pointed the way to Big Dipper and Triple Trouble. This, they say, was itself an “access point” to Triple Trouble. Their causation theory is less clear: the implication is that such an early warning of a closed trail further downhill might have made [**6] Howard Gwyn decide to lead the group straight down Haulback instead of taking Cant Dog so they could avoid the entire region around the closed trail.

The district court ruled as a matter of law that “access points” as used in the New Hampshire statute referred to points of direct entry onto a trail, and did not include points above the start of the closed trail. Thus, the start of Cant Dog might conceivably be treated as an access point to Big Dipper since the former merged into the latter; once on Cant Dog, entry onto Big Dipper was inevitable. By contrast, nothing compelled one who took the fork to Big Dipper necessarily to take the fork from Big Dipper onto Triple Trouble.

We agree readily with the district court’s reading of the statute. True, as a matter of dictionary definition a remote fork to an intermediate trail that can lead eventually to the closed trail could be described as a way to “access” the later trail; but on this theory the summit itself would be an access point to every connected trail on the mountain below. Indeed, on plaintiffs’ reading, warning signs might have to be posted at a variety of different points wherever existing trail signs indicated that [**7] the closed trail could be reached somewhere downhill. Conceivably, plaintiffs’ position could also require ski operators to construct such directional signs even if they did not already exist in order to mark every downhill closure.

It would not be literally impossible to comply with such requirements–apparently some ski slopes do so mark their closed trails, at least where existing signs mention the trails–but it could involve fairly complex compliance measures. In fact, the Loon trail map indicates that from some trails one could reach nearly 30 different trails below–some of them through open intermediate trails branching off into other open forks. The simplicity of the statute’s requirements argues against an interpretation requiring ski operators to mark every one of those possibilities, and this interpretation is unnecessary to carry out what we perceive to be the rationale of the warning requirement.

In our view, the statute aims to give the skier warning of a trail closure at any point where the skier might otherwise commit himself to traverse the closed trail. This is a complete scheme of protection giving the skier both a comprehensive overview of all closures on the [**8] base trailboard, and specific notice of each closure at any point on the mountain where the skier has a last chance to avoid the closed trail.

This reading may leave some open issues, but it forecloses plaintiffs’ central claim in this case. Here, the plaintiffs argue that a sign should have been placed at the Haulback-Cant Dog junction, since Cant Dog led onto Big Dipper which in turn led onto Triple Trouble. But a skier does not commit himself to taking Triple Trouble merely by turning left onto Cant Dog. Big Dipper was an open trail which a skier could continue down without branching off onto Triple Trouble, so no warning sign as to Triple Trouble was required by [*217] the statute at the Haulback- Cant Dog fork, even though one could have been voluntarily provided.

The second claim on appeal is that the district court should not have rejected an alternative theory of the plaintiffs having nothing to do with notice. The plaintiffs said that the defendant had placed the rope across Triple Trouble somewhat below the entrance itself and that the placement was negligent because it could lure a skier closer to the icy entrance than one would go otherwise. Admittedly, there was no duty to [**9] use any closing rope at all (the statute made the signs sufficient) but the plaintiffs argue that a voluntarily assumed duty negligently performed is not immunized by the statute.

There are obvious risks in penalizing efforts to provide help or care beyond an existing duty, but the common law rule sometimes permits a claim for negligent performance of a voluntary act where the negligence “increases the risk” of harm, or harm is caused by the victim’s “reliance upon the undertaking” to provide help or care. Restatement (Second) of Torts § 323 (1965); see also Prosser & Keaton on Torts 378-82 (5th ed. 1984). The New Hampshire Supreme Court has not decided how far this doctrine may apply in the face of the state statute providing protection to ski operators. See Rayeski v. Gunstock Area/Gunstock Area Comm’n, 146 N.H. 495, 776 A.2d 1265, 1269 (N.H. 2001).

The district court did not attempt to answer this question. It rested its rejection of such a claim in this case on the fact that the plaintiffs had not articulated any plausible causal connection between the placement of the rope and Howard Gwyn’s fall. As the district court [**10] said:

[The] complaint is devoid of allegations suggesting that defendant’s failure to exercise reasonable care to perform the identified undertakings created the icy area where the falls took place, exacerbated an already dangerous situation, caused Howard Gwyn and Do to enter an area they would not have entered absent the undertakings, or caused Howard Gwyn and Do to suffer worse injuries than they would have suffered absent the undertakings.

We have read the plaintiffs’ appellate briefs with care and no persuasive answer to this summary appears.

The problem for the plaintiffs is that Howard Gwyn evidently slipped on an ice patch on Big Dipper, and [HN2] an icy and dangerous open slope is an inherent risk of skiing that the plaintiffs assumed as a matter of law. N.H. Rev. Stat. Ann § 225-A:24(I); Nutbrown, 671 A.2d at 553-54 (citing Fetzner v. Jiminy Peak, The Mountain Resort, 1995 Mass. App. Div. 55, 1995 Mass. App. Div. LEXIS 30, No. 94WAD16, 1995 WL 263916, at *2 (Mass. Dist. Ct. May 1, 1995) (slipping on ice is an inherent risk of skiing)). The only duty Loon voluntarily undertook–placing a rope across the trail–put the plaintiffs in no worse a position than [**11] they would have been without the rope. One can think of circumstances where a badly placed rope would cause or contribute to an accident but this simply is not such a case.

Three remaining claims can be dealt with more swiftly. First, plaintiffs say that as read by the district court (and now by this court), the New Hampshire statute violates two provisions of the New Hampshire Constitution: the right to a remedy and the equal protection of the laws. N.H. Const. part I, arts. 2, 12, 14. The claim is that the district court’s interpretation deprives the plaintiffs of their constitutionally guaranteed rights without giving them a sufficient quid pro quo of a prior warning of the danger. This argument may be forfeited since not raised [*218] below. Brigham v. Sun Life of Canada, 317 F.3d 72, 85 (1st Cir. 2003).

In any event the New Hampshire Supreme Court has already concluded that the obligations that the ski statute places on ski operators provide a sufficient quid pro quo for the statutory restriction on skiers’ legal remedies. Nutbrown, 671 A.2d at 552. While the “access points” issue was not considered in Nutbrown, this slight wrinkle would [**12] not be likely to alter the New Hampshire Supreme Court’s assessment. No further argument based on New Hampshire constitutional law is sufficiently developed to merit consideration. See Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass’n, 142 F.3d 26, 43 (1st Cir. 1998).

Second, plaintiffs say that the statutory reading of the access points language and the voluntary assumption issue present open questions of New Hampshire law that should be certified to the state court. No such request was made in the district court, which is ordinarily conclusive save in rare circumstances such as public policy concerns, e.g., Pyle v. S. Hadley Sch. Comm., 55 F.3d 20, 22 (1st Cir. 1995). In any event, the access points issue is too straightforward to deserve certification and the voluntary assumption claim has been resolved not on the basis of statutory preemption but simply on the pleadings and facts of this case.

Third, plaintiffs say that the district court erred by denying them the chance to amend their complaint for the second time (one earlier amendment had been made) two months after the deadline set by the district court’s scheduling order. The motion [**13] to amend was denied by the district court for failure to make any effort to satisfy the good cause requirement for amendments after the scheduling order deadline, Fed. R. Civ. P. 16(b)(1), and also the disregard of Local Rule 15.1’s further requirements (e.g., attaching all relevant documents and explaining why the change had not been made before). D.N.H. R. 15.1.

On appeal, the plaintiffs say only that the district court erred by applying federal standards for amending pleadings instead of the supposedly more liberal amendment rules applicable in New Hampshire state courts. [HN3] But if anything comprises “procedural” rules exempt from the Erie doctrine, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938), it is the standards for such routine issues as the granting or denial of extensions of time, leave to amend, and similar housekeeping concerns. [HN4] The outcome determinative test relied upon by plaintiffs has been limited, see Hanna v. Plumer, 380 U.S. 460, 471, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965), and has no application to a clearly procedural matter governed by explicit federal procedural rules.

[**14] This is a sad case but, despite the ingenuity and energy of plaintiffs’ counsel, it is not a close one, given the limitations imposed by state policy. It was handled with care and competence by the district court, and we might have said less but for a desire to make clear that plaintiffs’ arguments have been considered with respect.

Affirmed.

WordPress Tags: Gwyn,Loon,Mountain,Corporation,LEXIS,Executrix,Estate,Howard,Margaret,Plaintiffs,Appellants,Area,Defendant,Appellee,STATES,COURT,APPEALS,CIRCUIT,November,SUBSEQUENT,HISTORY,December,PRIOR,APPEAL,FROM,DISTRICT,HAMPSHIRE,Paul,Barbadoro,Judge,Corp,Dist,DISPOSITION,COUNSEL,Kevin,Leach,Nixon,Raiche,Casinghino,Thomas,Quarles,Brien,Matthew,Johnson,Devine,Millimet,Branch,JUDGES,Boudin,Chief,Siler,Senior,Lynch,Sixth,designation,OPINION,individuals,accident,opinions,Thus,description,construction,daughter,Mark,Goss,vacation,Lincoln,January,Summit,Lodge,Unbeknownst,Triple,Trouble,closure,Dipper,Haulback,Cant,intersection,feet,injuries,death,Both,hours,duties,Skiers,Passenger,Tramway,Stat,statute,discovery,judgment,attention,negligence,crux,operators,violations,Nutbrown,injury,dangers,uncertainties,person,extent,action,operator,Here,theories,Under,juncture,causation,theory,implication,region,True,dictionary,definition,requirements,compliance,fact,interpretation,possibilities,rationale,requirement,protection,overview,closures,junction,placement,efforts,performance,victim,reliance,Restatement,Second,Torts,Prosser,Keaton,Supreme,doctrine,Rayeski,Gunstock,Comm,rejection,connection,complaint,allegations,failure,undertakings,situation,Fetzner,Jiminy,Peak,Resort,Mass,Three,Constitution,laws,Const,arts,danger,argument,Brigham,Life,Canada,event,obligations,restriction,Andover,assumption,policy,Pyle,Hadley,certification,basis,preemption,Third,amendment,deadline,effort,amendments,Local,Rule,Erie,Tompkins,denial,extensions,outcome,Hanna,Plumer,energy,limitations,competence,arguments,behalf,whom,upon,pleadings,skier,himself,quid


King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

King v. CJM Country Stables, 315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

John King and Patricia King, Plaintiffs, vs. CJM Country Stables, Defendant.

Civ. No. 03-00240 ACK/BMK

United States District Court for the District of Hawaii

315 F. Supp. 2d 1061; 2004 U.S. Dist. LEXIS 7511

February 18, 2004, Decided

February 18, 2004, Filed

DISPOSITION: [**1] Defendant’s Motion for Summary Judgment denied.

COUNSEL: For JOHN KING, PATRICIA KING, plaintiffs: David C. Schutter, Christopher A. Dias, Schutter Dias Smith & Wong, Honolulu, HI.

For CJM COUNTRY STABLES, INC., defendant: Gale L.F. Ching, Mitzi A. Lee, Jane Kwan, Hisaka Stone Goto Yoshida Cosgrove & Ching, Honolulu, HI.

JUDGES: Alan C Kay, United States District Judge.

OPINION BY: Alan C Kay

OPINION:

[*1062] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

BACKGROUND

This matter comes before the Court on Defendant CJM Country Stables’ (“CJM” or “Defendant”) Motion for Summary Judgment. The Motion for Summary Judgment argues that Patricia and John King (collectively, “Plaintiffs”) signed a valid waiver that releases CJM from liability for the injuries Plaintiffs allegedly suffered when they participated in a recreational horseback riding activity provided by the Defendant.

I. Factual History.

On September 16, 2001, Plaintiffs began an 11-night Royal Caribbean cruise sailing from Vancouver to and around the Hawaiian islands. On September 26, 2001, the cruise ship docked in Nawiliwili, on the Island of Kauai. That day, Plaintiffs participated in an organized horseback ride that [**2] they arranged through the shore excursion desk on board their ship.

Upon arriving at the stables, the horseback riding participants were asked to read and sign a form entitled “Participant Agreement, Release, and Acknowledgement of Risk,” (hereinafter the “Release Form”). Both Plaintiffs signed this Release Form. (Motion for Summary Judgment, Exs. A, D). The Release Form provides, in relevant part, that “in consideration of the services of CJM Country Stables, Inc.” the signatory agrees “to release and discharge C.J.M., on behalf of [himself or herself] … as follows:

1. I acknowledge that horseback trailrides entails known and unanticipated risks which could result in physical or emotional injury, … to myself … I understand that such risks simply cannot [*1063] be eliminated without jeopardizing the essential qualities of the activity. The risks include, among other things: … horses, irrespective of their previous behavior and characteristics, may act or react unpredictably based upon instinct, fright, or lack of proper control by rider; latent or apparent defects or conditions in … animals …; acts of other participants in this activity;… contact with plants or animals; [**3] … Furthermore, C.J.M. guides have difficult jobs to perform. They seek safety, but they are not infallible … They may give inadequate warnings or instructions, and the equipment being used might malfunction.

2. I expressly agree and promise to accept and assume all of the risks existing in this activity. My participation in this activity is purely voluntary, and I elect to participate in spite of the risks.

3. I hereby voluntarily release … and hold harmless C.J.M. from any and all claims, demands, or causes of action which are in any way connected with my participation in this activity … including any such Claims which allege negligent acts or omissions of C.J.M … I have had sufficient opportunity to read this entire document, I have read and understood it, and I agree to be bound by its terms.”

Motion for Summary Judgment, Exs. A, D.

After signing the Release Forms, each of the riders was assigned a horse and proceeded on the trail ride. The parties agree that at some point during the ride Mrs. King was bitten by another rider’s horse. Plaintiffs allege that as a result of this incident they have suffered severe and permanent bodily injuries, pain [**4] and suffering, past and future medical expenses, lost wages, and other special and general damages. Plaintiffs claim that Defendant’s negligence was the proximate cause of these damages. Defendant argues that the signed Release Forms validly waive its liability for the Plaintiffs’ alleged injuries.

II. Procedural History.

Plaintiffs filed their Complaint in state court on February 27, 2003 and it was removed to this Court on May 14, 2003. The Complaint sets forth claims of:

I. Negligence; II. Negligence Per Se; III. Strict Liability; IV. Intentional and Negligent Infliction of Emotional Distress; V. Loss of Consortium; VI. Punitive Damages; and VII. Respondeat Superior.

On January 14, 2004, CJM filed this Motion for Summary Judgment. The Motion for Summary Judgment argues that Defendant is entitled to judgment as a matter of law because the Plaintiffs signed a valid waiver of liability. Plaintiffs filed their Opposition to the Motion for Summary Judgment on January 30, 2004.

The Opposition argues that the Motion for Summary Judgment should be denied because the Release Form is unenforceable as a waiver and in any event, does not include negligence claims. If the Court [**5] is inclined to grant Defendant’s Motion for Summary Judgment, Plaintiff alternatively requests that the Court order a continuance of the motion pursuant to Federal Rules of Civil Procedure, Rule 56(f). n1 Defendant filed its Reply on February 5, 2004. The Reply argues that negligence is explicitly covered by the waiver. The Reply does not address Plaintiff’s alternative request for a Rule 56(f) continuance.

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n1 The Court need not address this alternative request because it is denying Defendant’s Motion for Summary Judgment.

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STANDARD

The purpose of summary judgment is to identify and dispose of factually unsupported [*1064] claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment is therefore appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving [**6] party is entitled to judgment as a matter of law.” n2 Fed. R. Civ. P. 56(c).

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n2 Affidavits made on personal knowledge and setting forth facts as would be admissible at trial are evidence. Fed. R. Civ. P. 56(e). Legal memoranda and oral argument are not evidence and do not create issues of fact. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir. 1978).

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“A fact is ‘material’ when, under the governing substantive law, it could affect the outcome of the case. A genuine issue of material fact arises if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” n3 Thrifty Oil Co. v. Bank of America Nat’l Trust & Sav. Ass’n, 310 F.3d 1188, 1194 (9th Cir. 2002) (quoting Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir. 1994)) (internal citations omitted). Conversely, where the evidence “could not lead a rational trier of fact to find for the nonmoving party, there is no [**7] ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)).

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n3 Disputes as to immaterial issues of fact do “not preclude summary judgment.” Lynn v. Sheet Metal Workers’ Int’l Ass’n, 804 F.2d 1472, 1478 (9th Cir. 1986).

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The moving party has the burden of persuading the Court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party may do so with affirmative evidence or by “’showing’—that is pointing out to the district court—that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. All evidence and reasonable inferences drawn therefrom are considered in the light most favorable to the nonmoving party. See, e.g., T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626,

630-31 (9th Cir. 1987). [**8] So, too, the Court’s role is not to make credibility assessments. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Accordingly, if “reasonable minds could differ as to the import of the evidence,” summary judgment will be denied. Id. at 250-51.

Once the moving party satisfies its burden, however, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or “metaphysical doubt” about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 322-23, 91 L. Ed. 2d 265; Matsushita Elec., 475 U.S. at 586; California Arch. Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). Nor will uncorroborated allegations and “self-serving testimony” create a genuine issue of material fact. Villiarmo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002); see also T.W. Elec. Serv., 809 F.2d at 630. The nonmoving party must instead set forth “significant probative evidence tending to support the complaint.” T.W. Elec. Serv., 809 F.2d at 630. Summary judgment [**9] will thus be granted against a party who fails to demonstrate facts’ sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at proof at trial. See Celotex, 477 U.S. at 322.

[*1065] DISCUSSION

At issue in this Motion for Summary Judgment is whether the Release Form signed by Plaintiffs waives Defendant’s liability for the Plaintiffs’ alleged horseback riding injuries. Plaintiffs assert that the Release Form is unenforceable as a waiver and regardless, does not waive Defendant’s liability for its own negligent conduct allegedly contributing to their injuries.

Defendant claims that the Release Form constitutes a valid waiver of liability for Plaintiffs’ alleged injuries because the form clearly lists the risks associated with horseback riding and the horse-biting incident at issue constitutes one of these risks. Defendant also argues that the waiver explicitly waives liability for negligence.

As movant, Defendant has the burden of establishing that it is entitled to judgment as a matter of law by showing that there are no genuine issues of material fact as to whether the Release Form validly waives its liability [**10] for the Plaintiffs’ alleged injuries.

I. Hawaii Revised Statutes, Section 663-1.54.

Although neither party cites or discusses it, the Court finds that Hawaii Revised Statutes, Section 663-1.54, addressing “Recreational activity liability, “ applies to this case. Section 663-1.54 provides:

(a) Any person who owns or operates a business providing recreational activities to the public, such as, without limitation, scuba or skin diving, sky diving, bicycle tours, and mountain climbing, shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.

(b) Notwithstanding subsection (a), owners and operators of recreational activities shall not be liable for damages for injuries to a patron resulting from inherent risks associated with the recreational activity if the patron participating in the recreational activity voluntarily signs a written release waiving the owner or operator’s liability for damages for injuries resulting from the inherent risks. No waiver shall be valid [**11] unless:

(1) The owner or operator first provides full disclosure of the inherent risks associated with the recreational activity; and

(2) The owner or operator takes reasonable steps to ensure that each patron is physically able to participate in the activity and is given the necessary instruction to participate in the activity safely.

(c) The determination of whether a risk is inherent or not is for the

trier of fact. As used in this section an “inherent risk”:

(1) Is a danger that a reasonable person would understand to be associated with the activity by the very nature of the activity engaged in;

(2) Is a danger that a reasonable person would understand to exist despite the owner or operator’s exercise of reasonable care to eliminate or minimize the danger, and is generally beyond the control of the owner or operator; and

(3) Does not result from the negligence, gross negligence, or wanton act or omission of the owner or operator.

HRS § 663-1.54 (emphasis added).

A. Legislative History.

There is no Hawaii case law interpreting Section 663-1.54. The Standing Committee that drafted Section 663-1.54, described its [**12] purpose and function as follows:

“This measure is necessary to more clearly define the liability of providers of commercial recreational activities by statutorily validating inherent risk waivers signed by the participants. Your [*1066] Committee further finds that these inherent risk waivers … do not extend immunity to providers for damages resulting from negligence.”

Haw. Stand. Comm. Rep. No. 1537, in 1997 Senate Journal, at 1476. In substituting the provisions of Senate Bill 647 with those of House Bill number 581, which was codified into Section 663-1.54, the Standing Committee eliminated “the substantive provisions of S.B. No. 647, S.D.1, the Senate companion measure,” including a section “exempting the provisions of Chapter 663B, existing law regarding equine liability.” Id. n4 Thus, equine activities, such as the one at issue here, are covered by Section 663-1.54. n5

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n4 Section 663B-2(a) provides: “In any civil action for injury … of a participant, there shall be a presumption that the injury … was not caused by the negligence of an equine activity sponsor … or their employees or agents, if the injury … was caused solely by the inherent risk and unpredictable nature of the equine. An injured person … may rebut the presumption of no negligence by a preponderance of the evidence.” HRS § 663B-2(a). [**13]

n5 Section 663-1.54, addressing recreational activity liability, and Section 663B, addressing equine activities, are not mutually exclusive. Read together, these sections provide that a trier of fact must determine if injuries were caused by the “inherent risks” of a recreational activity. And if the trier of fact finds that the injuries were “caused solely by the inherent risk and unpredictable nature” of a horse, then there is a rebuttable presumption that the defendant’s negligence did not cause the injuries. The injured plaintiff may then rebut the presumption of no negligence by a preponderance of the evidence.

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Subsection (c), providing that “the determination of whether a risk is inherent or not is for the trier of fact,” is pertinent to the resolution of this Motion for Summary Judgment. HRS § 663-1.54(c). Unfortunately, legislative materials specifically addressing this part of Section 663-1.54 are not helpful to this analysis as they consist of the following: “Now let me say that we have, and I supposed admirably, set out to define what inherent risks are in subsection (c), but whether [**14] this is sufficient is not clear.” Debate on Haw. Stand. Comm. Rep. No. 753, in 1997 House Journal, at 408 (statement of Rep. Pendleton).

It is clear that given the statute’s 1997 enactment and specific focus on exculpatory agreements made with those “who own[ ] or operate[ ] a business providing recreational activities to the public” that on the issue of written waivers, Section 663-1.54 supplants every single case on which the parties rely to make their substantive arguments. These cases, however, may be pertinent to other possibly relevant claims and defenses such as negligence and implied assumption of risk. Most of the cases cited were decided prior to the statute’s enactment n6 and those that [*1067] were decided after 1997 do not address the effect of waivers on recreational activity liability as in Section 663-1.54. n7 Moreover, most of these cases do not interpret Hawaii law. Likewise, Defendant’s citation to Section 663-10.95, addressing the liability of “motorsports facility “ owners and operators, is inapplicable to this case. Motion for Summary Judgment, at 13 (citing HRS § 663-10.95). Based on the foregoing, the Court will apply Section 663-1.54 in resolving Defendant’s Motion [**15] for Summary Judgment.

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n6 See Grbac v. Reading Fair Co., 688 F.2d 215 (3rd Cir. 1982); Wheelock v. Sport Kites, Inc., 839 F. Supp. 730 (D. Haw. 1993); Marshall v. Blue Springs Corp., 641 N.E.2d 92 (1994); Huber v. Hovey, 501 N.W.2d 53 (1993); Masciola v. Chicago Metropolitan Ski Council, 257 Ill. App. 3d 313, 628 N.E.2d 1067, 195 Ill. Dec. 603 (1993); Swierkosz v. Starved Rock Stables, 239 Ill. App. 3d 1017, 607 N.E.2d 280, 180 Ill. Dec. 386 (1993); Buchan v. U.S. Cycling Federation, Inc., 227 Cal. App. 3d 134, 277 Cal. Rptr. 887 (1991); Dobratz v. Thomson, 161 Wis. 2d 502, 468 N.W.2d 654 (1991); Guido v. Koopman, 1 Cal. App. 4th 837, 2 Cal. Rptr. 2d 437 (1991); Saenz v. Whitewater Voyages, Inc., 276 Cal. Rptr. 672, 226 Cal. App. 3d 758 (1990); Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781 (Colo. 1989); Harris v. Walker, 119 Ill. 2d 542, 519 N.E.2d 917, 116 Ill. Dec. 702 (1988); Kurashige v. Indian Dunes, Inc., 200 Cal. App. 3d 606, 246 Cal. Rptr. 310 (1988); Madison v. Superior Court, 203 Cal. App. 3d 589, 250 Cal.

Rptr. 299 (1988); Hulsey v. Elsinore Parachute Center, 168 Cal. App. 3d 333, 214 Cal. Rptr. 194 (1985); McAtee v. Newhall Land & Farming Co., 169 Cal. App. 3d 1031, 216 Cal. Rptr. 465 (1985); Krohnert v. Yacht Systems Hawaii, Inc., 4 Haw.

App. 190, 664 P.2d 738 (1983); Hewitt III v. Miller, 11 Wn. App. 72, 521 P.2d

244 (1974); Delta Air Lines, Inc. v. Douglas Aircraft Co., 238 Cal. App. 2d 95,

47 Cal. Rptr. 518 (1965); Lee v. Allied Sports Associates, Inc., 349 Mass. 544,

209 N.E.2d 329 (1965); Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 177 N.E.2d 925, 220 N.Y.S.2d 962 (1961). [**16]

n7 Foronda v. Hawaii International Boxing Club, 96 Haw. 51, 25 P.3d 826 (2001) (holding that primary implied assumption of risk, evidenced by a signed waiver and plaintiff’s free participation in a boxing match, is a complete defense to claims of negligence where defendant’s conduct is an inherent risk of the sports activity); Fujimoto v. Au, 95 Haw. 116, 19 P.3d 699 (2001) (finding contract waiving general partners and landowners’ liability unenforceable where limited partners with unequal bargaining power sought to recover their investment in limited partnerships formed to develop real estate).

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B. Application.

Under Section 663-1.54, the Court must deny Defendant’s Motion for Summary Judgment for two reasons. First, Defendant argues that the Release Form validly waives Plaintiffs’ negligence claims but Section 663-1.54(a) explicitly precludes waiving liability for negligence. Thus, paragraph three (3) of the Release Form is void as to negligence.

Secondly, Section 663-1.54(c)’s provision that the “determination of whether a risk is inherent or not is for the [**17] trier of fact” automatically creates a genuine issue of material fact as to whether the horse-biting incident was an inherent of the horseback riding activity in which Plaintiffs participated. This statutorily-imposed genuine issue of fact precludes summary judgment as a matter of law. The trier of fact will have to decide whether the Release Form constitutes a valid waiver of Defendant’s liability. n8

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n8 The legislative history indicates that the statute’s proponents did not aim for this result. See Ammie I. Roseman-Orr, Comment, Recreational Activity Liability in Hawai’i: Are Waivers Worth The Paper On Which Thev Are Written?, 21. U. Haw. L. Rev. 715, 743-44 (1999) (“From the legislative testimony, it is apparent that the industry did not intend, nor was it aware, that this new law might eliminate summary judgment determinations of whether waivers are valid … Hawai’i’s new recreational activity liability statute, championed by the activity providers to protect the industry has instead eroded the common law protection it otherwise enjoyed.”).

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The Court finds that there are genuine issues of material fact as to: [1] whether Defendant was negligent; and [2] the Release Form’s validity as a waiver of liability, which depends on whether the horse-biting incident was an “inherent risk” of the recreational activity that Defendant provided to Plaintiffs. Defendant cannot satisfy its burden and thus, is not entitled to judgment as a matter of law.

CONCLUSION

The Court holds that there are genuine issues of material fact as to Defendant’s negligence and as to whether the Release Form constitutes a valid waiver of Defendant’s liability and accordingly DENIES Defendant’s Motion for Summary Judgment.

IT IS SO ORDERED.

DATED: Honolulu, Hawii, 18 FEB 2004

Alan C Kay

United States District Judge

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Wheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

Wheelock v. Sport Kites, Inc, 839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

Mary Rose Wheelock, individually, as Administratrix of the Estate of David William Wheelock, as Guardian Ad Litem for Maggie Wheelock and David William Wheelock, minors, Plaintiff, v. Sport Kites, Inc., a foreign corporation, dba Wills Wing, Rob Kells, an individual, Kualoa Ranch, Inc., a Hawaii corporation, and Sport Aviation Hawaii, Inc., a Hawaii corporation, Defendants.

Civ. No. 92-00768 HMF

United States District Court for the District of Hawaii

839 F. Supp. 730; 1993 U.S. Dist. LEXIS 17050

December 1, 1993, Decided

December 1, 1993, Filed

Counsel: [**1] For Mary Rose Wheelock, individually gal, Maggie Wheelock, minor gal, David William Wheelock, minor, plaintiff: Jeffrey R. Buchli, Carroll Smith & Buchli, Honolulu, HI. John S. Carroll, Carroll Smith & Buchli, Honolulu, HI.

For Sport Kites, Inc., a foreign corporation dba Wills Wing, Rob Kells, an individual, defendants: Leighton K. Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, HI. For Kualoa Ranch, Inc., a Hawaii corporation, defendant:

Sidney K. Ayabe, a, Rodney S. Nishida, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI. For Sport Aviation Hawaii, Inc., a Hawaii corporation, defendant:

Randolph R. Slaton, Law Offices of Randolph R. Slaton, Honolulu, HI.

For Kualoa Ranch, Inc., cross-claimant: Sidney K. Ayabe, a, Libkuman Ventura Ayabe Chong & Nishimoto, Honolulu, HI.

For Sport Kites, Inc. dba Wills Wing, ROB KELLS, cross-defendants: Leighton K.

Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, HI.

For Sport Aviation Hawaii, Inc., cross-claimant: Randolph R. Slaton, Law Offices of Randolph R. Slaton, Honolulu, HI.

For Sport Kites, Inc. dba Wills Wing, ROB KELLS, cross-defendants: Leighton K.

Oshima, Patrick I. Wong, Wong Oshima & Kondo, Honolulu, [**2] HI.

Judges: Fong

Opinion by: Harold M. Fong

Opinion:

[*733] Order Granting Plaintiff’s Motion To Dismiss Non-Diverse Parties And Denying Defendants’ Motion To Dismiss For Lack Of Diversity Jurisdiction; Order Granting In Part And Denying In Part Defendants’ Motion For Summary Judgment

Introduction

This is a wrongful death action. On November 1, 1993, the court heard arguments on three motions: (1) defendant Kualoa Ranch, Inc.’s motion for summary judgment; (2) Kualoa Ranch’s motion to dismiss for lack of diversity jurisdiction; and (3) plaintiff’s motion to dismiss non-diverse parties to the complaint to preserve diversity jurisdiction.

Background

This action arises from the accidental death of David Wheelock (“David”). On July 14, 1991, David was paragliding at Kualoa Ranch. He was at a height of between 1,000 and 1,500 feet when the lines connecting him to the parachute-like canopy simultaneously broke, detaching him. He plunged to the earth and died.

Mary Rose Wheelock, David’s wife, brought this action n1 against Kualoa Ranch, owner of the premises where the activity occurred, Sport Aviation Hawaii, provider of the equipment, and Sport Kites, Inc., dba Wills Wing, and Rob Kells, an individual, manufacturers [**3] of the equipment.

- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -

n1 Mrs. Wheelock brought the action individually, as administratrix of her husband’s estate, and as guardian ad litem for their children.

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Kualoa Ranch filed a motion to dismiss plaintiff’s complaint for lack of diversity jurisdiction. Plaintiff concedes that there is currently a lack of diversity: plaintiff is a citizen of California and defendant Sports Kites is a California corporation. On July 29, 1993, however, plaintiff reached a settlement agreement with Wills Wing and Rob Kells voluntarily dismissing all claims against them with prejudice. Plaintiff has thus filed a motion to dismiss Sport Kites, Inc., the sole non-diverse party to the complaint, to preserve diversity jurisdiction.

Kualoa Ranch has also filed a motion for summary judgment, joined by Sport Aviation Hawaii, on the grounds that plaintiff is barred from recovery because of an agreement and release of liability signed by David. On June 16, 1991, David signed the agreement as a precondition to use of the facilities and paragliding [**4] equipment. The agreement is a one-page, pre-printed, fill-in-the-blank form. Under its terms, David agreed to release and discharge Kualoa Ranch, Sport Ranch, and others from liability for injuries suffered while paragliding. n2

- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -

n2 The agreement, entitled an ‘Agreement and Release of Liability,” provides, in relevant part, that:

1. I hereby RELEASE AND DISCHARGE [defendants and others] . . . from any and all liability, claims, demands or causes of action that I may have for injuries and damages arising out of my participation in Ultralight activities, including but not limited to, losses CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES.

2. I further agree that I WILL NOT SUE OR MAKE A CLAIM against the Released Parties for damages or other losses sustained as a result of my participation in Ultralight activities. I also agree to INDEMNIFY AND HOLD THE RELEASED PARTIES HARMLESS from all claims, judgments and costs, including attorney’s fees, incurred in connection with any action brought as a result of my participation in Ultralight activities.

3. I understand and acknowledge that Ultralight activities have inherent dangers that no amount of care, caution, instruction, or expertise can eliminate and I EXPRESSLY AND VOLUNTARILY ASSUME ALL RISK OF DEATH OR PERSONAL INJURY SUSTAINED WHILE PARTICIPATING IN ULTRALIGHT ACTIVITIES WHETHER OR NOT CAUSED BY THE NEGLIGENCE OF THE RELEASED PARTIES.

5. I hereby expressly recognize that this Agreement & Release of Liability is a contract pursuant to which I have released any and all claims against the Released Parties . . . .

I HAVE READ THIS AGREEMENT & RELEASE OF LIABILITY, FULLY UNDERSTAND

ITS CONTENTS AND MEANING, AND SIGN IT OF MY OWN FREE WILL.

David signed and dated it at the bottom, and initialed at nine pre-printed blank spaces, including one at each paragraph.

- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**5]

DISCUSSION

I. KUALOA RANCH’S MOTION TO DISMISS COMPLAINT FOR LACK OF DIVERSITY JURISDICTION AND MARY ROSE WHEELOCK’S COUNTER-MOTION TO DISMISS NON-DIVERSE PARTIES.

The principal requirements of diversity jurisdiction are that the amount in controversy exceed $ 50,000 and that the parties be citizens of different states. 28 U.S.C. § 1332. There is no dispute as to the citizenship of the parties for purposes of diversity: plaintiff n3 and defendant Sport Kites, Inc. are citizens of California, and defendants Kualoa Ranch and Sport Aviation are citizens of Hawaii.

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n3 The relevant citizenship of plaintiffs in a wrongful death action is that of the decedent. 28 U.S.C. § 1332(c)(2). It is undisputed that the domicile of David, the decedent, was in California.

- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -

The court will dismiss Sport Kites unless doing so will prejudice the remaining defendants. Rule 19 of the Federal Rules of Civil Procedure, which sets forth the rules for joinder [**6] of persons needed for a just adjudication, provides that in determining whether a party is indispensable, the court should consider “whether in equity and good conscience the action should proceed among the parties before it, or be dismissed.” A dispensable non-diverse party may be dismissed to perfect retroactively the district court’s original jurisdiction. Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1522-23 (9th Cir. 1987); Othman v. Globe Indem. Co., 759 F.2d 1458, 1463 (9th Cir. 1985); Inecon Agricorporation v. Tribal Farms, Inc., 656 F.2d 498, 500 (9th Cir. 1981). Refusal by the court to dismiss a dispensable, non-diverse party may constitute an abuse of discretion. Kerr v. Compagnie de Ultramar, 250 F.2d 860, 864 (2d Cir. 1958).

Defendants claim that they will be prejudiced because Sports Kites, Inc. designed and manufactured the allegedly defective paraglider, and unless they remain as defendants, they will not be part of the special verdict form submitted to the jury, pursuant to Hawaii Revised Statutes § 663-11 et seq., [**7] for determination of comparative fault. The court, however, may include a non-party on the special verdict form for apportionment of fault. See, e.g., In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992) (where the jury attributed a percentage of fault to non-parties). The statute does not require that fault be apportioned only among parties to the lawsuit.

Plaintiff has already settled with Rob Kells and Wills Wing, the parties destroying diversity, and will not be prejudiced by their dismissal. Defendants are not prejudiced because they may bring a third-party complaint against Sport Kites for indemnification, and their ability to defend plaintiff’s suit is unimpaired. The greatest source of potential prejudice is to plaintiff if the court dismisses for lack of diversity jurisdiction because the statute of limitations has expired on her claims.

II. KUALOA RANCH’S MOTION FOR SUMMARY JUDGMENT.

Plaintiff in a wrongful death action is subject to defenses which could be asserted against the decedent. See Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758, 763-64, 276 Cal. Rptr. 672 (Cal. App. 1990); [**8] Madison v. Superior Court, 203 Cal. App.3d 589, 250 Cal. Rptr. 299 (Cal. App. 1988).

Defendants thus raise the defense which they would have had against David—his agreement. The agreement provided, inter alia, that David agreed to release and discharge defendants Kualoa Ranch, Sport Aviation, and others from any liability, including “losses caused by the negligence of the released parties.”

The issue before the court on the motion for summary judgment is whether to give effect to the release of liability signed by David (and initialed at each paragraph).

A. David Wheelock Expressly Assumed the Risk of Death.

Defendants contend that signing the agreement constituted an assumption of risk by David. If the agreement is valid, they argue, it operates to relieve them of any legal [*735] duty to protect David from the injury-causing risk.

The agreement signed by David was a standardized, pre-printed form. It was an adhesion contract of the sort frequently offered to consumers of goods and services on a “take-it-or-leave-it” basis. In Leong v. Kaiser Found, Hospitals, 71 Haw. 240, 247-48, 788 P.2d 164 (1990), [**9] the Hawaii Supreme Court addressed the problem of such contracts:

An adhesion contract is a form contract created by the stronger of the contracting parties. It is offered on a “take this or nothing” basis. Consequently, the terms of the contract are imposed on the weaker party who has no choice but to conform. These terms unexpectedly or unconscionably limit the obligations of the drafting party. Because of these circumstances, some courts look past the wording of the contract and consider the entire transaction in order to effectuate the reasonable expectations of the parties. Ambiguities in the contract will be construed against the drafters and in plaintiff’s favor. (citing Robin v. Blue Cross Hosp. Serv., Inc., 637 S.W.2d 695, 697 (Mo. 1982).

While the agreement in the case at bar was an adhesion contract, it is not unconscionable. It is of a sort commonly used in recreational settings. See, e.g., Saenz v. Whitewater Voyages, Inc., 226 Cal. App.3d 758, 276 Cal. Rptr. 672 (Cal. App. 1990) (whitewater rafting); Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr.2d 781 (Cal. App. 1993) [**10] (skiing). Such agreements are generally held to be valid. Adhesion contracts are fully enforceable provided that they are not unconscionable and do not fall outside the reasonable expectations of the weaker or adhering party. See Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 820, 623 P.2d 165, 171 Cal. Rptr. 604, 612 (1981).

In Saenz, 226 Cal. App.3d at 758, the court barred recovery in a wrongful death action because plaintiff had signed a release expressly assuming the risk of the activity. Saenz had signed a “release and assumption of risk” agreement in order to participate in a three-day whitewater rafting trip on which he drowned. The court found that the release constituted an express assumption of risk and acted as a bar to a wrongful death action. Id. at 765.

Plaintiff argues that Saenz is distinguishable in the extent of the decedent Saenz’s knowledge of the assumed risk. He received extensive warning regarding the risk, extensive preparation, and several opportunities to avoid the particular rapids in which he drowned. [**11] n4 In contrast, David received some, less extensive explanation of the dangers of paragliding. n5 Although David did sign and initial the agreement providing that he assumed all risks, plaintiff argues that there is a question of fact as to David’s state of mind and the parties’ understanding.

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n4 He was given several safety talks on emergency procedures, lessons, explanations of how to run the particular rapid, and a number of opportunities to opt out of riding the rapid in which he drowned. 276 Cal. Rptr. at 678.

n5 William Fulton, president of defendant Sport Aviation, avers that he warned David and informed him of the dangers of paragliding before he signed the release.

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Plaintiff also argues that Saenz is distinguishable in terms of the nature of the risk assumed. The Saenz court referred to the risk of drowning in treacherous rapids as “inherent in whitewater rafting and apparent to anyone.” Id. at 766. According [**12] to plaintiff, while injury or death caused by treacherous winds, improper landings, or collision with an obstacle are “apparent” risks, the risk which befell David—the simultaneous breaking of all lines connecting him to the parachute—was not apparent. The Saenz court held that defendant’s assumption of all risks, known and unknown, made knowledge of the particular risk (death by drowning) unnecessary. Id. The court need not adopt so broad a holding. A risk must be a known risk for it to be properly assumed. Prosser & Keaton, Torts, § 68 at 480-81 (5th ed. 1984).

The court is satisfied that David knowingly assumed the risk at issue. The agreement provided that David “expressly [*736] and voluntarily assume[d] all risk of death or personal injury sustained while participating in ultralight activities whether or not caused by the negligence of the released parties.” (capitalization omitted). The risk which befell David was the risk of death.

David expressly assumed this risk. Plaintiff could characterize it in many different ways, but the fact is that David assumed the risk of death. Moreover, the apparent cause of David’s fall and subsequent death—equipment failure — [**13] is an obvious risk in paragliding and other “air” sports.

B. The Agreement Does Not Affect Plaintiff’s Gross Negligence and Strict Liability Claims.

1. Plaintiff’s Negligence Claims Are Barred.

David’s assumption of risk relieves defendants from any legal duty towards him, except insofar as the law nullifies such a waiver. Plaintiff is thus barred from bringing any negligence claims against defendants.

Hawaii courts permit a waiver of negligence claims. In Krohnert v. Yacht Systems Hawaii, Inc., 4 Haw. App. 190, 198, 664 P.2d 738 (Haw. App. 1983), the court declared that absent a public interest, “a party can contract to exempt himself for harm caused by his negligence.” (citing Restatement (Second) of Contracts and Williston on Contracts). Accord, Madison v. Superior Court, 203 Cal. App.3d 589, 599, 250 Cal. Rptr. 299, 305 (Cal. App. 1988). Although Hawaii courts have not specifically addressed the issue, courts in other jurisdictions have rejected the notion that the public interest is at stake in sport- or recreational-related waivers. See Saenz, supra. [**14] Plaintiff’s claims under negligence theories are effectively barred, and defendants are entitled to summary judgment vis-a-vis these claims.

2. Plaintiff’s Gross Negligence Claims Are Unaffected.

Plaintiff alleges gross negligence on defendant’s part in misrepresenting the safety of the paraglider. This is a distinct theory of liability from negligence. Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances. Gross negligence, by contrast, is a failure to perform a manifest duty in reckless disregard of the consequences. “Gross negligence involves a risk substantially greater in amount than that which is necessary to make conduct negligent.” Bunting v. United States, 884 F.2d 1143, 1147 (9th Cir. 1989). The Restatement (Second) describes the difference between gross and ordinary negligence as follows: “[Gross negligence] differs from that form of negligence which consists of mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor to cope with a possible or probable future emergency.” Restatement (Second) of Torts § 500 cmt. g (1965). [**15]

Hawaii courts have not addressed the issue of whether a party can contract away liability for his own gross negligence. Because this is a diversity action, the court applies the substantive law of the forum state, Hawaii, and uses its best judgment in predicting how the Hawaii Supreme Court would decide this issue. See Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980). In Krohnert, 4 Haw. App. at 198, the court enunciated the principle that a party can only contract away liability for negligence in the absence of a public interest. The public interest is at stake when a party attempts to contract to exempt himself for harm caused by his gross negligence. See Stuart Rudnick, Inc. v. Jewelers Protection Servs., Ltd., 194 A.D.2d 317, 598 N.Y.S.2d 235, 236 (N.Y. App. Div. 1993); see also Saenz, 226 Cal. App.3d at 765 (“everything short of gross negligence is covered by the release . . . .”). The agreement in the instant case is therefore void against public policy to the extent that it attempts to relieve defendants of liability [**16] for their gross negligence. n6

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n6 Alternatively, the court has grounds to find that the contract is ambiguous as to gross negligence. While the release and discharge agreement is a valid contract, it is an adhesion contract, and the court will interpret it accordingly. Adhesion contracts are construed liberally in favor of the adhering party and any ambiguities are resolved against the drafting party. See State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074 (1993) (interpreting an insurance contract) (citation omitted). The court applies this rule only if there is a true ambiguity, and not merely because the parties disagree over its interpretation. Id. at 556. “Ambiguity exists ‘only when the contract taken as a whole, is reasonably subject to differing interpretation. A court must respect the plain terms of the policy and not create ambiguity where none exists.’” Id. at 556-57 (citations omitted). The release agreement, however, addresses only negligence and not gross negligence. The court will construe this as not barring a claim in gross negligence.

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[*737] 3. Plaintiff’s Strict Liability Claims.

The remaining question is whether the waiver of plaintiff’s strict products liability claims is effective. This is also an issue of first impression in Hawaii. See Takahashi v. Loomis Armored Car Serv., 625 F.2d at 316.

In Madison, 203 Cal. App.3d at 596, the California court of appeals held that the waiver constituted a “complete defense” to any claims in plaintiff’s actions. Accord, Saenz, 226 Cal. App.3d at 763. Neither court addressed the issue of strict products liability claims. More recently, however, a California appellate court held that an agreement relieving a product supplier from strict products liability is void. In Westlye v. Look Sports, Inc., 17 Cal. App. 4th 1715, 22 Cal. Rptr.2d 781 (Cal. App. 1993), the court held that a release agreement did not bar plaintiff who suffered skiing injuries from suing under a strict products liability theory in tort:

there is a strong policy against allowing product suppliers to disclaim liability for injuries caused [**18] by defects in products they place on the market. To allow product suppliers to achieve this prohibited result merely by substituting assumption of risk language for disclaimer language would too easily allow circumvention of these policies. In effect, such an agreement is nothing more than a disclaimer. Id. at 17-18.

The court rejected defendants’ argument that the express assumption of risk was good against the whole world. Id. at 1716 (“we have not discovered any authority for this proposition. The doctrine of express assumption is founded on express agreement.”). Westlye is well reasoned and solidly grounded in relevant policy considerations. The essence of the doctrine of strict liability, as enunciated by Justice Traynor in Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 461, 150 P.2d 436 (1944) (Traynor, J., concurring), is that a manufacturer who places a product on the market should be absolutely liable if it knows that the product will be used without inspection and is shown to have an injury-causing defect. See also Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 62, 377 P.2d 897, 27 Cal. Rptr. 697 (1963) [**19] (applying the doctrine of strict liability as formulated by Traynor in Escola). The doctrine of strict liability is based not only on the public policy of discouraging the marketing and distribution of defective products, but also on the reasoning that a manufacturer is in a far better position than individual consumers to insure against the risk of injury and to distribute costs among consumers.

The court sees no reason to permit defendants to insulate themselves from strict liability by means of a release when they could not do so otherwise.

Insofar as the agreement signed by David attempts to relieve product suppliers of their responsibility for injuries caused by defective products, it is squarely at odds with the strict products liability doctrine. The very reason for the growth of products liability law was a perceived need to protect consumers from defective products and from attempts by product suppliers to disclaim responsibility for such defects by way of contractual provisions. See Seely v. White Motor Co., 63 Cal.2d 9, 16-17, 403 P.2d 145, 45 Cal. Rptr. 17 (1965); Vandermark v. Ford Motor Co., 61 Cal.2d 256, 391 P.2d 168, 37 Cal. Rptr. 896 (1964) [**20] (“since [the dealer] is strictly liable in tort, the fact that it restricted its contractual liability to [plaintiff] is immaterial.”); Greenman, 59 Cal.2d at 57, 377 P.2d at 897. With respect to claims for strict liability, David’s waiver is thus void as against public policy.

Hawaii courts have recognized that lessors of products who are in the business of leasing are subject to strict products liability. Stewart [*738] v. Budget Rent-A-Car Corp., 52 Haw. 71, 75, 470 P.2d 240 (1970). Accord, Price v. Shell Oil Co., 2 Cal.3d 245, 250, 466 P.2d 722, 725, 85 Cal. Rptr. 178, 181 (1970). Plaintiff’s claims in strict liability against Kualoa Ranch and Sport Aviation are not precluded by the release agreement.

C. The Agreement Is Not Ambiguous.

Plaintiff claims that the agreement is ambiguous because it includes the following paragraph:

6. It is understood that the purchase of this waiver does not constitute a contract of insurance but only a waiver of the contractual defenses that would otherwise be available to the Released Parties.

[**21]

Plaintiff claims that this paragraph indicates that David was purchasing a waiver of the contractual defenses available to defendants, and that the agreement itself would constitute a defense which is being waived. She argues that it is thus ambiguous as to whether such defenses are being waived.

Plaintiff points out correctly that courts regard attempts to contract away tort liability with skepticism, Gardner v. Downtown Porsche Audi, 180 Cal. App.3d 713, 716, 225 Cal. Rptr. 757 (Cal. App. 1986), and that an attempt to do so must be “clear, explicit, and comprehensible in each of its details.” Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd., 147 Cal. App.3d 309, 319, 195 Cal. Rptr. 90 (Cal. App. 1983). The court will resolve ambiguities in such contracts against the drafting party. See State Farm Mut. Auto. Ins. Co. v. Fermahin, 73 Haw. 552, 556, 836 P.2d 1074 (1992) (interpreting an insurance contract) (citation omitted).

Before an exculpatory clause may be enforced against a party, it must be established that he clearly and unequivocally [**22] agreed to the disclaimer with knowledge of its contents. Krohnert, 4 Haw. App. at 200, 664 P.2d at 744 (citations omitted). The court, however, only applies this rule in the event of a true ambiguity, and not merely because of a confusing passage. “Ambiguity exists ‘only when the contract taken as a whole, is reasonably subject to differing interpretation. A court must respect the plain terms of the policy and not create ambiguity where none exists.’” Id. at 556-57 (citations omitted). In this case, the contract, taken as a whole is unambiguous.

D. There Is No Genuine Issue of Material Fact as to Whether the Decedent Agreed to the Release with Knowledge of Its Contents.

Plaintiff contends that it is unclear whether David signed the agreement with clear and unequivocal knowledge of its terms. David is dead and thus unavailable to testify.

Defendants have come forward, however, with the affidavit of William Fulton, president of Sport Aviation, averring that he explained and warned David of the dangers at length before David signed the agreement. Moreover, there is no dispute that David signed the agreement and initialed it at the [**23] title and each paragraph. Plaintiff has not come forward with any evidence contradicting the Fulton affidavit and the signed agreement. There thus appears to be no genuine issue of material fact as to whether David signed the agreement with knowledge of its terms and of the dangers involved in paragliding.

CONCLUSION

For the reasons given, the court GRANTS plaintiff’s motion to dismiss non-diverse parties and DENIES defendants’ motion to dismiss for lack of diversity jurisdiction. Plaintiff has already settled with Sport Kites, Inc., dba Wills Wing and Rob Kells, the non-diverse defendants, and Sport Kites is not indispensable within the meaning of Rule 19 of the Federal Rules of Civil Procedure. n7

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n7 The court understands that the remaining defendants will seek to prosecute a third-party complaint against Sport Kites as designers and manufacturers of the equipment. In the event that a third-party complaint may not be prosecuted, Sport Kites may still be included as non-parties on the special jury forms for assessment of its share of liability under Hawaii’s comparative negligence framework.

- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [**24]

For the reasons given, the court GRANTS in part and DENIES in part defendants ‘ [*739] motion for summary judgment. The release and discharge agreement signed by David Wheelock is valid and enforceable, and a plain reading of the agreement indicates that David expressly assumed the risk of death—the risk which befell him—and waived his right to any negligence claims against defendant. Plaintiff’s negligence claims are barred on this basis. The release and discharge is void, however, as it applies to plaintiff’s claims for gross negligence and strict liability, because the assumption of risk is ineffective vis-a-vis these claims.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, December 1, 1993

Harold M. Fong

UNITED STATES DISTRICT JUDGE

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Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

Anaya v Town Sports International, Inc., 2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

Joseph Anaya, Plaintiff-Appellant, v Town Sports International, Inc., et al., Defendants, Sport Rock International, Inc., et al. Defendants-Respondents. Index 101027/03

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2007 NY Slip Op 7875; 44 A.D.3d 485; 843 N.Y.S.2d 599; 2007 N.Y. App. Div. LEXIS 10819

October 18, 2007, Decided

October 18, 2007, Entered

COUNSEL: Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant.

Callan, Koster, Brady & Brennan, LLP, New York (Marc R. Wilner of counsel), for Sport Rock International, Inc., respondent.

Goldberg Segalla LLP, Mineola (Joanna M. Roberto of counsel), for Petzl America, Inc., respondent.

JUDGES: Friedman, J.P., Nardelli, Sweeny, McGuire, Malone, JJ.

OPINION

[**485] [***600] Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 24, 2006, which, to the extent appealed from as limited by the briefs, granted the separate motions of defendants Sport Rock International (Sport Rock) and Petzl America, Inc. (Petzl) for summary judgment dismissing the complaint as against them, unanimously modified, on the law, the motions denied with respect to plaintiff’s claims based on design defect and [***601] failure to warn, and otherwise affirmed, without costs.

Plaintiff sustained severe personal injuries when he fell from a height of approximately 30 feet while descending a rock climbing wall that was operated by defendant Town Sports International, Inc. of West Nyack (TSI). The accident occurred because an employee of TSI tied the safety line plaintiff was using to a non-weight bearing gear loop on the harness plaintiff was wearing; the line should have been tied to the “anchor point” of the harness. As plaintiff descended the wall the gear loop tore away from the harness, causing plaintiff’s fall. The harness was sold to TSI by Sport Rock and manufactured by Petzl.

Plaintiff asserts causes of action for, among other things, negligence and strict products liability. Plaintiff asserts that Sport Rock and Petzl are liable for his injuries because the safety harness was defectively designed and insufficient warnings were provided regarding where on the harness the safety line was supposed to be tied. Sport Rock moved for summary judgment dismissing the complaint and all other claims as asserted against it, and Petzl moved separately for similar relief. Plaintiff cross-moved for a special trial preference and to dismiss the affirmative defenses of Sport Rock and Petzl premised on [**486] the alleged absence of personal jurisdiction over those defendants. Supreme Court granted the motions of Sport Rock and Petzl, and denied plaintiff’s cross motion. Plaintiff appeals, as limited by his brief, from those portions [*2] of the order that granted the motions of Sport Rock and Petzl. 1

1 Plaintiff settled this action with TSI.

Petzl’s argument that plaintiff failed to oppose its motion before Supreme Court and that plaintiff therefore lacks standing to maintain this appeal is without merit. Plaintiff expressly opposed the motions of Sport Rock and Petzl for the reasons stated by TSI in its opposition to the motions.

[HN1] To establish a prima facie case for strict products liability based on defective design, the plaintiff must show that “the product was not reasonably safe and that the defective design was a substantial factor in causing plaintiff’s injury” (Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107, 450 N.E.2d 204, 463 N.Y.S.2d 398 [1983]). With respect to the first element — whether the product was not reasonably safe — the proper inquiry is “whether it is a product which, if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner” (id. at 108). In balancing the product’s risks against its utility and cost, the following factors must be considered: “(1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product – that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer’s ability to spread any cost related to improving the safety of the design” (id. at 109).

Since the harness was undoubtably meant to bear the weight of a climber, it was reasonably foreseeable that a climber [***602] might attempt to attach a safety line to various parts thereof and expect those parts to bear his weight. In fact, both these defendants admitted that novice climbers had been known to attach safety lines to gear loops and other parts of the harness. Rather than designing the gear loop to be weight bearing, or omitting it from the design, Petzl decided to make it appear flimsy in the expectation that the user would not attempt to attach a line to it. Whether this decision was reasonable in view [**487] of the questionable utility of a gear loop on a harness used for indoor rock climbing and the serious risk posed is a question for the jury (Voss, 59 NY2d at 108-109; see also Denny v Ford Motor Co., 87 NY2d 248, 662 N.E.2d 730, 639 N.Y.S.2d 250 [1995]).

Triable issues of fact also exist regarding plaintiff’s cause of action for strict products liability based on failure to warn. [HN2] “A manufacturer has a duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or should have known” (Liriano v Hobart Corp., 92 NY2d 232, 237, 700 N.E.2d 303, 677 N.Y.S.2d 764 [1998]). This rule applies with equal force to distributors and retailers (see Godoy v Abamaster of Miami, 302 AD2d 57, 754 N.Y.S.2d 301 [2003]). Foreseeing the potential that harness users might tie safety lines to gear loops, Petzl warned against such conduct. This warning appeared in the manual accompanying the harness and in a technical notice. A small label on the harness contained a “skull and cross-bones” symbol and directed the user to refer to the manual and technical notice. There is expert evidence, however, that these warnings were inadequate because no warning on the harness itself specifically advised against tying a safety line to the gear loop. Thus, the sufficiency of the warnings must be determined by a jury.

Contrary to the assertions of Sport Rock and Petzl, we cannot determine as a matter of law that the conduct of TSI’s employee was a superseding act.

[HN3] Where the acts of a third person intervene between the defendant’s conduct and [*3] the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315, 414 N.E.2d 666, 434 N.Y.S.2d 166 [1980]).

Here, TSI’s employee testified that she knew the safety line was not to be tied to the gear loop. However, she did not know what purpose the gear loop served, and accidently tied the safety line to it. While it appears that this employee had minimal training on the proper use of the harness and had not read the manual or technical notice, the record does not permit a finding that the employee’s conduct was unforeseeable as a matter of law. The record is replete with evidence indicating the foreseeability of the risk that novice users of the harness (or for that matter other inexperienced persons such as the employee) might mistakenly tie safety lines to gear loops. Had the harness been [**488] designed without a gear loop or with a weight bearing gear loop, or had clearer warnings been on the harness itself, the accident may have been prevented. Accordingly, triable issues of fact exist regarding whether the alleged defective design [***603] of the harness, the alleged inadequate warnings, or both, was a substantial factor in causing plaintiff’s injuries (see id. [“Because [HN4] questions concerning what is foreseeable and what is normal may be the subject of varying inferences … these issues generally are for the fact finder to resolve”]).

Plaintiff’s remaining contentions are without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 18, 2007

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Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

Giebink v. Fischer, 709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

James C. Giebink and Roxanne Johnson-Giebink, as parents and natural guardians of Michael Giebink, a minor; James C. Giebink, individually and Roxanne Johnson Giebink, individually, Plaintiffs, v. Robert Fischer, as parent and natural guardian of Kevin Fischer, a minor; Robert Fischer, an individual and Aspen Skiing Corporation, a Colorado corporation, aka Aspen Skiing Company, and Jennifer Catherine Lang, Defendants

Civil Action No. 88-A-766

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

709 F. Supp. 1012; 1989 U.S. Dist. LEXIS 7791

March 22, 1989, Decided

March 22, 1989, Filed

COUNSEL: [**1] Scott R. Larson, Esq., Scott R. Larson, P.C., Denver, Colorado, Attorney for Plaintiffs.

Thomas E. Hames, Esq., Inman, Erickson & Flynn, P.C., Denver, Colorado, Attorney for Defendants Fischers.

Paul D. Nelson, Esq., Hancock, Rothert & Bunshoft, San Francisco, California, Scott S. Barker, Esq., Mary D. Metzger, Esq., Perry L. Glantz, Esq., Holland & Hart, Englewood, Colorado, Attorneys for Defendants Aspen Skiing Co. and Jennifer Catherine Lang.

JUDGES: Alfred A. Arraj, United States District Judge.

OPINION BY: ARRAJ

OPINION

[*1013] MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS

ALFRED A. ARRAJ, UNITED STATES DISTRICT JUDGE.

This matter is before the court on defendants Aspen Skiing Company’s (“ASC”) and Jennifer Catherine Lang’s (“Lang”) Motion to dismiss the Third, Fifth, Sixth, Seventh and Portions of the Fourth Claim For Relief Contained in Plaintiffs’ Second Amended Complaint. This is the second motion to dismiss filed in this case.

In order to understand the procedural posture of this motion, it is helpful to first set out the factual events upon which plaintiffs’ claims arose. According to plaintiffs, defendant Kevin Fischer, minor son of defendant Robert Fischer, collided with plaintiff Michael Giebink (“Michael”) in a skiing accident at Snowmass Ski Area on or about March 29, 1988. As a result, Michael was seriously injured. At [**2] the time of the accident it is alleged that Michael was an invited guest and customer at Snowmass Mountain Resort which is owned by ASC.

Plaintiffs’ Third Claim in its Second Amended Complaint is based upon ASC’s alleged negligent maintenance of the premises. Plaintiffs’ Fourth Claim is apparently pled under C.R.S. 13-21-115, alleging that ASC “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, Michael Giebink, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers.” Second Amended Complaint para. 3 at 4. Plaintiffs’ Seventh Claim is also based upon the condition [*1014] of ASC’s premises under an attractive nuisance theory.

Plaintiffs further claim that Michael was enrolled in the Snowmass Ski School at the time of his accident. Defendant Jennifer Lang, an employee of ASC, was the skiing instructor. Plaintiffs’ Fifth Claim asserts that ASC is liable for the negligent supervision of Michael by its agents and/or employees during the course of Michael’s ski lesson. Plaintiffs’ Sixth Claim is against Lang, individually, for negligent supervision [**3] and instruction of Michael while enrolled in the ski school.

In its first motion to dismiss, defendant ASC moved to dismiss those of plaintiffs’ claims which were pled under theories of common law negligence. Defendant argued that C.R.S. § 13-21-115, the Colorado premises liability statute, abrogated common law claims and that the statute was plaintiffs’ exclusive means of remedy. Plaintiffs opposed dismissal on several grounds, including their contention that C.R.S. § 13-21-115 was unconstitutional. At a hearing held on July 15, 1988, this court denied ASC’s first motion without prejudice. Certification of the constitutional questions raised by plaintiffs was made to the Colorado Supreme Court on November 1, 1988. The Supreme Court declined to answer the certified questions on December 12, 1988.

The present motion to dismiss was filed January 24, 1989. In it, defendants move for dismissal of the Third, Fifth, Sixth and Seventh Claims and portions of the Fourth claim as contained in plaintiffs’ Second Amended Complaint. Defendants renew their argument that C.R.S. § 13-21-115 is plaintiffs’ exclusive remedy. They conclude that because § 13-21-115 abrogates common law claims against [**4] landowners, that plaintiffs’ Third, Fifth, and Sixth Claims, founded on common law negligence theories, fail to state a claim upon which relief can be granted. Defendants also urge this court to dismiss the Seventh Claim because it is admitted that Michael was not a trespasser, and, according to defendants, the doctrine of attractive nuisance only applies to trespassers. Finally, defendants argue that the Fourth Claim should be dismissed to the extent that, contrary to § 13-21-115, the complaint implies that liability may be imposed against a landowner for failure to exercise reasonable care to protect an invited plaintiff against dangers of which it “should have known.”

ANALYSIS

I) “Conflict” between the Colorado Ski Safety Act and Premises Liability Statute.

It is plaintiffs’ position that the premises liability statute, C.R.S. § 13-21-115, does not apply to this case involving a skiing accident because the Colorado Ski Safety Act (“Ski Safety Act”), C.R.S. §§ 33-44-101 to -111, is a specific statute which applies to ski areas and prevails over the general premises liability statute which applies to “any civil action brought against a landowner.” § 13-21-115(2). Plaintiffs contend [**5] that the Ski Safety Act authorizes negligence actions, and to the extent that § 13-21-115 abrogates common law negligence claims there is a conflict. Consequently, plaintiffs conclude that the specific statute prevails and that their negligence claims are viable under the Ski Safety Act.

My analysis begins with [HN1] C.R.S. § 2-4-205, which provides in full:

“If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.”

It is the court’s duty to construe statutes to avoid inconsistency if it is reasonably possible. Marshall v. City of Golden, 147 Colo. 521, 363 P.2d 650, 652 (1961). In the instant case the two statutes may reasonably be interpreted to avoid conflict. They apply to different activities and conditions.

The Ski Safety Act has an express purpose “to further define the legal responsibilities [*1015] of ski area operators 1 and their agents and employees; to define [**6] the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.” C.R.S. § 33-44-102. [HN2] The only responsibilities imposed upon operators by the Ski Safety Act relate to posting signs, §§ 33-44-106, 33-44-107, and providing lighting and other conspicuous markings for snow-grooming vehicles and snowmobiles. C.R.S. § 33-44-108. “A violation by a ski area operator of any requirement of this article or any rule or regulation promulgated by the passenger tramway safety board pursuant to section 25-5-710(a), C.R.S., shall, to the extent such violation causes injury to any person or damage to property, constitute negligence on the part of such operator.” C.R.S. § 33-44-104(2). Thus, the duties imposed upon ski operators by the Ski Safety Act, a breach of which constitutes actionable negligence, concern a very limited number of specifically identified activities and conditions.

1 “‘Ski area operator’ means ‘operator’ as defined in section 25-5-702(3), C.R.S., and any person, partnership, corporation, or other commercial entity having operational responsibility for any ski areas, including an agency of this state or a political subdivision thereof.” C.R.S. § 33-44-103(7).

[**7] The Ski Safety Act imposes specific duties upon ski operators as a means of protecting skiers against dangerous conditions that are commonly present at ski areas. See Pizza v. Wolf Creek Ski Development Corp., 711 P.2d 671, 678 (Colo. 1985) (“the legislature has attempted to identify those dangers which can reasonably be eliminated or controlled by the ski area operator.”). In general, it does not protect against dangers arising from conditions or activities which are not ordinarily present at ski areas. 2

2 Conceivably, a conflict could exist between the two statutes, as in a case where a ski operator fails to mark a man-made structure as required by § 33-44-107(7). If the structure was one not ordinarily present at a ski area, a conflict would exist. However, the instant case does not present the court with this situation.

In contrast, [HN3] the premises liability statute imposes liability against all landowners for conditions, or activities conducted on, or circumstances existing on his or her property. C.R.S. § 13-21-115(2). “If the landowner has expressly or impliedly invited the plaintiff onto the real property for the purposes of the landowner, the plaintiff may recover [**8] for damages caused by the landowner’s deliberate failure to exercise reasonable care to protect against dangers which are not ordinarily present on property of the type involved and of which he actually knew.” C.R.S. § 13-21-115(3)(c) (emphasis added). 3 Thus, it is clear that the statutes are directed at two different types of dangerous activities and conditions, ordinary and out of the ordinary.

3 It is the judge’s duty to determine which subsection of § 13-21-115(3) is applicable in each action. § 13-21-115(4). The parties do not dispute that if the premises liability statute does indeed control, that § 13-21-115(3)(c) is the applicable subsection.

In Calvert v. Aspen Skiing Company, 700 F. Supp. 520 (D. Colo. 1988), the court held that the two statutes did conflict and that the specific Ski Safety Act prevailed. Accordingly, the court denied the defendant’s motion to dismiss plaintiff’s negligence claims. The conflict, according to the court, was that the premises liability statute abrogates all common law claims for negligence while the Ski Safety Act does not. Id. at 522. However, the two statutes may be interpreted consistently in light of the different scope [**9] of activities and conditions addressed by each.

It would be contrary to the Legislature’s intent to expose ski operators to greater liability than other landowners. To sustain plaintiffs’ claims founded on negligence would have exactly that effect. The Colorado Supreme Court has addressed at least one of the Legislature’s purposes in enacting the Ski Safety Act, stating:

Indisputably, the ski industry is an important part of the Colorado economy. . . . The legislative history indicates that one of the purposes underlying the [presumption provided in § 33-44-109(2) which imposes a presumption that the [*1016] responsibility for collisions by skiers with any person, natural object, or man-made structure marked in accordance with the Act is solely that of the skier and not the ski area operator] is to reduce the number of frivolous lawsuits and, accordingly, the rapidly rising cost of liability insurance accruing to ski area operators.

Pizza, 711 P.2d at 679 (citation omitted). The Legislature intended to protect ski operators from the increasing burden of litigation by passing the Ski Safety Act. There is no reason to believe that it intended to single out ski operators as a subgroup [**10] of landowners who would be held to a higher standard of care.

While the Ski Safety Act does not abrogate common law causes of action for negligence, neither does it expressly or implicitly create a general negligence action for all injuries sustained at ski areas. In the present case plaintiffs have not alleged any facts that would be actionable as a violation of the specific duties imposed upon ski operators by the Ski Safety Act. Their common law negligence claims, therefore, cannot be sustained under the umbrella of the Act. 4

4 Defendants pose a second argument which leads to the same conclusion. The premises liability statute was adopted subsequent to the Ski Safety Act and contains the “manifest intent” to apply to “any civil action.” C.R.S. § 13-21-115(2) (emphasis added). Accordingly, the premises liability statute, which expressly abrogates common law claims, would prevail even if the two statutes did conflict. C.R.S. § 2-4-205.

II) Premises Liability Statute

I must now consider to what extent the premises liability statute applies to plaintiffs’ claims. The language of the statute appears to embrace a broad range of conditions and activities that exist or are [**11] conducted on a landowner’s property. C.R.S. § 13-21-115(2). However, the court in Geringer v. Wildhorn Ranch, Inc., 706 F. Supp. 1442 (D. Colo. 1988), noted that [HN4] “the statutory classification ‘activities conducted or circumstances existing on such property’ must be read narrowly with careful regard for the intent of the legislature to re-establish common law distinctions in the law of premises liability.” Id. at 1446.

In Geringer, the plaintiff brought a wrongful death action for the death of her husband and son in a drowning accident which occurred at the defendant’s guest ranch. The two drowned during a boating accident involving a peddleboat supplied by the defendant corporation. The court struck plaintiff’s claims founded on the premises liability statute. Following a jury verdict in favor of the plaintiff, the defendants made motions for judgment notwithstanding the verdict, for new trial, and for amended judgment. Defendants contended that they were prejudiced by the trial court’s failure to instruct the jury in accordance with the premises liability statute which provides a more difficult standard for plaintiffs to overcome. Defendants argued that the [**12] premises liability statute was plaintiff’s exclusive remedy. The court disagreed:

Traditionally, the activities for which a defendant is liable as a landowner are inherently related to the land — construction, landscaping or other activities treating the land. . . .

The causation evidence in this case focused on defendants’ maintenance of the peddleboats and on defendants’ knowledge of their condition following purported repairs. The duty litigated in this case was that of a supplier of chattel to provide its user with chattel that was not defective. . . . The statute does not reflect an intention to extend the application of premises liability doctrine to the negligent supply of chattel by a landowner.

Id. at 1446. The distinction between activities “inherently related to the land” and other activities which do not fall within the scope of the premises liability statute logically follows from the court’s conclusion that “the statute does not establish a feudal realm of absolute protection from liability for simple negligence based only on a defendant’s status as a landowner.” [*1017] Id. at 1446. 5

5 To hold otherwise would shield all types of negligent activities from the negligence standard, such as in a case where a doctor negligently treats a patient at his privately owned clinic. This result could not have been intended by the Legislature.

[**13] In the present case plaintiff’s Fifth and Sixth Claims are based upon the alleged negligent supervision of Michael during the course of his skiing instruction. Instructing people in the sport of skiing is not inherently related to the land. Therefore, plaintiffs’ Fifth and Sixth Claims should not be dismissed.

On the other hand, plaintiffs’ Third Claim is founded on defendant’s negligent maintenance of conditions at the ski area. Conditions of property clearly fall within the scope of the premises liability statute. C.R.S. § 13-21-115(2). Therefore, the Third Claim must be dismissed for failure to state a claim upon which relief can be granted.

III) Constitutionality of the Premises Liability Statute

Plaintiffs contest the constitutionality of C.R.S. § 13-21-115 on several grounds. [HN5] Statutes are presumed constitutional and the plaintiff, as the party attacking the statute, must prove the statute unconstitutional beyond a reasonable doubt. Bedford Motors, Inc. v. Harris, 714 P.2d 489, 491 (Colo. 1986).

Plaintiffs argue that the phrase “deliberate failure to exercise reasonable care,” as provided in C.R.S. § 13-21-115(3)(c), is unconstitutionally vague. It is plaintiffs’ position [**14] that the terms “deliberate” and “reasonable care” are contradictory. I disagree.

The premises liability statute is basically an economic regulation, designed to limit the liability of landowners. Therefore, the vagueness standard which must be applied in this case is less exacting than in a case involving a penal statute or laws regulating first amendment rights. Pizza, 711 P.2d at 676.

“Deliberate” is a common word used frequently in every-day experience and readily understood. [HN6] “The probable legislative intent in using such a word may be determined by resorting to a standard dictionary.” Pizza, at 676. Webster’s New World Dictionary (2nd ed. 1972) defines “deliberate” as “carefully thought out and formed, or done on purpose; premeditated; careful in considering, judging, or deciding; not rash or hasty.” [HN7] “Reasonable care” is obviously a common tort standard associated with negligence which requires a degree of care which an ordinarily prudent person would exercise under the same or similar circumstances. See Safeway Stores, Inc. v. Langdon, 187 Colo. 425, 532 P.2d 337, 339 (1975). Thus, in order to incur liability under § 13-21-115(3)(c), a landowner must purposely fail to act [**15] as an ordinarily prudent person would in a like situation.

Plaintiffs also argue that the statute denies them a right to a remedy for injury as guaranteed by [HN8] Article II, Section 6 of the Colorado Constitution. Article II, Section 6 provides:

Courts of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay.

As noted in Goldberg v. Musim, 162 Colo. 461, 427 P.2d 698, 702 (1967), this provision is a mandate to the judiciary, not the legislature. “The power of the legislature to abolish substantive common law rights including those vouch-safed by the common law of England, in order to attain a permissible legislative object, has already been decided by this court. . . .” Id. at 470. Thus, the Legislature’s enactment of § 13-21-115 does not violate the Colorado Constitution.

Next plaintiffs argue that the statute violates [HN9] Article V, Section 25 of the Colorado Constitution which prohibits the general assembly from passing special laws for the benefit of any corporation, association or individuals. The constitutional inhibition against class legislation [**16] arises “when the effect of the law is to prohibit a carrying on of a legitimate business [*1018] or occupation while allowing other businesses or occupations not reasonably to be distinguished from those prohibited to be carried on freely.” Dunbar v. Hoffman, 171 Colo. 481, 468 P.2d 742, 745 (1970). However, a statute is not special when “it is general and uniform in its operation upon all in like situation.” McCarty v. Goldstein, 151 Colo. 154, 376 P.2d 691, 693 (1962). The premises liability statute applies uniformly to all landowners to limit liability for injuries resulting from conditions and activities which are inherently related to ownership of property. It is, therefore, not a special law.

Plaintiffs’ equal protection challenge also fails. [HN10] The statutory classification need only be reasonably related to a legitimate state objective in order to pass constitutional muster because no fundamental right or suspect class is involved. Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 827 (Colo. 1982). In this case the Legislature could have reasonably enacted the premises liability statute as a means of reducing liability of landowners for certain injuries occurring on their property. The Colorado [**17] Supreme Court has recognized that the Legislature has a legitimate interest in protecting the state economy. Pizza, 711 P.2d at 679. Providing limited protection to landowners is reasonably related to that end.

IV) Plaintiffs’ Fourth Claim

Defendants argue that plaintiffs’ Fourth Claim should be dismissed to the extent that it alleges that defendant ASC is liable for failure to exercise reasonable care to protect Michael against dangers of which it “should have known.” 6 Plaintiffs’ Fourth Claim is based on § 13-21-115(3)(c), which, by its express terms, requires actual knowledge. Plaintiffs’ Fourth Claim is dismissed to the extent that it seeks to impose liability for dangers of which ASC should have known.

6 Plaintiffs’ Fourth Claim alleges that ASC is liable because it “deliberately failed to exercise reasonable care to protect persons such as the minor Plaintiff, Michael Giebink, against dangers which were not ordinarily present on the aforesaid property despite the fact that Defendant actually knew or should have known of said dangers.”

V) Attractive Nuisance

Finally, defendants move to dismiss plaintiffs’ Seventh Claim which is founded upon the doctrine of attractive [**18] nuisance, 7 arguing that it only applies to situations involving trespassers, and that according to plaintiffs’ allegations Michael was not a trespasser. 8 In an attempt to strike a reasonable compromise between the conflicting interests between the freedom of land use and the protection of children, courts have recognized the attractive nuisance doctrine. [HN11] The doctrine imposes a higher standard of care on landowners toward children than would otherwise be owed to a trespasser. 9

7 In their Seventh Claim, plaintiffs accuse defendant ASC of maintaining an unreasonably dangerous and hazardous condition in the form of a roll jump. The roll jump is made entirely of earth. Skiers use it to perform aerial maneuvers.

8 The Colorado Legislature clearly provided that attractive nuisance, as it applies to persons under fourteen years of age, is not abrogated by the premises liability statute. C.R.S. § 13-21-115(2).

9 Prior to the Colorado Supreme Court’s decision in Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), landowners generally owed no duty to make or keep property safe for trespassers. See Staley v. Security Athletic Association, 152 Colo. 19, 380 P.2d 53, 54 (1963).

[**19] The purpose of the doctrine is to protect children from hazards which tend to attract them onto property. By allowing the doctrine to survive the enactment of the premises liability statute, the Legislature evidenced an intent to give children under the age of fourteen protection beyond that which is now available to other persons. This protection logically should extend to children, regardless of their status as a trespasser, licensee, or invitee. See W. Prosser & W. Keeton, Prosser and Keeton on Torts, § 59 at 402 (5th ed. 1984) (“In any case where the child could recover if he were a trespasser, he can recover at least as well when he is a licensee or an invitee [*1019] on the premises.”); Restatement (Second) of Torts § 343B (1977) (“In any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee.”); State v. Juengel, 15 Ariz. App. 495, 489 P.2d 869, 873 (1971). See also CJI-Civ. 2d 12:6A (Supp. 1988).

However, plaintiffs’ Seventh Claim fails for several other reasons. Plaintiffs’ counsel made [**20] it clear at the March 17, 1989 hearing that it was not Michael that was lured to the accident scene by the roll jump; it was Kevin Fischer, the other youth allegedly involved in the collision, who was drawn to the location by the roll jump. The doctrine of attractive nuisance simply does not apply under these facts.

A second, related argument, also leads me to the conclusion that the doctrine should not be applied in this case. [HN12] The doctrine requires that the object be unnatural and unusual. This limitation protects landowners from liability for conditions which are present on their property of which children should reasonably recognize the associated dangers. See Esquibel v. City and County of Denver, 112 Colo. 546, 151 P.2d 757, 759 (1944) (attractive nuisance doctrine did not apply where child was injured while climbing on automobile bodies piled in an unstable heap). The Esquibel court cited the Restatement of Torts § 339 Comment on Clause (c):

A possessor of land is . . . under a duty to keep so much of his land as he knows to be subject to the trespasses of young children, free from artificial conditions which involve an unreasonable risk of death or serious bodily harm to [**21] them. This does not require him to keep his land free from conditions which even young children are likely to observe and the full extent of the risk involved in which they are likely to realize. The purpose of the duty is to protect children from dangers which they are unlikely to appreciate and not to protect them against harm resulting from their own immature recklessness in the case of known danger. Therefore, even though the condition is one which the possessor should realize to be such that young children are unlikely to realize the full extent of the danger of meddling with it or encountering it, the possessor is not subject to liability to a child who in fact discovers the condition and appreciates the full risk involved therein but none the less chooses to encounter it out of recklessness or bravado.

Other conditions which have been held to be common and obvious include an artificial pond, Phipps v. Mitze, 116 Colo. 288, 180 P.2d 233 (1947), an icy slope used for sledding, Ostroski v. Mount Prospect Shop-Rite, Inc., 94 N.J. Super. 374, 228 A.2d 545 (1967), a sand pile, Knight v. Kaiser Co., 48 Cal. 2d 778, 312 P.2d 1089 (1957), and a steep bluff, Zagar v. Union Pacific R. Co., [**22] 113 Kan. 240, 214 P. 107 (1923).

Defendants in this case had a right to expect youngsters who were actively participating in the sport of skiing to understand the dangers of conditions such as the roll jump. The dangers associated with the roll jump are apparent, not latent. It is not an “unusual condition.” Therefore, the doctrine of attractive nuisance is not available to the plaintiffs.

CONCLUSION

Accordingly,

IT IS ORDERED that plaintiffs’ Third and Seventh Claims be, and the same hereby are, DISMISSED with prejudice.

IT IS FURTHER ORDERED that plaintiffs’ Fourth Claim, to the extent that it seeks to impose liability for dangers of which ASC ‘should have known,’ be, and the same hereby is, DISMISSED with prejudice.

IT IS FURTHER ORDERED that defendants’ motion to dismiss to the extent that it requests dismissal of plaintiffs’ Fifth and Sixth Claims be, and the same hereby is, DENIED.

DATED at Denver, Colorado this 22nd day of March, 1989.

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Taylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491

Taylor v. L.A. Fitness International, 2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491

This case was reversed and remanded without an opinion by the SUPERIOR COURT OF PENNSYLVANIA, Taylor, K. v. LA Fitness International, LLC, 32 A.3d 841; 2011 Pa. Super. LEXIS 4194

Kimberly Taylor and Andrew Taylor, h/w v. L.A. Fitness International, LLC d/b/a LA Fitness, USA PT, LLC, d/b/a Body of Change, c/o David White, Jr., Dorian Jefferson Hale

No. 2213

COMMON PLEAS COURT OF PHILADELPHIA COUNTY, PENNSYLVANIA, CIVIL TRIAL DIVISION

2010 Phila. Ct. Com. Pl. LEXIS 252; 16 Pa. D. & C.5th 491

August 30, 2010, Decided

CASE SUMMARY:

JUDGES: [*1] Judge John M. Younge.

OPINION BY: John M. Younge

OPINION

[**493] Younge, J.

The Plaintiffs, Kimberly and Andrew Taylor, filed this appeal from this Court’s Order that granted a motion for summary judgment filed by the above-captioned Defendants. 1

1 The Plaintiffs, Kimberly and Andrew Taylor, will be referred to collectively as the Plaintiff throughout the remainder of this Opinion because Andrew Taylor does not assert an independent cause of action against the Defendants. His claim is based on loss of consortium.

Facts and Procedure:

This personal injury action was brought against the Defendants by the Plaintiff, Kimberly Taylor, who was a member of LA Fitness and a client of Body of Change. The Plaintiff was seriously injured in June of 2007 while exercising at the Huntingdon Valley location for the Defendant, LA Fitness. The Plaintiff alleged to have hired [**494] the Defendant, Body of Change, to provide personal trainers to assist her while exercising at LA Fitness. At the specific time of her injury, she alleged to have been exercising with the Defendant, Dorian Jefferson Hale, a personal trainer and agent of the Defendant, Body of Change. In her Complaint, she alleged that Defendant Hale taught her an improper exercise [*2] and failed to properly assist or spot her while exercising. She alleged that the negligence of Defendant Hale caused her shoulder injury. She alleged that Defendant Hale was an agent of LA Fitness and Body of Change. Her claim against Defendants, LA Fitness and Body of Change, was based on agency and vicarious liability under a theory of respondeat superior.

Following discovery, the Defendants filed the motion for summary judgment that is currently at issue in this appeal. In their motion, the Defendants asserted immunity from suit based on exculpatory clauses contained in the Membership Agreement that the Plaintiff entered into with LA Fitness and the Fitness Service Agreement and Release of Liability that the Plaintiff entered into with Body of Change. 2

2 After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed two motions to reconsider this Court’s Order that granted summary judgment. In one of her motions to reconsider, she argued for the first time that she did not sign the membership agreement with LA Fitness. For a complete discussion of why her motion for reconsideration was without merit and a discussion of the procedural history surrounding [*3] that motion see § F of this Opinion.

The Membership Agreement at issue contained an exculpatory clause that read as follows:

[**495] IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY

You hereby acknowledge and agree that Member’s use of L.A. Fitness’ facilities, services, equipment or premises, involves risks of injury to persons and property, including those described below, and Member assumes full responsibility for such risks. In consideration of being permitted to enter any facility of L.A. Fitness (a “club”) for any purpose including, but not limited to, observation use of facilities, services or equipment, or participation in any way, Member agrees to the following: Member hereby releases and holds L.A. Fitness, its directors, officers, employees, and agents harmless from all liability to Member and Member’s personal representatives, assigns, heirs, and next of kin for any loss or damage and forever gives up any claim or demands therefore, on account of injury to Member’s person or property, including injury leading to death of Member, whether caused by the active or passive negligence of L.A. Fitness or otherwise, to the fullest extent permitted by law, while Member is in, upon, [*4] or about L.A. Fitness premises or using any L.A. Fitness facilities, services, or equipment. Member also hereby agrees to indemnify L.A. Fitness from any loss, liability, damage or cost L.A. Fitness may incur due to the presence of Member in, upon or about the L.A. Fitness premises or in any way observing or using any facilities or equipment of L.A. Fitness whether caused by the negligence of Member or otherwise.

You represent (a) that Member is in good physical condition and has no disability, illness, or other condition that could prevent Member from exercising without injury or impairment of member’s health, and (b) that Member has consulted a physician concerning an exercise [**496] program that will not risk injury to Member or impairment of Member’s health. Such risk of injury includes (but is not limited to): injuries arising from use by Member or others of exercise equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others; [*5] and accidental injuries occurring anywhere in Club dressing rooms, showers and other facilities. Member further expressly agrees that the foregoing release, waiver and indemnity agreement is intended to be as broad and inclusive as is permitted by the law of the State of Pennsylvania and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. Member has read this release and wavier of liability and indemnity clause, and agrees that no oral representations, statements or inducement apart from this Agreement have been made.

(Defendants’ Motion for Summary Judgment, Exhibit B (July 6, 2009)).

The Fitness Service Agreement and Release of Liability with Body of Change contained two clauses that were relevant to the personal injury action brought by the Plaintiff. These clauses are entitled “Acknowledgement & Assumption of Risk” and “Limitation of Liability & Full Release of BOC” and read in relevant part:

Acknowledgement & Assumption of Risk: Client acknowledges that the Services purchased hereunder include participation in strenuous physical activities, including, but not limited to, aerobic dance, weight training, [*6] stationary bicycling, various aerobic conditioning [**497] machinery and various nutritional programs offered by BOC (the “Physical Activities”). Client acknowledges these Physical Activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after Client’s participation in the Physical Activities. Client further acknowledges that such risks include, but are not limited to, injuries caused by the negligence of an instructor or other person, defective or improperly used equipment, over-exertion of Client, slip and fall by Client, or an unknown health problem of Client. Client agrees to assume all risk and responsibility involved with Client’s participation in the Physical Activities. Client affirms that Client is in good physical condition and does not suffer from any disability that would prevent or limit participation in the Physical Activities. Client acknowledges participation will be physically and mentally challenging, and Client agrees that [*7] it is the responsibility of Client to seek competent medical or other professional advice, regarding any concerns or questions involved with the ability of Client to take part in the Physical Activities. By signing this agreement, Client asserts that Client is capable of participating in the Physical Activities. Client agrees to assume all risk and responsibility for Client’s exceeding her physical limits.

Limitation of Liability & Full Release of BOC: Client, his or her heirs, assigns and next of kin, agree to fully release BOC, its owners, employees, any related entities or authorized agents, including independent contractors from any and all liability, claims and/or litigation or [**498] other actions that Client may have for injuries, disability, or death or other damages of any kind, including but not limited to, direct, special, incidental, indirect, punitive or consequential damages whether arising in tort, contract, breach of warranty or arising out of participation in the Services, including, but not limited to the Physical Activities, even if caused by the negligence or fault of BOC, its owners, employees, any related entities or other authorized agents, including independent contractors. [*8] Client is urged to have this agreement reviewed by an attorney before signing.

(Defendants’ Motion for Summary Judgment, Exhibit C (July 6, 2009)).

Discussion:

This Court granted the Defendants’ Motion for Summary Judgment and dismissed the Plaintiff’s Complaint because the agreements that the Plaintiff entered into with the Defendants contained exculpatory clauses that relieved the Defendants from all liability for the injuries suffered by the Plaintiff. The Defendants went to great lengths to comply with Pennsylvania law when they drafted the exculpatory clauses at issue. The language used in these exculpatory clauses mirrored the language of the two exculpatory clauses that were enforced in Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992). 3

3 The plaintiff in Kotovsky was injured while participating in a downhill ski race. He specifically collided with a fencepost along the outside of the race course. The Court in Kotovsky affirmed a trial court order that granted a motion for judgment on the pleadings based on an exculpatory agreement entered into between the parties prior to the competition.

[**499] In Kotovsky the first exculpatory clause provided, in pertinent [*9] part, as follows:

I agree that I am alone responsible for my safety while participating in competitive events and/or training for competitive events and specifically acknowledge that the following persons or entities including the United States Ski Association, the United States Ski Team, the United States Ski Coaches Association, the ski area, the promoters, the sponsors, the organizers, the promoters, the sponsors, the organizers, the promoter clubs, the officials and any agent, representative, officer, director, employee, member or affiliate of any person or entity named above are not responsible for my safety. I specifically RELEASE and DISCHARGE, in advance, those parties from any and all liability whether, known or unknown, even though that liability may arise out of negligence or carelessness on the part of persons or entities mentioned above. I agree to accept all responsibility for the risks, conditions and hazards which may occur whether they now be known or unknown.

Being fully aware of the risks, conditions and hazards of the proposed activity as a competitor, coach or official, I HEREBY AGREE TO WAIVE, RELEASE AND DISCHARGE any and all claims for damages for death, personal [*10] injury or property damage which I may have or which may hereafter accrue to me as a result of my participation in competitive events or training for competitive events, against any person or entity mentioned above whether such injury or damage was foreseeable.

I further agree to forever HOLD HARMLESS and INDEMNIFY all persons and entities identified above, generally or specifically, from any and all liability for death and/ [**500] or personal injury or property damage result[ing] in any way from my participating in competitive events or training for competitive events.

This Acknowledgement of and Assumption of Risk and Release shall be binding upon my heirs and assigns. (Emphasis added)

Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 445, 603 A.2d 663, 664 (1992).

The second exculpatory clause in Kotovsky provided as follows:

If you do not accept fully the conditions below do not compete, officiate, coach or in any other way participate in any event. I, the undersigned, know that alpine and nordic skiing are action sports carrying significant risk of personal injury. Racing, jumping or freestyle competition is even more dangerous. I know that there are natural and man-made obstacles [*11] or hazards, surfaces and environmental conditions, and risks which in combination with my action can cause me very severe or occasionally fatal injury. I agree that I and not the ski area or its staff or American Ski Racing Alliance, Inc. “(ASRA”) or its staff, am responsible for my safety while I participate in, or train for these events.

I HEREBY RELEASE and discharge, on behalf of myself, my heirs, executors, personal representatives and assigns, ASRA, USSA, their affiliates and subsidiaries and their respective directors, officers, agents, employees, successors and assigns or any of them, from any and all actions, causes of action, claims, damages, demands, injuries and liabilities of any nature whatsoever. (including reasonable attorneys fees and interest) arising out of or in any manner [**501] connected with their involvement with ski races organized, promoted or operated by ASRA. (Emphasis in original).

Id.

The Court in Zimmer v. Mitchell, 253 PA. Super. 474, 385 A.2d 437 (1978), was confronted with an exculpatory clause that was contained in a rental agreement for ski equipment. 4 The exculpatory clause in that rental agreement read, in relevant part, as follows, “I furthermore release [*12] Mitchell and Ness from any liability for damage and injury to myself or to any person or property resulting from the use of this equipment, accepting myself the full responsibility for any and all such damage or injury.” Id. at 478, 385 A.2d at 439. The court chose to enforce the agreement despite the fact that the language of the agreement did not release the defendant for liability based on its own negligence. A different result was reached in Brown where the Superior Court invalidated an exculpatory agreement because “The release in question [did] not spell out the intention of the parties with the necessary particularity. The language [did] not set forth in an unambiguous manner that the releaser, in signing the agreement, intend[ed] to absolve the releasee of liability for the releasee’s own negligence.” Brown v. Racquetball Centers. Inc., 369 Pa. Super. 13, 16, 534 A.2d 842, 843 (1987). 5

4 The plaintiff in Zimmer alleged to have been injured when the bindings on the ski equipment that he had rented from the defendant failed to properly release him. The Court in Zimmer affirmed an order that granted summary judgment based on an exculpatory clause contained in a rental agreement.

5 The plaintiff [*13] in Brown was a member of a health club who slipped when exiting the club’s shower facilities. The Court reversed a trial court order that granted summary judgment in favor of the health club based on an exculpatory clause contained in the application form signed by the plaintiff upon joining the health club. The exculpatory clause read, in relevant, part:

I, LeRoy F. Brown, voluntarily enter the Westend Racquet Club…to participate in the athletic, physical and social activities therein. I have inspected the premises and know of the risks and dangers involved in such activities as are conducted therein and that unanticipated and unexpected dangers may arise during such activities. I hereby and do assume all risks of injury to my person and property that may be sustained in connection with the stated and associated activities in and about those premises. (Emphasis added).

In consideration of the permission granted to me to enter the premises and participate in the stated activities, I hereby, for myself, my heirs, administrators and assigns, release, remise and discharge the owners, operators and sponsors of the premises and its activities and equipment and their respective servants, agents, [*14] officers, and all other participants in those activities of and from all claims, demands, actions and causes of action of any sort, for injury sustained to my person and/or property during my presence on the premises and my participation in those activities due to negligence or any other fault.

Id. at 14, 534 A.2d at 842.

[**502] In the case sub judice, the Defendants made every possible effort to draft exculpatory clauses with language that complied with Pennsylvania precedent. The exculpatory clauses drafted by the Defendants are linguistically similar to the exculpatory clauses quoted in Kotovsky, Zimmer and Brown. The Defendants specifically attempted to remedy the problem identified by the Court in Brown by including language that specifically released liability for injuries caused by the Defendants’ own negligence. Unlike the exculpatory agreement in Brown, in the case sub judice, the Plaintiff clearly and unequivocally agreed to release the Defendant, LA Fitness, from any and all claims whether caused “by the active or passive negligence of LA Fitness or otherwise.” (Defendants’ Motion for Summary Judgment, Membership [**503] Agreement Exhibit B (July 6, 2009)). Under the terms of the Fitness Service Agreement [*15] and Release of Liability, the Plaintiff clearly and unequivocally agreed to release the Defendants from any and all claims “even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.” (Id. Exhibit C). The Fitness Service Agreement and Release of Liability also provided that the “[Plaintiff] further acknowledges that such risks included, but are not limited to, injuries caused by the negligence of an instructor.” (Id).

In accordance with Pennsylvania precedent, the exculpatory clauses at issue were also highly visible and clearly noticeable within the Membership Agreement and Fitness Service Agreement and Release of Liability. Beck-Hummel v. Ski Shawnee, inc., 2006 PA Super 159, 902 A.2d 1266, 1274 (Pa. Super. 2006) (standing for the proposition that [HN1] an exculpatory clause should be conspicuous on the face of a document and espousing a three part test for determining whether a reasonable person should have noticed an exculpatory clause contained in a document as follows: (1) the disclaimer’s placement in the document, (2) the size of the disclaimer’s print, and (3) whether the disclaimer was [*16] highlighted by being printed in all capital letters or in a type style or color different from the remainder of the document). A plain reading of the Membership Agreement and the Fitness Service Agreement and Release of Liability shows that exculpatory clauses were both written in a larger and different type than the type used in the rest of the contracts in which they appeared. The clauses were both separated and sectioned apart from all other contractual provisions and encased within a box. [**504] The membership Agreement with LA Fitness was entitled “IMPORTANT: RELEASE AND WAIVER OF LIABILITY AND INDEMNITY.” The exculpatory clauses in the Fitness Service Agreement and Release of Liability contained the titles, “Limitation of Liability & Full Release of BOC” and “Acknowledgement & Assumption of Risk.” Both titles were written in bold and in a larger print size than all other material on the page.

The Plaintiff was unable to cite a single valid reason for this Court to decline to enforce the exculpatory clauses at issue. In her response to the Defendants’ motion for summary judgment and her motions to reconsider, the Plaintiff cited six arguments in an attempt to persuade this Court to allow [*17] her to proceed to trial. These arguments were as follows:

A. Defendants’ failed to plead, in their answer and new matter, the defense of waiver and release with regard to the exculpatory clauses…

B. The exculpatory clauses are contracts of adhesion and, therefore, are unconscionable and unenforceable…

C. It is against public policy to enforce a consumer contract that waives negligence on the part of the vendor and its agents and employees…

D. The terms of the exculpatory clauses are ambiguous and, therefore, unenforceable…

E. There is no privity of contract between Defendant, Hale, and plaintiff.

(Plaintiffs’ Memorandum of Law in Support of their Response to Defendants’ Motion for Summary Judgment (August 5, 2009) (citing the topic headings [**505] to Plaintiff’s five arguments against the entry of summary judgment)).

F. [Plaintiff] respectfully requests that this Honorable Court will enter an order amending the record to state that [the Plaintiff] did not execute or sign any contract with [the] Defendant, L.A. Fitness, LLC, and rescind and reverse the…Order granting summary judgment.

(Plaintiffs’ Motion for Reconsideration Based on New Evidence of the… Order Granting Defendants’ Motion for Summary [*18] Judgment (September 22, 2009) (citing the wherefore clause in said motion)).

A. The Defendants’ specifically pled waiver and release in their answer and new matter filed on September 10, 2009

The Defendants’ filed a late answer with new matter on September 10, 2009. This Court allowed the Defendants’ to pursue the exculpatory agreement as a defense despite the late pleading because the Plaintiff was unable to show that she suffered prejudice as a result of the Defendants’ untimely pleading. In Blumenstock v. Gibson, 2002 PA Super 339, 811 A.2d 1029 (PA. Super. 2002), the court wrote:

[HN2] It is true that under Pennsylvania Rule of Civil Procedure 1030, release is an affirmative defense that ordinarily must be pled as new matter. Holmes v. Lankenau Hospital, 426 Pa. Super. 452, 627 A.2d 763, 765 (PA. Super. 1993). Under the Rule, if release is not pled as new matter, the right to assert the defense has been waived. Id. Nevertheless, our Rules of Civil Procedure must be liberally construed so that actions are resolved in a just, speedy and inexpensive manner consistent with Rule 126. Id. 765-66. [**506] The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding [*19] to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. PA. R.C.P. 126.

Where the rights of the plaintiff have not been prejudiced through the defendant’s failure to plead the defense of release prior to filing a motion for summary judgment, the trial court is not required to strictly enforce Rule 1030. Holmes, 627 A.2d at 766.

Id. at 1039.

In the case sub judice, the Plaintiff could not show prejudice because the Defendants inadvertent oversight had no influence on the litigation. The Defendants mailed a copy of their Answer and New Matter to the Plaintiff on November 13, 2008, but failed to file a copy of the same with the Prothonotary. The Plaintiff did not file a 10-day notice of intent to take a default judgment and a default judgment was never entered. The Defendants stated that they produced the Membership Agreement and the Fitness Service Agreement and Release of Liability in their response to the Plaintiff’s request for production of documents on February 6, 2009. At deposition, the Defendants specifically questioned the Plaintiff about whether [*20] she signed the Membership Agreement and the Fitness Service Agreement and Release of Liability, and she admitted that she signed both agreements. The Defendants then advanced their defense based on the exculpatory clauses at the appropriate stage by motioning for summary judgment at the close of discovery.

[**507] B. This Court’s Order granting summary judgment should be affirmed because the exculpatory clauses at issue did not constitute contracts of adhesion

The Plaintiff argued that the Membership Agreement and the Fitness Service Agreement and Release of Liability were contracts of adhesion and were, therefore, invalid. In support of this argument, she cited the fact that the Defendants openly admitted that the terms of the agreements were non-negotiable. The Plaintiff was presented with standardized boiler plate contracts that contained exculpatory clauses. She was given no opportunity to negotiate the terms of these agreements. If she wanted to exercise at LA Fitness under the supervision of personal trainers provided by Body of Change, she had to sign the agreements as presented.

The Membership Agreement and Fitness Service Agreement and Release of Liability were not contracts of adhesion [*21] because the Plaintiff had the ability to seek other forms of exercise. Pennington v. Lombardi-Martelli 42 Pa. D. & C.4th 425 (1999) (Affirming a trial court’s grant of summary judgments in favor of a stable owner and stating that the exculpatory agreement entered into prior to taking horse riding lessons was not a contract of adhesion because the plaintiff was free to select another riding school.). The Plaintiff chose to exercise at LA Fitness under the guidance of a personal trainer who worked for Body of Change. The Plaintiff could have exercised independently at home or at a variety of other locations including LA Fitness. The Plaintiff’s ability to choose the form of exercise that she would practice defeats her argument based on a theory of adhesion. For example, the Court enforced an exculpatory agreement against a [**508] Plaintiff who was injured in a down hill ski race in Kotovsky v. Ski Liberty Operating Corp., 412 Pa. Super. 442, 603 A.2d 663 (1992). In Kotovsky, the Court stated that the exculpatory agreement was not one of adhesion because the Plaintiff “was not required to enter the contract, but did so voluntarily in order to participate in the downhill ski race.” Id. at 447, 603 A.2d at 665.

C. [*22] This Court’s Order granting summary judgment should be affirmed because Pennsylvania has a public policy of enforcing exculpatory agreements

Exculpatory agreements in the context of athletic events and fitness club memberships have previously been the subject of litigation in Pennsylvania. However, the Plaintiff is completely unable to cite to precedent to establish that exculpatory clauses in the nature of the type at issue in the case sub judice are invalid based on public policy grounds. Courts located in California and Kansas have enforced exculpatory agreements in personal injury actions where the plaintiff was a member of a fitness club and signed contract that contained an exculpatory clause. Fata v. LA Fitness International LLC., 2008 Cal. App. Unpub. LEXIS 7926 (2008); and Ko v. Bally Total Fitness Corp., 2003 U.S. Dist. Lexis 19378. In both Fata and Ko, there was no mention of public policy being violated by the enforcement of the exculpatory clauses contained in either membership agreement with the health club defendants in those cases. In Zipusch v. LA Workout. Inc., 155 Cal. App. 4th 1281, 66 Cal. Rptr. 3d 704 (2007), the Court chose to not enforce an exculpatory agreement; however, it did not [*23] base its decision on public policy grounds. The Plaintiff failed to support her argument that public policy prevents the enforcement of exculpatory [**509] agreements when the Plaintiff engages in athletic activities at a health club where the Plaintiff is a member.

This Court would like to call attention to the fact that its analysis would have been entirely different if the Plaintiff had been working under the supervision of a licensed physical therapist. In Leidy v. Deseret Enterprises, Inc., 252 Pa. Super. 162, 381 A.2d 164 (1977), the Court reversed a trial court order that granted a motion for judgment on the pleadings filed by the defendant (health spa) based on an exculpatory clause in a membership agreement entered into between the parties. In Leidy, the plaintiff alleged to have been “referred to the spa by her doctor as part of post-operative treatment following surgery on the lumbar area of her spine, but that the treatment she was in fact given was directly contrary to her doctor’s instructions to the spa.” Id. at 166, 381 A.2d at 166. The Court stated, “The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are in fact so qualified, and accept responsibility for their actions.” The Court stated, “The public has an interest in assuring that those claiming to be qualified to follow a doctor’s orders are in fact so qualified, and accept responsibility for their actions.” Id. 170, 381 A.2d at 168.

The reasoning and logic of Leidy is inapplicable to the sub judice because no recognized statewide standard of care exists for health clubs like LA Fitness or health club employees like Defendant Hale. The legislature created the Broad of Physical Therapy to establish rules and procedures to regulate physical therapy throughout the state of Pennsylvania. See 63 P.S. § 1302.1. The Physical Therapy Practice Act, 63 P.S. § 1301 et seq., provides conclusive evidence of the public interest in protecting [**510] the health, safety and welfare of those who seek the services of a physical therapist. Therefore, this Court would have to be presented with an extremely unusual fact pattern before it would allow a physical therapist to escape liability based on an exculpatory agreement executed by his or her patient. It would be hard to believe that such an agreement truly regulated private interests. Yet at the same time, services provided by a personal [*25] trainer are substantially similar to the services provided by a physical therapist.

The fact pattern of the case sub judice highlights just one of the problems presented by the lack of legislative oversight of the health club and fitness industry in Pennsylvania. This Court would like to refer this matter on the legislature so that it can establish a system for regulation. The clear affect of this lack of legislative oversight means that national health club chains, like the Defendants, can be sued for negligence based upon a breach of an ordinary standard of care that could vary from county to county. Since an ordinary standard of care is applicable, the Defendants need the protection provided by the exculpatory agreement. Clearly, the establishment of a uniform standard of care is necessary. It would then be possible to establish a statewide standard of care that would subject entities and individuals involved in the fitness industry to liability. Legislative oversight would also bolster any argument that an exculpatory agreement should be invalid based on public policy grounds.

D. The terms of the exculpatory clauses are not ambiguous and are therefore enforceable.

As previously discussed, [*26] Plaintiff clearly and unequivocally agreed to release the Defendants from liability [**511] for personal injury. There was nothing ambiguous about the terms of either exculpatory clause. Both clauses specifically identified the types of personal injuries contemplated by the parties when they entered into the agreement. Under the terms of the Membership Agreement, the Plaintiff released LA Fitness from any risk of injury and agreed that:

Such risk of injury include[d] (but is not limited to): injuries arising from use by Member or others of exercises equipment and machines; injuries arising from participation by Member or others in supervised or unsupervised activities or programs at a Club; injuries and medical disorders arising from exercising at a Club such as heart attacks, strokes, heat stress, sprains, broken bones, and torn muscles and ligaments, among others…

The terms of the Fitness Service Agreement and Release of Liability, clearly stated that the,

Client acknowledges these Physical Activities involve the inherent risk of physical injuries or other damages, including, but not limited to, heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower [*27] back/foot injuries and any other illness, soreness, or injury however caused, occurring during or after Client’s participation in the Physical Activities.

The Plaintiff suffered injuries that were specifically encompassed within the description of injuries contemplated in the exculpatory clauses offered by the Defendants. The Plaintiff’s medical records state that she suffered an anteroinferior dislocation of the left shoulder that led to post-traumatic arthritis and contractures. The Plaintiff was a registered nurse at Magee Rehabilitation. [**512] She should have read and comprehended the ramifications of entering into the Membership Agreement and Fitness Service Agreement and Release of Liability. As a nurse, the Plaintiff should have also understood inherent danger in any exercise routine.

E. This Court’s Order granting summary judgment should be affirmed because privity of contract between the Plaintiff and the Defendant, Dorian Jefferson Hale, is a completely irrelevant issue

There was no dispute as to the fact that the Plaintiff entered into the Fitness Service Agreement and Release of Liability with Body of Change. 6 This agreement specifically states,

Client, his or her heirs, assigns [*28] and next of kin, agree to fully release BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that Client may have for injuries?even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors.

6 See § F herein discussing the Plaintiffs motion to reconsider based on new evidence wherein she claims that she never signed the Membership Agreement with LA Fitness.

There was no dispute as to the fact that Defendant, Dorian Jefferson Hale, was an agent of Body of Change. Under the specific terms of the Fitness Service Agreement and Release of Liability, all agents of Body of Change were released from liability over to the Plaintiff. As with any other contract, the specific terms of this exculpatory [**513] clause should be enforce in accordance with the plain meaning of its language. For example, the Court in Maloney v. Valley Medical Facilities, Inc., 603 Pa. 399, 984 A.2d 478 (Pa. 2009), permitted a plaintiff to maintain an action against an agent of a principal [*29] despite the fact that the plaintiff had released the agent’s principal. In Maloney, the release that the plaintiff entered into with the principal specifically contained a reservation of rights clause that permitted the plaintiff to proceed against the agent. The Court discussed the application of traditional contract principles and the need to effectuate the intent of the parties who enter into contracts.

The case sub judice is factually distinguishable from Maloney; yet, the reasoning and logic used in Maloney clearly favored the entry of summary judgment in favor of Defendant Hale. The exculpatory clause found in the fitness service agreement and release of liability did not contain a reservation of rights clause whereby the Plaintiff retained the right to sue Defendant Hale. To the contrary, the specific language of the exculpatory clause released Defendant Hale from all liability. Based on the reasoning contained in Maloney, this Court placed great emphasis on the specific language of the exculpatory clause and decided to enforce the agreement as to Defendant Hale as well as the other Defendants.

F. Whether the Plaintiff signed the Membership Agreement with the Defendant, LA Fitness, [*30] is not relevant to the question of whether this Court’s Order granting summary judgment should be affirmed

After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed a motion to reconsider [**514] based on new evidence. She argued that this Court should vacate its Order granting summary judgment in favor of the Defendant, LA Fitness, because she did not sign the Membership Agreement that contained the exculpatory clause that it offered as an affirmative defense. A brief review of the pleadings and procedural history of this case illustrates the irrelevant and meritless nature of this issue.

Originally the Plaintiff filed a response to the Defendants’ motion for summary judgment that contained an affidavit wherein she admitted that she signed both the Membership Agreement and the Fitness Service Agreement and. Release of Liability. After this Court granted the Defendants’ motion for summary judgment, the Plaintiff filed a motion for reconsideration that contained a second affidavit that contradicted her pervious affidavit. In her second affidavit, she averred that she did not sign the Membership Agreement.

The inconsistencies in the Plaintiff’s case could have created [*31] a legal issue that would have required judicial attention. However, the Plaintiff did not attempt to establish a direct claim of liability against LA Fitness. The Plaintiff did not bring an independent cause of action against LA Fitness on a theory like negligent hiring or supervision. The Plaintiffs claim against LA Fitness was based agency or vicarious liability for the actions or omissions of Defendant Hale. LA Fitness could only be held liable if Defendant Hale was held liable. The action against Defendant Hale was barred based on the exculpatory clauses in the Fitness Service Agreement and Release of Liability. The Plaintiff openly admitted that she signed [**515] Fitness Service Agreement and Release of Liability which states:

Client, his or her heirs, assigns and next of kin, agree to fully release BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent contractors from any and all liability, claims and/or litigation or other actions that Client may have for injuries…even if caused by the negligence or fault of BOC [Body of Change], its owners, employees, any related entities or other authorized agents, including independent [*32] contractors.

In reality, the Plaintiff’s signature on the Membership Agreement was really a mere technicality. A plain reading of both affidavits illustrates that the Plaintiff was aware that she had entered into an agreement that had been reduced to writing when she joined L A Fitness. She then proceeded to use the facilities provided by L A Fitness on multiple occasions prior to her accident. She should have read the Membership Agreement and her use of the facility was akin to accepting the terms of the Membership Agreement.

Conclusion:

The Defendants went to great lengths to draft exculpatory clauses that would comply with Pennsylvania law; therefore, this Court was required to enforce the exculpatory clauses contained in the Membership Agreement and Fitness Service Agreement and Release of Liability.

BY THE COURT

/s/ John M. Younge

Judge John M. Younge

WordPress Tags: Taylor,International,Phila,LEXIS,Andrew,Body,Change,David,White,Dorian,Jefferson,Hale,COMMON,PLEAS,COURT,PHILADELPHIA,PENNSYLVANIA,CIVIL,TRIAL,DIVISION,August,CASE,SUMMARY,JUDGES,Judge,John,Younge,OPINION,Plaintiffs,Order,judgment,Defendants,Plaintiff,remainder,action,consortium,Facts,Procedure,injury,member,client,June,Huntingdon,Valley,location,Defendant,trainers,trainer,agent,Complaint,negligence,agency,theory,discovery,clauses,Membership,Agreement,Service,Release,discussion,reconsideration,history,clause,IMPORTANT,WAIVER,facilities,equipment,premises,purpose,observation,participation,directors,officers,employees,agents,heirs,account,person,death,extent,cost,presence,impairment,health,physician,injuries,Club,muscles,ligaments,State,representations,statements,inducement,Motion,Exhibit,Acknowledgement,Assumption,Risk,Limitation,Full,Services,machinery,Physical,Activities,muscle,prostration,knee,foot,instructor,exertion,advice,owners,entities,contractors,litigation,tort,attorney,agreements,lengths,Kotovsky,Corp,Super,fencepost,competition,events,States,Association,Team,Coaches,area,promoters,organizers,promoter,officials,officer,director,employee,DISCHARGE,competitor,HEREBY,AGREE,WAIVE,HOLD,INDEMNIFY,Emphasis,event,obstacles,combination,American,Alliance,ASRA,executors,USSA,subsidiaries,successors,liabilities,attorneys,manner,involvement,Zimmer,Mitchell,rental,fact,Brown,Superior,intention,Racquetball,Centers,bindings,LeRoy,Westend,Racquet,dangers,connection,permission,administrators,operators,servants,participants,effort,precedent,Under,accordance,Beck,Hummel,Shawnee,proposition,disclaimer,placement,size,capital,Both,response,arguments,adhesion,policy,consumer,vendor,Memorandum,Support,topic,headings,Honorable,Evidence,September,Blumenstock,Gibson,Rule,Holmes,Lankenau,Hospital,Rules,determination,error,Where,failure,Answer,Matter,November,Prothonotary,production,February,argument,boiler,supervision,Pennington,Lombardi,Martelli,judgments,owner,horse,lessons,guidance,locations,example,hill,Exculpatory,context,memberships,Courts,California,Kansas,Fata,Unpub,Total,Dist,enforcement,Zipusch,Workout,Rptr,decision,attention,analysis,therapist,Leidy,Deseret,Enterprises,treatment,surgery,spine,instructions,logic,legislature,Broad,Therapy,procedures,Practice,welfare,industry,system,regulation,protection,establishment,individuals,Legislative,description,dislocation,arthritis,Magee,Rehabilitation,ramifications,danger,Maloney,Medical,Whether,affidavit,inconsistencies,omissions,signature,affidavits,accident,Conclusion,upon,aerobic,shin,pleadings,releasee,judice,unenforceable,statewide


N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)

N.H., a minor child, v. Sequoyah Council, Inc., Boy Scouts of America, 2012 U.S. Dist. LEXIS 87452 (ED Ten 2012)

N.H., a minor child, by and through his parents Jorge Hernandez and Elizabeth Hernandez and Jorge Hernandez and Elizabeth Hernandez, Individually, v. Sequoyah Council, Inc., Boy Scouts of America

NO. 2:11-CV-171

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2012 U.S. Dist. LEXIS 87452

April 30, 2012, Filed

COUNSEL: [*1] For Jorge Hernandez, Individually Minor N. H, Elizabeth Hernandez, Individually Minor N. H., Plaintiffs: Thomas C Jessee, Jessee & Jessee, Johnson City, TN.

For Sequoyah Council, Inc., Boy Scouts of America, defendant: Suzanne S Cook, LEAD ATTORNEY, Hunter, Smith & Davis – Johnson City, Johnson City, TN.

JUDGES: J. RONNIE GREER, UNITED STATES DISTRICT JUDGE.

OPINION BY: J. RONNIE GREER

OPINION

ORDER

This personal injury action is before the Court pursuant to 28 U.S.C. § 1332. Pending before the Court is the defendant’s motion to dismiss plaintiffs’ demand for punitive damages pursuant to Federal Rule of Civil Procedure 12(b)(6). [Doc. 5]. For the reasons which follow, the motion is GRANTED.

FACTS

The following facts are taken from plaintiffs’ Complaint and are assumed true for the purposes of defendant’s motion to dismiss. In June 2010, the minor plaintiff was registered by his parents to participate in a summer camp owned and operated by defendant in an attempt to earn merit badges towards becoming an Eagle Scout. On June 15, 2010, while at this summer camp, the minor plaintiff participated in a mountain biking activity/class sponsored by defendant. During the course of his participation, the minor plaintiff discovered [*2] that the brakes on his bike were not working, and he rode off the trail and struck a tree, sustaining severe bodily injuries.

The defendant was allegedly negligent as follows: (1) it failed to keep the mountain bike trails in a reasonably safe condition; (2) it failed to warn the minor plaintiff of hidden perils of the trails which defendant knew, or by reasonable inspection, could have discovered; (3) it failed to properly train its employees; (4) it failed to properly mark the bike trail; (5) it failed to properly evaluate and assess the skill of the minor plaintiff before allowing him to ride the trail; and (6) it was “negligent in other manners.” [Doc. 1 at ¶19]. The Complaint also states that “the negligence of Defendant . . . was the proximate cause of the injuries to the minor plaintiff.” Id. at ¶20. The Complaint contains a number of additional paragraphs that allege how the “negligence” of the defendant was the proximate cause of various other consequences. Id. at ¶¶22-27. The final paragraph of the Complaint states, “As a proximate . . . result of the negligence of Defendant, the Plaintiffs have been damaged . . . in an amount not to exceed $600,000.00 actual damages. As a [*3] direct and proximate result of the gross negligence of the Defendant, the Plaintiffs believe they are entitled to recover punitive damages . . ..” Id. at ¶28 (emphasis added).

Defendant has filed a motion asking the Court to dismiss the Complaint so far as punitive damages are concerned on the ground that the plaintiffs have failed to adequately plead a factual basis that would provide for the award of punitive damages.

LEGAL STANDARD

[HN1] Fed.R.Civ.P. 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.” The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than just labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

[HN2] “To survive a motion to dismiss, a complaint must contain sufficient factual matter, [*4] accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff’s allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 81 L. Ed. 2d 59 (1984).

ANALYSIS

[HN3] “In a diversity action . . . the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law.” Browning-Ferris Indus. of Vt., Inc., v. Kelco Disposal, Inc., 492 U.S. 257, 278, 109 S. Ct. 2909, 106 L. Ed. 2d 219 (1989). Thus, to survive a motion to dismiss, a claim for punitive damages must be plausible as defined by Tennessee law.

[HN4] The Tennessee Supreme Court has held that punitive damages are available in cases involving “only the most egregious of wrongs.” [*5] Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn. 1992). Accordingly, under Tennessee law, “a court may . . . award punitive damages only if it finds a defendant has acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.” Id. 1

1 [HN5] The Tennessee Supreme Court has expressly stated that punitive damages are not available for “gross negligence.” Hodges, 833 S.W.2d at 900-901. However, the legal sufficiency of a complaint does not depend upon whether or not the plaintiffs invoked the right “magic words,” but instead whether the facts as alleged may plausibly be construed to state a claim that meets the standards of Rule 12(b)(6). See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)(clarifying the dismissal standard under Rule 12(b)(6) and noting that “Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era”). Consequently, the Court will construe the plaintiffs’ allegations of “gross negligence” in paragraph 28 of the Complaint as an allegation that defendant behaved “recklessly.”

Here, defendant asserts that “Although the Complaint cursorily mentions ‘gross negligence’ one time in a conclusory manner, the Complaint [*6] lacks any facts or allegations that aver an utter lack of concern or reckless disregard such that a conscious indifference can even be implied . . ..” [Doc. 6 at 3]. The plaintiff counters that “The plaintiff in this case has identified specific detailed acts of negligence on the part of the defendant and . . . [consequently] it is clear that a jury could decide that the actions of the defendant were grossly negligent.” [Doc. 7 at 2].

The Court has reviewed the Complaint and agrees with the defendant. [HN6] “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Iqbal, 556 U.S. at 678. Such is the case with the Complaint in this matter. The entirety of the Complaint is dedicated to explaining why the defendant was negligent. However, there is no separate mention made regarding why the defendant was reckless. To be sure, the plaintiff could argue that by alleging in multiple paragraphs that defendant “knew, or should have known,” of certain unsafe conditions, he has sufficiently pled both negligence and recklessness. However, plaintiff would be mistaken in asserting such [*7] argument.

[HN7] Under Tennessee law, “A person acts recklessly when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances.” Hodges, 833 S.W.2d at 901. An examination of the Complaint reveals that plaintiffs have failed to allege how or why the defendant was aware of the deficiencies in the bicycle and the biking trail. This is fatal to plaintiffs’ claim for punitive damages. See Carrier Corp. v. Outokumpu Oyj, 673 F.3d 430, 445 (6th Cir. 2012) ( [HN8] “To survive a motion to dismiss . . . allegations must be specific enough to establish the relevant ‘who, what, where, when, how or why.”); See also, Tucker v. Bernzomatic, 2010 U.S. Dist. LEXIS 43771, 2010 WL 1838704 (E.D.Pa. May 4, 2010) (Dismissing punitive damages claim in products liability action because consumer did not allege how or why manufacturer knew that its product was dangerous).

In light of the foregoing, the Court concludes that the Complaint does not contain sufficient factual content to allow the Court to draw the reasonable inference that defendant has acted recklessly. [*8] See Iqbal, 556 U.S. at 678. The punitive damages claim will therefore be dismissed.

CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss plaintiffs’ demand for punitive damages [Doc. 5] is GRANTED and plaintiffs’ demand for punitive damages is DISMISSED.

ENTER:

/s/ J. RONNIE GREER

UNITED STATES DISTRICT JUDGE

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Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

Hembree v. Johnson et al., 224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

Hembree v. Johnson et al.

A97A0034.

COURT OF APPEALS OF GEORGIA

224 Ga. App. 680; 482 S.E.2d 407; 1997 Ga. App. LEXIS 182; 97 Fulton County D. Rep. 622

February 14, 1997, Decided

PRIOR HISTORY: [***1] Slip and fall. Douglas Superior Court. Before Judge James.

DISPOSITION: Judgment affirmed.

COUNSEL: Akin & Tate, S. Lester Tate III, for appellant.

Chambers, Mabry, McClelland & Brooks, Rex D. Smith, Ian R. Rapaport, for appellees.

JUDGES: Judge Harold R. Banke. Pope, P. J., and Johnson, J., concur.

OPINION BY: Harold R. Banke

OPINION

[*680] [**408] Judge Harold R. Banke.

Terrell L. Hembree sued Gordon Johnson and James Haddle d/b/a Douglasville Health & Athletic Club (collectively “Johnson”) to recover damages relating to a knee injury allegedly sustained in a slip and fall on a racquetball court. Hembree appeals the trial court’s adverse summary judgment ruling.

Johnson moved for summary judgment relying primarily on exculpatory language contained in a membership agreement. The record shows that Melissa Hembree completed and signed joint Membership Agreement No. 13217 on which she listed Terrell Hembree, her husband, as a family member. The first section in the contract provides, “I agree to use the Health and Athletic Club in accordance with the Rules and Conditions printed on the reverse side.” Melissa Hembree signed the Rules and Conditions document which contains certain exculpatory provisions requiring a member [***2] to: (1) assume any risk occasioned by the use of the facilities, and (2) forever release and discharge the corporate owner of the club, and any affiliated companies and/or its agents and employees from liability for claims arising out of the use of the facilities. Several months after the joint membership expired, Terrell Hembree signed a Membership Addendum to obtain an individual membership. The Membership Addendum states, “I herewith modify my original membership agreement No. 13217 dated 4-14-92 as stated herein.” The only pertinent change in the addendum altered [*681] the joint membership to an individual one. During the time Hembree had an individual membership, he allegedly slipped and fell. Held:

1. We reject Hembree’s contention that summary judgment was precluded by the existence of a material issue of disputed fact as to whether he assented to the waiver. [HN1] The construction of a written contract is a question of law for the trial court unless after the court applies the applicable rules of construction, ambiguity remains. O.C.G.A. § 13-2-1; Binswanger Glass Co. v. Beers Constr. Co., 141 Ga. App. 715, 716 (1) (234 S.E.2d 363) (1977). This is not such a situation. When Hembree [***3] signed the Membership Addendum, he specifically assented to all the terms contained in Membership Agreement No. 13217, which was incorporated by reference in the Membership Addendum. [HN2] Incorporation by reference is generally effective to accomplish its intended purpose where, as here, the reference has a reasonably clear and ascertainable meaning. Binswanger, 141 Ga. App. at 717 (2). Hembree was bound by the terms and conditions of the contract that he signed including the Rules and Conditions giving effect to the waiver. It was incumbent upon Hembree to read the contract and apprise himself of the terms to which he assented. Conklin v. Liberty Mutual Ins. Co., 240 Ga. 58, 59 (239 S.E.2d 381) (1977); Lovelace v. Figure Salon, 179 Ga. App. 51, 53 (1) (345 S.E.2d 139) (1986). Having shown the absence of any genuine issue of material fact, Johnson was entitled to summary judgment as a matter of law. O.C.G.A. § 9-11-56 (c).

2. Hembree enumerates as errors an alleged violation of the Fair Business Practices Act (O.C.G.A. § 10-1-393.2) and an assertion that Johnson and Haddle are not [**409] agents and employees of the corporation as contemplated by the waiver language. Although Hembree [***4] claims that he raised these two issues during oral argument, he failed to provide a transcript of the summary judgment hearing. Hembree, as [HN3] the party alleging error, has the burden to show it affirmatively by the record. North Fulton Feed v. Purina Mills, 221 Ga. App. 576, 577 (472 S.E.2d 122) (1996). [HN4] Because Hembree failed to show that either of these issues was raised and argued below, they cannot be raised now for the first time. Auerbach v. First Nat. Bank of Atlanta, 147 Ga. App. 288, 290 (1) (B) (248 S.E.2d 551) (1978).

3. Notwithstanding Hembree’s argument to the contrary, we find no violation of public policy in the exculpatory clause at issue. [HN5] A contracting party may waive or renounce that which the law has established in his favor, provided doing so does not injure others or affect the public interest. O.C.G.A. § 1-3-7. It is well settled that public policy does not prohibit the inclusion of an exculpatory clause, like the one at issue here, in a health club membership. Day v. Fantastic Fitness, 190 Ga. App. 46 (1) (378 S.E.2d 166) (1989); My Fair Lady of Ga. v. Harris, 185 Ga. App. 459 (364 S.E.2d 580) (1987); Lovelace, 179 Ga. [*682] App. at 52 (1).

Judgment [***5] affirmed. Pope, P. J., and Johnson, J., concur.

WordPress Tags: Hembree,Johnson,LEXIS,Fulton,COURT,APPEALS,GEORGIA,February,PRIOR,HISTORY,Slip,Douglas,Superior,Judge,James,DISPOSITION,Judgment,COUNSEL,Akin,Tate,Lester,appellant,Chambers,Mabry,McClelland,Brooks,Smith,Rapaport,JUDGES,Harold,Banke,Pope,OPINION,Terrell,Gordon,Haddle,Douglasville,Health,Athletic,Club,knee,injury,membership,agreement,Melissa,husband,member,accordance,Rules,Conditions,facilities,owner,agents,employees,Several,Addendum,Held,contention,existence,fact,waiver,construction,Binswanger,Glass,Beers,Constr,situation,reference,Incorporation,purpose,Conklin,Mutual,Lovelace,Figure,Salon,absence,errors,violation,Fair,Practices,assertion,corporation,Although,argument,transcript,error,North,Purina,Mills,Auerbach,Bank,Atlanta,policy,clause,inclusion,Fantastic,Lady,Harris,exculpatory


Albert v. Ober Gatlinburg, Inc., 2006 U.S. Dist. LEXIS 100150

Albert v. Ober Gatlinburg, Inc., 2006 U.S. Dist. LEXIS 100150

Jaren Albert, a minor bn/f Jarrod Albert, and Jarrod Albert, individually, Plaintiffs, v. Ober Gatlinburg, Inc., and Smoky Mountain Snow SPORT School, Inc., Defendants.

No. 3:02-CV-277

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

2006 U.S. Dist. LEXIS 100150

January 25, 2006, Filed

SUBSEQUENT HISTORY: Motion granted by, Summary judgment denied by, Motion denied by Albert v. Ober Gatlinburg, Inc., 2006 U.S. Dist. LEXIS 17456 (E.D. Tenn., Apr. 6, 2006)

CORE TERMS: snow, ski, skiing, slope, lesson, skier, summary judgment, passenger, beginner, skied, sport, mountain, downhill, terrain, ski area, trail, teach, alpine, ski resort, expert witness, matter of law, moving party, minor child, non-moving, hazardous, warning, use reasonable care, daughter’s, resort, opined

COUNSEL: [*1] For Jarrod Albert, Individually, Jarrod Albert, next friend, Jaren – Albert, Jaren. Albert, Plaintiffs: Gerald L Gulley, Jr, LEAD ATTORNEY, Gulley Oldham, PLLC, Knoxville, TN; W. Richard Baker, Jr, LEAD ATTORNEY, Law Office of W. Richard Baker, Jr, Knoxville, TN.

For Ober Gatlinburg Inc, Defendant: John T Buckingham, Richard W Krieg, LEAD ATTORNEYS, Lewis, King, Krieg & Waldrop, P.C. (Knox), Knoxville, TN; Paul R Leitner, LEAD ATTORNEY, Leitner Williams Dooley Napolitan, PLLC (Chattanooga), Chattanooga, TN; Tonya R Willis, LEAD ATTORNEY, Linda G. Welch & Associates, Knoxville, TN.

For Smoky Mountain Snow Sport School, Inc., Defendant: Michael J King, W Kyle Carpenter, LEAD ATTORNEYS, Robert L Vance, Woolf, McClane, Bright, Allen & Carpenter, PLLC, Knoxville, TN.

For State of Tennessee, Intervenor: Paul G Summers, LEAD ATTORNEY, Waller, Lansden, Dortch & Davis, PLLC (Nashville), Nashville, TN.

JUDGES: Thomas W. Phillips, United States District Judge.

OPINION BY: Thomas W. Phillips

OPINION

MEMORANDUM AND ORDER

This is a civil action for personal injuries sustained by Jaren Albert while skiing at Ober Gatlinburg’s resort on December 27, 2001. Pending before the court are the following motions: (1) defendant Ober Gatlinburg’s [*2] motion for summary judgment [Doc. 55]; (2) defendant Smoky Mountain Snow Sport School’s motion for summary judgment [Doc. 58]; and (3) plaintiffs’ motion for oral argument on the pending motions for summary judgment [Doc. 74].

The parties have filed extensive briefs pertaining to the motions for summary judgment in which they have fully briefed all of the issues and submitted record evidence in support of the parties’ positions. The court has reviewed the briefs and evidence submitted, and does not feel that oral argument is necessary. Therefore, plaintiffs’ motion for oral argument [Doc. 74] is DENIED. For the reasons stated below, Ober Gatlinburg’s motion for summary judgment will be granted in part and denied in part; and Smoky Mountain’s motion for summary judgment will be granted in part and denied in part.

I. Background

On December 27, 2001, 15-year old Jaren Albert went to Ober Gatlinburg ski resort for the purpose of Alpine or downhill skiing. The previous day, Albert had received instructions in skiing from defendant Smoky Mountain Snow Sport School (Snow School). While skiing at the Ober Gatlinburg resort, Albert suffered injuries to her face and left eye as a result of a fall [*3] on the ski slope. Albert contends that her injuries resulted from defendants’ negligence in permitting skiing on a slope that was unreasonably icy and extra hazardous, and because she received inadequate instruction in skiing from the Snow School. Plaintiff Jarrod Albert has brought this action individually, and on behalf of his daughter Jaren Albert, against defendants alleging negligence which proximately caused personal injury to his daughter.

II. Standard of Review

Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment will be granted by the court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. The court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Morris to Crete Carrier Corp., 105 F.3d 279, 280-81 (6th Cir. 1987); White v. Turfway Park Racing Ass’n, Inc., 909 F.2d 941, 943 (6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). [*4] Once the moving party presents evidence sufficient to support a motion under Rule 56, Federal Rules of Civil Procedure, the non-moving party is not entitled to a trial simply on the basis of allegations. The non-moving party is required to come forward with some significant probative evidence which makes it necessary to resolve the factual dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); White, 909 F.2d at 943-44. The moving party is entitled to summary judgment if the non-moving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof. Celotex, 477 U.S. at 323; Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996).

III. Analysis

A. Ober Gatlinburg

Defendant Ober Gatlinburg moves for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure. In support of the motion, Ober asserts that (1) Jaren Albert was guilty of negligence as a matter of law which bars recovery for her injuries; (2) Jaren’s claim is barred by the Tennessee Ski Area Safety and Liability Act (SASLA), T.C.A. § 68-114-101; and (3) Ober is not guilty of any negligence which proximately caused or contributed to Jaren’s accident and [*5] injuries. Ober has also moved for summary judgment as to the claims of Jarrod Albert, stating that (1) his claims are solely derivative of the claims of Jaren Albert and that failure of her claims precludes any recovery by Jarrod Albert; and (2) that Jarrod Albert signed a valid release agreement contractually preventing him from bringing a claim against the ski operator.

First, Ober Gatlinburg asserts that Jaren Albert’s negligence bars any recovery against the ski resort as a matter of law. In support of its assertion, Ober Gatlinburg states that Ms. Albert, an inexperienced, beginning skier with limited skiing experience, chose to ski on a slope that she knew was designated for “advanced” skiers. That act of negligence on her part was the sole cause of her fall and her injury. Therefore, her negligence bars recovery against Ober Gatlinburg on any of her claims as a matter of law.

Second, Ober Gatlinburg contends the Ski Area Safety & Liability Act (SASLA), T.C.A. § 68-114-101, governs downhill snow skiing and sets a liability standard different from normal tort liability. Specific duties, responsibilities, and defenses are statutorily created by the SASLA for the sport of downhill [*6] skiing. Ober Gatlinburg asserts that the SASLA precludes ski area liability based on risks inherent in the sport of Alpine or downhill skiing. The SASLA provides:

It is hereby recognized that Alpine or downhill skiing is a recreational sport and the use of passenger tramways associated therewith may be hazardous to skiers or passengers, regardless of all feasible safety measures which can be taken. Therefore, each skier and each passenger has the sole responsibility for knowing the range of such skier’s or passenger’s own ability to negotiate any alpine, ski trail or associated passenger tramway, and it is the duty of each skier and passenger to conduct such skier or passenger within the limits of such skier’s or passenger’s own ability, to maintain control of such skier’s or passenger’s speed and course at all times while skiing, to heed all posted warnings and to refrain from acting in a manner which may cause or contribute to the injury of such skier or passenger or others. Except as otherwise specifically provided in this chapter, each skier or passenger is deemed to have assumed the risk of and legal responsibility for any injury to such skier’s or passenger’s person or property [*7] arising out of such skier’s or passenger’s participation in Alpine or downhill skiing or the use of any passenger tramways associated therewith. The responsibility for collisions by any skier while actually skiing, with any person or object, shall be solely that of the skier or skiers involved in such collision and not that of the ski area operator.

T.C.A. § 68-114-103.

Ober Gatlinburg asserts Ms. Albert was an inexperienced skier, yet she skied on a slope which she knew was designated as “most difficult” and rated as a “black diamond” slope; and she ignored the posted signs warning her that the slope she was preparing to ski on was not suited to her ability. Despite that knowledge, Ms. Albert skied down Mogul Ridge and suffered a fall. Defendant states that Ms. Albert was not skiing within the limits of her ability and she apparently failed to maintain control of her speed and course, resulting in her fall and injury. Having failed to meet her responsibility under the SASLA of skiing within her ability and maintaining control of her skiing, she is barred by the SASLA from recovering from defendant for her injuries.

Further, defendant states that the SASLA provides that each skier is “deemed [*8] to have assumed the risk of and legal responsibility for any injury to such skier’s … person or property arising out of such skier’s . . . participation in Alpine or downhill skiing. T.C.A. § 68-114-103. Ms. Albert chose to participate in downhill skiing on the slopes at Ober Gatlinburg, so under the SASLA, she is deemed to have assumed the risk of and liability for the injuries she suffered on December 27, 2001.

In support of its motion, Ober Gatlinburg has submitted the affidavit of Thomas Diriwaechter. Mr. Diriwaechter is a certified ski instructor, and has been the Director of Skiing at Ober Gatlinburg since 1998. Mr. Diriwaechter’s affidavit states that he is familiar with the SASLA and its requirements. On the day at issue, Mr. Diriwaechter states that all open slopes at Ober Gatlinburg were appropriate for skiing. The open slopes included Mogul Ridge, Upper Bear Run, Castle Run, Cub Way and the Ski School area. More specifically, Dr. Diriwaechter states that the slope where Jaren Albert fell was appropriate for skiing at the time of her fall. He further states that all slopes at Ober Gatlinburg were properly classified pursuant to state law and U.S. industry standards on December [*9] 27, 2001. It is Mr. Diriwaechter’s opinion that at the time of Jaren Albert’s fall, she was an inexperienced skier attempting to ski on a slope that was beyond the limits of her ability which resulted in her falling and sustaining injuries. He also opines that Ober Gatlinburg did nothing in any way to cause or contribute to Ms. Albert’s fall and resulting injuries.

Plaintiffs have responded in opposition, asserting that Ober Gatlinburg failed to use reasonable care in deciding to open the ski resort on the day of the accident, failed to close some slopes or warn of ultra hazardous conditions on the slope on which this accident occurred, and failed to designate the slope on which the accident occurred as ultra hazardous, ice-covered, and/or “black diamond,” thus breaching its duty to operate in conformity with the SASLA. In support of their response, plaintiffs have submitted the affidavit of James Isham, an expert in the field of snow sports safety and professional ski instruction.

Mr. Isham opines that Jaren hit an icy/muddy section of the ski run which was unmarked, lost control, fell and was injured. Based upon the parties’ deposition testimony, Mr. Isham states that the surface conditions [*10] on the trails indicated considerable variation. The snow on Cub Way and lower Castle Run was soft, groomed, packed powder texture. The snow surface on Mogul Ridge was icy, with patchy cover and lumpy/chunky earlier in the day. As the day wore on and more skiers skied the upper slopes, the surface became more thinly covered and would be reasonably deemed to be in extra-hazardous condition. When slope conditions change from marginal to extra-hazardous in nature, Mr. Isham states it becomes the obligation and duty of the ski operator to post warnings at the top of each trail notifying skiers that the slopes have changed and that they demand extra caution and attention. Such warnings should have also been posted at the slope condition board at the base of the mountain to provide additional information to skiers. Mr. Isham concludes that Ober Gatlinburg failed to use reasonable care by failing to comply with the SASLA to warn Jaren Albert of the changing conditions on the slopes, which contributed to her fall and injuries.

Jaren and her father each testified that they received skiing instructions in the following areas: snow plow, and side to side. Jaren was able to negotiate the trails [*11] by making “S” turns side-to-side down the slope. When she wanted to stop, she attempted to do so by sitting down. After the lesson, Jaren skied ten runs on Cub Way (the easiest trail). The following day, Jaren testified she skied Cub Way for approximately one hour and then moved on to Bear Run, an advanced slope. She skied both Bear Run and Cub Way many times, and made several runs on Castle Run (an intermediate trial). Just prior to lunch, Jaren skied down Mogul Ridge (the most difficult trail). Following lunch, Jaren skied the slopes for approximately two hours. During this time, she skied Bear Run, Cub Way, and Mogul Ridge, falling one or two times. Jaren testified that she was able to ski Bear Run, an advanced slope, without difficulty. She also skied Mogul Ridge, an expert slope, within her ability. Jaren testified that she did not lose control while skiing, until her accident occurred on the upper portion of Castle Run approximately 30 yards below Mogul Ridge.

Trevor Duhon provided a written statement of his eyewitness account of Jaren’s fall. He indicated that she fell on upper Castle Run. “She was coming down, she slipped and started sliding on her butt, she tried to stop sideways, [*12] she started going head over heels for about 10 feet, then her ski came off, hit her in the head, and she was out.”

The SASLA was enacted by the Tennessee legislature to define the responsibility of skiers and ski area operators, including assigning the responsibility for the inherent dangers of skiing. 1978 Tenn. Pub. Acts, Chapter 701. While the provisions at issue in the present case concern the protections for operators against liability claims, the SASLA also contains a number of provisions concerning signage and other duties of ski area operators. The intent behind the liability provisions of the Act is to protect ski area operators from lawsuits for falls and collisions in circumstances that cannot be made risk free given the inherent dangerousness of skiing. Id. However, the Tennessee Court of Appeals has read the statute narrowly and held that it does not protect operators from their own negligence nor provide them with blanket immunity. Terry v. Ober Gatlinburg, 1998 Tenn. App. LEXIS 76, 1998 WL 54700 (Tenn.App. 1998) 1998 Tenn. LEXIS 426 (perm.app.denied July 13, 1998).

Plaintiffs state that Ober Gatlinburg owed a duty of reasonable care under the circumstances, in addition to their statutory duties, not to expose a skier [*13] to risks at the resort which were not an inherent risk of skiing. Plaintiff’s expert witness, Mr. Isham testified that the slope on which Jaren fell had become extra-hazardous and that Ober Gatlinburg failed to use reasonable care by failing to comply with the SASLA to warn skiers of the changing conditions on the slopes. On the other hand, Ober’s expert witness, Mr. Diriwaechter, testified that all open slopes at Ober Gatlinburg were appropriate for skiing. In particular, Mr. Diriwaechter testified that the slope where Jaren fell was appropriate for skiing at the time of her fall. Mr. Diriwaechter opined that Jaren’s fall and injuries resulted from her attempting to ski a slope that was beyond the limits of her ability. Jaren Albert testified that she was able to ski the slopes within her ability and had done so the previous day and for several hours prior to her accident. It is clear to the court that there exists questions of fact which preclude summary judgment. Whether Ober Gatlinburg failed to exercise reasonable care when it opened the ski resort to the public on December 27, 2001; whether the conditions encountered by Jaren Albert that day were an inherent risk of skiing; and [*14] whether Jaren Albert attempted to ski a slope beyond the limits of her ability, are all questions of fact to be resolved by the jury. Because there are disputed issues of material fact as to whether Jaren’s accident was the result of an inherent risk of skiing or the result of Ober Gatlinburg’s negligence, defendant’s motion for summary judgment will be denied.

B. Release Signed by Jarrod Albert

Finally, Ober Gatlinburg asserts that the claims of Jarrod Albert are barred by the release he signed on behalf of himself and his minor daughter, Jaren. The release at issue stated as follows:

I HAVE READ THE AGREEMENT (SECTION 1) ON THE BACK OF THIS FORM RELEASING THE RESORT AREA FROM LIABILITY. I VOLUNTARILY AGREE TO THE TERMS OF THAT AGREEMENT.

User’s signature: /s/ Jaren Albert Date: 12-27-01

If user is a minor, parent must read the following and sign below.

I understand and accept full responsibility for the use of this ski equipment to my minor child and hereby release, indemnify, and hold harmless the provider of this ski equipment and the area operator for any claims brought by my minor child as a result of any injuries or damages sustained while engaging in the activity of snow skiing.

Parent’s [*15] signature: /s/ Jarrod Albert Date: 12-27-01

Ober Gatlinburg argues that by signing the release, Jarrod Albert, individually, accepted the responsibility to release, indemnify and hold harmless the ski resort for claims brought by his minor child as a result of any injuries or damages she might sustain while engaged in the activity of snow skiing. Thus, defendant argues that Mr. Albert should be precluded from recovering for the damages he sustained in his individual capacity because of his daughter’s fall at the ski resort.

Plaintiffs respond that material fact questions exist as to whether Ober Gatlinburg misrepresented the conditions which existed on the slopes on the day Jaren was injured. Plaintiffs contend that Ober Gatlinburg made material misstatements of fact when it represented to the public that it had created a snow base of 30 to 45 inches, and that a jury could conclude that this material misrepresentation of fact constitutes fraud which would render the release void.

This court has previously found the release void as to Jaren Albert because it is well settled in Tennessee that a guardian may not waive the rights of an infant or an incompetent. However, the Tennessee courts [*16] have held that a parent signing a release like the one at issue here, is precluded from recovering for the loss of services and medical expenses resulting from the child’s injury. See Childress v. Madison County, 777 S.W.2d 1 (Tenn.App. 1989); Rogers v. Donelson-Hermitage Chamber of Commerce, 807 S.W.2d 242 (Tenn.App. 1991). This rule is subject to exception: Exculpatory clauses purporting to contract against liability for intentional conduct, recklessness or gross negligence are unenforceable. See Childress, 777 S.W.2d at 5; Adams v. Roark, 686 S.W.2d 73 (Tenn. 1985). Plaintiffs’ complaint has not alleged intentional, reckless or grossly negligent conduct, their claims are couched in terms of simple negligence. The release in this case is clear and unambiguous. Jarrod Albert acknowledged that Jaren would be participating in snow skiing at his own risk. He further agreed to indemnity defendants “for any claims brought by my minor child as a result of any injuries or damages sustained while engaging in the activity of snow skiing.” Therefore, the release is valid with respect to Jarrod Albert’s right to recover for loss of services and medical expenses for his child. Accordingly, summary [*17] judgment will be granted to Ober Gatlinburg on the claims of Jarrod Albert.

C. Smoky Mountain Snow Sport School

The Snow School asserts that it is entitled to summary judgment on plaintiffs’ claims because (1) the Snow School did not owe a duty to plaintiffs at the time of Jaren’s accident; and (2) the undisputed facts show that no acts or omissions of the Snow School caused plaintiffs’ alleged injuries.

In support of its motion, the Snow School submits the affidavit of Jim Cottrell. Mr. Cottrell has been the Ski School Director for the French-Swiss Ski College at Blowing Rock, North Carolina for the past 36 years. Mr. Cottrell stated that the responsibility of a ski school is to provide coaching or ski instruction to students for a designated period of time, beginning from the time the students meet at the ski school area until they are released at the end of the lesson. Instructors at ski schools have no control over or responsibility for choices that students make after a lesson is concluded. He further stated that the goal of a beginner lesson is to help students learn the basic skills needed to ski beginner terrain. A beginner lesson should include instruction in the following areas: [*18] equipment orientation, getting up, basic ski posture (position), walking on flat terrain, walking up slight inclines, sliding, wedging, turning around on an incline, direction change, turning on beginner terrain, use of a lift, and safety. In his opinion, the beginner lesson plan developed by the Snow School included those elements. He further stated that a beginner lesson is not designed to teach the most advanced skills needed to ski advanced terrain or all types of snow conditions. He opined that the Snow School had no responsibility to plaintiffs at the time of the accident because the Snow School’s responsibility ended when the lesson ended; the Snow School did not have a responsibility to teach plaintiffs how to ski on advanced slopes during their beginner lesson; and the Snow School did not have a responsibility to teach the plaintiffs how to ski on all snow conditions. The Snow School had a responsibility only to teach plaintiffs in the context of the conditions present at the time and place of the lesson.

The Snow School asserts it did not owe a duty to Jaren Albert at the time of her accident because its responsibility to her ended when plaintiffs’ ski lesson ended on December [*19] 26. Moreover, the Snow School did not have a responsibility to teach Jaren how to ski on the snow conditions present on the advanced slope where the accident occurred. The Snow School asserts it had no control over or responsibility for the choices that Jaren made after her lesson had concluded. Further, the Snow School did not have a duty to teach Jaren how to ski on advanced terrain during her beginner lesson. Finally, the Snow School asserts that no causal connection exists between the ski lesson taught by the school and Jaren’s accident. Beginner lessons are not designed to teach students the advanced skills needed to ski on advanced terrain; therefore, not even a “perfect” beginner lesson would have prevented Jaren’s accident which took place on advanced terrain.

In response, plaintiffs state that material factual issues exist as to whether the Snow School actually provided the ski lesson contracted for and whether such deficient ski lesson was a proximate cause of plaintiffs’ injuries. Jaren and Jarrod Albert testified that only a 5-10 minute lesson was provided and that the only elements covered included the snow plow and side-to-side.

Plaintiffs’ expert witness, James Isham reviewed [*20] the lesson plan outline provided by the Snow School and stated that if all the things outlined were taught, the lesson would take more than an hour for students to learn. The Alberts stated that the lesson took less than ten minutes. Mr. Isham states that there appears to have been no substantial information given to the Alberts regarding: (1) the conditions of the mountain; (2) where they could safely ski; (3) how to match each skiers’ ability with the slope of choice; (4) how to effectively execute a stop while skiing, and (5) the “Skiers Responsibility Code.” In his opinion, the lesson time and content were limited and failed to cover any safety issues, signage or slope difficulty information. Mr. Isham opined that the Snow School failed in its duties to give a complete lesson to the Alberts on the night of December 26. He testified that the lack of teaching the Skiers Responsibility Code, trail signage, and successful methods for stopping, all fell below minimum standards and were proximate contributing causes to plaintiffs’ injuries. Mr. Isham further opined that the Snow School failed to use reasonable care by not giving adequate information in the lesson.

The expert witnesses [*21] for the respective parties in this case disagree on whether the Snow School provided the Alberts with an adequate lesson in beginner skiing on December 26. Defendant’s expert witness, Mr. Cottrell, stated that the goal of a beginner lesson is to help students learn the basic skills needed to ski beginner terrain, and in his opinion, the Snow School’s lesson plan was adequate to meet that goal. In contrast, plaintiff’s expert witness, Mr. Isham, after reviewing the same lesson plan, stated that if all the things outlined were taught, the lesson would take more than an hour. The Alberts testified that the lesson lasted no more than 5-10 minutes, and that the only elements covered included the snow plow and side-to-side. Mr. Isham further testified that, in his opinion, an adequate beginner ski lesson should include information regarding the conditions on the mountain, where the Alberts could safely ski, how to match their ability with the slope of choice, how to effectively execute a stop while skiing, and the Skiers’ Responsibility Code.

There exists material issues of fact as to whether the Snow School did in fact give an adequate lesson to the Alberts on December 26. Because factual [*22] questions exist concerning the adequacy of the ski lesson taught by the Snow School and whether that lack of instruction was a proximate cause of Jaren’s fall and injuries, a jury must determine the facts in dispute, and summary judgment is not appropriate. Accordingly, Smoky Mountain Snow Sport School’s motion for summary judgment as to the claims of Jaren Albert will be denied.

The Snow School adopted Ober Gatlinburg’s motion for summary judgment as to the claims of Jarrod Albert. For the reasons stated above, the court finds that the release signed by Jarrod Albert waives his right to recover for the loss of services and medical expenses for his child. Accordingly, Smoky Mountain Snow Sport School’s motion for summary judgment as to the claims of Jarrod Albert will be granted.

Conclusion

For the reasons stated above, defendant Ober Gatlinburg’s motion for summary judgment [Doc. 55] is GRANTED IN PART AND DENIED IN PART; the motion is DENIED as to the claims of Jaren Albert and GRANTED as to the claim of Jarrod Albert. Likewise, defendant Snow School’s motion for summary judgment [Doc. 58] is GRANTED IN PART AND DENIED IN PART; the motion is DENIED as to the claims of Jaren Albert and [*23] GRANTED as to the claim of Jarrod Albert. Plaintiffs’ motion for oral argument [Doc. 74] is DENIED. The parties will prepare the case for trial.

IT IS SO ORDERED.

/s/ Thomas W. Phillips

United States District Judge

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Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)

Nageotte v. Boston Mills Brandywine Ski Resort, et al., 2012 Ohio 6102; 2012 Ohio App. LEXIS 5266 (Ohio App 2012)

Megan Nageotte, Appellee v. Boston Mills Brandywine Ski Resort, et al., Appellants

C.A. No. 26563

COURT OF APPEALS OF OHIO, NINTH JUDICIAL DISTRICT, SUMMIT COUNTY

2012 Ohio 6102; 2012 Ohio App. LEXIS 5266

December 26, 2012, Decided

SUBSEQUENT HISTORY: Discretionary appeal not allowed by Nageotte v. Boston Mills Brandywine Ski Resort, 2013–Ohio–1622, 2013 Ohio LEXIS 1085 (Ohio, Apr. 24, 2013)

PRIOR HISTORY: [**1]

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO. CASE No. CV 2012 01 0175.

DISPOSITION: Judgment affirmed.

COUNSEL: JEFREY M. ELZEER, Attorney at Law, for Appellants.

MARK J. OBRAL and THOMAS J. SILK, Attorneys at Law, for Appellee.

JUDGES: EVE V. BELFANCE, Judge. MOORE, P. J. DICKINSON, J. CONCUR.

OPINION BY: EVE V. BELFANCE

OPINION

DECISION AND JOURNAL ENTRY

BELFANCE, Judge.

[*P1] Defendants-Appellants Brandywine Ski Resort, Inc. (“Brandywine”) and Raymond Conde appeal from the order of the Summit County Court of Common Pleas which directed Brandywine and Mr. Conde to produce the witness statements of Mr. Conde. For the reasons set forth below, we affirm.

I.

[*P2] On January 15, 2010, Plaintiff-Appellee Megan Nageotte went to Brandywine to go skiing. As she was “utilizing a tramway tow-rope, attempting to disembark, * * * her hand was caused to be pulled into the tramway tow-rope wheel [(bullwheel),] lifting her off of the ground and propelling her around the entire length of the tow-rope wheel, * * * causing serious and lasting personal injuries * * * .” On January 10, 2012, Ms. Nageotte filed a multi-count complaint against Boston Mills Brandywine Ski Resort, Brandywine Ski Resort, Boston Mills Ski Resort, Boston [**2] Mills Ski Resort, Inc., Mr. Conde, in his capacity as an employee, John Doe employees 1-5, John Doe individuals 1-5, and John Doe entities 1-5, which included several counts alleging negligence of the Defendants. Subsequently, Ms. Nageotte sought leave to file an amended complaint, which was unopposed, to consolidate the ski-resort defendants to a single defendant: Brandywine Ski Resort, Inc. Her motion was ultimately granted.

[*P3] The matter proceeded to discovery, at which point the Defendants refused to produce witness statements of Mr. Conde, asserting both attorney-client privilege and the work-product doctrine. Ms. Nageotte filed a motion to compel and/or request for an in-camera inspection and extensive briefing by both sides followed. No hearing was held on the issue. The trial court concluded that neither the work-product doctrine nor the attorney-client privilege applied and granted the motion to compel.

[*P4] Brandywine and Mr. Conde have appealed the trial court’s ruling with respect to the issue of attorney-client privilege but not the application of the work-product doctrine. Ms. Nageotte filed a motion to dismiss this appeal, asserting that this Court lacked jurisdiction; however, [**3] we subsequently denied her motion and see no reason to revisit that ruling.

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN GRANTING PLAINTIFF-APPELLEE’S MOTION TO COMPEL THE PRODUCTION OF STATEMENTS OF DEFENDANT-APPELLANT, RAYMOND CONDE, AS THE ATTORNEY-CLIENT PRIVILEGE PROTECTS THE DISCLOSURE OF THESE STATEMENTS.

[*P5] Brandywine and Mr. Conde assert in their sole assignment of error that the trial court erred in concluding that the attorney-client privilege did not apply to protect disclosure of Mr. Conde’s witness statements. Because we conclude that the trial court did not err in determining that Brandywine and Mr. Conde failed to meet their burden, we affirm its ruling.

[*P6] [HN1] “Although, generally, discovery orders are reviewed under an abuse-of-discretion standard, the Supreme Court of Ohio has concluded that the issue of whether the information sought is confidential and privileged from disclosure is a question of law that should be reviewed de novo.” Ward v. Summa Health Sys., 184 Ohio App.3d 254, 2009-Ohio-4859, ¶ 11, 920 N.E.2d 421 (9th Dist.). [HN2] “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action * * * .” Civ.R. 26(B)(1).

[*P7] [**4] [HN3] “In Ohio, the attorney-client privilege is governed by statute, R.C. 2317.02(A), and in cases that are not addressed in R.C. 2317.02(A), by common law.” (Internal quotations and citations omitted.) State ex. rel. Toledo Blade Co. v. Toledo-Lucas Cty. Port. Auth., 121 Ohio St.3d 537, 2009-Ohio-1767, ¶ 24, 905 N.E.2d 1221.

R.C. 2317.02(A), by its very terms, is a mere testimonial privilege precluding an attorney from testifying about confidential communications. The common-law attorney-client privilege, however, reaches far beyond a proscription against testimonial speech. The privilege protects against any dissemination of information obtained in the confidential relationship.

(Internal quotations and citations omitted.) Id.

[*P8] Thus, as Ms. Nageotte seeks discovery of Mr. Conde’s witness statements, the question is whether the common-law attorney-client privilege applies. [HN4] “[T]he party seeking protection under the privilege carries the burden of establishing the existence of that privilege.” Perfection Corp. v. Travelers Cas. & Sur., 153 Ohio App.3d 28, 2003 Ohio 3358, ¶ 12, 790 N.E.2d 817 (8th Dist.); see also Grace v. Mastruserio, 182 Ohio App.3d 243, 2007-Ohio-3942, ¶ 19, 912 N.E.2d 608 (1st Dist.), citing Lemley v. Kaiser, 6 Ohio St.3d 258, 263-264, 6 Ohio B. 324, 452 N.E.2d 1304 (1983). [**5] At issue in this case is whether appellants met their burden to establish the existence of the privilege.

[HN5] The common-law attorney-client privilege applies (1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection is waived.

(Internal quotations and citations omitted.) Grace at ¶ 19; Perfection Corp. at ¶ 12.

[*P9] Ms. Nageotte sought the witness statements of Mr. Conde because Mr. Conde was working at the top of the slope where Ms. Nageotte was injured. Further, Ms. Nageotte believes that Mr. Conde failed to press an emergency stop button or otherwise prevent Ms. Nageotte’s injuries. Brandywine and Mr. Conde assert that Mr. Conde’s witness statements are protected by the attorney-client privilege because the statements were at some point provided to Brandywine’s and Mr. Conde’s attorney. Brandywine and Mr. Conde submitted the affidavit of their attorney, who averred that he is the attorney representing the defendant in the [**6] action and that Brandywine and its liability insurer provided him with Mr. Conde’s witness statements “for the purpose of defending this action.” In addition, Brandywine and Mr. Conde relied on portions of the deposition of Michael March, who is the supervisor of the lifts at Brandywine Ski Resort. A large portion of Mr. March’s deposition was filed in this case, including some portions filed with Ms. Nageotte’s motion to compel.

[*P10] Mr. March testified that: (1) the ski patrol, an all-volunteer organization, typically obtains witness statements; (2) Mr. March typically reviews those witness statements; (3) the witness statements are obtained and preserved as a part of Brandywine’s insurance program; (4) the statements are turned over to the insurance carrier if there is a claim made; and (5) the witness statements are turned over to counsel if necessary to defend against any litigation. Mr. March agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim.

[*P11] [HN6] “In order for a document to constitute a privileged [**7] communication, it is essential that it be brought into being primarily as a communication to the attorney.” (Emphasis added.) In re Klemann, 132 Ohio St. 187, 192, 5 N.E.2d 492 (1936). “A document of the client existing before it was communicated to the attorney is not within the present privilege so as to be exempt from production. But a document which has come into existence as a communication to the attorney, being itself a communication, is within the present privilege.” (Emphasis omitted.) (Internal quotations and citations omitted.) Id. See also In re Story, 159 Ohio St. 144, 147, 111 N.E.2d 385 (1953) (noting that, in some instances, reports and records, which according to custom are turned over and remain in possession of attorney, are privileged communications); In re Keough, 151 Ohio St. 307, 85 N.E.2d 550 (1949), paragraph two of the syllabus.

[*P12] In addition, [HN7] “[o]therwise discoverable information cannot be made privileged by merely turning it over to an attorney.” Harpster v. Advanced Elastomer Sys., L.P., 9th Dist. No. 22684, 2005-Ohio-6919, ¶ 14. There is evidence in the record that indicates the statements at issue were not brought into being primarily as a communication to the parties’ attorney and that the document [**8] existed before it was communicated to the attorney and was not prepared at the direction of the attorney. See id. Shortly after the incident, Mr. March began to take witness statements. He agreed during his deposition that part of his job was to take witness statements to understand what happened and that Brandywine would want to understand what happened when someone was injured irrespective of whether the person filed a claim. Moreover, he agreed that, at the time the witness statements were made, he did not know a claim or lawsuit was coming. Further, it is unclear when the statements were handed over to the insurance company and the attorney.

[*P13] Moreover, we cannot say that the trial court erred in concluding that Brandywine failed to meet its burden. It is not clear whether the witness statements at issue were in fact confidential. See Grace, 182 Ohio App.3d 243, 2007-Ohio-3942, at ¶ 19, 912 N.E.2d 608. It is not evident from the materials provided what the circumstances were under which Mr. Conde’s witness statements were taken, how many witness statements were taken, or who in fact took the statements.1 For instance, it is unclear whether Mr. Conde gave his statement with just Mr. March present [**9] or in the presence of other people. Thus, the trial court was not presented with evidence that the witness statements at issue were confidential. If the statements were not confidential, the attorney-client privilege would not apply. See Grace at ¶ 19; Perfection Corp., 153 Ohio App.3d 28, 2003-Ohio-3358, at ¶ 12.

1 Mr. March’s deposition seems to indicate that he took at least one of Mr. Conde’s witness statements; however, Mr. March’s testimony also evidences that ski patrol is typically responsible for taking witness statements.

[*P14] Accordingly, we conclude the trial court did not err in concluding that the witness statements were not protected from discovery by the attorney-client privilege in light of the evidence presented by Brandywine and Mr. Conde. Brandywine’s and Mr. Conde’s assignment of error is overruled.

III.

[*P15] In light of the foregoing, the judgment of the Summit County Court of Common Pleas is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall [**10] constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellants.

EVE V. BELFANCE

FOR THE COURT

MOORE, P. J.

DICKINSON, J.

CONCUR.

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Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

Fisher v. Sierra Summit, Inc. et al., 2011 Cal. App. Unpub. LEXIS 185

John G. Fisher, Plaintiff and Appellant, v. Sierra Summit, Inc. et al., Defendants and Respondents.

F058735

COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT

2011 Cal. App. Unpub. LEXIS 185

January 11, 2011, Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE 8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(b). THIS OPINION HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE 8.1115.

PRIOR HISTORY: [*1]

APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 08CECG00198. Donald S. Black, Judge.

CORE TERMS: ski, patrollers, summary judgment, skiing, user, hole, rented, slope, emergency, snow-sliding, negligently, ambiguous, patrol, bad faith, bleachers, triable, skied, scene, crash, skier, snow, grossly negligent, triable issue, gross negligence, public policy, groomed, manufacturers, distributors, customer, arms

COUNSEL: Lang, Richert & Patch, Robert L. Patch II, David T. Richards, and Ana de Alba for Plaintiff and Appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Steven R. Parminter, and Kathleen M. Bragg for Defendants and Respondents.

JUDGES: Wiseman, Acting P.J.; Kane, J., Poochigian, J. concurred.

OPINION BY: Wiseman

OPINION

Plaintiff John G. Fisher was severely injured when he crashed while skiing at the Sierra Summit ski resort. He sued defendants Sierra Summit, Inc., and Snow Summit Ski Corporation, contending he crashed because he skied into a hole in the snow that was present because of their negligence. He also claimed that ski patrol personnel at Sierra Summit contributed to his injuries by providing first aid negligently.

The trial court granted defendants’ motion for summary judgment. The court ruled that Fisher’s claim that he was injured by a dangerous condition negligently allowed to exist on the property was barred by a release he signed when he rented his skis, a release in which he expressly assumed the risk of being injured while skiing. It ruled that his claim of negligent first [*2] aid was barred by Health and Safety Code section 1799.102, 1 a Good Samaritan statute that immunizes from tort liability those who, at the scene of an emergency, render emergency care in good faith and not for compensation.

1 Subsequent statutory references are to the Health and Safety Code unless otherwise noted.

We affirm the judgment. We agree with the trial court’s conclusion that the risks Fisher expressly assumed when he signed the release included the risk of the accident he suffered. On the ski patrol issue, however, we will not reach the issue of whether section 1799.102 applies. This would require us to decide whether “for compensation” in that statute means for any compensation or for compensation specifically by the injured person–a question which, under the circumstances, it is unnecessary to decide. Instead, we hold that the claim of negligent first aid by the ski patrollers is barred by section 1799.108, which immunizes those certified to provide prehospital emergency field care treatment at the scene of an emergency except where their conduct is grossly negligent or not in good faith. There is no triable issue of fact regarding whether the ski patrollers were grossly [*3] negligent or acted in bad faith, so summary judgment on this claim properly was granted.

FACTUAL AND PROCEDURAL HISTORIES

Fisher filed his complaint on January 17, 2008. It alleged that on January 20, 2007, “while skiing at a safe speed and in-bounds [on] a properly marked ski slope, [Fisher] encountered a large hole in the snow which was not naturally occurring or obvious.” He crashed. When ski patrol personnel came to the scene, they allegedly failed to provide proper assistance. The accident resulted in Fisher’s quadriplegia. The complaint alleged three causes of action: (1) negligence in defendants’ maintenance of the property, resulting in the hole into which Fisher skied; (2) negligence in defendants’ provision of ski equipment to Fisher; and (3) negligence in defendants’ provision of first aid at the scene of the accident. Fisher voluntarily dismissed the second cause of action, pertaining to equipment, on March 19, 2009.

Defendants filed a motion for summary judgment. With it, they submitted a copy of a release Fisher signed when he rented his skis at the ski shop at Sierra Summit on the day of the accident. The document, a single sheet of 8-by-14-inch paper, printed in four columns [*4] going down the narrow axis of the paper, sets out two distinct agreements, with two separate places for the customer’s signature. The first agreement, occupying the first column, pertains exclusively to equipment. It reads:

“PLEASE READ CAREFULLY BEFORE SIGNING EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY DO NOT SIGN UNTIL YOU HAVE RECEIVED YOUR EQUIPMENT

“I understand how this ski (snowboard, skiboard) boot-binding system works and I have been fully instructed in its proper use. Any questions I have had about this equipment have been satisfactorily answered. I agree that the binding release/retention setting numbers appearing in the visual indicator windows on the binding correspond to those recorded on this form (Alpine only).

“I agree to have user check this equipment before each use, including the binding anti-friction device (Alpine only), and that I will not use this equipment or if I am not the user permit the user to use this equipment if any parts are worn, damaged, or missing. If I am not the user I will provide all of this information to the user.

“I understand that I may return at any time to have this equipment examined, replaced or repaired.

“X

“USER’S SIGNATURE

DATE”

Fisher’s [*5] signature appears on the line. The second column is filled with a box for the customer’s name, address, shoe size, and other information necessary for providing equipment. Fisher filled out this box.

The second agreement occupies the third and fourth columns. It refers to equipment as well, but also contains a more general release of liability. It reads:

“RELEASE OF LIABILITY “1) READ CONTRACT COMPLETELY, SIGN/INITIAL “2) PROCEED TO CASHIER, HAVE DRIVER’S LICENSE/I.D. READY.

“1. I will read the EQUIPMENT RENTAL AGREEMENT & RELEASE OF LIABILITY of this agreement, and will be responsible for obtaining all of the information required by that section and will provide a copy of same to the user of this agreement. I will make no misrepresentations to the ski shop regarding the user’s height, weight, and age or skier type.

“2. I understand that ALL FORMS OF SNOW-SLIDING, including skiing and snowboarding, are HAZARDOUS activities. I also understand that all forms of snow-sliding have inherent and other RISKS OF INJURY, INCLUDING DEATH, that reasonable care, caution, instruction and expertise cannot eliminate. I further understand that injuries are common and ordinary occurrences during these [*6] activities. I hereby agree to freely, voluntarily and expressly ASSUME and accept any and ALL RISKS of any injury to any part of the user’s body while engaging in any form of snow-sliding.

“(Please Initial )

“3. I understand that the Alpine ski equipment being furnished by Snow Summit, Inc., and/or by Sierra Summit, Inc., and/or by Bear Mountain, Inc., any of their respective agents, employees, or affiliated corporations (hereinafter collectively referred to as “Summit”), forms all or part of a ski-boot-binding system which will NOT RELEASE OR RETAIN AT ALL TIMES OR UNDER ALL CIRCUMSTANCES. I further agree and understand that any ski-boot-binding system does NOT ELIMINATE THE RISK of injuries to any part of the user’s body. If SkiBoard or Snowboard or any other equipment is being furnished, I understand that these systems are designed to NOT RELEASE and do NOT PROTECT against injuries to any part of this user’s body.

“(Please Initial )

“4. I hereby FOREVER RELEASE SUMMIT, as well as the equipment manufacturers and distributors from, and agree to indemnify them and hold them harmless for, any and all responsibility or legal liability for any injuries or damages to any user of any equipment [*7] rented with this form, whether or not such injuries or damages are caused by the NEGLIGENCE OF SUMMIT. I agree NOT to make a claim against or sue Summit, or any of the equipment manufacturers and distributors for injuries or damages relating to or arising from the use of chairlifts or surface tows, any snow-sliding activities and/or the use of this equipment. I accept full responsibility for any and all such injuries and damages.

“(Please Initial )

“5. Summit provides NO WARRANTIES, express or implied. This equipment is accepted “AS IS.” I will accept full responsibility for the care of the listed equipment. I agree to return all rented equipment by the agreed date to avoid additional charges.

“(Please Initial )

“6. I have read this agreement and understand its terms. I am aware that this is a binding contract which provides a comprehensive release of liability. However, it is not intended to assert any claims or defenses that are prohibited by law. I agree that the foregoing agreement is intended to be as broad and inclusive as is permitted by law and that if any portion or paragraph is held invalid, the balance shall continue in full legal force and effect.

“X

“USER’S SIGNATURE

DATE”

Fisher [*8] signed at the bottom and initialed in each place indicated.

Defendants argued that this release constituted Fisher’s express assumption of the risk of having the accident he had and that it formed the basis of a complete defense to all Fisher’s claims. Defendants argued that, apart from the release, all Fisher’s claims were also barred by the common-law doctrine of primary assumption of the risk, set out in Knight v. Jewett (1992) 3 Cal.4th 296 and its progeny. They further contended that Fisher could not produce evidence to support his claims that they were negligent in maintaining the property or providing first aid.

To support the contention that Fisher could not prove negligent maintenance of the property, defendants produced evidence that their personnel had inspected the area where Fisher crashed a number of times the day before and the day of the accident and did not find any condition requiring marking or correction. Defendants also pointed to Fisher’s deposition testimony, implying that he was not on a groomed ski run when he crashed: “And when I skied from one run to the next, I encountered a hole that seemed to be between the two runs.”

To support the contention that Fisher [*9] could not prove negligent first aid, defendants produced evidence that Fisher told the ski patrollers when they first arrived, and before he was moved, that he had no feeling in his feet or legs. He became agitated and combative and sat up and waved his arms; the ski patrollers told him he might injure himself more and should stop. Defendants argued that these facts showed Fisher had already become paralyzed in the crash and that his injuries could not have been caused by anything done by the ski patrollers. Defendants also argued that there was no evidence of any act or omission by the ski patrollers that would have caused additional injury to Fisher.

On the claim of negligent first aid alone, defendants also relied on section 1799.102. At the time, 2 that section provided:

“No person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.”

Defendants argued that their ski patrollers were immunized by this statute because they did not receive any compensation [*10] from Fisher. They acknowledged that no published California case has interpreted the phrase “not for compensation” in this statute; they relied on out-of-state cases applying other states’ similar statutes.

2 Section 1799.102 was amended effective August 6, 2009. (Stats. 2009, ch. 77, § 1.) The former version applies to this case.

Defendants additionally relied on section 1799.108, which provides:

“Any person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.”

Defendants presented evidence that all the ski patrollers involved had the certification required by this section. They argued that Fisher could present no evidence that the patrollers who assisted him acted in bad faith or with gross negligence.

In opposing the motion for summary judgment, Fisher argued that the release did not apply to his accident because it only released defendants’ liability for injuries arising from problems with the rented [*11] equipment. The court could not grant summary judgment based on the release, he argued, because this was a reasonable interpretation of an ambiguous contract. It was patently ambiguous, he argued, because a reasonable person could interpret its terms to mean that liability was released only for injuries related to equipment failures. It was latently ambiguous because defendants asked skiers to sign it when renting equipment and did not obtain any release from skiers who brought their own equipment, suggesting that liability for equipment failure was its only subject matter. Even if the release did relate to liability for accidents resulting from the condition of the slopes, Fisher argued, it would not bar an action for a dangerous condition that existed because of defendants’ negligence. In addition, even if the release covered defendants’ negligence, it did not cover the particular kind of negligence that caused Fisher’s injuries because releasing liability for injuries caused by falling in an artificially created hole was not reasonably related to the parties’ purpose in entering into the release.

Responding to defendants’ argument that there was no evidence to support his claim that [*12] the accident resulted from their negligent maintenance of the slopes, Fisher submitted evidence intended to show that the hole was on a groomed slope, meant to be skied on by defendants’ patrons, and was not naturally occurring. He cited his own deposition in which he testified that he did not ski on any ungroomed areas. He further testified that there was a wall of ice on the far side of the hole as he skied into it and that the wall of ice “seemed to have a groomed edge on the top of it ….” Fisher also submitted a declaration asserting that the hole was “manmade.” The declaration does not, however, explain how Fisher knew it was manmade. In addition, Fisher pointed to deposition testimony by Sierra Summit personnel acknowledging that holes or walls in the snow can inadvertently be created by snow grooming equipment.

In response to defendants’ claim that Fisher could not produce evidence of negligent first aid, Fisher argued that if he could sit up and wave his arms at the time when the ski patrollers found him, that could mean the patrollers added to his injuries through their first aid. He also claimed the defense was not entitled to summary judgment on the claim unless it offered [*13] expert medical testimony that the ski patrollers acted reasonably.

Fisher argued that the doctrine of primary assumption of the risk does not apply to this case. He said the doctrine applies only to risks inherent in the risky activity, and the risk of an accident like his is not inherent in skiing if the hole was artificial and was present because of defendants’ negligence.

On the ski patrol claim, Fisher contended that section 1799.102 was inapplicable because the ski patrollers were compensated by defendants. He argued that the statute requires simply that aid be given “not for compensation”; that defendants’ view would read words into the statute that are not there; and that this would be improper, regardless of what out-of-state cases interpreting other statutes might say. Fisher also argued that summary judgment could not be granted based on section 1799.108 because of the facts that he was combative and tried to sit up while he was being aided, combined with defendants’ failure to produce an expert opinion. Fisher did not explicitly say how these points helped him, but presumably he meant they showed there was a triable issue of whether the ski patrollers were grossly negligent. [*14] Fisher also did not explicitly say why his ski patrol claim fell outside the release or outside the doctrine of primary assum