Lahey v. Covington, 964 F. Supp. 1440 (Dist Colo 1996)

Lahey v. Covington, 964 F. Supp. 1440 (Dist Colo 1996)

Carol Lahey, Plaintiff, v. Rick Covington d/b/a Twin Lakes Expeditions, Inc., and Douglas (Blues) Voisard, Defendants and Third-Party Plaintiffs, v. Rob Mobilian, Third-Party Defendant.

Civil Action No. 95 N 1396

United States District Court for the District of Colorado

964 F. Supp. 1440; 1996 U.S. Dist. LEXIS 21247

April 29, 1996, Decided

April 29, 1996, FILED; May 1, 1996, ENTERED

Disposition: [**1] Mobilian’s motion for judgment on the pleadings Granted.

Defendants’ motion for summary judgment Granted in part and Denied in part.

Counsel: For Carol Lahey, plaintiff: William A. Trine, Williams & Trine, P.C., Boulder, CO U.S.A.

For Twin Lakes Expeditions, Inc., a Colorado corporation, defendant: James V. Pearson, Pearson, Milligan & Horowitz, P.C., Denver, CO U.S.A. For Rick Covington, defendant: James V. Pearson, (See above). For Douglas (Blues) Voisard, defendant: James V. Pearson, (See above).

For Twin Lakes Expeditions, Inc., counter-claimant: James V. Pearson, Pearson, Milligan & Horowitz, P.C., Denver, CO U.S.A. For Rick Covington, counter-claimant: James V. Pearson, (See above). For Douglas (Blues) Voisard, counter-claimant: James V. Pearson, (See above).

For Twin Lakes Expeditions, Inc., third-party plaintiff: James V. Pearson, (See above). For Rick Covington, third-party plaintiff: James V. Pearson, (See above). For Douglas (BLUES) Voisard, third-party plaintiff: James V. Pearson, (See above).

For Carol Lahey, counter-defendant: William A. Trine, Williams & Trine, P.C., Boulder, CO U.S.A.

For Rob Mobilian, third-party defendant: Ira M. Long, Jr., Roos, [**2] Cohen & Long, P.C., Denver, CO U.S.A.

Judges: Edward W. Nottingham, United States District Judge

Opinion by: Edward W. Nottingham

Opinion:

[*1441] Order and Memorandum of Decision

This is a personal injury action. Plaintiff Carol Lahey alleges that she suffered serious injuries during a white-water rafting trip as a result of the negligence and willful and wanton conduct of Defendants and Third-Party Plaintiffs Rick Covington d/b/a Twin Lakes Expeditions, Inc., and Douglas (Blues) Voisard [hereinafter “defendants”]. Defendants allege that, pursuant to an indemnity agreement, both plaintiff and Third-Party Defendant Rob Mobilian (“Mobilian”) are liable to defendants for any fees and costs they incur in connection with this lawsuit. The matter is before the court on (1) “Third-Party Defendant’s Motion for Judgment on the Pleadings” filed November 15, 1995, and (2) “Defendants’ and Third-Party Plaintiffs’ Motion for Summary Judgment” filed January 19, [*1442] 1996. Jurisdiction is based on 28 U.S.C.A. § 1332 (West 1993).

Facts

At all times relevant to this case, Covington owned and operated Twin Lakes Expeditions, Inc., a white-water rafting company located in Twin Lakes, Colorado. (Defs.’ and Third-Party [**3] Pls.’ Br. in Supp. of Mot. for Summ. J., Statement of Undisputed Material Facts P A [filed Jan. 19, 1996] [hereinafter “Defs.’ Summ. J. Br.”]; admitted at Pl.’s Mem. Br. in Opp’n to Defs.’ Mot. for Summ. J., Resp. to Statement of Undisputed Material Facts P A [filed Feb. 5, 1996] [hereinafter “Pl.’s Resp. to Summ. J. Mot.”]; Mobilian’s Br. in Opp’n to Mot. for Summ. J., Resp. to Statement of Undisputed Facts [filed Feb. 9, 1995] [hereinafter “Mobilian’s Resp. to Summ. J. Mot.”] [incorporating “Pl.’s Resp. to Summ. J. Mot., Resp. to Undisputed Material Facts”].) At all times relevant to this case, Voisard worked for Twin Lakes as a rafting guide. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P B; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P B; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.)

At sometime prior to June 1, 1993, Mobilian scheduled a white-water rafting trip for himself and his family with Covington and Twin Lakes. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P C; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material [**4] Facts P C; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Mobilian is plaintiff’s brother. (See Answer, Countercl. and Third-Party Compl. P 15 [filed Sept. 15, 1995]; Am. Answer to Third-Party Compl. P 3 [filed Nov. 7, 1995].) On the morning of June 1, 1993, plaintiff, Mobilian, and family members arrived at Twin Lakes for the purpose of taking a white-water rafting trip. (See Pl.’s Resp. to Summ. J. Mot., Ex. A [Mobilian Dep. at 15-16].)

At the Twin Lakes office, plaintiff and Mobilian signed identical release agreements. (See Defs.’ Summ. J. Br., Exs. A [copy of release signed by plaintiff], B [copy of release signed by Mobilian].) Plaintiff did not read the release before she signed it. (Pl.’s Resp. to Summ. J. Mot. at 18.) The releases provided:

I recognize that there is a significant element of risk in whitewater rafting or any adventure expedition, sport or activity associated with the outdoors which I have voluntarily applied to participate in.

I fully understand that any activity associated with Twin Lakes Expeditions may include hazards and exposures connected in the outdoors which do involve risk and that I [**5] am aware of the risks and dangers inherent with the activities that I and/or my family, including any minor children, are involved in. I am mentally and physically capable of participating in the activities contracted for and willingly assume the risk of injury as my responsibility, including loss of control, collisions with other participants, trees, rocks, and other man made or natural obstacles, whether they are obvious or not obvious.

. . . .

As lawful consideration for being permitted by Twin Lakes Expeditions to participate in the activities involved, the undersigned, for himself and/or his heirs and assigns, hereby releases the State of Colorado, Bureau of Land Management, Twin Lakes Expeditions and employees of Twin Lakes Expeditions from any liability for claims or lawsuits brought by the undersigned and arising out of the activities provided by the concessioner.

I agree to defend, indemnify and hold harmless Twin Lakes Expeditions, the United States Forest Service and Parks Department, and all State or Government agencies, and private property [sic] the activities may be conducted on, and all of their officers, members, affiliated organizations, agents and employees [**6] for any injury or death caused by or resulting from me or my family’s participation in the activities associated with Twin Lakes Expeditions both scheduled and unscheduled whether or not such injury or death was caused by their negligence or from any other causes.

I assume complete and full responsibility for my family and myself, including any minor children, for bodily injury, loss of [*1443] life, loss of personal property and expenses thereof.

I have carefully read the agreement, fully understand and accept the terms and conditions explained and stated herein and acknowledge that this release shall be effective and legally binding upon me, my heirs, my estate, assigns[,] legal guardians and my personal representatives during the entire period of participation in the activities.

DO NOT SIGN THE RELEASE IF YOU DO NOT UNDERSTAND OR DO NOT AGREE WITH ITS TERMS.

(Id.)

After signing the releases, plaintiff, Mobilian, and the others embarked on a white-water rafting trip. (See Pl.’s Resp. to Summ. J. Mot., Ex. A [Mobilian Dep. at 21].) They went to the “Numbers” section of the Arkansas River. (See Am. Compl. in Tort for Damages P 10 [filed Aug. 24, 1995] [**7] [hereinafter “Am. Compl.”]; Answer, Countercl. and Third-Party Compl. P 10 [filed Sept. 15, 1995].) Plaintiff testified that, at the time of the trip, she understood that she faced the following risks: (1) she might fall into the river; (2) she might be swept away from her raft; (3) she might strike rocks in the river; and (4) she could be injured. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P F; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P F; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.).

Covington testified that, on June 1, 1993, “Numbers” were a Class IV-plus set of rapids. (Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 128 11. 16-18].) He described the condition of the river as “high” but not “any more challenging that day than any other day.” (Id., Ex. D [Covington Dep. at 136 11. 6-11].) On June 1, 1993, the water flow at the “Numbers” measured 3.8 feet high on the Scott’s Bridge Gauge. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P L; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P L; Mobilian’s [**8] Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) The Arkansas Headwater Recreation Area, apparently a white-water rafting regulatory group, recommends against commercial rafting through the “Numbers” when the water flow measures 4.0 feet high or more on the Scott’s Bridge Gauge. (Summ. J. Br., Statement of Undisputed Material Facts P M; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P M; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Covington testified that his company policy was not to take people rafting through the “Numbers” if the water was four feet high or more. (See Defs.’ Summ. J. Br., Ex. H [Covington Dep. at 160 1. 23 to 161 1.7]; Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 169 11. 4].) He explained that “anything up to [four] feet . . . was certainly not only acceptable, but a fine rafting level, exciting, and a guide’s favorite, if you want to put it that way.” (See Defs.’ Summ. J. Br., Ex. H [Covington Dep. at 161 ll. 4-7].)

During the trip, plaintiff was in a raft guided by Voisard. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P K; [**9] admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P K; Mobilian ‘s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) As plaintiff ‘s raft entered “rapid number 4,” Voisard was thrown out of the raft. (Defs.’ Summ. J. Br., Statement of Undisputed Material Facts P N; admitted at Pl.’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Material Facts P N; Mobilian’s Resp. to Summ. J. Mot., Resp. to Statement of Undisputed Facts.) Shortly thereafter, the raft capsized, tossing plaintiff into the river. (Id.) Plaintiff maintains that, as she was swept through the rapids, she incurred multiple injuries and, as a result, has had to undergo surgery and physical therapy. (Am. Compl. P 29.)

On May 31, 1995, plaintiff filed a complaint against defendants in this court, alleging that defendants were liable for (1) negligence and (2) willful and wanton conduct. (See Compl. [filed May 31, 1995].) On August 24, 1995, plaintiff filed an amended complaint, in which she corrected her allegation regarding Covington’s residence. (See Am. Compl.) [*1444] On September 15, 1995, defendants filed an answer to the amended complaint, a [**10] counterclaim against plaintiff, and a third-party complaint against Mobilian. (See Answer, Countercl. and Third-Party Compl.) In their counterclaim, defendants assert that, according to the terms of the release agreement, plaintiff is obligated to indemnify defendants for “all of their damages, attorneys’ fees, costs and other expenses incurred as a result of” her participation in the June 1, 1993, rafting trip. (See id. at 7-8.) Similarly in their third-party claim against Mobilian, defendants assert that, according to the terms of the release agreement, Mobilian must indemnify defendants for all of the fees and costs they incur in connection with this lawsuit.

The motions currently before the court present the following three issues:

(1) whether the release agreement bars plaintiff’s negligence claims; (2) whether plaintiff has presented evidence that defendants acted willfully and wantonly; (3) whether, by signing the release agreement, plaintiff and Mobilian agreed to indemnify defendants for their expenses in connection with this lawsuit. In his motion for judgment on the pleadings, Mobilian argues that the release agreement is unclear and ambiguous and counter to public [**11] policy and, thus, does not obligate him to indemnify defendants. In their motion for summary judgment, defendants maintain that: (1) plaintiff’s negligence claims are barred by the release agreement; (2) plaintiff has not presented evidence that defendants acted willfully and wantonly in taking her on the rafting trip; and (3) Mobilian is obligated to indemnify defendants for their expenses in connection with this lawsuit. I begin with the issues raised in defendants’ motion for summary judgment.

ANALYSIS

1. Defendants’ Motion for Summary Judgment

a. Legal Standard

Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where “the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material facts and the . . . moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986); Concrete Works, Inc. v. City and County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004, 131 L. Ed. [**12] 2d 196, 115 S. Ct. 1315 (1995). The moving party bears the initial burden of showing an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986). “Once the moving party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for trial on a material matter.” Concrete Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S. Ct. at 2554). The nonmoving party may not rest solely on the allegations in the pleadings, but must instead designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324, 106 S. Ct. at 2553, see Fed. R. Civ. P. 56(e). The court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.), cert. denied, 474 U.S. 823, 106 S. Ct. 77, 88 L. Ed. 2d 63 (1985). Additionally, the factual record must be viewed in the light most favorable to the nonmoving party. Concrete Works, Inc., 36 F.3d at 1518 (citing Applied Genetics Int’l, Inc. v. First Affiliated [**13] Sec., Inc., 912 F.2d 1238, 1241 [10th Cir. 1990]).

b. Negligence

Colorado law disfavors exculpatory agreements such as the release agreement at issue here. See Heil Valley Ranch, Inc. v. Simkin, 784 P.2d 781, 783 (Colo. 1989) (en banc). Thus, they are strictly construed against the drafter. Anderson v. Eby, 998 F.2d 858, 861 (10th Cir. 1993) (quoting Jones v. Dressel, 623 P.2d 370, 376 [Colo. 1981] [en banc]); Potter v. National Handicapped Sports , 849 F. Supp. 1407, 1409 (D. Colo. 1994). Nevertheless, an exculpatory agreement is “not necessarily void . . . as long as one party [*1445] is not ‘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.’” Heil Valley Ranch, Inc., 784 P.2d at 784 (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 68, at 482 [5th ed. 1984].) The release agreement at issue here is not the sort where one party is at so great a disadvantage as to render the agreement void. See Jones, 623 P.2d at 374-75.

In determining whether an exculpatory agreement is valid, the court must consider the following four factors: “’(1) [**14] the existence of a duty to the public; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear and unambiguous language.’” Id. at 784 (quoting Jones, 623 P.2d at 376). Whether an exculpatory agreement is valid is a question of law for the court. Jones, 623 P.2d at 376; Potter, 849 F. Supp. at 1409. “For an exculpatory agreement to fail under the first factor, the party seeking exculpation must be engaged in providing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.” Potter, 849 F. Supp. at 1409. Such is not the case here. As in Potter, the activity at issue—white-water rafting—is recreational in nature. Thus, “by definition and common sense, it is neither a matter of great public importance nor a matter of practical necessity.” Id. (citing Bauer v. Aspen Highlands Skiing Corp., 788 F. Supp. 472, 474 [D. Colo. 1992]).

The second factor, “the nature of the activity,” involves an assessment of whether the activity can be described as an “essential service.” See Potter, [**15] 849 F. Supp. at 1410; Jones, 784 P.2d. at 784. Clearly white-water rafting is neither. See Potter, 849 F. Supp. at 1409. Regarding the third factor, plaintiff testified that she does not feel that she was treated unfairly by Twin Lake’s requirement that she sign the release form before going on the rafting trip. (Def.’s Summ. J. Br., Ex. G [Pl.’s Dep. at 131 l. 23 to 132 l.

1].) Because plaintiff has presented no evidence which contradicts her testimony, I conclude that she entered into the release fairly. Thus, only the fourth factor, whether the terms of the exculpatory agreement are clear and unambiguous, remains to be considered.

The release agreement in this case is short (just over one page), written in simple, clear terms, free of legal jargon, and uncomplicated. Thus, under the standard expressed in Heil Valley Ranch, Inc., it appears to be clear and unambiguous. See Heil Valley Ranch, Inc., 784 P.2d at 785; see also Potter, 849 F. Supp. at 1410. Plaintiff maintains, however, that the agreement is not clear because, even if she had read it, n1 it would not have fully apprised her of the risks she would encounter on the rafting trip. Specifically, plaintiff [**16] complains that the release did not inform her of the following: (1) she would not be given an opportunity to observe “rapid number 4” before proceeding through it; (2) she would not be given an opportunity to determine what risks were inherent in “rapid number 4” before proceeding through it; (3) she would not be given an opportunity to walk around “rapid number 4” instead of rafting through it; and (4) Voisard could fall out of the raft and, consequently, be unable to direct and navigate the raft. (See Pl.’s Resp. to Summ. J. Mot. At 16.)

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 Even though plaintiff did not read the agreement before signing it, she is nevertheless bound by its terms since there is no evidence that she was fraudulently induced to sign it. See Day v. Snowmass Stables, Inc., 810 F. Supp. 289, 294 (D. Colo. 1993).

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

Colorado law does not require that an exculpatory agreement describe in detail each specific risk that the signor might encounter. See Heil Valley Ranch, Inc., 784 P.2d at 785; see also Potter, 849 F. Supp. [**17] at 1410-11. Rather, an exculpatory agreement bars a claim if the agreement clearly reflects the parties’ intent to extinguish liability for that type of claim. See id.

Plaintiff asserts that the above-listed risks of which she allegedly was not informed were the product of defendants’ negligence. (Pl.’s Resp. to Summ. J. Mot. at 16.) The release agreement states in plain language, however, that plaintiff agreed to “hold harmless Twin Lakes Expeditions . . . and all of [its] officers . . . and employees for any injury . . . whether [*1446] or not such injury . . . was caused by their negligence. . . . “ (Defs.’ Summ. J. Br., Ex. A [copy of release agreement signed by plaintiff] [emphasis supplied].) Thus, the exculpatory agreement clearly reflects an intent to preclude claims based on defendants’ negligence. See Potter, 849 F. Supp. at 1411.

I conclude that the exculpatory portion of the release agreement is valid as a matter of law. See Heil Valley Ranch, Inc., 784 P.2d at 784; Jones, 623 P.2d at 378; see also Anderson, 998 F.2d at 861-62; Potter, 849 F. Supp. at 1410.

Consequently, it bars plaintiff’s claims to the extent that they are based on defendants’ [**18] alleged negligence. See id. Accordingly, defendants are entitled to summary judgment on plaintiff’s negligence claims. See id.c.

Willful and Wanton Conduct

In Colorado, “willful and wanton conduct” is conduct which an actor realizes is highly hazardous and poses a strong probability of injury to another but nevertheless knowingly and voluntarily chooses to engage in. See Steeves v. Smiley, 144 Colo. 5, 354 P.2d 1011, 1013-14 (Colo. 1960); Hodges v. Ladd, 143 Colo. 143, 352 P.2d 660, 663 (Colo. 1960) (en banc); Colo. Rev. Stat. § 13-21-102(1)(b) (1987) (concerning exemplary damages). Here, plaintiff claims that defendants are liable for willful and wanton conduct because they concealed from her the fact that the risks she would face on the rafting trip were greater that those usually involved in white-water rafting. (See Pl.’s Resp. to Summ. J. Br. at 13-14.) She maintains that “defendants knew that the [’Numbers’] stretch of the river was extremely dangerous and that only skilled and experienced rafters could safely maneuver the rapids.” (See id. at 13.)

Plaintiff’s claim, however, is wholly unsupported by the record. Plaintiff presents no evidence [**19] that defendants knew that the risks posed by rafting through the “Numbers” were greater than usual for the sport of white-water rafting, let alone any evidence that the risks were, in fact, greater. To the contrary, Covington’s uncontroverted testimony is that the river ‘s water-height on the day of plaintiff’s trip was appropriate for rafting according to industry standards as well as his company policy, and that the “Numbers” was not any more dangerous on June 1, 1993, than on any other day. (See Def.’s Summ. J. Br., Ex. H [Covington Dep. at 160 l. 21 to 164 l. 25]; Pl.’s Resp. to Summ. J. Mot., Ex. D [Covington Dep. at 136 ll. 6-12].) Plaintiff has introduced nothing to suggest that defendants did not believe that, in taking plaintiff on the rafting trip, they were acting (1) in conformance with industry standards, (2) in conformance with their company standards, and (3) in what they knew to be a reasonably safe manner, given the nature of white-water rafting. Thus, because plaintiff has failed to introduce evidence that defendants’ conduct rises to the level of willful and wanton, I conclude that defendants are entitled to summary judgment on that claim. Concrete [**20] Works, Inc., 36 F.3d at 1518 (citing Celotex Corp., 477 U.S. at 325, 106 S. Ct. at 2554).

d. Indemnity

As indicated above, defendants maintain that, by signing the release agreement, plaintiff agreed to indemnify them for their attorneys’ fees and other expenses incurred in connection with this lawsuit. Similarly, defendants argue that, because Mobilian is plaintiff’s brother, the indemnity clause in the release agreement obligates him to indemnify defendants for any costs they incur in connection with this lawsuit, including attorneys’ fees and costs.

In general, indemnity agreements, like exculpatory agreements, are strictly construed under Colorado law. Public Serv. Co. of Colo. v. United Cable Television of Jeffco, Inc., 829 P.2d 1280, 1284 (Colo. 1992) (en banc). For an indemnity agreement to be enforceable, it must contain clear and unequivocal language which manifests the parties’ intent that the indemnitee be indemnified for the expenses at issue. See id.; Williams v. White Mountain Constr. Co., Inc. , 749 P.2d 423, 426 (Colo. 1988) (en banc).

Here, the relevant language provides, “I agree to . . . indemnify [defendants] . . . for any injury or [**21] death caused by or resulting from me or my family’s participation [*1447] [in the rafting activity].” (Defs.’ Summ. J. Br., Exs. A [copy of release signed by plaintiff], B [copy of release signed by Mobilian].) That language does not clearly and unequivocally state that the signor agrees to pay the attorney’s fees and costs associated with a lawsuit such as this. In fact, it seems more likely that the clause means that the signor agrees to pay expenses such as medical bills which result from her or her family member’s physical injury during a rafting trip. Further, with respect to defendant’s claim against Mobilian, the term “family” is not clearly and unequivocally broad enough to encompass the signor’s adult sister as opposed to only the signor’s spouse and children. Thus, I conclude that the language of the indemnity clause does not obligate plaintiff or Mobilian to indemnify defendants for the attorneys’ fees and other expenses they incur in connection with this lawsuit. See Public Serv. Co. of Colo., 829 P.2d at 1284; Williams, 749 P.2d at 426. Accordingly, defendants’ summary judgment motion is denied on the issue of plaintiff’s and Mobilian’s indemnity obligations. [**22] I need not reach the parties’ further arguments on that issue.

2. Mobilian’s Motion for Judgment on the Pleadings

As indicated above, Mobilian moves for judgment on the pleadings with respect to his obligation to indemnify defendants for their attorneys’ fees and other expenses incurred in connection with this lawsuit. A motion for judgment on the pleadings is a motion to dismiss that is filed after the pleadings are closed.

Fed. R. Civ. P. 12(c); 2A James W. Moore, Moore’s Federal Practice P 12.15 (2d ed. 1995). The standard of review for such a motion is as follows:

For purposes of the motion, all well-pleaded material allegations of the non-moving party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not deemed admitted. On the basis of the facts so admitted, the court may grant judgment only if the moving party is clearly entitled to judgment. 2A Moore P 12.15; Hamilton v. Cunningham, 880 F. Supp. 1407, 1410 (D. Colo. 1995). I therefore accept as true all allegations set forth by defendants. See id. “A judgment on the pleadings is appropriate [**23] when, even if all allegations in the complaint are true, the moving party is entitled to judgment as a matter of law.” Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir. 1993) (citation omitted).

Here, for the reasons explained in the previous section, I conclude as a matter of law that Mobilian is not obligated to indemnify defendants for their expenses in connection with this lawsuit. Accordingly, Mobilian’s motion for judgment on the pleadings is granted.

3. Conclusion

Based on the foregoing, it is therefore

ORDERED as follows:

1. Mobilian’s motion for judgment on the pleadings is GRANTED.

2. Defendants’ motion for summary judgment is GRANTED in part and DENIED in part.

3. Defendants’ motion for summary judgment is GRANTED with respect to plaintiff’s claims of negligence and willful and wanton conduct.

4. Defendants’ motion for summary judgment is DENIED with respect to defendants’ claim that plaintiff and Mobilian are obligated to indemnify defendants for their attorneys’ fees and other costs incurred in connection with this lawsuit.

5. Defendants’ third-party claim is hereby dismissed.

Dated this 29 day of April, 1996.

By The [**24] Court:

Edward W. Nottingham

United States District Judge


Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

Sajkowski et al., v. Young Men’s Christian Association of Greater New York, 269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

Kathleen Sajkowski et al., Appellants, v. Young Men’s Christian Association of Greater New York, Respondent.

2180

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

269 A.D.2d 105; 702 N.Y.S.2d 66; 2000 N.Y. App. Div. LEXIS 968

February 1, 2000, Decided

February 1, 2000, Entered

COUNSEL: [***1] For Plaintiffs-Appellants: Charles H. Dobkin.

For Defendant-Respondent: Laura Getreu.

JUDGES: Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.

OPINION

[*105] [**66] Order, Supreme Court, New York County (Lorraine Miller, J.), entered July 20, 1998, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The Young Men’s Christian Association of Greater New York (YMCA) sponsored a “Wellness for Life” weekend program for adults who wished to engage in exercise and outdoor activities. Among the activities [**67] that were offered at the program was an obstacle course that included an event called the Nitro Crossing. This event involved nothing more than swinging from a rope. The rope dangled just about 1 1/2 feet from the ground in the center of an imaginary pit that was actually flat, bare dirt. Those who chose to participate in the Nitro Crossing would start out by standing on a log that was lying at ground level. Then, holding on to the rope, they would swing approximately five to seven feet to another log that was also lying at ground level.

Plaintiff, Kathleen Sajkowski, an attendee [***2] at the weekend program, stood in line with several other participants and waited for her turn to swing on the rope. While she was waiting, she observed that several participants lost their grip and fell while swinging. When her turn came, she grasped the rope and began to swing. Approximately at the midway point of the imaginary pit, plaintiff lost her grip and fell, injuring her ankle. Plaintiff, alleging, inter alia, that defendant YMCA was negligent in failing to place shock absorbing material such as wood chips below the Nitro Crossing, commenced this action. No claim was made that the rope broke or was otherwise defective. Thereafter, defendant moved for summary judgment dismissing the complaint, asserting that plaintiff assumed the risk of participating in this activity. We conclude that the assumption of risk doctrine is applicable to plaintiff’s injury.

In Morgan v State of New York (90 NY2d 471, 484), the Court of Appeals reaffirmed the principle that, [HN1] “by engaging in a [*106] sport or recreational activity, a participant consents to those commonly [***3] appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” This encompasses those risks that are associated with the construction of the playing field and any open and obvious defects on it ( Maddox v City of New York, 66 NY2d 270, 277). Thus, if the risks of an activity are fully comprehended or perfectly obvious, one who participates in the activity is deemed to have consented to the risks ( Morgan v State of New York, supra; see also, Turcotte v Fell, 68 NY2d 432, 439). Furthermore, where the risk is open and obvious, the mere fact that a defendant could have provided safer conditions is irrelevant ( Simoneau v State of New York, 248 AD2d 865).

In considering plaintiff’s injury, it is apparent that the risk of falling while swinging from a rope is inherent in participation in such an activity (cf., Hofflich v Mendell, 235 AD2d 784; compare, Roska v Town of Cheektowaga, 251 AD2d 984). It is also incontrovertible that the risks involved were not concealed and that plaintiff fully comprehended them since she had seen several [***4] other participants fall just moments earlier. Moreover, to the extent that the Nitro Crossing failed to have shock absorbing material beneath it, this was nothing more than an open and obvious condition of the playing surface, which, as noted, is not actionable ( Maddox v City of New York, supra; see also, Sheridan v City of New York, 261 AD2d 528; Paone v County of Suffolk, 251 AD2d 563; Brown v City of New York, 251 AD2d 361; compare, Warren v Town of Hempstead, 246 AD2d 536 [defect concealed]; Cronson v Town of N. Hempstead, 245 AD2d 331).

Plaintiff attempts to avoid the foregoing analysis by establishing that the Nitro Crossing was constructed or operated in violation of prevailing industry standards. Specifically, it is alleged that shock absorbing material beneath the Nitro Crossing was required, as well as proper training for plaintiff with regard to her participation in the activity. These violations, it is asserted, exposed plaintiff to unreasonably enhanced risks, which she cannot be deemed to have assumed (see, Morgan v State of New York, supra, at 485; [***5] [**68] see also, Greenburg v Peekskill City School Dist., 255 AD2d 487; Clark v State of New York, 245 AD2d 413; Stackwick v Young Men’s Christian Assn., 242 AD2d 878). In seeking to demonstrate such violations, plaintiff submitted expert evidence that analogized the Nitro Crossing to a gymnastics event and pointed to the requirements for construction of playgrounds built for children under 12 years of age.

[*107] What becomes apparent is that the comparison of the Nitro Crossing to a gymnastics event is incongruous. * Simply stated, plaintiff was not dismounting from uneven bars, or doing a tumbling routine during a floor exercise–activities completely different in degree, complexity, and danger from the activity at issue here. Nor was she engaged in an activity that required any specialized kind of training, instruction, or skill. She was only swinging from a rope with her body suspended just barely off the ground. The instructions for such an activity are simple and straightforward–hold the rope and swing. Similarly incongruous was plaintiff’s reliance on standards for the proper construction of playgrounds built [***6] for children under 12 years of age. The Nitro Crossing, after all, was not part of a children’s playground.

* For the same reasons plaintiff’s claim that defendant should have provided a spotter is without merit. Moreover, since plaintiff immediately fell to the ground when she lost her grip on the rope, the presence of a spotter would not have prevented this accident.

We also note that the balance of the expert evidence failed to demonstrate that defendant violated any prevailing standards in constructing the Nitro Crossing (see, Simoneau v State of New York, supra; cf., Greenburg v Peekskill City School Dist., supra; Clark v State of New York, supra; Stackwick v Young Men’s Christian Assn., supra).

In view of the foregoing, Supreme Court properly granted defendant’s motion and dismissed the complaint.

Concur–Nardelli, J. P., Ellerin, Lerner, Andrias and Friedman, JJ.


Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

Ellis v. Y.M.C.A. Camp Mohawk, Inc., 2014 U.S. Dist. LEXIS 110403

Louisa R. Ellis, PPA Elizabeth Ellis and Elizabeth Ellis, Plaintiffs, v. Y.M.C.A. Camp Mohawk, Inc., Defendant.

Civil No. 3:12cv515(AWT)

United States District Court for the District of Connecticut

2014 U.S. Dist. LEXIS 110403

August 11, 2014, Decided

August 11, 2014, Filed

COUNSEL: [*1] For Louisa R. Ellis, ppa Elizabeth Ellis, Elizabeth Ellis, Plaintiffs: James V. Sabatini, Megan Leigh Piltz, LEAD ATTORNEYS, Sabatini & Associates, Newington, CT.

For Y.M.C.A. Camp Mohawk, Inc., Defendant: Katherine L. Matthews, Renee Wocl Dwyer, LEAD ATTORNEYS, Gordon, Muir & Foley, Hartford, CT.

JUDGES: Alvin W. Thompson, United States District Judge.

OPINION BY: Alvin W. Thompson

OPINION

RULING ON MOTION FOR SUMMARY JUDGMENT

This action arises out of injuries suffered by the minor plaintiff, Louisa Ellis (the “Camper”), when she fell from a horse while participating in activities at a day camp operated by the defendant, Y.M.C.A. Camp Mohawk, Inc. (“Camp Mohawk”). The plaintiffs’ complaint consists of two counts, one for negligence and one for consequential damages. Camp Mohawk has moved for summary judgment on both counts. For the reasons set forth below, the defendant’s motion is being granted.

I. FACTUAL BACKGROUND

On July 18, 2011, the Camper participated in a horseback riding lesson while attending Camp Mohawk’s day camp in Cornwall, Connecticut. During this lesson, the Camper was assigned a pony, named Geri, to ride. The plaintiffs claim that the Camper was given a pony rather than a horse because Camp Mohawk [*2] did not have enough horses for all of the campers to ride. At some point during the lesson, the Camper lost control of the pony and was thrown over the pony’s shoulder or head. The Camper allegedly had her hands caught in the pony’s reins when she fell.

The complaint alleges that the Camper’s fall, as well as the injuries and losses the plaintiffs have suffered as a result of the fall, were caused by Camp Mohawk’s negligence. Specifically, the plaintiffs list 10 ways in which they believe Camp Mohawk was negligent with respect to the Camper’s horseback riding lesson:

(a) In that the pony was of an insufficient size for the plaintiff to properly and safely ride;

(b) In that the plaintiff’s weight and/or height exceed the reasonably safe riding weight for the pony assigned to the plaintiff;

(c) In that the riding equipment on the pony (the stirrups) were improperly installed or fitted thereby rendering the pony unsafe for the plaintiff to ride;

(d) In that the pony was not adequately and/or properly trained thus rendering the pony unsafe and hazardous for the plaintiff to ride;

(e) In [*3] that the pony was of a disobedient disposition thereby causing the pony to be unsafe for riding by the plaintiff;

(f) In that the defendant failed to properly or adequately train and instruct its employees;

(g) In that the defendant failed to properly and adequately supervise the camp students including the plaintiff;

(h) In that the defendant failed to properly or []adequately instruct or teach the camp students including the plaintiff on how to safely and properly ride on a pony;

(i) In that the defendant failed to warn the plaintiff of the dangers and hazards associated with riding the pony; and

(j) In that the defendant could not have reasonably assumed that the plaintiff, a minor, possessed the experience and judgment necessary to fully appreciate the dangerous condition of the pony and/or the full extent of the risk involved.

(Complaint (Doc. No. 1), at 3-4.)

II. LEGAL STANDARD

A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); [*4] Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). Rule 56(a) “mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

When ruling on a motion for summary judgment, the court must respect the province of the jury. The court, therefore, may not try issues of fact. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Comm’rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is well-established that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge.” Anderson, 477 U.S. at 255. Thus, the trial court’s task is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined . . . to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224.

Summary [*5] judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is “genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248 (internal quotation marks omitted). A material fact is one that would “affect the outcome of the suit under the governing law.” Id. As the Court observed in Anderson: “[T]he materiality determination rests on the substantive law, [and] it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” Id. Thus, only those facts that must be decided in order to resolve a claim or defense will prevent summary judgment from being granted. When confronted with an asserted factual dispute, the court must examine the elements of the claims and defenses at issue on the motion to determine whether a resolution of that dispute could affect the disposition of any of those claims or defenses. Immaterial or minor facts will not prevent summary [*6] judgment. See Howard v. Gleason Corp., 901 F.2d 1154, 1159 (2d Cir. 1990).

When reviewing the evidence on a motion for summary judgment, the court must “assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990)). Because credibility is not an issue on summary judgment, the nonmovant’s evidence must be accepted as true for purposes of the motion. Nonetheless, the inferences drawn in favor of the nonmovant must be supported by the evidence. “[M]ere speculation and conjecture is insufficient to defeat a motion for summary judgment.” Stern v. Trs. of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997) (internal quotation marks omitted) (quoting Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d. Cir. 1990)). Moreover, the “mere existence of a scintilla of evidence in support of the [nonmovant’s] position will be insufficient; there must be evidence on which [a] jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252.

Finally, the nonmoving party cannot [*7] simply rest on the allegations in its pleadings since the essence of summary judgment is to go beyond the pleadings to determine if a genuine issue of material fact exists. See Celotex Corp., 477 U.S. at 324. “Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact,” Weinstock, 224 F.3d at 41, if the movant demonstrates an absence of such issues, a limited burden of production shifts to the nonmovant, who must “demonstrate more than some metaphysical doubt as to the material facts, . . . [and] must come forward with specific facts showing that there is a genuine issue for trial.” Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quotation marks, citations and emphasis omitted). Furthermore, “unsupported allegations do not create a material issue of fact.” Weinstock, 224 F.3d at 41. If the nonmovant fails to meet this burden, summary judgment should be granted.

III. DISCUSSION

Camp Mohawk argues that summary judgment is appropriate here because expert testimony is required to establish the standard of care and breach of duty with respect to instruction in horseback riding, and the plaintiff has not offered [*8] a relevant opinion from a qualified expert.

A. Whether Expert Testimony is Required

“In this diversity action, the question of whether or not expert testimony is required to prove negligence is a question of [Connecticut] State law.” Conte v. Usalliance Federal Credit Union, Civ. No. 3:01-cv-463(EBB), 2007 U.S. Dist. LEXIS 82908, 2007 WL 3355381, at *3 (D. Conn. Nov. 8, 2007) (citing Beaudette v. Louisville Ladder, Inc., 462 F.3d 22, 27 (1st Cir. 2006) (“In a diversity action, whether expert testimony is required is a matter of state law[.]”)). The Connecticut Supreme Court has stated on multiple occasions that “[e]xpert testimony is required ‘when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors.'” LePage v. Horne, 262 Conn. 116, 125, 809 A.2d 505 (2002) (quoting Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961)) (emphasis in original); see also Santopietro v. City of New Haven, 239 Conn. 207, 226, 682 A.2d 106 (“If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required.”); State v. McClary, 207 Conn. 233, 245, 541 A.2d 96 (1988) (holding that expert testimony is required when a matter is [*9] “manifestly beyond the ken of the average trier of fact, be it judge or jury”).

Thus, the issue the court must resolve is whether the answers to the questions presented by the allegations of negligence in the plaintiffs’ complaint are beyond the ordinary understanding, knowledge, or experience of the average judge or juror. The court concludes that the questions at issue here are such that the answers are beyond such understanding, knowledge and experience. The Connecticut Appellate Court reached a similar conclusion in Keeney v. Mystic Valley Hunt Club, Inc., 93 Conn. App. 368, 889 A.2d 829 (2006). The court in Keeney found that

the proper method of teaching a novice rider, the qualification necessary to be a competent and qualified instructor of a novice rider, whether to instruct such a rider to remove her or his feet from the stirrups, [and] where those stirrups should then be placed . . . are not matters within the common knowledge of the jury but, rather, are specialized matters unique to the profession of those teaching novice riders.

Id. at 376. These questions are either the same as or substantially similar to the majority of those raised by the plaintiffs in their complaint. See also Raudat v. Leary, 88 Conn. App. 44, 868 A.2d 120 (2005) [*10] (holding that expert testimony was required on the issue of whether a horse was one “that is incompletely broken or trained”) (internal quotation marks omitted)). In Keeney the court explained that “[t]he plaintiffs’ allegations in the present case are akin to allegations of professional negligence or malpractice . . . . because the defendant was rendering specialized professional service to the plaintiff.” Keeney, 93 Conn. App. at 375. The court observed that “[w]e are well into the age of the automobile, and the general public in the twenty-first century is not generally as acquainted with horsemanship as it arguably was at the beginning of the twentieth century.” Id. Therefore, the court concluded, it was necessary “for the plaintiffs to produce expert testimony to establish both the standard of care to which the defendant was to be held and a breach of that standard.” Id. at 376.

The same reasoning is applicable here. The services being provided by the defendant, i.e. horseback riding lessons to minor children, are specialized and beyond the ordinary understanding, knowledge and experience of jurors. Since Keeny, the general public has not become more familiar with horsemanship or [*11] the appropriate method for teaching minors how to ride horses. Therefore, the issues raised by the plaintiffs’ contentions as to all the ways in which Camp Mohawk was negligent require expert testimony.

The plaintiffs’ arguments to the contrary are not persuasive. The plaintiffs point to three issues they claim do not require expert testimony: “whether [the Camper] was too big to be riding Geri the pony to begin with”; “whether [the Camper’s] stirrups were properly adjusted prior to beginning her lesson”; and “whether Geri the pony was disobedient.” (Pl.’s Mem. Opp. Mot. Summ. J. (Doc. No. 48) (“Pl.’s Mem.”), at 10-11.) In support of this contention, the plaintiffs point to excerpts of deposition testimony by a number of witnesses that included substantially similar statements. However, the mere existence of a lay opinion regarding a particular issue does not obviate the necessity of an expert opinion on that same issue, if an expert opinion is required in the first place. None of the deponents cited are the plaintiffs’ expert. Therefore, their testimony does not suffice to create a genuine issue of material fact as to these issues.

B. Whether the Plaintiffs’ Expert is Qualified

The defendants [*12] argue that because expert testimony is required on the issues raised by the plaintiffs’ contentions, summary judgment should be granted because the only expert the plaintiffs have identified is not qualified to give an expert opinion on those issues. The court agrees.

Under Federal Rule of Evidence 702 a witness may serve as an expert if he or she “is qualified as an expert by knowledge, skill, experience, training, or education.” Among other requirements, “the expert’s scientific, technical, or other specialized knowledge [must] help the trier of fact to understand the evidence or to determine a fact in issue.” Id. The plaintiffs have disclosed Corey Andres of Robson Forensic as their expert. His expert report contains a description of his education and experience. He has no education, training, or experience related to horseback riding. In fact, there is no mention of “horses” or “horseback riding” anywhere in his curriculum vitae.

In 1998, Andres received a Bachelor’s of Education with a major in therapeutic recreation and a minor in psychology. He received a Master’s of Education with a major in therapeutic arts in 1999. In 2005, Andres received a Master’s of Arts in educational [*13] policy and leadership; in connection with that degree, he participated in the Principal Licensure Cohort Program. His work experience is comprised of working as a graduate teaching assistant from 1998 to 1999 (where his focus was community recreation programming), working as a 4th and 5th grade teacher from 2001 to 2002, and working as an intervention specialist teacher at a high school in Ohio from 2002 to the present; in that capacity he leads a department of 36 professionals that serve special needs students. Since 2010 he has also been an associate at Robson Forensic, Inc.

In high school and college, Andres was involved with football, lacrosse, track, tennis and various intramural sports, in addition to being a certified lifeguard. He worked at a summer camp in 1995 instructing skills and techniques of golf, basketball, baseball, waterfront activities and tennis. He subsequently worked at camps in a number positions during the period from 1995 to 2008 and taught weightlifting and lacrosse. He has coached lacrosse and also served as a weight room supervisor, giving instructions on proper lifting techniques and exercises.

His resume indicates that his work for Robson Forensic, Inc. [*14] has involved providing technical investigations, analysis reports and testimony in connection with commercial and personal injury litigation involving: school administration, child supervision, recreation and sports programing, coaching, camp supervision and administration, weight training and athletic conditioning.

The only indication that he has had any involvement whatsoever with horseback riding is the fact that at page 6 of his report he cites in footnotes three publications on which he has relied in preparing his report.

At issue in Keeney was whether the plaintiff’s riding instructor was negligent in providing an unsafe instruction to a novice rider. The court concluded that the trial court had not abused its discretion in precluding the proposed expert witness from testifying about the appropriate standard for a riding instructor to teach a young novice rider, explaining

The issue in this case, however, was whether Heather Keeney’s riding instructor was negligent in providing an unsafe instruction to this novice rider. The expert, although having been a certified horse riding instructor since 1973, testified that she had not trained young novice riders in more than twenty years, [*15] had taken no refresher courses in training students, had no specialized training in the use of lunge lines with novice riders, had never prepared any instructional or training materials for instructors, had never served on a safety committee and had never taught riding instructors. On the basis of this testimony, we cannot conclude that the court abused its discretion in precluding this witness from testifying as to the appropriate standard for a riding instructor to teach a young novice rider.

93 Conn. App. 372-73.

Andres falls far short of having the qualifications possessed by the proffered expert in Keeney. Because expert testimony is required for the plaintiffs to establish their case and they have failed to produce a qualified expert, they have failed to create a genuine issue of material fact as to any of the issues raised in the complaint, and the defendant is entitled to judgment as a matter of law.

IV. CONCLUSION

For the reasons set forth above, Defendant’s Motion for Summary Judgment (Doc. No. 43) is hereby GRANTED.

The Clerk shall enter judgment in favor of defendant Y.M.C.A. Camp Mohawk, Inc. as to all the claims in the complaint and close this case.

It is so ordered.

Dated this [*16] 11th day of August, 2014, at Hartford, Connecticut.

/s/ Alvin W. Thompson

United States District Judge


Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

Scheck v. Soul Cycle East 83rd Street, LLC, 2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

[**2] Wolf Scheck and Lynn Scheck, Plaintiff(s), -against- Soul Cycle East 83rd Street, LLC d/b/a Soulcycle and Julie Rice, Defendant(s). Index No.: 104046/10

104046/10

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2012 N.Y. Misc. LEXIS 3719; 2012 NY Slip Op 32021(U)

July 26, 2012, Decided

August 2, 2012, Filed

NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS.

CORE TERMS: bike, spin, cycle, wheel, brake, leg, assumption of risk, pedal, shoes, summary judgment, stationary, feet, gym, instructor, beginner, clerk’s, resistance, bicycle, spinner, front, heightened, sport, weighted, regular, street, online, minutes, rider, issues of fact, risks inherent

JUDGES: [*1] PRESENT: Hon. Judith J. Gische, J.S.C.

OPINION BY: Judith J. Gische

OPINION

Decision/Order

Upon the foregoing papers, the decision and order of the court is as follows:

Gische J.:

This is a negligence action for personal injuries. Now that issue has been joined and the note of issue was filed, defendants move for summary judgment. Plaintiffs raise the issue of the untimeliness of this motion, arguing that the motion was brought more than 120 days after the Note of Issue was served and filed.

CPLR 3212 provides that any party may move for summary judgment after issue has been joined and, If no date is set by the court, such motion shall be made “no later than [120 days] after the filing of the note of issue…” SCROLL (the Supreme Court Records On Line Library) shows that the Note of Issue was stamped “received” in the [**3] Trial Support Office on June 27, 2011, but the fee was paid and accepted by the New York County Clerk’s Office on June 29, 2011. Defendant’s motion was served by mail on October 26, 2011. A motion on notice is “made” when it is served (CPLR 2211). Papers are filed when they are delivered to the court clerk or the clerk’s designee (see Matter of Grant v. Senkowski, 95 N.Y.2d 605, 744 N.E.2d 132, 721 N.Y.S.2d 597 [2001]). Furthermore, [*2] not only does the Note of Issue have to be filed with the County Clerk, it must be accompanied by the payment of the appropriate fee, as prescribed by CPLR 8020 (Uniform Civil Rules for the Supreme Court and the County Court, 22 NYCRR 202.21).

Since the Note of Issue was paid for and filed with the County Clerk on June 29, 2011, and defendants’ motion was “made” on October 26, 2011, when it was served by mail, it was timely made within the 120 day statutory period (CPLR 3212 [a]; Gazes v. Bennett, 38 A.D.3d 287, 835 N.Y.S.2d 1 [1st Dept 2007]; see also, Nolan v. J.C.S. Realty, 79 AD3d 414, 910 N.Y.S.2d 906 [1st Dept 2011]). The motion, therefore, will be decided on its merits (CPLR § 3212; Brill v. City of New York, 2 NY3d 648, 814 N.E.2d 431, 781 N.Y.S.2d 261 [2004]).

Facts and Arguments

This action arises from events that occurred on December 25, 2009 (“date of the accident”) at “Soulcycle,” located on 83rd Street and Lexington Avenue in Manhattan during an indoor cycling class. The complaint alleges that Wolf Scheck was injured while in this “spin” class. According to Mr. Scheck, taking a spin class is not the same as just riding a regular street bicycle or stationary bicycle found at any gym. He did not, however, know this before he took the class. [*3] Mr. Scheck contends he was not properly instructed or supervised in how to use the equipment and that this constitutes negligence on the part of the defendants. Mr. Scheck denies he assumed the risk of [**4] injury just by participating in the class. He claims that the danger of this activity was not readily apparent to the casual observer and was increased by the defendants’ actions.

Defendants are Soul Cycle East 83rd Street, LLC (“Soul Cycle”), the company that owns, maintains, operates, etc., the Soul Cycle facility where the accident is claimed to have occurred and Julie Rice (“Rice”), a member of the Soul Cycle LLC. Defendants contend they are entitled to summary judgment dismissing the complaint because Mr. Scheck, by voluntarily participating in Soul Cycle’s spin class assumed the risks inherent to the participation of that recreational activity, thereby relieving them of any duty to prevent the type of accident he complains of. Defendants deny they improperly instructed Mr. Scheck in the use of the equipment. Defendants seek the dismissal of all claims against Ms. Rice on the basis that she was not personally involved in the happening of the accident and there are no factual allegations [*4] against Ms. Rice individually. They maintain she is corporate officer.

Mr. Scheck and Mrs. Scheck1 were each deposed about the accident. Mr. Scheck testified at his EBT that his wife suggested they try a spin class. Mrs. Scheck testified at her EBT that friends had told her how they lost weight “spinning” and she was eager to try it. Neither of the Schecks had any idea what it meant to “spin” or what kind of bicycle was involved. Both of them, however, have regular exercise routines. Mr. Scheck is a two-time marathon runner, he does weight training and plays tennis. Each of the Schecks has a gym membership and has belonged to other gyms in the past.

1 Mrs. Scheck has a derivative claims for loss of consortium/services.

Mrs. Scheck registered the couple for the class online after calling the facility and [**5] asking some questions. She was told on the phone they should come to class 15 minutes early so staff could go through “the whole [regimen] for you and explain everything carefully, because I said I don’t want there to be anything that goes wrong.” When Mr. Scheck arrived for the spin class, his wife was already there. He did not check himself in or do anything other than put his things [*5] in a locker. Mrs. Scheck testified that when she arrived, she learned that Soul Cycle showed only one of them was registered for the class, even though she had payed online for two participants. Apparently that was corrected and both Mr. and Mrs. Scheck were allowed to take the class.

Once inside the classroom, a female employee approached them and asked whether they had done a spin class before. Each of them said no. Mr. Scheck testified this person suggested they sit in the back because it might be easier for them to watch what everyone else was doing. This person told Mr. Scheck to get on the bike while she adjusted the seat for him. She also showed him where the brake was, but not how to use it. Mr. Scheck testified that he did not test the brake out to see how it worked. This process took about two (2) minutes. Noticing that he was not wearing the correct shoes, the female employee told Mr. Scheck to go get bike shoes from the front desk, which he did. These shoes (later described by others who were deposed), have a cleat that locks the rider’s shoes to the pedals, preventing their feet from slipping off.

The female employee who taught the class, later identified as Marybeth Regan, [*6] was someone different than the person who had shown Mr. Scheck the equipment. Ms. Regan was seated at the front of the class on a raised platform. Once the class was under way, some of the cyclists started pedaling very fast. Mr. Scheck, however, [**6] maintained a slow pace, pedaling very slowly. Five (5) or ten (2) minutes into the class, the instructor told the cyclists to stand up for the next exercise. Scheck obliged and as he raised himself with his right leg elevated and his left leg extended, “the machine grabbed my [right] leg and pulled it around…” The pedals kept revolving, almost on their own, all the while with Scheck’s feet strapped in. Scheck heard a “pop” and intense pain. One or two persons help extricate him from the bike and he was taken to the hospital by ambulance. He later discovered he had torn the quadriceps muscle in his right leg.

Madison Warren worked at the 83rd Street facility. She was the front desk associated on the day of the accident. Ms. Warren testified at her EBT that there were only three (3) people working that day, including herself, because it was Christmas Day. Ms. Warren was asked about the procedures for purchasing classes online and what new [*7] spinners usually do when they arrive for a class. According to Ms. Warren, new spinners are asked to sit in back of the class and this is reflected in a sheet showing that the Schecks were moved from one set of bikes to another in the back. She also testified that when purchasing classes online, someone can buy more than one class, or classes for more than one person. It is required, however, that the person making the purchase check a box indicating s/he has seen the waiver before s/he can complete the transaction. A hard copy of the waiver is at the front desk and participants are asked to sign and initial them upon arrival. Ms. Warren did not know whether Mr. Scheck was handed a hard copy of the waiver when he arrived for the spin class. No log of who trains each new person is maintained by the facility, Generally, the instructor teaches to the skill level of the class: if there are many beginners, the class is easier. Regardless, of the overall skill level, instructors usually warn beginners not to get up out [**7] of the saddle. Ms. Warren testified that there is a training manual instructing staff on what to do with beginner/new spinners. Among the instructions is; 1) offer them water, [*8] 2) provide free shoes, and 3) set up the bike for them. It is also required that the resistance knob and brake mechanisms be described and the new rider is instructed to “stay in the saddles if they’re uncomfortable.” Ms. Warren does not recall who assisted Mr. Scheck that day and the two employees who worked there on the day of the accident are no longer with the company.

Ms. Regan, the Soul Ccycle instructor, recalls helping Mrs. Scheck get her bike ready for the class and spending a lot of time with this particular student. She testified she has a “spiel” she gives to beginners, consisting of how to use the resistance, where the emergency brake is and assuring them that there is no need to keep up with anyone else. Although she gave these instructions to Mrs. Scheck, she does not recall telling Mr. Scheck the same thing. Ms. Regan states she always asks beginners to raise their hand so she can spot them and keep an eye on them. She does not recall whether Mr. Scheck raised his hand or, if he did, whether she saw him.

Ms. Warren and Ms. Regan were each separately asked to describe the differences between a spin bike and a stationary bike. Ms. Warren responded that, unlike a regular [*9] bicycle, a spin cycle has a single fixed wheel. Unlike a regular stationary bike, each pedal will result in one revolution of the wheel. Ms. Warren testified that she had never ridden with anyone else who had used a similar bicycle. So long as the front wheel is spinning. The only way to stop the wheel from turning, and the pedals from turning as well, is to use the break. A rider cannot keep both feet still [**8] and let the wheel spin. Just pushing with your feet to attempt to stop the wheel Is futile “unless you have very strong legs.”

Ms. Regan testified that instructs beginners that the bike has a weighted wheel and “you know [how] on a bike you can coast and stop your legs, Not on this. It’s a weighted wheel, so if you stop your legs you’re going to keep going. So you need to either turn the resistance up, or push down on the brake.” standing up in the saddle, it is important that a rider not lean on the handlebars because “you can fall forward…” She also stated that the special shoes Mr. Scheck was wearing bound his feet to the pedals and, if you fall forward, “the legs would keep going…” from the momentum “until you push down on the brake.” Ms. Regan specifically recalled that [*10] did not give these instructions to Mr. Scheck or tell him that “righty tighty” is how resistance is increased. According to Ms, Regan, this is an Instruction she gives on an individual basis, not to the entire class. When asked whether the spinner had specific instructions or warning on it, setting forth these precautions, Ms. Regan replied “no.” She also testified that the weighted wheel bike looks different than a stationary bike.

Applicable Law

On a motion for summary judgment, it is the movant’s burden to set forth evidentiary facts to prove its prima facie case that would entitle it to judgment in its favor, without the need for a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595 [1980]). The party opposing the motion must demonstrate, by admissible evidence, the existence of a factual issue requiring a trial of the action, or tender an acceptable excuse for his/her/its failure so to do (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 501 N.E.2d 572, 508 N.Y.S.2d 923 [1986]).

[**9] Discussion

While the parties basically agree on the law, they dispute its application to the facts at bar. Plaintiff contends that by all appearances, the spin bike he voluntarily agreed to use during his class looks like any other stationary [*11] bike and that when he signed up to take a spin class he assumed It was like riding any other stationary bike he had seen in other gyms. Thus, his argument is he assumed a lower risk than it turned out to actually be. Taking this argument further, plaintiff urges the court to deny defendants’ motion because he did not assume the more heightened risk and, therefore, the doctrine of implied assumption of risk applies. Plaintiff cites extensively to the Court of Appeals opinion in Trupia v. Lake George Central School Dist. (14 NY3d 392, 927 N.E.2d 547, 901 N.Y.S.2d 127 [2010]), Trupia involved a 12 year old student enrolled in a summer school program. The child was injured when, while attempting to slide down a banister, he fell off. In the Court of Appeal’s lengthy opinion Chief Judge Lipmann wrote that:

We do not hold that children may never assume the risks of activities, such as athletics, in which they freely and knowingly engage, either in or out of school–only that the inference of such an assumption as a ground for exculpation may not be made in their case, or for that matter where adults are concerned, except in the context of pursuits both unusually risky and beneficial that the defendant has in some nonculpable [*12] way enabled.

Plaintiff maintains, based on this language, that the doctrine of the assumption of risk is no longer a complete bar to recovery, except in very limited circumstances which are not present in this case. Defendants, on the other hand, urge the court to apply the doctrine of primary assumption of risk. The doctrine of primary assumption of risk is [**10] commonly applied in situations involving sports, both amateur and professional. A key distinction in these doctrines is that CPLR 1411, which addresses issues of comparative negligence, is applicable by its terms to implied assumption of risk (Abergast v. Board of Education, 65 NY2d 161, 480 N.E.2d 365, 490 N.Y.S.2d 751 [1985]) whereas a voluntary participant in a sporting event assumes the known risks normally associated with that sport (see Morgan v. State of New York, 90 N.Y.2d 471, 484, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997]). Thus, defendants argue Mr. Scheck knew or should have known, and therefore consented to the foreseeable consequences of his participation in the spin class (Turcotte v. Fell, 68 N.Y.2d 432, 439, 502 N.E.2d 964, 510 N.Y.S.2d 49 [1986]).

Plaintiff’s interpretation of the Trupia decision is unduly restrictive and ignores other, important language in that decision:

We have recognized that athletic and recreative [*13] activities possess enormous social value, even while they involve significantly heightened risks, and have employed the notion that these risks may be voluntarily assumed to preserve these beneficial pursuits as against the prohibitive liability to which they would otherwise give rise. We have not applied the doctrine outside of this limited context and it is clear that its application must be closely circumscribed if it is not seriously to undermine and displace the principles of comparative causation…

It is clear from the rest of the Trupia opinion that the doctrine of primary assumption of risk was not a possible defense for the defendant-school because the injury producing activity was unsupervised “horseplay” (i.e. school negligence) not an activity normally associated with the heightened risks attendant to sports activities. The Court did not, as plaintiff suggests, sweep away a legion of cases in which courts have [**11] recognized that certain sport activities present significantly heightened risk of injury. This point is evident from the Court of Appeals’ more recent decision in Bukowski v. Clarkson University (19 NY3d 353 [2012]). Bukowski involved a student whose jaw was broken [*14] when he was struck in the face with a baseball. The accident occurred when, for the very first time, he was pitching live in a cage. The court affirmed dismissal of plaintiff’s case because “there was insufficient evidence from which a jury could have concluded that plaintiff faced an unassumed, concealed, or even enhanced risk . . .”

A participant in a recreational activity will not, however, be deemed to have assumed unreasonably increased risks (Morgan v. State, 90 NY2d 471, 685 N.E.2d 202, 662 N.Y.S.2d 421 [1997] [player tripped on torn net]). Furthermore, the defendant has a duty to make the conditions as safe as they appear to be (Gortych v. Brenner, supra, citing Turcotte v. Fell, 68 NY2d at 439). Thus, when measuring the defendant’s duty to a plaintiff, the risks undertaken by the plaintiff also have to be considered (Turcotte v. Fell, supra at 438).

Mr. Scheck agreed to take a spin class that was led by an instructor in a gym like setting. He provided shoes he was unfamiliar with, the seat was adjusted for him and he was given preliminary instructions about how the resistance on the bike worked. He was also shown the brake on the bike. No one explained the relationship between the tension knob, the brake and [*15] how the weighted wheel worked, although the instructor and Ms. Warren each acknowledged the uniqueness of the bikes used at the facility. The entire instructional phase took two minutes, even though the person assisting him knew he was new to the class and had never “spun” before. The Soul Cycle training [**12] manual requires that new spinners be given certain preliminary instructions that apparently were not provided to Mr. Scheck.

A participant in a sporting activity is held to have consented to the risks inherent in it “[i]f the risks of the activity are fully comprehended or perfectly obvious” and that “participants properly may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte v. Fell, supra at 439). There is appellate authority that use of a gym facility is not participation in a sporting event (Corrigan v. Musclemakers Inc., 258 A.D.2d 861, 686 N.Y.S.2d 143 [3rd Dept 1999]; Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998J). Furthermore, where the plaintiff is a neophyte, the level of his or her experience is taken into account (Petretti v. Jefferson Valley Racquet Club, Inc., supra). [*16] Although the doctrine of primary assumption of risk has been applied in a recreational setting where a biker is injured (Gortych v. Brenner, 83 A.D.3d 497, 922 N.Y.S.2d 14 [1 Dept 2011]; Cotty v. Town of Southampton, 64 A.D.3d 251, 880 N.Y.S.2d 656 [2nd Dept 2009]), a primary distinguishing factor is that those cases involved bikers pedaling outdoors and their injuries were due to a defective condition on the road or path they were on. In each of those cases, defendants were denied summary judgment because they failed to make a prima facie showing that the primary assumption of risk doctrine was applicable to the activity in which the plaintiff was engaged at the time of his or her accident.

In this case, defendants have failed to prove, as a matter of law, that plaintiff [**13] assumed the risks inherent in participating in a spin class. Not only were plaintiff’s feet clipped into pedals, the pedals continue to move even though he wanted to stop them from moving. Mr. Scheck stated that once he was propelled over, he could not reach the brake because it was under his body. Plaintiff has raised triable issues of fact whether the activity he agreed to participate in was as safe as it appeared to be and whether he assumed the [*17] risks which he was subjected to (Petretti v. Jefferson Valley Racquet Club, Inc., 246 A.D.2d 583, 668 N.Y.S.2d 221 [2nd Dept 1998]). There are also triable issues of fact whether the defendants properly instructed him in how to use the equipment. Therefore, defendants’ motion to dismiss the complaint against Soul Cycle is denied.

Defendants’ motion to dismiss the claims against Ms. Rice is granted, as plaintiff has presented no argument about why that branch of their motion should be denied. No factual claim is made that she was involved in the accident or that she acted outside her capacity as a member of the company. Therefore, the claims against Ms. Rice are hereby severed and dismissed in their entirety.

Conclusion

Defendants’ motion for summary judgment is granted only to the extent that the claims against Ms. Rice are severed and dismissed. The balance of defendants’ motion for summary judgment is, however, denied not only because Soul Cycle has failed to prove it is entitled to such relief as a matter of law, but also because there are triable issues of fact. The issue of the timeliness of this motion is decided in favor of the defendants and plaintiff’s objection to this motion as untimely is denied.

[**14] [*18] This case is ready to be tried. Plaintiff shall serve a copy of this decision and order on the Mediator who is assigned to this case and also on the Office of Trial Support so the case can be scheduled for trial.

Any relief requested but not specifically addressed is hereby denied. This constitutes the decision and order of the court.

Dated: New York, New York

July 26, 2012

So Ordered:

/s/ Judith J. Gische

Hon. Judith J. Gische, JSC


Strawbridge, Jr. v. Sugar Mountain Resort, Incorporated, et al., 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459

Strawbridge, Jr. v. Sugar Mountain Resort, Incorporated, et al., 152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459

Vincent F. Strawbridge, Jr.; Rebecca S. Strawbridge, Plaintiffs – Appellants, versus Sugar Mountain Resort, Incorporated; B. Dale Stancil, individually; The Sugar Mountain Irrevocable Trust; The B. Dale Stancil Irrevocable Trust, Defendants – Appellees.

No. 04-2250, No. 04-2331

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

152 Fed. Appx. 286; 2005 U.S. App. LEXIS 23459

September 19, 2005, Argued

October 28, 2005, Decided

COUNSEL: ARGUED: R. Hayes Hofler, III, HAYES HOFLER & ASSOCIATES, P.A., Durham, North Carolina, for Appellants/Cross-Appellees.

Wyatt Shorter Stevens, ROBERTS & STEVENS, P.A., Asheville, North Carolina; James Robert Fox, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for Appellees/Cross-Appellants.

ON BRIEF: Daniel B. Hill, HAYES HOFLER & ASSOCIATES, P.A., Durham, North Carolina, for Appellants/Cross-Appellees.

Jennifer I. Oakes, BELL, DAVIS & PITT, P.A., Winston-Salem, North Carolina, for Appellees/Cross-Appellants B. Dale Stancil, The Sugar Mountain Irrevocable Trust, The B. Dale Stancil Irrevocable Trust.

JUDGES: Before WILLIAMS and MICHAEL, Circuit Judges, and James C. DEVER, III, United States District Judge for the Eastern District of North Carolina, sitting by designation.

OPINION

[*287] PER CURIAM:

This is an appeal from a defense verdict [**2] in a case brought by Vincent and Rebecca [*288] Strawbridge against Sugar Mountain Resort, Inc. (SMR), its alleged alter-ego, B. Dale Stancil, and two trusts created by Stancil. (We will refer to the defendants as SMR and Stancil.) Mr. Strawbridge was injured in a skiing accident at the SMR resort. The Strawbridges contend that the district court erred in refusing to allow them additional voir dire or grant a new trial after the defense’s voir dire allegedly revealed that two jurors had failed to respond to an important question posed by the Strawbridges during their voir dire. The Strawbridges also claim that the district court erred in excluding evidence about rocks at the site of Mr. Strawbridge’s accident. Alternatively, the Strawbridges argue that the district court abused its discretion in refusing to enforce a settlement agreement allegedly reached before trial. Finding no error, we affirm.

I.

The Strawbridges allege that on January 22, 1998, Mr. Strawbridge skied over a ledge at SMR’s resort, where he hit a bare spot of dirt, lost control, and fell. Mr. Strawbridge sustained serious physical injuries. In their complaint, filed April 22, 2002, the Strawbridges asserted claims [**3] of negligence and loss of consortium and sought both compensatory and punitive damages. Stancil was named as a defendant on the theory that SMR was his alter ego. Stancil’s presence as a defendant was of moment because SMR carried only $1 million in liability insurance.

SMR and Stancil filed motions for summary judgment on December 1, 2003, and the motions were referred to the magistrate judge. The magistrate judge held a hearing on these motions on February 4, 2004, and two days later, on February 6, filed a memorandum recommending the award of summary judgment to the defendants on all claims. After considering the magistrate judge’s recommendation de novo, the district judge granted summary judgment to SMR on the Strawbridges’ request for punitive damages, but otherwise denied the summary judgment motions. Strawbridge v. Sugar Mountain Resort, 320 F. Supp. 2d 425 (W.D.N.C. 2004).

In the meantime the parties had been involved in settlement negotiations. Prior to the February 4, 2004, summary judgment hearing, the Strawbridges demanded $8 million to settle their claims. Wyatt Stevens, the lawyer for SMR’s insurer, made a $450,000 counteroffer, which the Strawbridges [**4] rejected. Shortly after the February 4 hearing, a lawyer retained directly by SMR, Robert Riddle, asked the Strawbridges to reconsider settlement.

The parties dispute the facts concerning subsequent settlement negotiations. According to the Strawbridges’ lawyer, Hayes Hofler, at approximately 11: 00 a. m. on February 6, 2004, Riddle made an offer to settle for the policy limits of $1 million, and Hofler accepted on behalf of the Strawbridges. The Strawbridges allege that, after accepting, Hofler asked Riddle if the payment could be structured as loss of future income in an effort to avoid a $400,000 lien arising from Mr. Strawbridge’s medical bills. The Strawbridges claim that Riddle responded that he thought that approach would not be a problem and that he would discuss it with Stevens. SMR disputes this account. It claims that Hofler indicated that his clients (the Strawbridges) would accept the policy limits of $1 million on the condition that payment be structured as loss of future income. SMR insists that because it never accepted this condition, the parties never reached a settlement agreement.

In any event, later in the day of February 6, before Stevens responded to Riddle [**5] about payment structuring, Stevens learned that the magistrate judge recommended [*289] dismissal of the case. Shortly thereafter, Stevens contacted Riddle and told him that a $1 million settlement, with the structuring condition, was unacceptable. Around 5:00 p.m. Hofler (on behalf of the Strawbridges) left a telephone message for Stevens in an effort to confirm settlement. Stevens returned Hofler’s call around 5:30 and told him that Riddle did not have authority to settle the case in light of the Strawbridges’ request to structure payment.

In March 2004 the Strawbridges, claiming that a settlement agreement had been reached, filed a motion to enforce it, and the district court held a hearing. After considering the lawyers’ oral representations, their affidavits, and transcripts of some of the telephone calls at issue, the court found that no settlement had been reached because the parties never agreed to all material terms of settlement.

The case proceeded to trial on July 12, 2004. During voir dire the judge asked the jury panel some preliminary questions related to possible bias, including: “Do[any] of you have any prejudices or biases that you know of that would affect your ability [**6] to sit in a case of this kind involving a ski incident, just simply by the reason of the nature of the sport or exercise, whatever you wish to call it?” J.A. 1131. There was no affirmative response. Later, the Strawbridges’ lawyer asked the panel:

Do any of you have anybody, family, close family, relatives, children, who is in any way involved in the ski industry, not necessarily on the slopes themselves, but maybe providing supplies to a resort or making deliveries to a resort or going there to make repairs, that kind of thing, in any way that might be remotely connected with the ski industry?

J.A. 1144. There was no response. The Strawbridges passed on the panel, and the defense side began its questioning. Defense counsel asked whether any of the jurors knew anyone closely connected with the ski industry. Juror Nicholson responded that the president of the company for which he worked was a volunteer ski patroller who might have worked for SMR. Juror McDonald reported that the son of one of her best friends owns a local ski shop. When defense counsel passed on the panel, the Strawbridges requested that voir dire be reopened to allow them to inquire of jurors Nicholson [**7] and McDonald. This request was denied. At the close of evidence the Strawbridges moved to strike jurors Nicholson and McDonald, and this motion was denied. The jury returned a verdict for the defendants on the seventh day of trial, and the district court later denied the Strawbridges’ motion for a new trial that was based on the claim of inadequate voir dire and juror bias.

The Strawbridges appeal the adverse rulings discussed above. SMR cross-appeals the district court’s refusal to give a jury instruction on assumption of risk, and Stancil cross-appeals the court’s denial of his motion for summary judgment on the alterego issue.

II.

A.

The Strawbridges contend that the district court erred in refusing to reopen voir dire. They insist that the failure of the two jurors (Nicholson and McDonald) to provide pertinent information in response to their question about ties to the ski industry prevented them from intelligently exercising their peremptory challenges. We conclude that the district court did not err in refusing to reopen voir dire. [HN1] A trial judge has broad discretion in overseeing the conduct of voir dire, subject to “essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310, [*290] 51 S. Ct. 470, 75 L. Ed. 1054 (1931); [**8] United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir. 1977). Trial judges “must reach conclusions as to [a prospective juror’s] impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions.” Rosales-Lopez v. United States, 451 U.S. 182, 188, 101 S. Ct. 1629, 68 L. Ed. 2d 22 (1981). An “appellate court [cannot] easily second-guess the conclusions of [a trial judge] who heard and observed” a juror’s responses and demeanor during voir dire. Id.

In the present case, the trial judge asked his own preliminary questions on voir dire that were aimed at uncovering any bias or prejudice relating to the sport of skiing. There was no response that raised a red flag. In addition, the judge observed the responses and demeanor of the two jurors in question. The judge declined to reopen voir dire, reasoning that both sides had been given adequate opportunity to question jurors, and all jurors seated assured the judge that they could be fair and impartial. The judge was satisfied that “had there been some bias or prejudice that would affect [the jurors’] verdict . . . it would have been uncovered” during voir dire. [**9] J.A. 1194. The trial judge thus determined that the voir dire was adequate on matters of potential bias. We have ample grounds for deferring to this determination, and we conclude that the judge did not err in refusing to reopen voir dire.

B.

The Strawbridges also contend that they are entitled to a new trial because the two jurors (Nicholson and McDonald) failed to provide honest responses at voir dire. [HN2] A new trial is warranted when (1) a juror failed to answer a material question honestly on voir dire, even if the failure was innocent, and (2) a correct response would have provided a basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984). The question the Strawbridges posed to the panel was:

Do any of you have anybody, family, close family, relatives, children, who is in any way involved in the ski industry, not necessarily on the slopes themselves, but maybe providing supplies to a resort or making deliveries to a resort or going there to make repairs, that kind of thing, in any way that might be remotely connected with the ski industry?

J.A. 1144. The Strawbridges maintain that [**10] because the question contained the word “anybody,” the two jurors were dishonest when they did not respond with information about non-familial ties to the ski industry.

A new trial is not warranted because, as the district judge found, the jurors did not respond dishonestly to the Strawbridges’ question. According to the trial judge, the most logical interpretation of the question is that it was limited to potential jurors’ family ties to the ski industry. This interpretation led the judge to conclude that the jurors’ responses were neither inconsistent nor dishonest. We agree with the judge’s analysis. The Strawbridges’ inability to obtain the information they sought during voir dire is attributable to their failure to state their question clearly, not the jurors’ failure to answer the question honestly.

C.

The Strawbridges further argue that they are entitled to a new trial based on the actual bias of jurors Nicholson and McDonald or the trial court’s error in denying a hearing (including further questioning) on the issue of actual bias. [HN3] A showing that a juror was actually biased, regardless of whether the juror was truthful [*291] or deceitful, can entitle a party to a new trial. [**11] Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002). A trial court has broad discretion to determine whether to order a hearing on a claim of juror bias. See McDonough, 464 U.S. at 556 (Blackmun, J., concurring); Fitzgerald v. Greene, 150 F.3d 357, 363 (4th Cir. 1998).

The Strawbridges have simply made no showing that either Nicholson or McDonald was a biased juror. Moreover, we have reviewed the record and conclude that the trial court did not abuse its discretion in declining to hold a hearing or permit further questioning on the issue of actual bias.

III.

The Strawbridges argue that the trial court erroneously excluded evidence showing that rocks existed on the area of the slope where Mr. Strawbridge fell. Because Mr. Strawbridge testified that he encountered a bare spot of dirt (he did not mention rocks), the court did not err in excluding evidence of rocks on the basis that it was not relevant under Federal Rules of Evidence 401 and 402.

IV.

The Strawbridges argue that the district court abused its discretion in refusing to enforce a settlement [**12] agreement they allegedly reached with SMR. [HN4] A court should enforce a settlement agreement when the partes have agreed on all material terms. Piver v. Pender County Bd. of Educ., 835 F.2d 1076, 1083 (4th Cir. 1987); Boyce v. McMahan, 285 N.C. 730, 208 S.E.2d 692, 695 (N.C. 1974). After holding a hearing on the settlement question and carefully reviewing the facts, the district court found that there was no meeting of the minds. Riddle, SMR’s lawyer, considered the deal to be conditioned upon the Strawbridges’ requirement that payment be structured as loss of future income. The Strawbridges argue that the court should enforce the agreement because payment structure was not a material condition. However, as the district court found, payment structure was material because the defense side feared exposure to liability on Mr. Strawbridge’s medical liens. The district court did not abuse its discretion in refusing to enforce the alleged settlement agreement.

V.

Because our rulings on the voir dire, jury bias, evidentiary, and settlement issues mean that the jury’s finding of no liability on the part of the defendants will stand, we have no reason to [**13] reach the Strawbridges’ argument that the district court erred in granting summary judgment to SMR on the issue of punitive damages. Likewise, because the judgment for the defendants will be affirmed, we will not consider the issues raised in the defendants’ cross-appeals. The judgment is affirmed.

AFFIRMED


Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

Mooring v. Virginia Wesleyan College, et al. 257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

Antonio Mooring, a Minor Who Sues by His Mother and Next Friend, Patricia Mooring, et al. v. Virginia Wesleyan College, et al.

Record No. 981270

SUPREME COURT OF VIRGINIA

257 Va. 509; 514 S.E.2d 619; 1999 Va. LEXIS 69

April 16, 1999, Decided

PRIOR HISTORY: [***1] FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK. Everett A. Martin, Jr., Judge.

COUNSEL: Philip J. Geib for appellants.

Allan S. Reynolds, Sr. (Reynolds, Smith & Winters, on brief), for appellees.

JUDGES: Present: All the Justices. OPINION BY JUSTICE ELIZABETH B. LACY.

OPINION BY: ELIZABETH B. LACY

OPINION

[**620] [*510] OPINION BY JUSTICE ELIZABETH B. LACY

Antonio Mooring, a minor, suffered a traumatic amputation of his right thumb when John Braley closed a door while Mooring had his hand on the portal of the doorway. The incident occurred at the Boys and Girls Club of Hampton Roads (the Club). Mooring, through his next friend, sued Braley and his employer, Virginia Wesleyan College. The trial court dismissed Mooring’s motion for judgment finding that Braley was a volunteer at the Club and entitled to charitable immunity as a result of the Club’s status as a charity. Because we find that Braley was not engaged in the charity’s work at the time of the alleged negligence, we conclude that the trial court erred in dismissing Mooring’s motion for judgment.

[*511] Braley is a professor at Virginia Wesleyan College, teaching in a recreation and leisure studies program. The Club contacted Braley seeking volunteers to work in its programs. In response, Braley established a program with the Club in which [***2] students in Braley’s recreation programming class were required to spend six hours observing the children and volunteering at the Club. The students were required to return to the classroom, design recreation programs for the children they observed, and then implement those programs at the Club. Braley would go to the Club to observe the students conducting the programs and would “help the students out” when they needed it. The students were not graded directly on the basis of their work at the Club, but on the basis of a report they submitted to Braley describing their learning experience.

On the day Mooring was injured, one of Braley’s students was conducting a wellness and body-conditioning program for thirteen to eighteen-year-olds in the Club’s weight room. The student was giving a talk to the participants and Braley was observing her. At the student’s request, Braley went to the door to keep younger children not involved in the student’s program out of the room. While Braley was tending the door, Mooring was injured.

The trial court held an evidentiary hearing on the defendants’ joint motion to dismiss. The parties stipulated that the Club was a charity entitled to [***3] charitable immunity and that Mooring was a beneficiary of the charity. The trial court held that because Braley received no extra compensation from the Club or Virginia Wesleyan College for the services he rendered, and because Braley’s role at the Club was both supervising his students and “helping the Club perform its good work,” he was “a volunteer at the Club” and thus entitled to charitable immunity under Moore v. Warren, 250 Va. 421, 463 S.E.2d 459 (1995). 1

1 In dismissing the motion for judgment against both defendants, the trial court did not specifically address whether Virginia Wesleyan College was entitled to charitable immunity, and this issue is not before us on appeal.

[**621] In Moore, an American Red Cross volunteer was sued for negligence allegedly committed while transporting the injured party to a routine medical visit in a car owned by the Red Cross. Providing transportation for such medical visits was a service of the Red Cross. The driver contended that he was “‘cloaked with the immunity [***4] of the charity'” and that charitable immunity was not limited to the charity itself. Id. at 422, 463 S.E.2d at 459. In resolving this issue of first impression, we stated:

[*512] Like any organization, a charity performs its work only through the actions of its servants and agents. Without a charity’s agents and servants, such as the volunteer here, no service could be provided to beneficiaries. Denying these servants and agents the charity’s immunity for their acts effectively would deny the charity immunity for its acts.

Id. at 423, 463 S.E.2d at 460. Based on this rationale, we included the driver in the immunity of the charity and held that he was immune from liability to the charity’s beneficiaries for negligence while he was “engaged in the charity’s work.” Id. at 425, 463 S.E.2d at 461. Thus, Moore requires [HN1] an individual seeking the cloak of a charity’s immunity to establish that he was an agent or servant of the charity at the time of the alleged negligence and that the alleged negligence for which he seeks immunity occurred while he was actually doing the charity’s work.

Assuming, without deciding, that the “role” Braley had at the Club identified by [***5] the trial court satisfied the requirement that Braley be an agent or servant of the Club, Braley qualifies for protection under the Club’s charitable immunity only if the alleged negligence occurred while he was doing the charity’s work. Mooring contends that at the time of the injury Braley’s “presence did not directly benefit the Club,” and that Braley presented no evidence that “he was doing anything in particular for the Club at the time of the incident.” We agree.

While Braley testified that he “helped out” at the Club whenever he could, the record shows that at the time of his alleged negligence, Braley was at the Club to observe the activities of his student. He was not there to directly perform any of the Club’s work; rather he was carrying out his duties as a professor at Virginia Wesleyan College. He was observing his student and acting as “doorkeeper” at the student’s request to allow his student to properly conduct the wellness class. Under these facts, we conclude that Braley was not entitled to charitable immunity because he was not engaged in the work of the charity at the time of his alleged negligence.

Accordingly, we will reverse the judgment of the trial [***6] court and remand the case for further proceedings.

Reversed and remanded.


Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

Byrne, JR., v. Fords-Clara Barton Boys Baseball League, Inc., 236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

George C. Byrne, JR., A Minor by his Guardian Ad Litem, Francine Byrne, and Francine Byrne, Individually, Plaintiffs-Appellants, v. Fords-Clara Barton Boys Baseball League, Inc., Defendant, and Dennis Bonk, Defendant-Respondent

No. A-4172-88T2

Superior Court of New Jersey, Appellate Division

236 N.J. Super. 185; 564 A.2d 1222; 1989 N.J. Super. LEXIS 357

September 19, 1989, Argued

October 4, 1989, Decided

COUNSEL: James J. Dunn argued the cause for appellants (Levinson, Axelrod, Wheaton & Grayzel, attorneys; Richard J. Levinson, of counsel; Richard J. Levinson and James J. Dunn, on the brief).

Salvatore P. DiFazio argued the cause for respondent (Golden, Rothschild, Spagnola & DiFazio, attorneys).

JUDGES: Pressler, Long and Landau. The opinion of the court was delivered by Pressler, P.J.A.D.

OPINION BY: PRESSLER

OPINION

[*186] [**1223] In evident response to the increasing cost of liability insurance and, in some instances the unavailability of liability insurance, for volunteer athletic coaches, managers and officials of nonprofit sports teams, 1 the Legislature, by L. 1986, c. 13, adopted N.J.S.A. 2A:62A-6, amended by L. 1988, c. 87, which affords those volunteers immunity from tort liability subject to the conditions and exceptions specified therein. This appeal from a summary judgment requires us to construe paragraph (c) of the Act, which conditions the availability of the immunity, to some degree at least, upon the volunteer’s participation in a safety and training program.

1 See, e.g., Legislative Summaries: Sports Law, 10 Seton Hall Legis. J. 332 (1987).

[***2] The facts relevant to the issue before us are not in dispute. In the spring of 1986, plaintiff George C. Byrne, Jr., then 11 years old, was enrolled in the Fords-Clara Barton Baseball League, Inc. The League, while not affiliated with Little League Baseball, Inc., is nevertheless similarly organized, structured and conducted, offering inter-team competitions for similarly aged youngsters. Defendant Dennis Bonk was the coach of the team to which the infant plaintiff was assigned. On May 13, 1986, the day after the effective date of N.J.S.A. 2A:62A-6, Bonk instructed plaintiff to “warm-up” the pitcher. [*187] Although plaintiff was wearing most of the catcher’s special protective gear, he was not, in violation of the League’s rules, wearing a catcher’s mask. During the warm-up, he was struck in the eye by a pitched ball, sustaining the injury which is the gravamen of this complaint. The complaint charged Bonk both with ordinary negligence and with “willful, wanton, reckless and gross” negligence.

Bonk’s motion for summary judgment dismissing the complaint as to him relied on N.J.S.A. 2A:53A-7 (charitable immunity) as well as on N.J.S.A. 2A:62A-6. The trial judge [***3] ruled that N.J.S.A. 2A:53A-7 was inapplicable to the claim against Bonk, as opposed to the League, because of its express exception of “agents or servants” from the immunity it affords. Bonk does not challenge that ruling on this appeal.

With respect to the applicability of N.J.S.A. 2A:62A-6, both plaintiff and this defendant relied on paragraph (c), which prior to its 1988 amendment provided in full as follows:

[HN1] Nothing in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training program established by the league or team with which he is affiliated.

At least for purposes of the summary judgment motion, Bonk conceded that he had never participated in a safety orientation or training program, and the reason he had not was the League’s failure to have established one.

The issue then is whether paragraph (c), as originally adopted, required participation as a condition of immunity only if the league or team had established a safety and training program or if, to the contrary, the [***4] legislative intention was to mandate the establishment of a program as a quid pro quo, as it were, for the immunity, thus granting it only to those volunteers who had actually participated in such a program. [**1224] The trial court judge declined to read the statute as requiring the establishment of a safety and training program for volunteers, concluding therefore that a volunteer who had had no [*188] training in safety because there was no program for him to attend was fully entitled to the statutory immunity. Accordingly, it entered partial summary judgment dismissing the ordinary negligence claims against Bonk. 2 We granted plaintiff’s motion for leave to appeal and now reverse.

2 The trial judge did not rule on the wanton and gross negligence claims, concluding that questions of fact were involved, and defendant did not seek leave to cross-appeal from that determination. It is therefore not before us. See R. 2:5-6(b).

The direct legislative history is both sparse and inconclusive. The bill, A-2398, [***5] which was finally adopted as L. 1986, c. 13, had been first introduced and passed in the Assembly, whose version of paragraph (c) excepted only willful, wanton, or grossly negligent acts. The provision respecting safety and training programs was added by the Senate in its version of the bill, S-1678, which also added paragraphs (d), (e) and (f), all of which further limit and condition the immunity afforded by the Assembly bill. 3 The Statement accompanying the Senate version is not particularly helpful in construing its intention since, in explaining the addition to paragraph (c), it uses exactly the same verbiage as the statutory text.

3 Paragraph (d) makes the immunity inapplicable “to any person causing damage as the result of his negligent operation of a motor vehicle.” Paragraph (e) withholds the immunity from a person “permitting a sport competition or practice to be conducted without supervision.” Paragraph (f) makes clear the Act’s inapplicability to school coaches, managers, and officials.

[***6] We recognize that there is an ambiguity in the manner in which the operative clause of paragraph (c) was drawn. Normally that ambiguity would have required us to determine, without benefit of express legislative explication, whether the general legislative purpose to accord the immunity was meant to prevail over the safety concerns expressed by that paragraph or not. We need not, however, engage in that debate since the Legislature, by its 1988 amendment of paragraph (c), left no doubt that its original intent had been to condition the immunity [*189] upon the volunteer’s actual participation in an appropriate program. 4

4 The trial court apparently did not consider the effect of the 1988 amendment and its legislative history on this interpretation problem of the 1986 Act. Nor did either counsel bring the amendment to the attention of the trial court or this court.

By L. 1988, c. 87, the originally adopted single-section paragraph (c) was replaced by this two-section paragraph (c):

[HN2] (1) Nothing [***7] in this section shall be deemed to grant immunity to any person causing damage by his willful, wanton, or grossly negligent act of commission or omission, nor to any coach, manager, or official who has not participated in a safety orientation and training skills program which program shall include but not be limited to injury prevention and first aid procedures and general coaching concepts.

(2) A coach, manager, or official shall be deemed to have satisfied the requirements of this subsection if the safety orientation and skills training program attended by the person has met the minimum standards established by the Governor’s Council on Physical Fitness and Sports in consultation with the Bureau of Recreation within the Department of Community Affairs, in accordance with rules and regulations adopted pursuant to the “Administrative Procedure Act,” P.L.1968, c. 410 (C. 52:14B-1 et seq.).

The 1988 version does more than define, qualify, and standardize the prescribed safety program. In our view, the text of paragraph (c)(2), in its reference to a volunteer being “deemed to have satisfied the requirements of this subsection” (emphasis added), makes plain that actual program [***8] attendance is the unequivocal prerequisite for entitlement to the immunity. We are further persuaded that this was the legislative intention from the outset.

We base this conclusion first on public policy considerations. We do not believe that in initially prescribing participation in [**1225] a safety program, the Legislature meant to provide a disincentive to the establishment of such programs by charitably organized leagues and teams — and surely a disincentive is implicit in a scheme in which a coach or manager can obtain immunity against ordinary negligence by the simple expedient of the league’s failure to instruct him on matters of safety. Rather, we are convinced that the Legislature, responding to a perceived [*190] insurance crisis, concluded that all of the competing interests involved in the management of and participation in nonprofit athletic organizations could be most reasonably accommodated by encouraging the safety training of volunteer coaches and managers — not discouraging such training — and then protecting trained volunteers from ordinary negligence claims. Thus, the prior training was at the heart of the immunity concept. That being so, we are convinced [***9] that the Legislature never intended that the immunity would attach to an untrained volunteer simply because his league or team chose not to offer appropriate training.

Beyond that, we are also convinced that that construction of the original version of the statute has been expressly confirmed by the Senate Statement accompanying the 1988 amendment. That Statement starts with the observation that the amendment is intended to clarify the manner in which the volunteer coach, manager, or official can satisfy “the training program requirement of the ‘little league liability law,’ P.L.1986, c. 13. . . .” 5 Thus, the Legislature itself thereby described the program referred to in the original Act as mandated rather than optional. The conclusion is, therefore, ineluctable that [HN3] a volunteer coach who has not participated in a prescribed safety program, for whatever reason, is barred from reliance on the statutory immunity.

5 Although the Act by its terms is not limited to the Little League or even to youngsters participating in nonprofit athletic organizations, the Act has been referred to by the Little League nomenclature because it was that context in which it was initially adopted.

[***10] The partial summary judgment dismissing the ordinary negligence counts of the complaint against Dennis Bonk is reversed, and the matter is remanded to the trial court for further proceedings


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